Constitutional Democracy in Slovenia: Between Ideals and Post-Socialist Mentality

Slovenia celebrates today on 23 December 2021 the 30th anniversary of its constitution. It the past months it has been for a second time presiding the Council of the European Union. Slovenia has been in comparative literature lauded as a case textbook example of successful transition from a totalitarian system to a democracy. However, as Matej Avbelj, Gorazd Justinek and myself have argued in our recent book that the influence of European institutions on the democracy and rule of law in Slovenia has been in the last three decades at best partial and piecemeal (Hart Publishing, 2020). Our examination of the state of affairs in the past three decades illustrates that there is a stark contrast between the idealistic normative standards of the rule of law and constitutional democracy and systematic and general failures to implement them in the daily lives of the state institutions and public administration. This post briefly analyses the current state-of-the-art of the Slovenian constitutional democracy. It argues that it is an example of the discrepancies between the high-flying ideals of liberal democracy and post-socialist daily reality.

The rule of law challenges have not been novel in the Slovenian constitutional democracy. They have been omnipresent in the Slovenian environment since the fall of the Communist regime and subsequent creation of the Slovenian state. All three branches of the Slovenian government have in the past three decades struggled to apply the rule of law standards in practice. Such challenges have not been surprising as the Slovenian institutions were versed in the past to work on the basis of the rule by law whereby legal principles and rules have only been used to justify arbitrary decisions of totalitarian regime. As a result, State institutions have been in all three branches in the past decades traditionally weak and subject to both internal and external pressures.

As a rule, the trust of the general public in the functioning of all three branches has been traditionally low. For instance, the Slovenian judiciary often ranks among the EU Member States with the lowest percentage of trust of the general public in the independence in the functioning of courts (EU Justice Scoreboard 2020, p. 41, Fig. 44). The Slovenian judiciary has in the three decades encountered several challenges of how to ensure the effective and equal exercise of the right to fair trial. It has been characterised by the remnants of post-socialist authoritarian mentality, formalisms and conflicts of interests. It has still not opened fully to the public in order to achieve greater legitimacy and credibility of its judicial decision-making. On the contrary, the majority of judgements of ordinary courts (particularly of 1st and 2nd instances) are still not published. Its highest self-governance body, the Judicial Council, still holds sessions behind closed doors. The Slovenian judiciary since its creation in the early 1990 faced systematic challenges concerning ensuring its external and internal independence. Whistle-blowers among judges have not been effectively protected. However, the judicial governance has not only turned a blind eye to their concerns, but also engineered disciplinary proceedings against whistle-blowers. Moreover, in several high-profile cases the judiciary lent support to strong political and economic interest groups, eroding the general trust in Slovenian courts even further.

On the other hand, the legislative and executive branches have in the past shown patterns of the authoritarian legacy. The system of check and balances among different branches has been hardly operational. Out of almost 30 years of formally democratic governance in Slovenia, the post-transitional left has governed the state institution and public administration for two third of time. The position of legislative branch has been particularly weak given the legal nature of the Slovenian parliamentary electoral system that centres on political parties, not on individual candidates. As a result, such an electoral system has diminished almost any accountability link between the voters and political parties. It is a usual practice that new political parties in Slovenia establish two or three month before election, which thereafter end up winning or coming second. In most cases, they disappear after one or at best two mandates of existence in the National Assembly. The democratic legitimacy of the elections to the National Assembly was particularly affected in 2014, when the Slovenian judiciary in the Patria case sentenced the then opposition politician (and the current prime minister) to prison sentence only few weeks before the election date (the Constitutional Court later quashed the judgment and found violation of the right to impartial tribunal).

The European Institutions such as the Council of Europe and the European Union have in the first decades positively contributed to the normative reform of the rule of law and constitutions. Nonetheless, the European institutions have quickly reached the limits of their impact. They have not been able nor willing to propel the reform of legal culture, mentality and business-as-usual in the institutions of the Slovenian state. Their functioning has been characterised in the past by the presence of the post-socialist mentality, the actual and perceived conflicts of interests, nepotism, clientelism and the rise of “nouveau riche” elites and tycoons praying off the Slovenian economy. Most of Slovenian economy, as Gorazd Justinek analyses in our book, has been negatively affected due to the policies of gradualism, national interest and the triumph of the state-owned corporations. Supervisory institutions such the Commission for the Prevention of Corruption and the Court of Auditors have been in the past decades weak and have often struggled themselves with their own challenges on how to ensure prohibition of the actual or perceived conflict of interests in their own institutions. As a rule, they have not been able to provide effective supervision of the rule of law in the main three branches.

The Slovenian media landscape has been a textbook example of the post-Socialist media landscape in Central and Eastern Europe. For instance, several tycoons (that are primarily active in other industry sectors) have in the past decades entered in the ownership structures of the mainstream Slovenian media in order to advance their private vested interests and to influence public opinion. The National Public Broadcaster has been since the 1990s battleground of the different ideological and political forces as its Members of the Programme and Supervisory Boards are directly elected in the National Assembly or nominated by the respective governments. Several civil society groups and commentators have described its news programme as creating parallel realty and often succumbing to partisan interests. In the last decade, several business owners, interests’ groups and political parties have aimed to establish their own online portals mostly to advance their own particular partisan and vested interests. All in all, free and professional media standards have in the past thirty years often succumbed to partisan, ideological and ownership’ interests.

The change in government in March 2020 has triggered an energetic protests and criticism from parts of civil society and institutional elites, which has recently also attracted some international attention. Their criticism is valid particularly concerning the often questionable nature and content of tweets by the incumbent prime minister and its diplomatic relationship with Mr Orban and should be examined by the European Commission in its annual report on the rule of law. Nonetheless, no description and subsequent analysis and debates on the current state-of-the-affairs of the rule of law, constitutional democracy and media landscape in Slovenia will not be complete without diving deep in the sociology of the Slovenian institutions and public administration, universities, trade union, civil society media, etc. Moreover, a full-fledged report on the rule of law in Slovenia will have to contextually examine the ownership structures of its economy and media and will have in particularly study the impact of the institutional and informal networks of Slovenian elites on the current deplorable state of the Slovenian constitutional democracy. As Alenka Kuhelj and Bojan Bugarič submitted in their article on “A Day in the Life of Post-Communist Europe” that “the persistence of certain political practices, personalised structures, which, despite various efforts to introduce rule-bound bureaucracy and formal systems of authority, remain integral to Central and Eastern European political life” (p.184). As a result, the Slovenian constitutional democracy has been since several years located somewhere between ideals and post-socialist mentality. To be sure, Slovenia is no “poster-child” of the rule of law in Central and Eastern Europe. The reform of its constitutional democracy hinges on willingness of the Slovenian people to take ownership of liberal constitutional values and principles such as the rule of law, strong institutions, including independent and impartial judiciary and free and professional media.

New book: Vom Kommunismus zur Demokratie

Lovro Šturm, Jernej Letnar Černič, Tomaž Zalaznik, Vom Kommunismus zur Demokratie; Inštitut Nove revije, zavod za humanistiko; Inštitut Karantanija, Ljubljana, 2020.

Description (in German):

“Die kommunistischen totalitären Regime, die sich im Laufe des 20. Jahrhunderts in Europa etabliert haben und zerfallen sind, hinterließen Millionen von Opfern. Was noch aussteht, ist eine gründliche historisch-kritische Auseinandersetzung mit diesen Regimen und den verübten Verbrechen, denen eine massive Nichteinhaltung von Menschenrechten und Grundfreiheiten vorausgegangen ist. Der Kommunismus als Ideologie ist immer noch präsent. Er perpetuiert sich in den linksradikalen politischen Parteien in ganz Europa. Sein Charakteristikum ist eine erhebliche revolutionäre Aggressivität, die als eine von Arten der Machtübernahme jegliche demokratische Form der politischen Tätigkeit ignoriert. Diese Konstellation zeigt sich sowohl in den Beziehungen innerhalb der EU als auch im Verhältnis der EU zu den in der Welt nach wie vor existierenden totalitären Regimen, die auf dieser Ideologie fußen und daran festhalten.

Die Beiträge im Werk Vom Kommunismus zur Demokratie sind Fallbeispiele, die am Paradigma Sloweniens Folgendes erörtern:

Wie die Kommunistische Partei Jugoslawiens / Sloweniens entstanden ist und wie sie sich Ende der 1980er Jahre als eine scheinbar sozialdemokratische Partei präsentiert hat.
Wie der Gerichtsprozess gegen einen revolutionären, hohen politischen Funktionär der Kommunistischen Partei Jugoslawiens und Sloweniens, erst 2005 wegen der nach dem II. Weltkrieg verübten Massenmorden angestrengt, zu keiner Verurteilung des Täters geführt hatte.
Wie einer 30 Jahre andauernden Gegenüberstellung von demokratischen Prinzipien in der Republik Slowenien einerseits und von Resten des totalitären Regimes in der Politik des Landes mit dessen Systemen und Subsystemen andererseits beizukommen wäre.”

New article on Judicial Ideology of the Slovenian Constitutional Court

My research article on »Authoritarian Dimension of Judicial Ideology of the Slovenian Constitutional Court« has now been published in Croatian and Comparative Public Administration, Vol. 20 No. 4 (2020), 733-760. Here is the abstract:

After the democratization and independence of Slovenia, the Constitutional Court has generated the paradigm reform in the Slovenian constitutional system by protecting individual rights against the heritage of the former system. The constitutional judges are not blank slates, but individuals embedded in their private and professional environments. In the past three decades, the Court has delivered several seminal decisions concerning the protection of the rule of law, human rights, and constitutional democracy. What motivates constitutional judges to protect individual rights in some cases and show preference for the preservation of authority and stability of the existing legal system in others? The article is based on the empirical research measuring the presence of judicial ideology at the Constitutional Court of Slovenia in three mandates (1993–1997, 2002–2006, 2011–2016). The methodological and theoretical model aims to measure economic, social, and authoritarian dimensions of judicial ideology (three-fold judicial ideology model). The research group has analysed the decisions and separate opinions of the Constitutional Court from selected periods based on hypotheses provided by the model. This article intends to present and analyse the research results concerning the authoritarian dimension of judicial ideology. More specifically, it examines the level of authoritarianism of the Slovenian Constitutional Court in its judicial decision-making during the three mentioned mandates. Through the obtained empirical results, the paper seeks to strengthen fair, impartial, and independent functioning of the Slovenian Constitutional Court and its respective judges.

Matej Avbelj, Jernej Letnar Černič, The Impact of European Institutions on the Rule of Law and Democracy: Slovenia and Beyond. Oxford, Hart (Bloomsbury), 2020

Matej Avbelj, Jernej Letnar Černič, The Impact of European Institutions on the Rule of Law and Democracy: Slovenia and Beyond. Oxford, Hart (Bloomsbury), 2020.

9781509915057

Since 2010 the European Union has been plagued by crises of democracy and the rule of law, which have been spreading from Central and Eastern Europe (CEE), catching many by surprise. This book argues that the professed success of the 2004 big bang enlargement mirrored the Potemkin villages erected in the new Member States on their accession to Europe. Slovenia is a prime example. Since its independence and throughout the accession process, Slovenia has been portrayed as the poster child of the ‘New Europe’. This book claims that the widely shared narrative of the Slovenian EU dream is a myth. In many ways, Slovenia has fared even worse than its contemporary, constitutionally-backsliding, CEE counterparts. The book’s discussion of the depth and breadth of the democratic crises in Slovenia should contribute to a critical intellectual awakening and better comprehension of the real causes of the present crises across the other CEE Member States, which threaten the viability of the EU and Council of Europe projects. It is only on the basis of this improved understanding that the crises can be appropriately addressed at national, transnational and supranational levels.

Nova številka slovenske revije za človekove pravice – Dignitas, št. 83-84

Izšla je nova številka znanstvene revije Dignitas – edine slovenske revije za človekove pravice (št. 83-84)! Tokratna številka je posvečena deseti obletnici uveljavitve Listine Evropske unije o temeljnih pravicah. Zahvaljujem se gostujoči urednici Katarini Vatovec za skrbno uredniško delo in vsem avtorjem za prispevke.ovitek hrbet 17 mm-page-001-4-2

25-letnica uveljavitve Evropske konvencije o varstvu človekovih pravic v Sloveniji

14. novembra 2019, je v Ljubljani potekal Akademski forum Nove univerze ob 25-letnici uveljavitve Evropske konvencije o varstvu človekovih pravic v Sloveniji.

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Uvodni nagovor je imel sodnik v imenu Slovenije na Evropskem sodišču za človekove pravice izr. prof. dr. Marko Bošnjak, pogovor pa je vodil izr. prof. dr. Jernej Letnar Černič. V pogovoru so sodelovali tudi: prof. dr. Rajko Knez, predsednik Ustavnega sodišča RS; mag. Damijan Florjančič, predsednik Vrhovnega sodišča RS, izr. prof. dr. Janez Čebulj, nekdanji predsednik Ustavnega sodišča RS; prof. dr. Peter Jambrek, prvi predsednik Ustavnega sodišča RS. Povzetek Akademskega foruma bo objavljen v prihodnji številki znanstvene revije Dignitas (št. 83-84) in v eni od prihodnjih številk Pravne prakse. Dogodek je sofinancirala ARRS.

Nova številka slovenske revije za človekove pravice – Dignitas, št. 81-82

Izšla je nova številka revije Dignitas – slovenske revije za človekove pravice (št. 81-82, 2018), ki vključuje spodnje prispevke.ovitek hrbet 17 mm-page-001-3

Reform of Democracy 
and the Rule of Law in Slovenia

The rule of law is the fundamental basis for the functioning of any constitutional democracy in a free and democratic state. It is a precondition for a person’s self-fulfilment and a functioning economy. A strategic constitutional and actual priority for Slovenia is to lay the foundations for the functioning of a real rule of law, which need to be internalised by the people, both in the public and the private sector. The rule of law is a precondition for the functioning of all state systems, as well as its social subsystems, particularly the economy. Slovenia started its path towards the rule of law only after declaring independence in 1991. In adopting a new Constitution—despite legal continuity from the previous state—Slovenia accepted explicitly and with high political consensus the values of the rule of law and the protection of human rights, setting them at the top of its normative, constitutional and legal framework. Slovenia thereby also met the criteria for joining the Council of Europe, which confirmed in 1994 the adequacy of its normative rule-of-law framework, both formally and in terms of content. Precisely a modern normative framework, modelled on Western European states with an established tradition of the rule of law, is the greatest strength and best guarantee of lawfulness in Slovenia. However, problems arise when it comes to putting it into practice. A fundamental issue of the rule of law in Slovenia is the huge gap between the normative framework and its realisation by those entrusted with this task.

The state of constitutional democracy and the rule of law in Slovenia is alarming. Confirming this proposition requires no in-depth comparative law analysis. It suffices to take a brief look at the jurisprudence of the European Court of Human Rights, which demonstrates the degree of Slovenia’s compliance with the minimum standards of the rule of law as set down in the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Court’s jurisprudence shows that in Slovenia the rule of law is not actually working in all the areas essential for individuals. This is demonstrated by high-profile rulings against Slovenia in areas such as the prohibition of torture and police brutality, medical malpractice and its investigation, as well as ensuring the right to family life, in particular through appropriate engagement of social work centres. Moreover, according to the Court, anyone seeking legal protection in Slovenian courts risks a violation of his or her right to a trial within a reasonable time. As the Court has pointed out, this right is systemically violated due to inadequate legislation and inefficiency in the administration of justice. Moreover, most judicial proceedings in Slovenia are carried out selectively, meaning that people with ties to formal or informal centres of power often get a free pass. This undermines the very foundation of the formal rule of law, which builds on equality before the law. A state that fails to meet even the formal conditions of the rule of law—and equality before the law certainly is one of them—of course cannot be said to be governed by the rule of law.

This scientific publication was prepared as part of the research project entitled The Reform of Democracy and the Rule of Law in Slovenia (Slovenian Research Agency, project no. J5-7359). The general aim of this research project was to examine the state of democracy and the rule of law in Slovenia, and attempt to design reform proposals. The research analysed the influence of the Council of Europe (CoE) through the European Court of Human Rights and the European Union (EU) through the Court of Justice of the EU on the conditions for the functioning of democracy and the rule of law in Slovenia. The analysis focused on how effectively the judicial, the legislative and the executive branch of power in Slovenia protect democracy and the rule of law. Moreover, the project examined how effectively the Slovenian law protects human rights and fundamental freedoms. Here, the question was why flaws in the functioning of democracy and the rule of law in Slovenia persist despite the influence of the Council of Europe and the EU. This way, we tried to determine the inconsistencies and shortcomings in the Slovenian public sphere, and prepare proposals for correcting these flaws. The overarching aim of the research was therefore to find ways to reform the democracy and the rule of law in Slovenia.

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In terms of content, the project was divided into four separate parts. In the first part, we studied the historical reasons, especially the socialist legacy, and analysed their role in the current state of democracy and the rule of law in Slovenia. The second part focused on the endogenous factors that have been affecting—positively or negatively—democracy and the rule of law in Slovenia since 1991. This part also included an important comparative dimension, as we analysed Slovenia’s experience with the functioning of democracy and rule of law with other transition countries, as well as states that can be regarded as well-functioning societies. The last two parts were dedicated to exogenous factors. The third looked into Slovenia’s democratisation and progress in the rule of law under the influence of the European Convention on Human Rights (ECHR), while the fourth and final part analysed in the same manner the influence of the EU’s acquis communautaire.

These recommendations are the latest addition to the numerous scientific publications prepared and published as part of the project over the last three years. Since this project falls into the realm of legal theory research, which results in written academic discussion that rarely brings immediate effects in practice, the project at first had a more indirect positive influence on the society than a direct impact. Academic writing creates positive effects in the society in the long term by expanding and spreading knowledge. Initially this knowledge is limited to specialised and closed epistemic groups, but gradually it spreads to students, and through them to the wider public space. This is why the research team has decided to expand the scientific articles and monographs, which help inform experts and the public on the possibilities of reforming democracy and the rule of law, with this specialised publication, offering concrete recommendations for stakeholders in this reform area, as well as NGOs advocating the victims of alleged violations of all kinds of human rights that are assumed to have resulted from the state’s shortcomings in this respect.