Almost all the time since Slovenia's secession from Yugoslavia, the Slovenian Supreme Court functioned without a president and consequently a system of checks and balances could not be established in the Slovenian government. In the Spring of 1998 the Parliament, after tortuous proceedings, eventually elected someone as President of the Supreme Court. We were following his public appearances with great interest because, prior to his appointment, he used to be very critical of the Slovenian judiciary. Following his appointment, however, all his criticisms petered out. In one of his public appearances the President of the Supreme Court indeed stated that one of the principal conditions for Slovenia's admission to the European Union is a suppression of corruption which is smothering the independent and timely operation of the courts. Yet, in his remarks he carefully eschewed the basic question as to why the Slovenian jurisprudence is not independent and why the decisions handed down by Slovenian courts either enforce the political will of the regime or fail to resolve the questions at bar. This holds particularly for the judgments in cases involving the economy. The reason may be that Slovenian judiciary is not independent and does not operate on the principle of the separation of powers precisely because it is involved in various forms of corruption. Shocking as this proposition may appear it is not far from the truth as is corroborated by the conduct and practice of all three branches of the government: viz., the legislative, executive, and the judiciary. In an interview the President of the Supreme Court stated repeatedly times that the case backlogs in the courts are indeed huge but that, in his opinion, the principal cause for these backlogs is the change of the judicial system or rather the system of values protected by the judiciary. According to him Slovenian judges are professionals well versed in the judicial practice and worthy of public trust in cases involving property rights. The president of the Supreme Court, naturally, could hardly say anything else. If he criticized the judiciary immediately after his elevation to the bench, he would risk a flood of recriminations from the highest offices of the government. The current president, however, is fully acceptable to the government's nomenclatura. If he were not, the Parliament would not elect him because the dominating coalition in the Parliament would not tolerate in the top judicial position a person who would demand that the judiciary become independent and function in accordance with the principle of separation of powers.
This proposition certainly requires a critical examination. Therefore, it is not amiss to look at what has been going on in the Slovenian judiciary or, in other words, what should have been done to eradicate the abuse of judicial power. The abuse and corruption are interlinked: the judiciary abuses the legal norms and covers up the corruption in government. The root cause of the problem is the corruption of the judiciary. Case backlogs are only a front masking the essence of the problem. If the term "corruption of the judiciary" means crookedness and dishonesty then it is not hard to find specific cases indicative of the abuse of judicial norms and the entire judicial system. Instead of administering justice, the Slovenian judiciary abuses the judicial system to protect the depraved goals of the legislative and executive branches.
During the one-party rule the judiciary served to maintain the party in power. Today it is even worse. The judiciary now enforces the evil created by the legislative and executive branches and with its various and sundry legal formalisms and constructs perpetuates a situation which effectively prevents Slovenia ever to establish the rule of law. The recent past reveals conduct and actions confirming that the Slovenian judiciary is corrupt and crooked.
When in the 1990 elections the democratic opposition won, the incumbent Minister of Justice proposed that the President of the Supreme Court be replaced. His proposal was founded in the intention to establish the rule of law. In making this proposal, however, he timidly suggested that the President of the Supreme Court advise the Parliament that she was resigning for reasons of health. A change at the top of the judiciary was indeed urgently necessary. A president steeped in the communist party ideology should at that time have been replaced by a person with genuine moral qualifications and values. Had such a person been appointed at that time, he certainly would not allow the present regime to rob the Slovenian people in the process of the privatization of property nor would he allow the government prosecution of persons who in one way or another criticized the Slovenian transition to privatization.
At that time the communist judiciary was indeed apprehensive and confused but the confusion lasted only for a short time as the President of the Supreme Court played out well the assignment given her by the communist party. She stated that she had no intention of resigning and chastised the democratic leadership for attempting to carry out unjustified purges in the judiciary. According to her, the judiciary had always been functioning independently of the communist party nomenclature, therefore any changes in the judicial appointments would be impermissible. Because of her adamant position no changes in the judiciary could be initiated. At the same time it became apparent that the communists already had the majority in the Parliament. Few were the deputies that would support the view that changes in the judiciary were imperative. They might have had allies who thought likewise but that still was not enough for overcoming the forces of the communist party continuity who closed their ranks and unanimously declared that no changes in the judiciary would be allowed. Thus the first act played out to the advantage of the communist party regime and the judiciary was relieved. It knew that it must continue to execute what it was being told by the legislature and the executive branches because, elections notwithstanding, no change whatever occurred in Slovenia. The principle of unified government stemming from the supremacy of one-party rule was reaffirmed.
Somewhat later the President of the Supreme Court actually stepped down but her resignation resulted in absolutely no change whatever, a continued control of the judiciary has already been secured by the communist party continuity. The judiciary thus willingly relinquished its independence. All the judges who during the time of the one-party regime faithfully served the communist party remained on the bench. One must realize that in the fifties, the period of Kidric 's communism, and in the sixties and seventies, the period of Kardelj's communism, only absolutely reliable cadres who had in one way or another served the communist party by helping carrying out its directive could be appointed as judges. To be sure, some of the communist party judges had indeed left the judicial profession to became attorneys and notaries in private practice but this did not change anything. On the contrary, the communist party network of the judicial system was only reinforced in this way. Elsewhere throughout the world it has long been recognized that special interest groups, if not carefully regulated, can gain control of given segments of the government. To prevent the dominance of special interest groups appropriate laws and regulations have, accordingly, been put in place. It is quite different in Slovenia. Persons who under the former one-party system held important position in the judiciary can today as attorneys, notaries or high officials of the government, exert influence through their friends or relatives. Today we can observe with dismay and resignation that in 1990 no changes could have taken place in the Slovenian judiciary because democratic elections by themselves offer no possibility for making changes in the organization of the government and its judiciary.
Thus, in the Spring of 1991, when the reorganization of the Slovenian judiciary should have been initiated, no substantive changes took nor could have taken place. At the end of 1991 the DEMOS [alliance of democratic parties] fell apart and shortly thereafter the democratic government was voted out of the office. As head of the Ministry of Justice was appointed a member of the LDS [Liberal Democracy of Slovenia -- the party of former communists] and with his appointment the last hope for a needed reform of the judiciary vanished. It is therefore not surprising that the reorganization of the judiciary became nothing more than a farce. The signs on the courthouses were changed, instead of Kardelj's basic courts we got Drnovsek's and Kozinc's district and circuit courts. The judicial council and the entire judicial community marshaled all their efforts to secure tenure and high salaries for the judges. They maintained that only permanent tenure and high salaries can ensure the independence of the courts. This is without question corruption as the judicial community was intimating to the executive and legislative branches that with unlimited tenure and high salaries it would be able to continue serving them faithfully as before. The judicial community was thus abusing the constitutional principle of separation of powers and independent judiciary in persuading the Parliament to enact the law on judicial tenure not tied to a fixed term by holding forth an offer of future subservience.
In acting on the proposed bill on the judiciary, individual deputies in the parliament went through the motions of demanding that the law contain a provision requiring that permanent tenure may only be granted to candidates who have demonstrated that they are worthy of public trust. The representatives of the communist continuity and their supporters, however, raised a hue and cry maintaining that a provision of this kind would allow abridgment of human rights as they would be even more undemocratic than the requirement for moral and political suitability required in the former communist system. Not only did the judicial community abuse the constitutional principle prohibiting the infringement of human rights, it also had the temerity to compare the proposal with the practices of the former totalitarian system. Such comparison surely is a cynicism of a special kind as communist party functionaries impute to the democrats what they themselves had in fact been doing. In 1992 it became clear that the judicial community would not allow that individuals who might introduce to the judicial system such values as honesty and fairness be added to their ranks.
The requirement that every nominee to a permanent judicial appointment demonstrate by his track record that he is worthy of public trust and that he respects moral and legal values thus became a truly grotesque charade. Moreover, the judicial community demanded, that law school graduates with no prior experience in the judicial system, that is, those who were not judges or similar officials in the former communist system, should not qualify for appointment to the bench. The circle was closed and as a well oiled machine the Parliament readily delivered unlimited tenure to all those nominees who at the time of one-party rule served the regime as judges. The fact that candidates who had in the former system served as judges were nominated as district and circuit judges was not all that important, of much greater importance were the appointments at the superior courts and the Supreme Court. At the latter, the highest appellate court which establishes the system of legally protected values, no changes whatever were made. The justices of the Supreme Court should have been lawyers who had in the course of their careers demonstrated that they are worthy of public trust at the time when the social order and the entire government organization had to undergo a change. Instead, just the opposite happened. At the superior courts and, especially, at the Supreme Court remained the very same judges who served under the one-party system. A few older communist party operatives may have left only to be replaced by new, younger communists, judges corrupted by the totalitarian outlook and subservience to the regime. Therefore the tenor of judgments handed down by Slovenian courts, be it in the domain of penal, civil, or business law should come as no surprise. The courts, as a rule, invariably uphold the values of the regime and protect individuals who because they acquired their property through stealing, fraud, and corruption would be placed behind bars in any country respecting the rule of law. The author has never seen a case in the Slovenian jurisprudence where a court rendered a judgment supported by the principles of conscience, honesty and justice. These principles represent the foundation on which the judiciary can uphold justice in every country where the rule of law exists and in this way overcome any legal norms that are not based on justice. In Slovenia, however, the common excuse offered is that the principles of conscience, honesty and justice are too abstract, therefore the judge should strictly construct the statutes even in cases where such statutes might promote evil, dishonesty and immorality.
Thus we arrive to the third act where it is shown by examples of several court cases that the Slovenian judiciary shares the responsibility for the country's schizoid state of fifty years duration. The Slovenian judiciary simply is not an independent branch of the government but rather an entity subservient to the legislative and executive branches of the current political parties or, in other words, to the political parties in power. Let us begin with the penal branch of the judiciary. This branch is expected to protect human life and human rights as well as property and all forms of property rights. Because in the former regime society's property existed in Slovenia, the judiciary should, in the transition era, give more attention to preventing the abuses and excesses such as looting and embezzlement of society's property. Justices in the penal proceedings should, either through the judicial council or through their professional organizations, propose definitions of typical criminal acts appearing as threats to a society in transition. The judicial community, however, has done nothing in this area, it has knowingly and willfully remained aloof from all the serious problems of our time. It is not surprising that at present the penal proceedings are concerned mainly with verbal delicta. The judicial establishment all too often brings to bear all of its resources to determine whether a journalist or some other individual has committed an offense by disclosing that a person had been an official of UDBA [=Administration of state security -- the communist political police] or that he had, at the time of wild privatization, embezzled or stolen society's property. It would be quite interesting to analyze these criminal cases. As a rule the courts hold against the journalist or the politicians who are not supported by the regime. Consider only the cases involving the author. Judgments were rendered against him for statements written down at his press conferences by a regime's journalist. On the other hand, when the author took action against a regime's journalist for offensive accusations he made about him, the appellate court held that it was permissible to criticize a public official in any way, including by offensive and mendacious criticism, provided that the person who published the libelous statement had reason to believe that it might be true. Decisions of this kind can only be rendered by corrupt and crooked courts. How widespread is the corruption of Slovenian judges is apparent from the cases where the courts protected the "good name" of politicians-- the regime's politicians, to be sure. In suits brought by a regime's politician the courts invariably hold that the honor and good name of the politician is a value worthy of special protection. It may appear at first sight that all this litigation is trivial as suits over who said what of whom are a fruitless endeavor but it is not so. It is frightening to see a judiciary subservient to the regime to such an extent that it concerns itself at the time of transition primarily with offenses against a person's honor and good name instead of directing its legal talent, assuming that it has any, against the plundering of national resources which would be more beneficial for the Slovenian people. With all economic resources controlled by only one political party there can be no rule of law. The corruption and crookedness of the judiciary reaches even further in which it is abetted by the rules of court procedure. In Slovenia court cases are decided so as it suits the regime. If it should happen by chance that one of the regime's leaders or hangers-on should face a criminal conviction, the matter is maneuvered so that it becomes moot because of the statute of limitation. However, when it is necessary to destroy an opponent of the regime the courts pull out all the stops to do the person in. In the author's case alone, when a regime's politician was suing him for his critical remarks, the judge issued at least five warrants for summary appearance and sent the police to his home to produce him in court. [In Slovenia the court may order that the defendant in a civil case be produced in court to be questioned or give evidence, a process which in the United States, for example, is accomplished by depositions.] This was an abuse of power committed not only against the defendant but also against his family.
Let us go on to the civil and business branches of the judiciary. A penal conviction because of critical remarks a defendant dared make does not conclude the matter by a long shot as the aggrieved party is entitled to seek monetary compensation in a civil proceedings for the mental anguish sustained. The former Yugoslav law, which is still in use as Slovenia, unfortunately never got around to adopt its own, provides that the court may make a monetary award to the plaintiff if he was subjected to physical pain and mental anguish, or suffered a diminished capacity, loss of good name, insults to his reputation and deprivation of personal liberty. In the former communist system the courts were as a rule not making awards for mental anguish suffered because of insults against one's reputation, while the awards for physical pain and diminished capacity were rather meager. Such was the dictate of the system of values promoted at that time. Now, however, everything has been turned upside down because the Slovenian courts are simply abusing the established legal norm. It is frightening that the Slovenian courts are on one hand awarding millions in damages for mental anguish and offenses against a person's reputation while on the other hand they remain totally indifferent to the mental anguish and all human misery endured by a host of Slovenian citizens who were displaced from their jobs by uncontrolled privatization. Judges will, of course, always find a solution in their legal formalism. Should some citizen sue the government for mental anguish and suffering caused by his loss of employment the courts would readily dismiss the complaint on grounds that the law does not provide for a worker who loses his job to be compensated. We can observe, again, that the judiciary is not responsive to the real problems of its time. The provisions of the law requiring require the judiciary to evaluate critically the social problems sound as a mockery. The judiciary simply never acquired any real values which it could protect. In all the years that elapsed since Slovenia became independent there was not a single instance where a judge would go on the record in support of monetary compensation for the unemployed. Yet, even if Slovenia's laws do not provide for compensation to the unemployed, the courts, if they applied the principle of justice, would have to award compensation because the right to work was guaranteed by the constitution under the former regime. Although the right to employment is no longer guaranteed under Slovenia's new judicial system, monetary compensation for the loss of employment could still properly be awarded in accordance with the principle of fairness and justice. The courts should act as a check on the brutality of the legislative branch of the government. However, because of the judiciary's is subservience to the legislative and executive branches there is no possibility for upholding the society's humanitarian values.
With respect to the process of restitution of property confiscated by the communist regime it can be readily observed that the policy of the courts on this issue is identical to that of the parties of the continuity of the former communist regime. In a country where the courts are controlled by the regime it cannot be anything else. The Supreme Court made possible restitution of confiscated property to expropriated wealthy persons or their heirs of German or Italian extraction prior to the enactment of the Restitution Act simply by applying the law on carrying out the penal sanctions. [Restitution of confiscated property followed the reversal of convictions on unsubstantiated political charges.] The author has a vivid recollection of a case he conducted as president of Ljubljana's Executive Council where he contended that there was no basis in law for restitution of a property confiscated under the law of transfer of enemy property to the state because the City of Ljubljana had bought and paid for offices located in the confiscated building. In my opinion the heirs of foreign big businessmen were entitled only to monetary compensation for the loss of property because the city had, by paying the purchasing price, acquired legal title to the contested property. The Court, however, simply rescinded the city's property right and held that the property had to be returned because the penal conviction against the foreign big businessman was reversed and the state was obligated to return the actual property to the heirs of those owners from whom it was taken. A decision of this kind is frightening especially when compared with one of the more recent Supreme Court decisions which in an administrative litigation decided that a citizen of Slovenia was not entitled to the restitution for land he bought during the World War II because the Restitution Act of 1991 does not provide for the restitution of property to the buyer but only to the seller whose property was confiscated under the law of transfer of enemy property to the state. The Supreme Court bolstered its decision by declaring that in the case at bar it was wholly irrelevant whether the buyer has in fact purchased the property and had recorded the purchase in his name in the property records. One would not expect such abuse of justice -- in the former case the Court, in absence of any denationalization (restitution) proceedings returned the property to the heirs of a German owner, while in the latter case, involving a Slovenian citizen, it decided that the claimant was not entitled to restitution because the purchase of the property and the recording took place during World War II for which period all such transactions were deemed null and void. By this decision the Court had faithfully followed the revolutionary justice of the former communist system and had again applied the provision of the law which in 1945 provided for the nullity of contracts, all this to the detriment of a Slovenian citizen. With this the Supreme Court, in its otiose subservience to the regime which obstructs in every way possible the implementation of the Restitution Act, violated the right to a fair trial and to private property ownership. Although the Constitutional Court subsequently reversed that Supreme Court decision, the reversal does not in any way mitigate the conduct of the justices of the Supreme Court who had knowingly and deliberately violated the Constitution and the law.
Slovenian business jurisprudence is replete with cases showing that the judiciary abuses the constitutional duty of government offices to promote the development of the national economy. Although the legislative and executive branches may be talking about the need to secure proper conditions and financial support for the development of the economic entities, they take absolutely no effective action to that effect. At the same time the judiciary with its decisions in bankruptcy proceedings and compulsory settlements abets and supports the embezzlement of government property. As the principles of conscientious and honest conduct and prohibition of abuse of prerogatives are alien to Slovenian judges, they, in bankruptcy or settlement proceedings, never raise the question as to why and how were some marginal and illegal operators able to destroy the greater part of a former government enterprises. In absence of legislation addressing these problems, the judges could prevent the neglect of the legislature by referring the questionable laws to the Constitutional Court. However, the author knows of no instance where a judge requested a constitutional review of any law. The judiciary, by default, also allows the perpetration of financial irresponsibility. Creditors seeking recovery of payments due to them under contracts usually walk away from the Court empty handed. Business disputes are generally dragged through the courts for years and if, after all the legal wrangling, a decision is eventually rendered it can seldom be enforced.
The Constitution of the Republic of Slovenia states that everyone is entitled to an equal protection of his rights in proceedings before the courts and that everyone is entitled to a determination of his rights, obligations and charges against him heard by an impartial tribunal. Unfortunately, these provisions are merely dead letters on paper. As shown above, in Slovenia the rights of the citizens are not protected by the courts. It is a cause of concern that the Slovenian judiciary is not independent because it is deeply involved in corruption. Realizing this, one must take action. The action that this author took was resigning from the legal profession to become a bartender. No claim is made that his was an act of courage. He simply had no alternative to act differently at that point in time. The author hopes that time will come when the judicial appointments will be made from the ranks of lawyers who cherish the values of the rule of law. Should such time never come, the Slovenian state may not endure.
Ljubljana, August 1998.