Slovenia: a de facto failed constitutional democracy

von Matej Avbelj

The political and legal crisis in Slovenia has escalated further. The opposition leader, the former Prime Minister Janez Janša, was taken to prison on June 20 amid public protests and harsh critique waged by the most prominent Slovenian constitutional lawyers. The crisis is due to have huge impact on the fairness of the election, scheduled for July 13. However, this seems to be of no concern to the highest Slovenian courts.

On Monday June 16 the Constitutional Court rejected the petitioner’s constitutional complaint as premature, for failing to fulfill extraordinary legal remedies at the Supreme Court. The Court refused to apply Art 51 of the Constitutional Court Act, which exceptionally allows for a constitutional complaint prior to the exhaustion of all legal remedies if the alleged violation of human rights is manifest and if the petitioner is to suffer unrepairable consequences.

The Court ruled 6:3 that while the alleged violations of the petitioner’s rights were serious, they were not manifest, within the meaning of the Court’s judicial test, so to allow a direct review. This was opposed by three judges, writing for the minority, who have produced extremely critical dissenting opinions, unprecedented in the history of the Court, stressing that the violations of human rights were not only manifest, but were patent and flagrant and were violated in a trial that was manifestly unfair.

The reluctance of the Court to rule on the merits of the constitutional complaint was also heavily criticized by four former Constitutional Court justices. One of them, self-proclaimed political opponent of Mr. Janša, stressed that the final ruling was based on such a violation of procedural, indeed fundamental principles of law (most notably: nemo iudex since actore) that he entertained no doubt that the ruling would be and shall be voided by the Supreme Court – immediately.

He was, however, wrong ...

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