Slovenia

In Slovenia, the National Assembly, a legislative body, elects judges based on nominations by the Judicial Council. This applies to all first-time appointments to lower courts, as well as to appointments to the Supreme Court. While involving the legislature adds democratic value to the process, it creates the potential for the abuse of power by politicians, for example, by the rejection of deserving candidates for political reasons. Candidates who are not appointed have no recourse to judicial review against the Assembly’s decision, and the Assembly is not obliged to provide reasons for the rejection. Historically, the Assembly has automatically approved candidates proposed by the Council without substantial discussion but, in recent years, it has rejected a few candidates for Supreme Court positions. The Judicial Council argued that this amounted to the violation of the independence of judiciary, and called for the amendment of the Constitution and legislation to strip the National Assembly of these powers. This has sparked debates among experts and the public, with some considering it an exercise of checks and balances, while others view it as a risk for judicial independence.

In 2017, the Slovenian Constitutional Court asserted that the principle of separation of powers allows for various systems for judicial appointments. It also clarified that the Assembly’s rejection of proposed candidates does not violate the Constitution, since such decisions constitute acts of political discretion, and the Assembly is not obliged to explain them. However, a pattern of rejections would signal that selection is based on political considerations rather than merits, especially if it appears to be related to judges’ decisions in politically sensitive cases.

The Council of Europe’s Group of States against Corruption (GRECO) has expressed concern about the failure to revise the procedure for appointing Supreme Court judges, and thereby minimising political influence. The European Commission echoed this concern in its 2023 Rule of Law Report, urging Slovenia to “ensure that the reform of judicial appointments contains adequate safeguards for judicial independence, taking into account European standards.”

To address these concerns, Slovenia is considering a constitutional amendment that would transfer the power to appoint first-time judges from the National Assembly to the president, while retaining the Judicial Council’s authority to select and propose candidates. The explanatory memorandum to the draft constitutional amendments did not, however, clarify whether the president would be obliged to follow the Council’s proposal, or whether the president would be required to provide the reasoning for refusal to appoint a candidate, and whether such a refusal would be subject to judicial review. An expert group appointed by the Constitutional Commission insisted on limiting the president’s discretion, by introducing an obligation to provide reasoning for rejecting candidates and to grant access to judicial review for such candidates. The group also strongly criticised the introduction of a probationary period before judges’ appointments for life, as it would pose a “systemic risk for a judge’s independence”, given the discretion in deciding about a judge’s permanent term of office.

In parallel, the Slovenian Ministry of Justice has been preparing amendments to the Judicial Service Act and the Courts Act that would transfer power to appoint Supreme Court judges and its president to the Judicial Council. The Council selects and proposes candidates for now. The Council and the Supreme Court support this proposal for the transfer of powers, but the Supreme Court insists that the Court’s president should be elected by the judges.

Recently, the establishment of a parliamentary inquiry commission by the National Assembly endangered judicial and prosecutorial independence. The Commission’s mandate was to investigate the alleged abuse of power by judges and prosecutors in the prosecution of a high-profile right-wing politician. The Constitutional Court issued two orders temporarily prohibiting continuation of this investigation. In its final decisions, the Constitutional Court outlined the limits of parliamentary inquiry, under the principles of separation of powers and judicial independence/prosecutorial autonomy. The Court found that the Act establishing the parliamentary inquiry at hand was contrary to the Constitution, since the inquiry aimed at investigating the correctness of specific judicial decisions, and would thus lead to political control over judicial decision-making. The Court gave the legislature a year – until January 2022 – to remedy the legislative deficiency. The draft amendments are expected to be adopted by the end of 2023.

The European Commission identified the rules governing parliamentary inquiries as problematic, due to the lack of adequate safeguards for the independence of judges and prosecutors. It recommended introducing such safeguards in its 2022 Rule of Law Report, and since Slovenia has made some, but still insufficient progress, urged in its 2023 Report to “take forward the process”.

The composition of the nine-member State Prosecutorial Council raises concerns about potential politicisation of the Prosecutor’s Office. The majority of the Council’s members are appointed by politicians – four by the National Assembly, on a proposal by the president of the republic, and one by the minister of justice, among heads of District Prosecutor’s Offices. Only four members are elected by prosecutors themselves. This arrangement is viewed as problematic, especially as the Council holds significant decision-making powers over matters concerning state prosecutors – nomination, promotion, dismissal, etc. However, the Council’s most important decisions require reaching a high decision-making threshold (a two-thirds majority), which appears to serve as a safeguard against the political capture of the Council.

The salaries of judges and state prosecutors have largely not changed in nominal terms since 2012, in stark contrast with the increased salaries of civil servants in the legislative and the executive branches. According to 2023 EU Justice Scoreboard, Slovenian judges’ and state prosecutors’ salaries are among the lowest in the EU, when compared to the average national salary. This disparity has raised concerns about the ability to attract and retain qualified individuals in the judiciary and Prosecutor’s Office.

The Judicial Council launched a procedure for constitutional review of judicial salaries, due to the imbalance between the public sector salary system and that for judges. On 30 June 2023, the Constitutional Court declared the judges’ salaries as unconstitutional and contrary to the principle of judicial independence, due to the lack of respect for the constitutional requirement of their stability. The Constitutional Court also recognised as relevant the imbalance of the salary grades of the judiciary compared to those of the legislative and executive branches, and the delay in increases of judges’ salaries compared to the increase of the average salary in Slovenia. The Court gave the National Assembly six months to remedy the situation. The elimination of disparities between the salaries of officials is envisaged as part of the upcoming 2023 public sector salary system reform.

In its 2023 Rule of Law Report, the European Commission urged Slovenian authorities to “take measures to increase the remuneration of judges and state prosecutors, taking into account European standards on resources and remuneration for the justice system.”

The Judicial Council’s extensive formal powers are not matched by an adequate internal organisational structure to support its effective functioning. The Council’s honorary membership further contributes to its limitations. According to commentators, the Council does not have sufficient resources and staff to issue adequately reasoned decisions. As a result, the Council reportedly defers to other actors, such as court presidents and personnel councils, in its decision-making, including as regards judges’ promotion and career development. While the Council decides on these matters, the personnel councils and court presidents have significant influence on such decisions, a point highlighted by Slovenian scholars.

Empirical data collected by the Constitutional Court indicates that, when selecting new Supreme Court judges, the Council always picks candidates that have the backing of their future colleagues from the Supreme Court chamber to which they are to be appointed. Thus, while the Council has formal powers, it is the Supreme Court judges who effectively determine who joins them on the bench.

According to the ENCJ survey (2022), more than two-thirds of judges (70 per cent) either disagreed that judicial appointments and promotions were merit-based, or were not sure whether they were.

In its 14 October 2021 judgment (U-I-445/18-13), the Constitutional Court found that the Judicial Council should not be able to initiate disciplinary proceedings against a judge where the Council members are also members of the Disciplinary Court. This dual role (with the same person initiating disciplinary proceedings and then deciding on disciplinary liability) can be grounds for questioning their impartiality. In order to prevent an unconstitutional situation, the Judicial Council decided not to start any disciplinary proceedings on its own initiative until the amendments resolving the issue are adopted. The Ministry of Justice prepared a draft amendment to address the Constitutional Court’s findings.

The lack of accountability of the Slovenian judiciary has become a matter of concern, especially in connection with the transfer of powers to judges or judge-dominated bodies to enhance judicial independence. Critics argue that the judiciary has used the concept of judicial independence to avoid accountability, and has failed to address public or expert criticism.

The risk of arbitrariness is aggravated by the lack of transparency in decision-making by the Judicial Council. Commentators have expressed concern in connection with the Judicial Council’s closed meetings and its failure to provide reasoning for its decisions, including those on judicial appointments and promotions. A contentious issue was whether the Council was required to compare candidates to explain its choice. The Supreme Court (Order X Ips 333/2015 of 21 July 2016) validated the Council’s refusal to compare candidates, claiming that decision-making presupposes confidence in the Council’s decisions on the selection of the candidate that is most suitable for the office. The amendment to the Judicial Service Act of March 2015 obliged the Council to give a record of consultation and voting (presumably with the prevailing reason for the final decision). However, the Council reportedly does not fully comply with this obligation (no information is given regarding consultation) and, hence, there is no opportunity to verify why the Council selected one candidate and not another.

Court presidents wield significant power, overseeing individual courts, running personnel councils, and sometimes even sitting in the Judicial Council. They have a significant role in the judicial selection; they prepare a preliminary reasoned selection of the best candidates for an advertised judicial position. Hence, they de facto filter who enters the judiciary. They also decide on the promotion of judges and play a leading role in the judicial evaluations by the personnel councils they are members of. Scholars explain this as “the informal influence they wield in a bureaucratic judicial structure, characterised by a collectivist judiciary as opposed to the one which is a sum of personally independent judges.” This power can be used to undermine internal judicial independence.

A case concerning the transfer of judges by court presidents is currently pending before the Constitutional Court. The current legislation gives court presidents unlimited power to transfer judges to other courts against their will. One such case prompted reflection in the Judicial Council, which then decided to request a constitutional review of these powers of presidents of the court from the perspective of judicial independence.