This analysis was written by Nino Tsereteli, Research Officer at DRI, in consultation with Jaka Kukavica, PhD Researcher at the European University Institute.
On 23 October 2022, Slovenians are heading to the polls for the second time this year. The newly formed Freedom Movement, a successor of the Green Actions Party, defeated Janez Janša’s Slovenian Democratic Party in parliamentary elections last April. While presidential powers are largely ceremonial, the President has a say on key appointments to the institutions exercising rule of law oversight. Borut Pahor, Slovenia’s incumbent president, for example, was criticised for appointing a person with political affiliations as a chairperson to the Commission for the Prevention of Corruption, undermining the credibility of the institution.
This week seven candidates will aim for a five-year term as President. An independent candidate, Nataša Pirc Musar — lawyer and former information commissioner — and Anže Logar — a Foreign Minister in Janša’s government— have been neck-and-neck in the polls. Currently, Logar is leading (33 %), with Musar coming second (27 %). The candidate of the ruling Freedom Movement (Marta Kos) left the race in September for obscure reasons. Freedom Movement subsequently backed Milan Brglez, the Social Democrats’ candidate, who is expected to accumulate 20 % of votes. Other candidates, as shown in our compilation of polling data below, are far behind.
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A candidate is elected if they receive 50 %+ of votes. Otherwise, a run-off will be held with candidates that received the highest number of votes. Based on the polls, neither of the three leading candidates have a chance to accumulate 50 % +1 vote. This means that the second round is inevitable. In a potential run-off, Musar or Brglez could defeat Logar.
Rule of Law Challenges
Slovenia has had mixed record in terms of rule of law performance.
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Particularly problematic issues include:
- Judicial independence.
- Media freedom and pluralism.
- Anti-corruption measures (prevention, investigation and prosecution).
In Slovenia, the judicial council dominated by judges elected by peers decides on judicial careers (recruitment, promotions, evaluations, etc). Slovenian scholars warned that the Council’s extensive powers did not match its limited organisational capacity and resources. They pointed out that the Council had to rely on and defer to other actors, such as powerful court presidents and personnel councils in its decision-making. Such practices could render formal criteria and procedures largely irrelevant. Commentators criticised the Council for holding meetings that are not open to the public and for insufficient reasoning of its decisions.
Slovenian academics have also expressed concerns about the involvement of the National Assembly in judicial appointments. The National Assembly has stopped following an unwritten rule according to which it automatically approved the Council’s nominees. As a result, appointments can be subject to political considerations. It is also worrisome that a candidate who is not appointed, cannot request judicial review against the decision of the Assembly and the latter has no obligation to state reasons for rejecting them. Another issue highlighted by the European Commission was that the rules governing parliamentary inquiries lacked safeguards for judicial independence. The Constitutional Court judgments delivered two judgments finding those rules unconstitutional and gave the Parliament one year to remedy the situation. No legislative proposal has been tabled yet.
Media freedom and Pluralism
Slovenian civil society organisations as well as the European Commission expressed concern about the independence of public service media. This is because under current legislation political actors appointed the majority of members of public broadcaster’s management and board. As a result, Janša’s government managed to replace the entire leadership structure of the public broadcasting service, essentially leading to the political capture of the supposedly independent institution.
In its 2022 Rule of Law Report, the European Commission raised concerns regarding media pluralism in Slovenia and highlighted legislative deficiencies in addressing transparency of media ownership and its high concentration. Media Pluralism Monitor 2022 suggested that non-transparent and discriminatory financing of pro-government media has continued to be an important feature of the Slovenian media environment in 2021. Many independent media outlets have lost public funding. Media outlets controlled by Janša’s party have benefitted from investment from Hungarian oligarchs loyal to Viktor Orbán.
The European Commission’s 2022 Rule of Law Report also emphasized that journalists continued to operate in a highly hostile environment and were subject to online harassment and threats. Criminalizing defamation has allowed politicians to file lawsuits (SLAPPs) with the sole purpose of silencing journalists. Various reports have associated such a state of affairs with the Prime Minister Janša’s return to power and his government’s perception of independent media as a prey.
Corruption is perceived to be systemic. According to the Eurobarometer 2022 on corruption, 87% believe that the problem of corruption is widespread in Slovenia. However, there are obstacles to the investigation and prosecution of corruption cases. As highlighted in the European Commission’s 2022 Rule of Law Report, the number of police reports forwarded to the prosecution regarding alleged corruption and the number of indictments brought by state prosecutors decreased. None of the judgments on corruption delivered in 2021 involved cases of high-level corruption.
The Report referred to concerns about the independence of the anti-corruption police, the National Bureau of Investigation, in view of allegations of political interference. It also highlighted that resources available to the State Prosecution were limited; resources available to the Commission for the Prevention of Corruption have been increased, but insufficiently. This Commission seeks to reduce corruption risks by exercising administrative oversight of rules on integrity and conflicts of interests. To address the risk of corruption during COVID-19, in 2020, the Commission issued a series of guidelines related to public procurement procedures. In 2021, the Commission extended its systemic oversight of public sector entities procuring protective equipment and focused on municipalities and hospitals. It concluded that established procurement standards were not guaranteed in procedures which, for reasons of urgency, were carried out with less transparency.
What has changed since Slovenia’s new government took power?
The Freedom Movement defeated the ruling Slovenian Democratic Party led by the Prime Minister Janez Janša in April 2022 National Assembly elections. They formed a coalition with the Social Democrats and the Left. The coalition accumulated 53 seats overall, including 41 seats for the Freedom Movement. This means that they can change ordinary legislation relatively easily, but would need the opposition’s support for constitutional change, which requires a 2/3 majority or 60 votes.
With the new government in power for less than five months, it seems too early to make any definitive conclusions about its rule of law credentials. However, it appears that they have been seeking to address some of the legislative deficiencies outlined above, including the ones affecting public service media. In July 2022, the government submitted amendments to the RTV Slovenia act, which envisages changes to the managing and supervising bodies of the public broadcaster. A greater difficulty lies in the reversal of the capture of RTV Slovenia’s governing bodies by the previous government.
In September 2022, the governing coalition filed constitutional amendments to transfer the approval of judicial candidates nominated by the judicial council from the Parliament to the President. They argued that the change would de-politicize judicial appointments (the President is thought to be far less political than the Parliament) and help ensure that judges are appointed based on merits rather than political considerations. This proposed change applies to ordinary judiciary, not constitutional court judges. Judicial Council and Judges’ association have expressed support for the proposal. The existing system of judicial appointments has long been criticised and it is not the first attempt at changing it but convincing the National Assembly to divest itself of the power seemed impossible. While taking the power away from the Assembly could be defended, one may question the appropriateness of transferring them to the President, especially if Janša’s candidate wins the October 23 elections.
The same set of amendments reportedly introduces a three-year trial period before a judge’s tenure becomes permanent – an arrangement that is typically seen as a risk for judicial independence.
Consequences of election results for the rule of law
The role of the Slovenian president is often seen as largely ceremonial. However, a close look reveals that presidential powers could be exercised in ways that reinforce or undermine the rule of law. The President has a say on the personal makeup of institutions exercising the rule of law oversight. For example, the President appoints the chairperson of the Commission for the Prevention of Corruption and two deputies. Depending on the choice(s) he/she makes, the President could reinforce or weaken this body. President Pahor was criticised for an appointment that turned the Commission “from a fearsome agency to a toothless tiger”.
The President proposes candidates for various high-level positions to the National Assembly. These include: five members of the judicial council (Art. 131 of the Constitution) and nine members of the Constitutional Court (Article 163 of the Constitution). The Information Commissioner, responsible for ensuring respect for the right to access public information, is also appointed by the National Assembly upon the President’s proposal. As regards to these appointments, the President could be passive and nominate whoever the governing coalition will likely accept or could be actively involved to ensure that the best possible candidate gets nominated and appointed. The constitutional amendments currently under consideration could further expand presidential powers over judicial appointments. If adopted, the President would be given a final say about the nominees of the judicial council for positions in ordinary judiciary.
In other respects, Presidential powers are somewhat limited. The President is required to promulgate laws whether he agrees with them or not, even though he could voice opposition to a specific law. The President proposes a candidate for Prime Minister to the National Assembly but must consult with its members. The President cannot dissolve the Assembly at will but is obliged to do so in certain constitutionally defined circumstances.
Overall, the President can be more or less active and make more or less of a difference within the existing legal framework in terms of the rule of law, depending on the extent to which he/she is committed to improving Slovenia’s performance in that regard. The President could help reinforce the rule of law by choosing judges, members of anti-corruption bodies and other officials, based on qualifications and integrity, rather than political considerations. However, if the head of state he/she views the rule of law as a hindrance, he/she may use powers to facilitate the political capture of independent institutions and jeopardise their ability to constrain the executive.
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