Failed Democracy: The Slovenian Patria Case - The (Non)Law in Context

by Dr Matej Avbelj

(This article is the prologue to academic paper by Dr Matej Avbelj published in Social Science Research Network.) 

This paper discusses the role the Slovenian judiciary and their legal academic counterparts have
played in the notorious Slovenian Patria affair. The affair has led to the incarceration of the
leader of the Slovenian opposition, Mr. Janez Janša, just three weeks before the parliamentary
elections. Due to the overall legal and political context in which the affair has been conducted,
there is a growing number of evidence that fuel the belief that right from the beginning the affair
has been politically motivated and has been used to instrumentalize, even abuse the institutions
of the rule of law for political purposes. First to tarnish the reputation of the leader of the
opposition and then to eliminate him from the political life.

The affair started in 2008, a few weeks before the general parliamentary elections, when the
Slovenian national TV showed a Finnish documentary claiming that the then Slovenian Prime
Minister Janez Janša was bribed by the Finnish arms-selling corporation Patria, which was
consequently and as a result awarded the contract with the Slovenian government. The
documentary identified the recipient of a bribe exclusively with the letter J, that a couple of
years later turned out to stand not for Mr. Janša, but for a Croatian businessman Mr. Jerković.
Nevertheless, a huge political controversy understandably broke loose. The political scandal
made Mr. Janša finish second in that parliamentary election and resulted in the establishment
of the government controlled by the political left. It was only two years later that a direct
indictment was brought against Mr. Janša by a state prosecutor who is a wife of an agent of the
Slovenian communist secret-service police that arrested Mr. Janša as a political dissident during
the reign of the communist regime in the late 1980s.

The indictment accused Mr. Janša and others involved in the case for having committed a crime
of accepting gifts for illegal intermediation pursuant to Art. 269 of the Slovenian Penal Code.
However, the indictment raised a lot of controversy as the criminal offence was literally alleged
to have been committed on an undetermined date, at an undetermined place and through an
undetermined method of communication. This patently constitutionally flawed indictment
nevertheless led to a trial at the local court of Ljubljana, which after a number of months (in
between local and another parliamentary election) found the defendants guilty. The case was
then appealed to the High Court of Ljubljana on all counts, but the High Court confirmed the
ruling of the local court as it stood.

Mr. Janša has thus been convicted with the force of res judicata exclusively on the basis of
circumstantial evidence for having accepted a promise of an unknown award at a vaguely
determined time, at an undetermined place and by an undetermined mode of communication to
use his influence, then as a Prime Minister, to have a military contract awarded to the Finnish
company Patria.

The decision of the High Court appeared to be vitiated by a number of patent violations of
constitutional rights and principles. The High Court openly stated that neither the time nor the
place of the alleged criminal offence are constitutive of the crime, since they merely contribute
to the individualization and concretization of the crime. The High Court went even further by
ruling that the fact that the crime was allegedly committed through an undetermined method of
communication is unproblematic, as the act of accepting the award is sufficiently defined in the
abstract provision contained in the Penal Code. Moreover, the High Court stressed a number of
times that the wording of Art. 269 of the Slovenian Penal Code was open-textured, but instead
of construing it narrowly in line with the requirements of lex certa, the Court used it as a way
of attributing the criminal act to the defendant. Finally, the High Court at times even appeared
to be shifting the burden of proof on the defendant, who has thus been forced to acquit himself
from the indictment, which has, as phrased, effectively disabled him to present any alibi or to
prepare a meaningful defense.

As a result, the defendant Mr. Janša sought a direct relief at the Constitutional Court by filing
a constitutional complaint prior exhausting the extraordinary legal remedy at the Supreme
Court. In what follows, the paper describes and critically analyzes the decision of the
Constitutional Court and the events that followed thereafter. The events that, unfortunately,
demonstrate severe rule of law problems in Slovenia and which push this country into the group
of the de facto failed constitutional democracies.

For full text go to: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462613

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