Interview of Slovenia's former Justice Minister Dr Lovro Sturm

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INTERVIEW OF DR LOVRO STURM, PROFESSOR OF LAW
By Ivan Puc
Ljubljana weekly Reporter, 19 April 2010, vol. 3, No. 16
Former minister of Justice Lovro Sturm points out that in a moment
when the police minister demands destruction of the public
prosecutor’s office the equivalent of a five engine fire alarm should
sound in a democratic state supposedly based on the rule of law. “If
the government does not care about it we may justly express doubts
whether we may still speak about Slovenia being a modern state
governed by laws. Or is it rather a pre-modern hick place which has
yet to become sometime in the distant future a government of laws.”
Sturm says that Slovenia is a complex kleptocracy, which is a rule of
ruthless thieves who are pulling the major strings from the
backstage.
Their activities are not transparent; they operate as parasites next
to the government banking system and with the support of the
governing
elite. Sturm is convinced that this is the present day true face of
Slovenia and its biggest problem.
Q. How do you, having been a minister of justice in Janša’s
government, view the functioning of Pahor’s government?
If one looks at the government from the viewpoint of system theory –
with which I was concerned a great deal as member of the faculty of
law at the university – the first realization is that a good
government functions with internal coordination and consistency which
allows adoption of numerous urgent decisions in accordance with the
life necessities of the people. Unfortunately it is not so now. The
present government operates ad hoc from day to day, as an orchestra
that is badly out of tune, in discord with itself, with its own
cabinet members and external environment. In brief without internal
and external connections. Because of that it is turning in a magic
circle and deals only with matters of lesser importance. Despite
reminders from the public and proposals of the opposition the
government is not adopting urgently needed key decisions. Likewise it
is not testing its own decisions by comparing them with the goals
which Slovenia should be achieving. Simply put: it is wandering in
the
fog, works in extreme discord, and is concerned only with itself.
Such
as the government is at the moment it cannot pull Slovenia out of the
ever more burning economic, developmental and conceptual crisis.
Q. How much out of tune is its conductor?
Outwardly he displays enough of positive energy. The question,
however, is whether he is sufficiently conversant with what is going
on within the government as a whole as well as in the individual
departments. Are the goals which he is striving to reach true and
clear enough? Can he realistically asses their (im)possibility?
Q. [Prime minister] Pahor is supposedly, if we are to believe the
headlines of one of the daily papers, running roughshod over the
people.
He does not give such impression. That is why the allegations – if
they are true -- of the daily you are referring to were rather
surprising. In addition they reveal lack of communication between the
prime minister and his party. I do not see a major problem in the
prime minister’s difficulty in instilling enthusiasm in the people
for
taking on government positions. The embarrassing part is that no
considerate person wants to work within a government like this. How
can one work within such discordant group for which it is not know
how
long will it be able to stay in power. And above all there is no
assurance that one can set a worthwhile goal and achieve it. This is
the key problem.
Q. The minister of the interior [police] and president of the Liberal
Democracy of Slovenia[1] said yesterday that it is urgently
necessary
to think about reconstruction of the government. It is interesting
that the president of the smallest party of the government coalition
suggest reconstruction of the government! Within the Zares[2] party
there also is talk about reconstruction.
This only confirms what I have already said, that is, that many
things
in Slovenia are upside down. The essence of the problem is not in the
daily disputes. The disputes are only symptoms or an indication of
the
state of affairs. The key problem is that Slovenia not only is not a
democratic state with a government of laws which is should be
according to its constitution but that there is rising – at least in
the sociopsychological view – a question whether in so far as
understanding and comprehension of the people and the current power
elite is concerned it can even be said that it is a state. The prime
minister, for instance, almost never speaks about a Slovenian state;
he speaks instead of a “country” or “this country.” And this is by
definition just a principality with a formal – and informal –
governor
and perhaps some subordinate local deputy governor. The problem is
exacerbated by the fact that Slovenia is also in the throes of a
complex kleptocracy.
Q. What is that supposed to be?
A rule of daring and ruthless thieves who pull the strings behind the
scenes. Their activities are not transparent, they operate as
parasites next to the government banking system and with the support
of the governing elite. At this time this is the true face of
Slovenia
and its biggest problem. Instead of being a democratic state under
the
rule of law it is still vacillating between a backward principality
and ever more acute forms of complex kleptocracy.
Q. Did it take some time to come to that kind of rule and state of
affairs?
The first signs of it began to appear as early as after the first
democratic elections in 1990, then all the time after the
independence
and particularly during the time when the Liberal Democracy of
Slovenia controlled the government. It spread especially during its
current term in office.
Q. A few days ago, at the anniversary of the first free multiparty
elections, you said that Slovenia transited in an elegant way from a
one-party to a multi-party system. Where is that elegance now?
The elegant way should have been continued but unfortunately it was
interrupted. Transition from the one-party[3] into a multi-party
system was achieved reasonably without much pain. The DEMOS[4] set
independence as its goal and achieved it. It is not amiss to
emphasize
that, from the viewpoint of history, statements to the effect that we
achieved independence with a joint effort of Demos and such
opposition
as existed at the time. At the key decisions there was no joint
effort
because the opposition at that time consisting of the successor
parties of the one-party system opposed joint action. All the key
measures for the independence were adopted in the republic Assembly
at
that time exclusively with the votes of Demos deputies. In the
principal acts of independence which made real independence possible
–
let me mention the enactment of the law on military defense and
military service obligation and the defense budget – the opposition
took no part. That legislation was adopted by a minimal majority only
with the votes of the deputies of Demos. At the same time part of the
then opposition including the president of the republic[5] was
signing a declaration for disarmament. If in the critical moment,
that
is on June 25, 1991, Slovenia did not have lawful armed forces and
did
not resist the Yugoslav People’s Army it would never achieve
independence. We would remain without a sovereign state of our own.
Q. What would happen with it?
It would become an “operetta state” with federal customs at its
borders and garrisoned by a foreign army in the barracks everywhere
in
Slovenia.
Q. Returning to the “non-elegant” disputes. Has the police minister
Kresal won the last dispute with Prime Minister Borut Pahor?
This was a dispute which none of the two won. Both continue to remain
burdened with all remaining internal disputes. However, it is true
that in carrying on attempts at resolution of disputes in this way
both of them suffered a loss of reputation.
Q. In the Congress for the Republic[6] you and your colleagues were
asking what happened with the spine of the prime minister. Was he too
compliant?
That will be seen as the events unfold. If it came to voting and the
prime minister were outvoted on the question which is the root cause
of the dispute, viz., the LDS demand to remove the Prosecutor
General[7] then his spine indeed would not appear to have much
strength.
Q. Was minister Kresal successful in strengthening her position prior
to the interpellation?
Such explanation of the dispute between the prime minister and the
party leadership of the Liberal Democracy of Slovenia appears
entirely
convincing. Here it should also be pointed out that in the last week
the police minister made a few inappropriate moves. On Monday she and
her LDS party comrades chose to attend a party meeting rather than be
in their offices. Regardless of any possibility of leave that may
have
been taken retroactively later because of the objections, it is
inappropriate for the governing party to hold its convention during
the work week. Three days later the minister did not attend the
meeting of the government. This is not only inappropriate but an
arrogance which should be a cause of concern. In a democratic state
ruled by laws the government is the place where the positions of the
executive branch are coordinated. Meetings of the government must be
attended by all cabinet members. This is their duty for which they
are
well paid.
Apparently the parties currently in the government are convinced that
key decisions are no longer made by the government but rather at the
meetings of the coalition parties. Has the police minister ever been
missing at the meetings of the coalition parties? Obviously not as
these are the meetings which dictate what will happen in the
government and in the Assembly. This does not lead only to the
disintegration of the government but also erodes the entire political
system which must be based on the separation of powers and balance of
the separate branches of the government. Decision are being adopted
in
this way in the informal groupings and in meetings of leaders of the
coalition’s political parties.
Q. We used to talk about party coordination.
Yes, that is quite identical to the one time party leadership of the
state. At that time separation of powers was unknown but our
constitution states the separation of powers is a fundamental
principle of a democratic state.
Q. In her recent interview the police minister said that the Liberal
Democracy of Slovenia assumed the responsibility for the functioning
of the government of laws. Is such responsibility too burdensome?
Her conduct in the confrontation with the prime minister and
particularly her repeated statements to the effect that the chief
public prosecutor had acted unconstitutionally and illegally show
that
quite the contrary is the case. She shows a lack of understanding of
the rule of laws in making exceptionally crude attacks on the
democratic state and the rule of laws. Let me explain why it is like
this. The ministry of the interior also includes the police. The
police investigate criminal activities under the direction of the
public prosecutor’s office. The public prosecutor thus watches over
the operation of the police and therefore the minister of the
interior
(police) must be extremely reserved in its attitude toward the public
prosecutor and even more so toward the office of the chief public
prosecutor or the chief public prosecutor. In no democratic European
country will you find an incident whereby the minister of the
interior
(police) would so forget herself as to publicly attack an action of
the public prosecutor.
Q. She would, of course, say that she is speaking as president of the
Liberal Democracy of Slovenia.
The two capacities are both political and impossible to keep
separated. At this moment she is the minister of the interior and has
the police within his department. By law the police act under her
direction until a matter is taken up by the public prosecutor.
Unusually controversial was also the conduct of the police minister
when she was unwilling to respect the procedure under which several
candidates, who went through the screening of the civil service,
applied for the publicly announced position of the general director
of
police. The minister could choose from those candidates but did not
do
so. Instead she demanded and obtained a change in the law.
Thus she then appointed the general director of the police without
any
public competition and entirely according to her own predilection. At
the moment when the police minister demand destruction of the
leadership of the public prosecutor’s office a five car fire alarm
should be set off in any democratic state. If the government is not
concerned about this it is in order to question whether one may still
speak about Slovenia as a modern democratic state under the rule of
law. Or whether it is actually only a pre-modern god forsaken
principality with a prospect of becoming a government of laws pushed
far into the distant future.
Q. Until not so long ago minister Kresal was rather reserved in
criticizing the public prosecutor. Minister of justice Zalar seemed
to
be in the forefront.
Her recent inflammatory statements indicate that it only appeared to
be so or, better, only a mask. Clearly the minister of justice has so
far faithfully followed the instructions of his party’s president.
His
role in this is only instrumental; he only carries out the party’s
orders.
Q. The minister and president of the Liberal Democracy of Slovenia
say
that the office of the public prosecutor is “part of the executive
branch of the government and as such subordinate to the ministry of
justice.” Is this a statement fit for a government of laws?
Of course not. It is also in conflict with the holding of the
Constitutional Court. Another cause of concern. So much more because
the Liberal Democracy of Slovenia placed at the top of its agenda
support of the rule of law. However, it acts contrary to such purpose
and clearly prefers to undermine the foundations of the rule of law
with its actions.
Q. Liberal Democracy of Slovenia forced the release of the recordings
of the meeting of the prime minister[8] and justice minister Zalar
with public prosecutors Brezigar and Zobec Hrastar. Did the justice
minister and the prime minister listen to the details of the
preliminary penal procedure?
This may be a problem. Details of the events of the preliminary penal
procedure may be made available to no one because of the protection
of
personal rights and personal information as well as because such
release could damage the effectiveness, professionalism, legal
correctness and successful outcome of the preliminary penal
procedure.
If all present at such encounters have their lips sealed there should
be no damaging consequences but it is too bad if it such consequences
happen anyway.
Obviously it was just the Baričevič affair[9] that made the
confrontation of the political summit of the Liberal Democracy of
Slovenia with the chief public prosecutor publicly known and
notorious.
Q. The government expects from the Constitutional Court an
interpretative opinion concerning the procedure for the dismissal of
the chief public prosecutor. Is such expectation even justified?
Such demand on the part of the government is, in my opinion,
inappropriate.[10] Every government office must apply the law to
facts and interpret it as it best knows how. Including the government
which conducts the cases. I very much doubt that the Constitutional
Court will become involved in making such adjudications as requested
by the government as the court is not subordinate to the executive
branch of the government.
Q. In this demand it is asserted that the procedure of release[11]
is
going on within the government but cannot be completed because it is
not quite clear from the law whether the chief public prosecutor
enjoys the guarantees of a fair procedure. The prime minister, on the
other hand, says that he would place the proposal of the chief
prosecutor’s release before the cabinet if justice minister Zalar
should insist. I am not clear as to whether the process of release is
going on or not.
This is indeed unusual as the prime minister has said on several
occasions that there is no process going on and that the minister did
not propose that it be instituted. If the process of release is
indeed
already going on this is yet another reason for the Constitutional
Court to be unable to make any pronouncement of this demand by the
government. After the conclusion of a so far putative process of
release the Constitutional Court might be just the forum which in the
event of a suit filed in the Constitutional Court would decide on the
legality of the decision of the release process. If then the process
of release has already been instituted, the Constitutional Court will
have to reject the government’s demand. I am surprised at such
contradictory demand made on advice of the justice minister. A
process
that has already been initiated cannot be submitted for review of its
legal correctness to the Constitutional Court that may later have to
decide on the legal correctness of the outcome of the same process.
Q. Minister Kresal and minister Zalar are convinced that without a
reform of the office of the public prosecutor they cannot close the
circle for effective prosecution of organized crime. Is a change of
the public prosecutor’s office indeed so important?
Let me first say that I am surprised that the prime minister had
given
an advance agreement to the proposed changes. No such changes are
listed in the coalition’s agreement, not is he familiar with the new
law on public prosecutor which has not yet been written.
Q. The coalition paper contains the propositions of the new law.
Perhaps. But specific legal solutions have not yet reached the prime
minister’s desk and there has been so far no professional discussion
along these lines. The explanations of the police minister are simply
obfuscations. If true, as it appears from reports in the media, the
new law would have a special group of prosecutors for dealing with
organized crime which would be separated from the structure of the
chief public prosecutor and placed instead on the level of a district
public prosecutor. It appears they also intend to abolish a special
task force within the office of the chief public prosecutor which is
concerned with investigation of criminal activities of police
personnel. This change was effected by the previous government. Up to
that time the police was itself in charge of investigating the
criminal activities of police personnel. This was done on advice of
the European Court of Human Rights.
Q. I was able to establish that the specialized department was not to
be abolished but simply separated from the office of the public
prosecutir.
If this task should remain with the public prosecutor then the task
of
this particular unit which will be operating at a lower level and not
within the public prosecutor’s office will certainly be performet
with
lesser efficiency. Why did the police minister establish the National
bureau of investigations at the statewide level for the more
demanding
criminal activities? Criminal activities of police personnel because
of their visibility certainly fall within such purview. Solutions
that
are being offered by the two LDS ministers are very controversial.
Q. The model used by minister Zalar might have been the planned
specialized department of judges for sitting on the more demanding
affairs which will be attached to the District court of Ljubljana.
Could this be the reason for making a group of prosecutors charged
with the prosecution of organized crime a separate unity at the
district’s public prosecutor office in Ljubljana?
Those may be outwardly apparent reasons. Attempts are being made to
remove control of criminal acts of police personnel from the
oversight
of the chief public prosecutor. The same holds for the special unit
of
prosecutors charged with prosecuting organized crime. The planned
changes appear to indicate concern that such specialized units of
policemen as well as a special unit at the chief public prosecutor
may
well be effective in carrying out their tasks.
Q. Your colleague Rajko Pirnat appearing on the television yeaterday
pointed to the credibility problem of the investigations in the
Baričevič affair. He is convinced that people will not trust an
investigation conducted by persons who were involved in the affair.
Indeed we cannot expect people to trust that investigation. In the
Baričevič affair there are still numerous questions which require
further and thorough investigation. I am afraid that because of the
political interference with the work of the specialized unit of the
prosecutor’s office its work will be made very difficult.
Q. During the time of your tenure as minister of justice you were
given the responsibility for providing office space for the work of
the judiciary. Accoring to our information Zalar had, just prior to
the end of the tenure of the president of the District court of
Ljubljana concluded a contract with the enterprise owned by Igor
Pogačar. (And it was with Pogačar that the police minister contracted
for the officec in Dimiceva ulica to be housing the National bureau
of
investigations.
He concluded that contract after July 2005 when the amendmments to
the
law became effective. That amendment transferred the responsibility
to
the ministry of justice effective January 1, 2006. He used the
interim
to agree upon an unreasonably high price of 19.50 Euro per square
meter. The ministry was bound by the concluded contract but later we
managed to somewhat reduce the price. You have already written about
that in the Reporter.
Q. Has he concluded any other damaging contract like that one?
It is known that prior to that, in the years 1995 – 1997 he concluded
the unusual contract on lease at Slovenska cesta 41 accoding to which
the District court should be paying rent for almost a year without
having the use of the rented space.
Q. These days the deputies are expected to ratify the arbitrated
agreement concerning the border with Croatia. What is your opinion
about the decision of the Constitutional court which some legal
experts consider questionable?
First I would like to point out that the Constitutional court took no
position as to whether the arbitrated agreement was good or bad for
Slovenia. It was only establishing whether it was consistent with the
Constitution. Neither did it hand down an opinion as to how large a
majority should be required for ratification by the Assembly. In the
legal circles there are various opinions on these issues. However,
each decision of the Constitutional court must be respected and
accepted such as it is. In my opinion, the decision of the
Constitutional court states the key principle, viz., that Slovenia
already has territorial access to the open sea and that the border
across the sea has to be considered as shared by the two parties
within the succession of one time common sea of the Socialist Federal
Republic Yugoslavia. It is also important that, similarly as prior to
entering the European Union, we should have changed the Constitution.
Q. This is not said clearly in the opinion that was handed down.
The opinion and the explanation of the Constitutional court are
always
inseparably connected.
Q. The opinion only suggest that the deputies consider making changes
to the Constitution.
Yes. But it is really a very serious invitation. The Constitutional
court drew attention to the Assembly that we may get into a situation
in which – that was clearly stated – we should never be stuck. It is
unacceptable to be confronted with two almonst unsolvable problems
instead of having resolved the conflict in a legally corect way prior
to that. That is by changing the Constitution prior to thje
ratification of the arbitrated agreement.
Q. Did the Constitutional court go to far? Was it, as thinks Lojze
Ude,
[12] too verbose?
Not at all. I repudiate such points of view. What the Court said was
essential. Such and similar points of view attempt to divert
attention
from the basic caveats of the justices of the Constitutional court.
Slovenia today has, as already said, territorial access with open
sea.
If the arbitrated agreement should no longer recognize such access or
if the border should be drawn differently as defined by the
Constitutional court the result will be a deviation from the
fundamental constitutional charter. In such case – which should not
arise – the Constitution would have to be modified retroactively or
it
may happen that we shall not respect the outome of the arbitrated
agreement and will be violating international law.
Q. The Constitutional court felt that the adminition and suggestion
of
the Constitutional court are a serious problem but the President of
the republic consider it only an academic problem.
Unusual. He must be exceptionally optimistic. Apparently he expects
that all the postulates in the opinion of the Constitutional court
will be realized in the arbitration. A change of Constitution would
in
such case be indeed unnecessary. Except if the international
arbitration should favor us so much as to award us one half of the
Savudria peninsula. Well, even in such case we would have to change
the Constitution.
Q. And Croatia would have to change its Constitution, too?
Of course.
Q. France Bučar, president of the first democratically elected
Assembly, in addressing the deputies mentioned two ideologies which
proved to be intolerant and mutually exclusive whose destructive
actions were terminated by free elections, viz., clericalism and
communism. How do you view such association?
The horrors inflicted upon people by the communist and national
socialist systems in Yugoslavia and elsewhere in the world had no
connection with clericalism. Such statements are historically
misplaced. Slovenia is not the center of the world.
Q. Clericalism was probably mentioned exclusively in the Slovenian
context. As something having existed in Slovenia.
The events in Slovenia could not have been different from the
historical events on the European continent. This was also recognized
in the last year’s Resolution of the European Parliament[13] which
condemned the crimes of totalitarian regimes. In it the detailed
specific are clearly enumerated.
Q. You are facing charges because you appointed Robert Marolt, your
secretary at the ministry of justice, as notary. Has there been a
hearing in this matter as yet?
No, I am still waiting for a hearing in the District court in
Ljubljana where I can present my arguments and refute the charges. I
can only say that the proposed indictment is replete with legal
nonsense and is similar in form as the indictments contrived by
communist party prosecutors fifty years ago.
Q. Could you disclose the proposed indictment?
I could but let us wait for the legal process to run its course.
Q. Numerous parties having disputes or their attorneys are now being
suspected of publicizing anything that suits them. We can, for
instance, even listen to all kinds of surveillance eavesdropping.
Alternatively such information is also communicated to the media from
the ranks of the police.

NOTES
[1] Liberal Democracy of Slovenia is one of the renamed parts of the
former communist party.
[2] Zares is another renamed part of the communist party.
[3] Reference to one-party system, that is the rule of the communist
party, appears somewhat inappropriate because the communist party is
not a political party in the usual sense but a criminal international
conspiracy whose aim is the seizing of power by deception, force and
violence.
[4] Alliance of democratic political parties.
[5] Milan Kučan.
[6] Zbor za Republiko, political organization seeking reform of the
government.
[7] Barbara Brezigar, one time candidate for the President of the
Republic.
[8] Borut Pahor.
[9] A rencent notorious affair where a well connected transvestite
doctor was killed by his attack dogs who were being subjected to
torture and sexual perversions.
[10] Sturm is a former Justice of the Constitutional Court.
[11] of the chief public prosecutor
[12] Lojze Ude -- former Justice of the Constitutional Court
[13] European Parliament resolution of 2 April 2009 (P6_TA-
PROV(2009)0213) on European conscience and totalitarianism.