The limits of the parliamentary inquiry from the perspective of judicial independence and the separation of powers
In this part of the Decision, the CC heavily relied on its case U-I-244/99 of 15 June 2000. It first found that in principle (according to Article 93 of the Constitution and Article 1 of the PIA), parliamentary inquiries may be established in relation to any question in the public interest that is covered by the scope of competence of the legislator, which is indeed very broad. Accordingly, it reiterated that the parliamentary inquiry can investigate the performance of the judiciary. However, the legislator has to comply with the principles of separation of powers and judicial independence. Judges have to be protected against external pressure liable to impact their decision-making. Namely, judges have to be protected against direct instructions as well as indirect influence that can affect their work. The CC then boldly concluded that as a result, the political accountability of judges for their adjudication is excluded.
The CC then outlined the limits of the parliamentary inquiry more concretely. The legislator may investigate questions concerning the judicial branch as a whole (paras. 71, 77) and the same events that are already an object of a criminal procedure (paras. 72, 77). However, the legislator is precluded from conducting a parliamentary inquiry that relates to a pending case and may in any way impact the decision-making in the concrete case (para. 73, 77). It is also forbidden for the legislator to conduct hearings of judges regarding the concrete judicial proceedings, even when they are already finished. This follows from Article 134 of the Constitution that grants immunity for opinions given at trial (paras. 74, 77). Further, parliamentarians having ex post debates during formal procedures (acting de iure imperii) on propriety and lawfulness of concrete decisions of judges was found contrary to judicial independence (paras. 73, 77). Furthermore, the ordering itself of a parliamentary inquiry that would investigate propriety and lawfulness of concrete decisions of judges, even if the decision cannot be legally challenged anymore, is unconstitutional. Such an inquiry can make an impression that judges will be investigated for decisions that will not conform to the interest of politics. The CC concluded that investigation into correctness of concrete judicial decisions in procedures, conducted by the executive or legislative branch would be incompatible with the constitutional system of separation of powers, even in the case of suspicions of deliberate abuse of judicial function in an already finished procedure (para. 119). However, the CC warned that these conclusions do not apply to criticism raised by the public (para. 79) and when the MPs do not act in a specific procedure where they would exercise the powers of parliament, but are merely debating (para. 117). It also held that when there is a suspicion that someone, who is politically accountable, has unacceptably impacted the judicial decision, an inquiry may be started, but has to focus on this person, not the judge, even though in such cases the investigation will by nature touch the judge as well (para. 120). In this way the CC narrowed down otherwise very bold conclusions that could limit the constitutional competence to conduct parliamentary inquiries more than the principle of separation of powers and judicial independence demand.
The limits of the parliamentary inquiry from the perspective of autonomy of state prosecutors and the separation of powers
The CC first explained that according to its settled jurisprudence, the state prosecution forms a part of the executive branch. The principle of separation of powers prohibits parliamentary inquiries that interfere with the (exclusive) competences of the executive, since such inquiries cannot have more competences than the legislative branch itself. Further, the CC underlined the autonomous position of the state prosecution within the executive branch (Article 135 of the Constitution). It went on to explain this special position through describing the constitutional role of the state prosecutors. By invoking its previous case law, it held that the state prosecuting cannot be given political or professional instructions in concrete cases by the government or the ministry. It further opined that such pressure and influence could undermine the respect for the rule of law and human rights, as well as independent, impartial and fair trial. In support, it referred to Kövesi v. Romania, para. 208, where the ECtHR held that is that the independence of prosecutors is a key element for the maintenance of judicial independence. The CC finally referred to the Rule of Law Report, Opinion no. 13 (2018) of the Consultative Council of European Prosecutors and the Council Regulation 2017/1939 concerning the EPPO to conclude that the independence and autonomy of the state prosecutors prohibit political interference in the work of state prosecutors in concrete cases.
After the general principles, described above were set, the CC determined the limits of the parliamentary inquiry from the perspective of independence and autonomy of state prosecutors. The reasoning mirrors the one adopted with respect to judges. The CC stressed that a parliamentary inquiry that would seek to establish accountability of a state prosecutor resulting, for starting or conducting prosecution against a state official or a person connected to him would be particularly unacceptable, as it would have a strong chilling effect on the work of prosecutors.
Remedies against the Act establishing a parliamentary inquiry
The CC distinguished two different aspects regarding legal remedies in the context of a parliamentary inquiry. First, it held there are sufficient remedies against individual measures, taken during a parliamentary inquiry. Second, it turned to the Act establishing a parliamentary inquiry. It found that this act cannot be considered neither a regulation (in the sense that is has general application, as for instance statutes) nor an individual decision (on rights, obligations or accusations against an individual). Hence, none of the remedies otherwise available was possible. As a result, bearing in mind that the Act of establishing a parliamentary inquiry itself may be contrary to the constitution, the CC found that an unconstitutional legal lacuna exists in the Slovene legal system. Hence, it found the PIA and Rules of Procedure concerning Parliamentary Inquiries to be contrary to the Constitution. It ordered the parliament to amend the legislation in one year. During this period, the CC decided that the Judicial Council (the JC) is competent to file a complaint regarding a parliamentary inquiry should it deem that it violates the principle of judicial independence to the CC in 30 days after the Act establishing a parliamentary inquiry is published in the official gazette. The CC found that such new competence of the CC fits well into the constitutional system, where the CC is called to solve conflicts between the three branches of power.
The same reasoning was mutatis mutandis used for the prosecutors. The CC decided that instead of the Judicial Council, the State Prosecutor General has the power to file a complaint to the CC.
Ruling on the concrete Act establishing a parliamentary inquiry
Even though the competence of the CC to rule on constitutionality of a parliamentary inquiry was only established in the case at hand, the CC did not feel barred from giving a decision right away. It held that this was necessary in order to clarify the permissible scope of the inquiry as quickly as possible, and that waiting for the JC to file a complaint would not add anything to the procedure since the JC and both houses of Slovene parliament were already given the opportunity to express their views on the matter.
The CC found that investigating political accountability of judges is contrary to Article 125 of the Constitution, since judges are not politically accountable. It held that the inquiry aims to investigate correctness of the concrete judicial decisions. The CC reiterated that the other two branches of power are precluded from debating on lawfulness and propriety of concrete judicial decisions and that this would entail political control over the content of judicial decisions, which is forbidden under the Constitution. Here, the CC seems to have put special emphasis on the case law of the CJEU, since it explicitly held that the reader should pay special attention to footnote 22, where the CC quoted the following passage from Commission v Poland, C-619/18, 24 June 2019, para. 77; Minister for Justice and Equality (Deficiencies in the System of Justice), C-216/18PPU, 25 July 2018, para. 48, 67:
“[I]t is apparent from the Court’s case-law that the requirement of independence means that the rules governing the disciplinary regime and, accordingly, any dismissal of those who have the task of adjudicating in a dispute must provide the necessary guarantees in order to prevent any risk of that disciplinary regime being used as a system of political control of the content of judicial decisions. Thus, rules which define, in particular, both conduct amounting to disciplinary offences and the penalties actually applicable, which provide for the involvement of an independent body in accordance with a procedure which fully safeguards the rights enshrined in Articles 47 and 48 of the Charter, in particular the rights of the defence, and which lay down the possibility of bringing legal proceedings challenging the disciplinary bodies’ decisions constitute a set of guarantees that are essential for safeguarding the independence of the judiciary.”
With regards to the prosecutors, the CC found that the concrete parliamentary inquiry, even the act of ordering itself, would be contrary to Article 135 and 3 (2) of the Constitution. It held that such an inquiry was found to be particularly unacceptable in para. 81 of this decision.