CJC Database

Member State

Slovenia

Topic

accountability, impartiality, freedom of expression

Sector

Freedom of Expression and Association

Deciding Court Original Language

Komisija za etiko in integriteto Državnotožilskega sveta Republike Slovenije

Deciding Court English translation

Ethics and Integrity Commission of the State Prosecutorial Council of the Republic of Slovenia

Registration N

Dts unknown number

Date Decision

6 January 2020

ECLI (if available)

N/A

National Follow Up Of (when relevant)

N/A

EU legal sources and CJEU jurisprudence

N/A

ECtHR Jurisprudence

N/A

Subject Matter

Freedom of expression of state prosecutors, allegedly political expression, signing of a petition against the Dublin return of an asylum seeker to Croatia, the duty of discretion, impartiality and public trust in state prosecutors, ethical principles not breached.

Legal issue(s)

What are the limits of freedom of expression of prosecutors?

Whether the duty of discretion allows for signing of a petition against the Dublin return of an asylum seeker to Croatia?

Does the fact that the (implied) political convictions or worldview stemming from the act signing of a petition allegedly played a role in the exercise of the function can ex post facto impact the assessment the right to petition and freedom of expression by the Ethical Commission? If so, what is the weight in the balancing exercise?

Request for expedited/PPU procedures

N/A

Interim Relief

N/A

National Law Sources

Article 38.a, Article 108a of the State Prosecutors’s Office Act
Code of Ethics of State Prosecutors (link to English text: https://www.drzavnotozilski-svet.si/code-of-ethics-of-state-prosecutors)
Article 45 of the Constitution of the Republic of Slovenia

Facts of the case

A public prosecutor signed a petition against a Dublin transfer to Croatia of a Syrian asylum seeker, who very well integrated in Slovenia, and wanted to remain there. After some time, the same public prosecutor was fiercely criticized in the government friendly media, due to her allegedly too lenient sanction proposal in a case concerning a migrant, who assaulted a taxy drive with an olfa knife and later said to the police that Alah did not allow him to kill the taxy driver. The case was brought before the Ethical Commission of the State Prosecutorial Council of the Republic of Slovenia (the Ethical Commission) by the Prosecutor General. The ethical commission ruled that the public prosecutor at hand had not violated professional ethics by signing the petition.

Reasoning (role of the Charter or other EU, ECHR related legal basis)

Before the Ethical Commission, the state prosecutor in question argued that she was exercising her freedom of expression, to which everybody, including public prosecutors, is entitled. She underlined that the signing of the petition was aimed to uphold fundamental rights and human dignity and that it was an act of civic responsibility, which complies with the ethical code.

The Ethical Commission underlined that the public prosecutor at hand exercised her right to petition, guaranteed under Article 45 of the Constitution. It noted that the Constitution explicitly envisages no grounds for limiting the right to petition. As a result, according to the Ethical Commission, state prosecutors enjoy equal protection of their right to petition as any other citizen. It further verified whether the public prosecutor at hand violated Principle II (impartiality) of the Ethical Code and found no violation.

Relation of the case to the EU Charter

N/A

Relation between the EU Charter and ECHR

N/A

Use of Judicial Interaction technique(s)

N/A

Horizontal Judicial Interaction patterns (Internal – with other national courts, and external – with foreign courts)

N/A

Vertical Judicial Interaction patterns (Internal – with other superior national courts, and external – with European supranational courts)

N/A

Strategic use of judicial interaction technique (purpose aimed by the national court)

N/A

Impact on Legislation / Policy

N/A

Notes on the national implementation of the preliminary ruling by the referring court

N/A

Did the national court quote case law of the CJEU/ECtHR (in particular cases not already referred to by the CJEU in its decision) or the Explanations?

N/A

Did the national court quote soft law instruments, such as GRECO Reports, Venice Commission, CEPEJ Reports, or CCEJ Reports?

N/A

Did the national court take into account national case law on fundamental rights?

N/A

If the court that issued the preliminary reference is not a last instance court, and the “follow up” was appealed before a higher court, include the information

N/A

Was there a consensus among national courts on how to implement the CJEU's preliminary ruling; and were there divergences between the judiciary and other state powers regarding the implementation of the preliminary ruling?

N/A

Impact on national case law from the same Member State or other Member States

N/A

Connected national caselaw / templates

N/A

Other

N/A

(Link to) full text

nacelno_mnenje_podpis_peticije.pdf (drzavnotozilski-svet.si)

Link to article, published in the media, close to SDS political party of former prime Minister Janez Janša: https://nova24tv.si/pazite-to-tozilka-ana-radovanovic-sirok-pred-dogovorom-o-blagi-kazni-iraskega-kriminalca-podpisala-se-peticijo-o-podpori-ilegalnemu-migrantu-ahmadu-samiju/

This article triggered the public discussion and discreditation of the public prosecutor at hand. It is explicitly referred to in the decision of the Ethical Commission in this case.

Author

Mohor Fajdiga, University of Ljubljana

History of the case: (please note the chronological order of the summarised/referred national judgments.)

Ethics and Integrity Commission of the State Prosecutorial Council of the Republic of Slovenia, Principled Opinion Dts unknown number of 6 January 2020

Slovenia, Ethics and Integrity Commission of the State Prosecutorial Council of the Republic of Slovenia, Dts unknown number, ordinary, 6 January 2020