Strasbourg, 12 February 2001
CCJE (2001) 15
Consultative Council of European Judges (CCJE)
Questionnaire on the independence of judges, their appointment and careers, and funding of the courts: reply submitted by Slovenia
The answers to the questionnaire are arranged in the following manner:
¨ relevant text(s), i.e. articles of the following regulations:
· Constitution of the Republic of Slovenia (Official Gazette of the Republic of Slovenia – OG, Nos. 33/91–I, 42/97 and 66/2000), hereafter: Constitution;
· Judicial Service Act (OG, Nos. 19/94, 8/96 and 24/98);
· Courts Act (OG, Nos. 19/94, 45/95, 38/99 and 28/2000);
· Constitutional Court Act (OG, No. 15/94).
I. THE INDEPENDENCE OF JUDGES
1. Is the independence of judges guaranteed by the Constitution or by legislation?
The independence of Slovenian judges is guaranteed by the Constitution.
¨ Constitution, Art. 125, The Independence of the Judges
“The Judges shall independently exercise their duties and functions in accordance with this Constitution and with the law.”
2. What institutional safeguards are there with regard to the independence of judges?
Institutional safeguards with regard to the independence of judges are the following:
a) The system, laid down by the Constitution, of judges being elected by the National Assembly (i.e. the Parliament) upon the nomination of the Judicial Council as a separate Constitutional body.
¨ Constitution, Art. 130, The Election of Judges
“The National Assembly shall elect judges upon the proposal of the Judicial Council.”
a) Life tenure, i.e. constitutionally guaranteed permanence of office.
¨ Constitution, Art. 129, The Permanence of Office of Judges
"The office of a judge shall be permanent. The age and other conditions of election as well as the age of retirement of a judge shall be such as are determined by statute.”
a) The Constitution guarantees that judges have a majority in the Judicial Council and that those of this body’s members that come from their ranks, are elected by their peers.
¨ Constitution, Art. 131, The Judicial Council:
“There shall be a Judicial Council composed of eleven members. Five members shall be elected by vote of the National Assembly on the nomination of the President of the Republic from amongst practising lawyers, professors of law and other lawyers. Six members shall be elected from amongst judges holding permanent judicial office. The President of the Judicial Council shall be chosen by the members of the Judicial Council from amongst their own number.”
a) Statutory advisory role of personnel councils in the process of recruitment, selection and promotion of judges.
¨ Courts Act, Art. 30, para. 1
“Personnel councils shall be formed at the district and the higher courts and at the Supreme Court. They shall be competent for the giving of opinions on candidates, the assessment of judicial service and other personnel issues relating to judges at law courts, if so determined by law.”
¨ Judicial Service Act, Art. 16
“After considering all applications the personnel council shall form an opinion on all candidates. The personnel council shall draw up a special list of candidates it considers the most suitable for the vacant post, stating the relevant grounds for such an opinion.”
¨ Judicial Service Act, Art. 18, para. 1
“During the selection procedure the Judicial Council may require the personnel council to supplement the given grounds of its assessment of suitability, and may demand access to previous assessments of the judicial work of the judge who was given priority by the personnel council in promotion, and information on final disciplinary judgements pronounced against the judge during the past five years.”
a) Constitutionally guaranteed judicial immunity.
¨ Constitution, Art. 134, Judicial Immunity
“No person who takes part in the making of any judicial decision may be called to account for any opinion he/she has expressed in court in the course of reaching that decision.
Where a judge is suspected of criminal activity in the discharge of his/her judicial duties and functions, he/she may not be detained, nor may any proceeding be instituted against him/her, save with the permission of the National Assembly.”
a) A judge’s right to appeal to the Judicial Council when he/she considers his/her independence or the independence of the judiciary has been infringed.
¨ Courts Act, Art. 28, para. 1:
“The Judicial Council /…/ shall decide on any complaint by a judge claiming an infringement of his/her statutory right, of his/her independence as a judge or of the independence of the judiciary.”
3. Is the irremovability of judges recognised?
a) The office of a judge is permanent and is normally terminated with retirement which is compulsory only at the age of seventy.
¨ q.v. answer under 2b).
¨ Judicial Service Act, Art. 74, para. 1
“The office of a judge shall cease by law:
1. upon retirement but at the latest on his/her reaching the age of seventy; /…/”
a) Any grounds for termination of office of a judge can be determined only by statute.
¨ Constitution, Art. 132, para. 1:
“The circumstances in which a judge shall no longer hold office shall be specified by statute.”
¨ Judicial Service Act, Art. 74, para. 1
“The office of a judge shall cease by law: /…/
2. in case he/she ceases to be citizen of the Republic of Slovenia;
3. in case he/she loses legal competence or is unable to perform the judicial service for health reasons;
4. in case he/she resigns from judicial service;
5. in case the court to which he/she had been elected is abolished and his/her continuing judicial service at another court proves to be impossible;
6. in case he/she accepts a function incompatible with judicial service, accepts a full–time job or continues to perform a part–time job although it was declared incompatible with judicial service by the Judicial Council /…/;
7. in case the assessment of his/her judicial service has been ‘not suitable for judicial service’ for a second time.”
¨ q.v. also answer at II/13!
a) A judge is elected to a vacant post at a court of law and as a rule cannot be transferred to another court, even in the way of promotion, without his/her consent. Exceptions to this rule can be determined only by statute.
¨ Judicial Service Act, Art. 4, para. 2
»A judge may be temporarily or for an extended period transferred to another Court or to work in another body of the State only with his consent, without his consent he may be transferred only in cases and under conditions, determined by this statute«.
¨ Cases, as laid down in the Judicial Service Act, in which a judge can be transferred to another court without his/her consent are:
1. abolishment of the court (Art. 66, para. 1; q.v. also 3–b);
2. as a result of a significant decreasing of the work load of the particular court over an extended period (Art. 66, para. 1);
3. when the organisation of the courts is changed (Art. 66, para. 1);
4. as a disciplinary sanction (Art. 82, para.1), for a limited period of 6 months and up to 3 years (Art. 82, para.2).
Note: in cases 1–3 an equal judicial post and the same salary class are assured to the judge transferred to another court (Art. 66, para. 2).
4. Can the decisions handed down by judges be reviewed or set aside outside the appeals procedures provided for by law, by institutions other than the courts of appeal or cassation?
No authority other than a court of appeal (including the Supreme Court as the court of last resort) can review or set aside a judicial decision. The only particularity to this rule, and not an exception to it, being the prerogative of the Constitutional Court to abrogate a decision of a court of law in the procedure on the grounds of a constitutional complaint.
¨ Constitution, Art. 127, The Supreme Court, para. 1
“The Supreme Court shall be the highest court in the State.”
¨ Constitution, Art. 160, Jurisdiction of the Constitutional Court, para. 1
“The Constitutional Court shall be empowered to decide upon the following matters:
/…/ matters relating to complaints of breaches of this Constitution involving individual acts infringing human rights and fundamental freedoms; /…/
¨ Constitutional Court Act, Art. 1, para.1
“The Constitutional Court is the highest body of the judicial power for the protection of constitutionality, legality, human rights and basic freedoms.”
¨ Constitutional Court Act, Art. 60, para. 1
“If the Constitutional Court abrogates a personal act with retroactive effect, it may also decide on a contested right or freedom if such procedure is necessary in order to eliminate the consequences that have already occurred on the basis of the retroactively abrogated personal act, or if such is the nature of the constitutional right or freedom, and if a decision can be reached on the basis of information in the record.”
5. Can a case be withdrawn from a judge? If so, on what grounds and. by which authority?
A case can be withdrawn from a judge:
a) as an individual case – on the grounds of procedural provisions in case of a conflict of interests –
· as an immediate result of absolute conflict, or
· as a result of a relevant decision by the president of the court (or by the president of the immediately higher court, in case the judge in question is president of the court) in cases of disputed conflict;
b) as part of his/her individual backlog withdrawn – on the grounds of the judge being unable to deal with cases within a reasonable time, due to:
· his/her absence for an extended period of time;
· his/her being overburdened and the excessive workload having led to a considerable individual backlog – by the president of the court.
¨ Courts Act, Art. 16
“The system of distribution of cases referred to in the preceding Article shall also apply where a judge after taking the case has been exempted, or for reasons of extended absence cannot deal with the case in due course.”
II. THE APPOINTMENT OF JUDGES AND THEIR CAREERS
1. What qualifications are required and what conditions must be met in order to become a judge?
a) General conditions for appointment to judicial office are:
· citizenship of the Republic of Slovenia,
· active command of the Slovenian language,
· legal competence (uncontested competence of a grown-up person; sound mind),
· adequate general health condition,
· not less than 30 years of age,
· qualifications in law: Law School degree obtained in Slovenia or diploma of a foreign Law School formally recognised in the Republic of Slovenia,
· successfully passed state exam for lawyers (state bar examination),
· personal characteristics suitable for holding the judicial office.
¨ Judicial Service Act, Art. 8, para. 1
a) Special conditions for appointment to judicial office at a given court are certain numbers of years of adequate professional work, i.e. performing tasks requiring professional qualifications in law. They differ for various judicial posts (the higher the post, the more years of adequate professional experience is required).
¨ Judicial Service Act, Art. 9 to 14
2. Are judges recruited by competitive examination, on the basis of a professional examination or on the basis of their qualifications?
Judges are recruited on the basis of their qualifications.
3. What level of studies is required to become a judge?
Qualifications in law: Law School degree obtained in Slovenia or diploma of a foreign Law School formally recognised in the Republic of Slovenia.
4. Is previous professional experience required?
Previous professional experience is required.
¨ Judicial Service Act, Art. 9 to 14, q.v. II/1–b).
5. Are there any age requirements?
Thirty years is the minimum age for entering the judicial service at the level of a county court (the lower of the two kinds of courts of the first instance). Age requirements for the other courts are set indirectly by way of conditions regarding the number of years of required professional experience.
¨ Judicial Service Act, Art. 8, q.v. answer at II/1–a).
6. Are judges elected?
7. Or are they appointed?
8. Or are they selected in another way?
Judges are elected by the National Assembly (i.e. the Parliament). However, a judge is appointed to the Supreme Court by the National Assembly (upon the nomination of the Judicial Council) – in case he/she is already in judicial service.
¨ Constitution, Art. 130, q.v. answer at I/2–a)!
¨ Judicial Service Act, Art. 24, para. 4.
9. Which authority is responsible for recruiting judges?
Personnel Councils of the Courts, composed of judges are responsible for the recruitment of judges.
¨ q.v. answer at I/2–d)!
10. Does any authority independent of the government and the administration take part in the selection or promotion process? If so, specify the composition and role of this body.
The Judicial Council is the independent authority that takes part in the selection and promotion process. It takes part in the selection process by nominating to the National Assembly the candidate it deems most suitable for the vacant post of a judge. It decides on all promotions of judges, with the exception of judges of the Supreme Court in which case it nominates to the National Assembly the candidate it deems most suitable for the vacant post.
¨ Constitution, Art. 131 – q.v. answer at I/2–c)!
¨ Judicial Service Act, Art. 24, para. 4 – q.v. answer at II/6!
¨ Judicial Service Act, Art. 24, para.1 to 3
“A judge shall obtain the right to promotion by entering judicial service.
Promotion shall include promotion among salary classes, promotion to a higher judicial post and promotion to the post of senior judge.
The promotion of a judge shall be decided upon by the Judicial Council after his/her professional skills and efficiency have been assessed.”
11. How and by whom are judges promoted?
Judges are promoted by the Judicial Council upon the advisory opinion of the Personnel Council.
¨ q.v. answer to the previous question!
¨ Courts Act, Art. 30, para. 1, q.v. answer at I/2–d)!
12. What are the criteria for promoting judges? Are they objectively defined?
The criteria for promoting judges are seniority and qualifications, based on merits which are objectively defined.
¨ Judicial Service Act, Art. 29:
“The assessment of judicial service shall comprise the following criteria:
1. professional knowledge and professional activity;
2. working ability and ability to correctly deal with legal questions;
3. protection of the reputation of impartiality, conscientiousness, reliability, determination and diligence in the execution of obligations at work;
4. ability to communicate in written and oral form;
5. ability to communicate and work with parties involved;
6. relationship with colleagues and behaviour outside the performance of judicial service proper;
7. ability to perform the duties of a leading post should the judge be appointed to such a post.
Within the framework of the criteria from the first point of the previous paragraph, priority shall be given to professional skills apparent in the judge’s work and which is determined on the basis of an assessment of the judge’s decisions, to professional skills achieved through master’s or specialist postgraduate studies or through the awarding of a doctorate, and to the reputation of the judge derived from his/her work in a professional capacity.”
13. In what cases can a judge be removed from office?
The National Assembly (i.e. the Parliament) may remove a judge from office upon the proposal of the Judicial Council:
· in case he/she has infringed the Constitution or committed a major breach of the law in the discharge of the judicial function;
· in case he/she has been convicted of a crime, committed intentionally while discharging the judicial function and thereby to have abused that office (dismissal from the judicial office is obligatory in this case);
· in case he/she has been sentenced to a prison term longer than six months.
¨ Constitution, Art. 132, Termination and Dismissal from Office of a Judge, para. 2 and 3:
“Where a judge infringes this Constitution or commits a major breach of the law in the discharge of the duties and functions of his/her office, the National Assembly may, upon the recommendation of the Judicial Council, dismiss him/her.
Where a judge is found by a duly constituted court to have intentionally committed a criminal offence in the discharge of the duties and functions of his/her office, and thereby to have abused that office, he/she shall be dismissed from such office by the National Assembly.”
¨ Judicial Service Act, Art. 78, para. 2 and 3:
“If a judge is sentenced to a prison term longer than six months the Judicial Council shall propose to the National Assembly the dismissal of the judge, while it shall only inform the National Assembly of other cases in which judges have been sentenced for criminal offences.
If a judge is sentenced to a prison term of less than six months or given a non–custodial sentence for a criminal offence, the Judicial Council shall propose to the National Assembly the dismissal of the judge if the criminal offence was such as to render the judge unsuitable for the judicial function.”
14. Do you wish to make any comments or mention any practical difficulties with regard to the independence and appointment of judges in your country?
No comment is needed.
III. THE FUNDING OF THE COURTS
1. How are the courts’ activities funded?
The budget of the judiciary is a separate part of the State budget. The allocation of funds to each district court, higher court and to the Supreme Court is determined by the Parliament on the governmental proposal.
2. Give a brief description of the rules governing the setting of the budget for the judicial system and the courts.
The budget of the judiciary, as far as financial means for salaries and functional expenses are concerned, is drafted by the Supreme Court on the basis of financial plans, prepared separately by all the courts. The Supreme Court sends the draft proposal to the Ministry of Finance. The final proposal is drafted by the Government which sends it to the Parliament for adoption. The Supreme Court also co-ordinates the realisation of the budgetary financial plans of the lower courts. The financial means for the courts’ premises are still being secured through the Ministry of Justice.
3. Do judges have any say whatsoever in decisions concerning funding or in managing the budget?
The participation of judges in making decisions concerning funding of the courts is triple:
· the draft proposal for the judicial budget is prepared by the Supreme Court on the basis of financial plans of all the courts;
· the Judicial Council gives an advisory opinion to the governmental proposal of the budget for the judiciary;
· representatives of the Supreme Court, the Judicial Council and the Slovenian Judges’ Association participate at the session of the Parliamentary Committee for the Judiciary when it examines the governmental proposal of the budget for the judiciary.
4. Do judges have adequate support staff and equipment, in particular office automation and data processing facilities, to ensure that they can act efficiently and without undue delay?
Slovenian judges have adequate support in staff, equipment, especially office automation and data processing facilities.
5. Do judges encounter other material difficulties, which prevent them from acting efficiently?
The premises at the disposal of courts present a problem. A certain lack of space facilities is encountered in a number of courts, affecting their efficiency and on the larger scale the efficiency of the judiciary as a whole.
6. Are appropriate measures taken to assign non-judicial tasks to other persons?
It would be an overstatement to say that all appropriate measures have already been taken to assign non-judicial tasks to other persons.
7. General comments on the funding of the courts
The main obstacle to getting sufficient funds and having stable financial means for the judiciary is that the state budget is an act of the Parliament and thus a political act. It is therefore negotiated, to a certain extent, on a political level. The always present issue is that the judiciary does not and should not have any political power. Therefore the judiciary is not able and allowed to negotiate its financial demands on the governmental level of the procedure, this level being of utmost importance in the making of the state budget.