Reform of democratic and rule of law state in Slovenia

Asist. Prof. Jernej Letnar Černič, PhD; Assoc. Prof. Matej Avbelj, PhD; Assoc. Prof. Marko Novak, PhD

1st of January 2016 - 31st of December 2018

Project summary

The global aim of the proposed research project is to investigate the state of democratic and rule-of-law state in Slovenia and to develop proposals for its reform. It examines whether and how has the influence of the Council of Europe (COE) through the European Court of Human Rights and European Union (EU) through the European Court of Justice influenced the conditions for democracy and rule of law in Slovenia. The project will investigate how Slovenian judicial, legislative and executive branches/authorities safeguard democracy and rule of law. This research project will focus also on the question of how effective is the safeguarding of the human rights and fundamental freedoms in Slovenian legal order. It will study why democratic and rule of law state deficiencies are still present in the Slovenian legal order despite the influence of Council of Europe and European Union. In this way, it will identify the inadequacies and deficiencies in the Slovenian public sphere and devise solutions as to how the identified disadvantages can be remedied. The central research question, how to reform democratic and the rule-of-law state in Slovenia, underpins this research project.

The rule of law in Slovenia is in a systemic crisis. This proposition, unfortunately, requires no support in an in-depth comparative law analysis. It suffices to have a short glimpse at the jurisprudence of the European Court of Human Rights, which demonstrates the degree of Slovenia's compliance with the European Convention of Human Rights. It follows from this case-law, that the rule of law in Slovenia is failing in all those areas, which are essential for the individuals. Slovenia has been thus convicted for torture, police violence, medical mistreatments and lack of their investigation, for failing to ensure the right to family life in particular by the centres for social work. Furthermore, in its landmark Lukenda pilot-judgment the ECtHR went so far as to proclaim that the Slovenian violation of the right to a trial within a reasonable time is "a systemic problem that has resulted from inadequate legislation and inefficiency in the administration of justice. The problem continues to present a danger affecting every person seeking judicial protection of their rights." Not infrequently the judicial proceedings in Slovenia take place in a selective way, so that the individuals, who are close to the centres of formal and informal powers, ultimately escape the arm of justice. In so doing, the very foundations of the rule of law, which lie in the principle of equality before the law, are eroded. The state which falls short even of the formal requirements of the rule of law, which is what the equality before the law stands for, is not and cannot be said to comply with the rule of law.

The project will be broken down into four parts: the first part will look into the historical reasons, in particular into the socialist legacy, for the present state of affairs in the field of rule of law and democracy in Slovenia. The second part will focus on the endogenous factors influencing, positively or negatively, the rule of law and democracy in Slovenia from 1991 till present. This part will also have an important comparative dimension, analysing the Slovenian experience in rule of law and democracy building in comparison with other transitional countries as well as the countries that could be qualified as well-ordered societies. The last two parts will be devoted to exogenous factors. The third part will study the democratization and progress of rule of law in Slovenia under the influence of the ECHR. The fourth and final part will do the same with regard to the influence of EU law.


Project work programme

The envisaged duration of the project is three years; it will be carried out as a joint research work of the main applicant, the Graduate School of Government and European Studies, and European Faculty of Law. The mere technical realization of research will take place under the above-presented research methods specific to the law. Therefore, the vast majority of our work will be done in libraries, at domestic faculties, as well as in specialized libraries in Slovenia and, if necessary and possible at foreign universities with whom we have cooperated in the past. The relevant literature will be studied in libraries, where also the writing of a monograph will take place. These two types of activity will take by far the largest share of research hours on the project.

Among the expected results of the project is the publication of a monograph on the reform of democratic and the rule-of-law state. In a period of three years we will be publish four peer reviewed articles in reputable national and international journals. We will organize three international conferences on the theme of the project. Expected results will be presented at national and international conferences in the field of constitutional law and human rights law. The results will be presented to local and international NGOs. In the civil context, the results will be presented to the stakeholders working in the field of democratic and rule of law and protection of human rights.