News 2015

Slovenian government controversially eliminated DDr. Klemen Jaklic’s candidacy for judge at the European Court of Human Rights

15.06.2015

  • The Ministry of Justice controversially eliminated the eminent jurist and lecturer at Harvard DDr Klemen Jaklic as a candidate for judge at the European Court of Human Rights. He was one of the first and fiercest critics of the conviction of the Slovenian opposition leader Mr. Janez Jansa and the Patria case.
  • The appointment procedure at the Ministry of Justice was conducted by the ex-wife of one of the candidates for a new judge at the European Court of Human Rights.
  • Rules of the Council of Europe explicitly call for a transparent and impartial national part of the ECtHR appointment procedure and demand immediate elimination of anyone who might constitute a conflict of interest in order to ensure appearance of impartiality in the process.
Slovenia is going through the process of appointing a new judge at the European Court of Human Rights (ECtHR). There are 12 candidates. Until recently, one of the most notable candidates was the academic DDr. Klemen Jaklic, former member of the Venice Commission and author of Constitutional Pluralism in the EU (Oxford University Press 2014), who is holding two doctorates in Law from Harvard and Oxford University, and teaches at Harvard in the fields of human rights, constitutional theory, international justice, etc. Mr. Jaklic's candidacy was supported by prominent professors in the field from Harvard and Oxford University, who were describing him as a “legal scholar and thinker of exceptional ability”, and as a “morally upright person devoted to the advancement of democracy, human rights, and fidelity to law”.

The Slovenian Ministry of Justice confirmed all but one of the 12 candidates. The only eliminated candidacy was DDr. Jaklic’s one with an argument that at the time the Ministry of Justice started the appointment process he was a couple months short of being 40 years old. However, the Slovenian law does not state that a candidate must be 40 at the time an appointment process starts at the Ministry. It states that an elected candidate can be the one who is at least 40 years old, which will be the case of DDr Jaklic as well, considering the fact that he will be well over 40 at the time the elections for the post occur in Strasbourg.

To the Slovenian public, DDr. Jaklic is known for his autonomous, independent character - he was one of the first and fiercest critics of the conviction of the Slovenian opposition leader Mr. Janez Jansa in the Patria case. DDr. Jaklic voiced his criticism even though both of the higher courts confirmed the conviction, arguing that the latter was fundamentally unconstitutional. He criticized the regular courts for acting as remnants of the previous undemocratic regime that do not, and even are unwilling to, take into account in their judging the imperatives and contents of human rights. In the last instance, the Constitutional Court ruled unanimously that, in fact, serious violations of the Constitution and the fundamental human rights occurred in this case. It overruled all the judgments of the lower courts, just as it was predicted by DDr. Jaklic.

The real reason for DDr. Jaklic’s elimination from the appointment process, based on the bizarre interpretative stretch, is in what he represents as a person. Being an independent and completely uncontrollable international legal scholar, he is inevitably a threat to the heirs of the previous undemocratic regime and their remaining monopolies. Because of his international reputation, accomplishments and support, DDr. Jaklic would, at the European stage of the appointment process, have had the greatest chance of being elected for the post. The Ministry’s procedure that eliminated DDr. Jaklic was led by the head of the department responsible for carrying out the confirmation of candidates. The head of the department was as a matter of fact a former wife of one of the 12 candidates. Despite this, she did not withdraw from the procedure, but she herself took several steps in the process of eliminating DDr. Jaklic. Both, the documents that she signed, as well as, several witnesses confirm that she played an important role in the elimination.

This occurred despite the well-known fact that the rules of the Council of Europe explicitly call for a transparent and impartial national part of the ECtHR appointment procedure. In any such case, the rules of the Council of Europe demand an instant withdrawal. At the minimum, it is essential that at least the appearance of impartiality be ensured. It seems completely unacceptable that violations of these European standards and rules occur, alas, even in the process of selecting a judge at the European Court of Human Rights. Indeed, at the very minimum, this represents a flagrant violation of the requirements of impartiality and transparency.

After the scandal with the unsuccessful self-appointment of the former Slovenian Prime Minister Alenka Bratusek for the EU Commissioner post, who was later rejected by the European Parliament, we seem to be on the brink of a new European scandal. It is another disgrace introduced by Slovenia in the attempt by the heirs of the previous regime to defend and sustain their old monopolies.