Mr. Andrej Ferlinc is a highly esteemed Slovenian expert in criminal law and a distinguished state prosecutor with over forty years of experience. He is widely acclaimed for his substantial contributions to the field, having authored more than two hundred scholarly and professional works. Over the course of his career, he held various positions within the state prosecutor’s organization, ultimately serving as the head of the Criminal Cases Department at the Supreme State Prosecutor’s Office. Noteworthy are his involvements in numerous high-profile criminal cases, such as the Patria case. Upon his retirement in 2021, the newspaper Delo highlighted that Mr. Ferlinc’s professional stature is beyond dispute, recognized not only by his former colleagues but also by his adversaries among private attorneys.
For several years, Mr. Ferlinc has been engaged as a lecturer and an external associate in criminal law at the Faculty of Criminal Justice and Security of the University of Maribor. Earlier this year, the Faculty of Social Sciences at the University of Ljubljana, in collaboration with the Faculty of Law at the University of Maribor, published his monograph titled Rule of Law in Slovenia and Beyond. This publication marks his second monograph in the last three years, following the release of Motives for Crimes. Critics have acclaimed his latest work as an outstanding examination of the functionality and shortcomings of the rule of law in Slovenia and its broader context. Leveraging his theoretical expertise and extensive practical background within the judiciary, Mr. Ferlinc’s insightful analysis offers invaluable perspectives.
During the debate, Mr. Ferlinc and his host, Associate Professor Benjamin Flander, predominantly delved into the conceptual dimensions of the rule of law, specifically highlighting the prevailing challenges and obstacles related to its application within Slovenian criminal law and criminal justice systems. Furthermore, they explored the intricacies of the Patria case, where Mr. Ferlinc served as the prosecution’s representative. As the debate drew to a close, the guest actively participated by addressing questions posed by the audience.
The event was organised by the Department of Law of the Faculty of Criminal Justice and Security of the University of Ljubljana. It took place as a dissemination event coordinated by Associate Professor Benjamin Flander, a member of the Central European Professors’ Network 2023 research group on ‘International interpretation of the rule of law,’ coordinated by the Central European Academy.
The event was attended by approx. 50 participants. It was carried out in the Slovenian language. It was video recorded, and the video was equipped with the English subtitles.
Professor Flander initiated the debate by raising a question about the Patria case,[1] one of the most high-profile and media-covered cases in Slovenia, wherein Mr. Ferlinc represented the prosecution. Acknowledging Mr. Ferlinc’s possible reluctance to delve deeply into the details of the Patria case, Professor Flander inquired if Mr. Ferlinc recalls the events when he was reading the indictment, spanning over eighty pages. Professor Flander mentioned rumors suggesting that Mr. Ferlinc hadn’t managed to read the entire indictment during the initial hearing and had to resume and conclude the reading at a subsequent session.
Mr. Ferlinc confirmed the accuracy of the “rumors” elucidating that meticulously presented arguments often necessitate extensive explanations, as was the case with the indictment motion in the Patria case. He elaborated that crafting the reasoning took an unusually long time. Mr. Ferlinc explained that in current criminal procedures, prosecutors have the option, in the event of lengthy explanations, to present them in their own words to mitigate misunderstandings with the accused and their legal representatives. They could, after all, use the lengthiness of the explanation and the long time it takes to read it to claim that they do not understand the accusations. This, according to Mr. Ferlinc, should not be a valid complaint, as the lawyers should delve deep into the case file anyway in order to prepare a successful defense for their client.
In response to Mr. Ferlinc’s remarks, Professor Flander referenced the media reports from the Patria case, where the defendants purportedly likened the proceedings to Wall Street due to the abundance of insinuations heard during the hearing. Additionally, the defense claimed that the accused did not grasp the rationale behind the indictment. However, as underscored by Professor Flander, despite these assertions, the defendants were ultimately convicted, and the case files surpassed twenty-two thousand pages. Subsequently, the conviction faced challenges in the High Court, where appeals from all three defendants were dismissed. The High Court emphasized that the ruling in this case was what they termed an “indicative ruling.” They clarified that such a judgment isn’t solely based on direct evidence but must be comprehended in its entirety without dissection, as attempted by the defense.
Professor Flander then highlighted the emergence of a vigorous debate among Slovene lawyers shortly after the High Court’s ruling, centering on the concept of indicative rulings. This discussion led to the formation of two distinct camps within legal circles. On one side stood proponents who viewed rulings based on indications as vital tools for ensuring the effective prosecution of corruption-related criminal offenses, thereby enhancing the rule of law. Conversely, the opposing camp perceived such rulings as perilous, posing a threat to the rule of law by potentially undermining the court’s obligation to be convinced of the defendant’s guilt solely based on direct evidence. Given the significance of indicative rulings in combating sensitive crimes like corruption, Professor Flander expressed interest in Mr. Ferlinc’s perspective on the matter, recognizing that without them, the Criminal Justice system might struggle to effectively address such offenses.
In response to the question, the Former Supreme State Prosecutor clarified that criminal law establishes a standard known as “a concise set of indications,” which serves as the criterion for justifying a conviction. This type of ruling holds particular relevance in cases involving corruption. Mr. Ferlinc explained that in most corruption cases, corruptive acts can only be inferred from cumulative indications. He emphasized, however, the importance of ensuring that indicative rulings are not misused, cautioning against falsely labeling something as indicative when it is not.
Expanding on Mr. Ferlinc’s explanation, Professor Flander pointed to an insightful comparison made by Professor Petrovec from the Institute of Criminology at the Faculty of Law in Ljubljana. Professor Petrovec likened an indicative ruling in a criminal case to a painting by the Impressionists. When observed up close, it may appear as mere smudges, but from a distance, it reveals itself as a beautiful painting. Professor Flander found this analogy to be a fitting depiction of an indicative ruling.
The final verdict in the Patria case was upheld by the Supreme Court during extraordinary remedy proceedings. Professor Flander expressed concerns regarding the Supreme Court’s handling of the case. He noted that the Supreme Court didn’t assist the prosecution by declining to disqualify two of its judges, as requested by the defense, from the panel overseeing the case. Of particular concern was the failure to disqualify the President of the Supreme Court, who, while the trial was ongoing at lower levels, publicly criticized Mr. Janša during his speech at the ‘Days of Slovenian Justice’.
The defense has characterized the incident as controversial, arguing that it undermines the perception of the court’s impartiality. According to the Constitution of the Republic of Slovenia, maintaining the appearance of impartiality is integral to the principle of judicial impartiality, which serves as a crucial guarantee of a fair trial. Professor Flander expressed curiosity about Mr. Ferlinc’s perspective on whether there should have been a disqualification in light of these considerations.
In response, Mr. Ferlinc noted that he preferred not to directly discuss the Patria case. However, speaking generally, he emphasized that the grounds for disqualifying a judge in any given case must be truly compelling and robust. If such grounds are lacking, disqualification shouldn’t occur. Mr. Ferlinc stressed the importance of interpreting the grounds for disqualification narrowly to maintain society’s trust in judges, prosecutors, and constitutional judges. He referred to the case of De Cubber v. Belgium, where the European Court of Human Rights emphasized the significance of not just actual impartiality but also the appearance of impartiality of judges and the court.
Following the Supreme Court’s confirmation of the final judgment in the Patria case through extraordinary remedy proceedings, the defendants, including Mr. Janša, lodged a constitutional complaint. The Constitutional Court unanimously overturned the conviction and remanded the case for a first instance retrial. Professor Flander highlighted that in several other significant criminal cases, there was no such unity among constitutional judges. The Constitutional Court has exhibited a noticeable divide between “liberal” and “conservative” judges. While acknowledging that this split may be perceived as an anomaly in the Rechtsstaat and the rule of law, Professor Flander suggests it might actually be an inherent aspect of the rule of law. He believes it’s natural in a state governed by the rule of law that not everyone shares the same perspective when deciding on fundamental societal and state matters. However, he has learned from conversations with constitutional lawyers from neighboring countries like Hungary and Serbia that such divisions among Constitutional Court judges do not exist there.
Mr Ferlinc explained that he took a strong position on this issue in his book The Rule of Law in Slovenia and Beyond, affirming that he maintains the same position. He emphasized the importance of adhering to professional criteria, asserting that while every judge is entitled to hold personal convictions, whether political, religious, or otherwise, these should not influence judicial decision-making. He advocated for self-discipline, particularly among judges in various courts, emphasizing the necessity of strictly adhering to constitutional and statutory law.
Professor Flander concurred with Mr. Ferlinc’s viewpoint but noted that certain constitutional issues transcend mere legal considerations and delve into meta-legal territory. In such cases, judges may be influenced by factors beyond strict legality, such as their worldview, values, or political orientation. While acknowledging that disagreements on legal matters are inevitable, Professor Flander contended that such divergences are normal in a rule-of-law system. He posited that if all judges consistently ruled in alignment with the executive branch, it would pose a more significant problem. However, he acknowledged that the public may find the division among judges confusing and frustrating.
In the remainder of their discussion, Mr. Ferlinc and Professor Flander delved into several issues explored in Mr. Ferlinc’s book. These included statutes of limitation for criminal prosecution (a topic that stirred debate and disagreements among legal experts, particularly in relation to the Patria case); the concepts of “cassatory” and “reformatory” decisions of higher courts (with both agreeing that in Slovenia, it’s common for higher courts to overturn cases and send them back for retrial); the definition of the rule of law and its international and supranational dimensions; processes that compromise the rule of law; the principle that repression should be a last resort; the introduction of life imprisonment as the most severe criminal sanction in Slovenian criminal law; the “Pharmacist case” (involving accusations against Zoran Janković, the mayor of Ljubljana, for abuse of official position by offering a pharmacist a job in exchange for sexual favors); issues such as the mandatory destruction of data/evidence obtained through covert investigation measures in cases of prosecutorial inactivity, and challenges surrounding the “fruit of the poisonous tree” doctrine as the basis for the exclusion of illegally obtained evidence in criminal proceedings.
As the discussion drew to a close, Professor Flander inquired whether Mr. Ferlinc had ever considered abandoning his prosecutor’s robe for a different role during his career. Mr. Ferlinc responded that he had not, as he firmly believes in the vital role of prosecution in a democratic society founded on the rule of law. He emphasized that prosecutors not only protect the nation from crime but also uphold legality. While acknowledging that prosecutors are not judges, Mr. Ferlinc asserted that their objective must always be to achieve a fair, just, and lawful outcome.
[1] The criminal case in which a final conviction of former Prime Minister Janez Janša and two other defendants was abrogated by the Constitutional Court.
