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DIGNITAS ■ How Long is the Long Shadow of the Authoritarian Past – The Case of ...
ABSTRACT
The state of the Slovene judiciary, eighteen years after join-
ing the EU and over thirty years after the fall of communism and 
Slovenia’s independence, is still in transition. The Slovenian ju-
diciary could serve as a textbook example of an institutionally 
independent judiciary composed of dependent individual judges 
within their branch, led by a handful of independent and unac-
countable judicial oligarchs. I will illustrate the Slovenian judicial 
story through seven anecdotes, forming an arch from the old 
communist regime to the current state of the Slovenian judiciary. 
These anecdotes will highlight some of the most significant fea-
tures of the Slovenian judiciary, collectively pointing to serious 
deficiencies contributing to a widespread rule of law crisis. While 
these may seem like a list of isolated facts or ‘selected issues,’ they 
are not only interconnected but also share a common origin. I 
believe this origin lies in the legacy of the past and the lack of 
relevant professional (and policy) will within the judicial elites 
and oligarchies that control the judiciary to implement necessary 
changes, not only in the judicial system but, more importantly, in 
the mindset of the judiciary.
First, I will provide a brief overview of the state and condition 
of the Slovenian judiciary at the time of the collapse of the Yu-
goslav communist regime. Then I will continue with anecdotes 
that describe the characteristic traits of the judicial mentality and 
expose some of the most critical moments in the history of the 
How Long is the Long Shadow  
of the Authoritarian Past – The Case 
of Slovenian Judiciary
Jan Zobec*
* 
Jan Zobec graduated from the Faculty of Law of the University of Ljubljana in 1978. Throughout 
his judicial career, which began in 1981, he worked in the civil and civil law departments, and as a 
Supreme Court judge he occasionally participated in the sessions of the commercial law senate. He 
assumed the function of constitutional judge on 27 March 2008 and, after the expiration of his nine-
-year term, he resumed his position as Supreme Court judge. 

10
DIGNITAS ■ Constitutional Law
Slovenian judiciary. Following that, I will evaluate the messages 
conveyed by these anecdotes, emphasizing the existence of a vi-
cious circle that perpetuates these narratives. The presentation 
will then unveil the lessons that can be gleaned from the Sloveni-
an experience and attempt to identify the main reasons for these 
flaws. Instead of presenting final conclusions, this discussion will 
propose some rudimentary and tentative solutions to address the 
disheartening situation.
Keywords: judicial independence, judicial selfgovernment, cor-
poratism, judicial habitus, powers of court presidents
Kako dolga je dolga senca avtoritarne 
preteklosti – primer slovenskega pravosodja
POVZETEK
Slovensko sodstvo je osemnajst let po vstopu v EU in več kot 
trideset let po padcu komunizma in osamosvojitvi Slovenije še 
vedno v tranziciji. Slovensko sodstvo bi lahko služilo kot šolski 
primer institucionalno neodvisnega sodstva, ki ga sestavljajo 
odvisni posamezni sodniki znotraj sodne veje oblasti, vodi pa 
ga peščica neodvisnih in neodgovornih sodnih oligarhov. Slov-
ensko sodno zgodbo bom ponazoril s sedmimi anekdotami, 
ki tvorijo lok od starega komunističnega režima do sedanjega 
stanja slovenskega sodstva. Te anekdote bodo izpostavile neka-
tere najpomembnejše značilnosti slovenskega sodstva in skupaj 
pokazale na resne pomanjkljivosti, ki prispevajo k vsesplošni 
krizi pravne države. Čeprav se morda zdi, da gre za seznam 
izoliranih dejstev ali „izbranih vprašanj“, niso le medsebojno 
povezana, temveč imajo tudi skupen izvor. Menim, da je ta  
izvor v dediščini preteklosti in pomanjkanju ustrezne strok-
ov-ne (in politične) volje v sodniških elitah in oligarhijah, ki 
obvladujejo sodstvo, za izvedbo potrebnih sprememb, ne le v 
sodnem sistemu, temveč, kar je še pomembneje, v miselnosti 
sodnikov.
Najprej bom podal kratek pregled stanja in razmer v slov-
enskem sodstvu ob razpadu jugoslovanskega komunističnega 
režima.Nato bom nadaljeval z anekdotami, ki opisujejo značilne 
poteze sodniške miselnosti in izpostavljajo nekatere najbolj 

11
DIGNITAS ■ How Long is the Long Shadow of the Authoritarian Past – The Case of ...
kritične trenutke v zgodovini slovenskega sodstva. Nato bom 
ovrednotil sporočila, ki jih posredujejo te anekdote, in poudar-
il obstoj začaranega kroga, ki utrjuje te pripovedi. Predstavitev 
bo nato razkrila lekcije, ki jih je mogoče potegniti iz slovenskih 
izkušenj in poskušala opredeliti glavne razloge za te pomanjkljiv-
osti. Namesto da bi predstavila končne sklepe, bo razprava pred-
lagala nekaj osnovnih in okvirnih rešitev za odpravo razočaranja 
vzbujajočega stanja.
Ključne besede: sodniška neodvisnost, sodniška samoupra-
va, korporativizem, sodniški habitus, pooblastila predsednikov 
sodišč
1. Introduction
The aim of this contribution is to outline the systemic deficien-
cies in post-communist and post-dictatorship countries. These de-
ficiencies have often been underestimated by the mainstream, 
primarily Western and international institutional, ideology. This 
ideology can be summarized as follows: the judiciary, as a branch 
of government, must be fully independent. Therefore, the first 
step in reshaping governmental institutions and bodies must be 
to ensure the independence of the judiciary as an institution and 
branch of government.
After the collapse of the Central and Eastern European totali-
tarian regimes and during the pre-accession period, significant 
attention was paid to the institutional or structural independence 
of the judiciary as a whole. Unfortunately, this focus entirely over-
shadowed, and, as explained below, even suppressed the concept 
of individual, decisional, or ‘micro-independence’ of individual 
judges. This micro-independence is at the core of judicial inde-
pendence and simply means that judges should reach their deci-
sions without undue influence, whether from outside or within 
the institution to which they belong.
11
 In positive terms, inde-
pendent judges have the freedom to interpret the law and decide 
cases according to the substantive legal commitments embodied 
in the rules they apply (Zoldan, 2021, p. 539). An independent 
judiciary composed of dependent individual judges is, in essence, 
an oxymoron.
1 
For a comprehensive study, see Ferejohn, 1999, p. 353-384.

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DIGNITAS ■ Constitutional Law
Judicial independence, as Zoldan has pointed out, is easy to 
praise but difficult to define(Zoldan, 2021, p. 538). It is not only 
hydralike but also a multifaceted phenomenon. However, for the 
purpose of this article, I will focus on internal independence, 
which has long been overshadowed by structural or institution-
al (external) independence. The latter is often referred to as de 
jure independence, encompassing the formal arrangements that 
shape and protect the independence of the judiciary as a neces-
sary safeguard against the legislative and executive branches. This 
includes the mode of appointing judges and the existence of con-
stitutional guarantees of independence (van Dijk, 2021, pp. 8–9).
2
On the other hand, internal independence requires that in-
dividual judges be free from improper and undue instructions 
or pressures from their fellow judges and superiors.
3
 While it is 
reflected in some formal arrangements regulating case allocation, 
reassignment, and judge relocation, the most challenging aspect 
of it is de facto internal independence, which is the ‘state of mind’ 
that must be a part of a judge’s self-understanding at all times 
(Sunnqvist, 2024, pp. 3, 4, 6).
2 
For the definition settled in the CJEU case-law, see judgment no. C-64/16, dated Feb. 27, 2018, par. 
44, where the Court stated: “The concept of independence presupposes, in particular, that 
the body concerned exercises its judicial functions wholly autonomously, without being 
subject to any hierarchical constraint or subordinated to any other body and without taking 
orders or instructions from any source whatsoever, and that it is thus protected against exter-
nal interventions or pressure liable to impair the independent judgment of its members 
and to influence their decisions (see, to that effect, judgments of 19 September 2006, Wil-
son, C506/04, EU:C:2006:587, paragraph 51, and of 16 February 2017, Margarit Panicello, 
C503/15, EU:C:2017:126, paragraph 37 and the case-law cited).”
3 
See the judgment of the European Court of Human Rights in the case Khrykin v. Russia, par. 29; 
Baturlova v. Russia, par. 29. See also Sutyagin v Russia, No. 30024/02, par. 178 et seq.. However, it 
appears that the Court has blurred distinctions between the concept of internal independence and 
impartiality. The same holds true for other cases, such as Parlov-Tkalčić v Croatia, 22 December 2009, 
No. 24810/06, par. 86 and also for the CJEU jurisprudence. In its judgment no. C-619/18, dated June 
24, 2019, the Luxembourg Court defined the internal dimension of independence as being “for its 
part linked to impartiality and seeks to ensure that an equal distance is maintained from the parties to 
the proceedings and their respective interests with regard to the subject matter of those proceedings. 
That aspect requires objectivity and the absence of any interest in the outcome of the proceedings 
apart from the strict application of the rule of law.” (para. 73). For a comprehensive elaboration of the 
said concept in the light of the jurisprudence of the ECtHR see J. Sillen, The concept of ‘internal judi-
cial independence’ in the case law of the European Court of Human Right, European Constitutional 
Law Review, 15: 104–133, 2019 with further references; O. M. Fiss, The Limits of Judicial Independen-
ce, The University of Miami Inter-American Law review, Vol. 25, No. 1, pp. 57-76, p. 58. For the soft 
law postulating expresis verbis the requirement of internal independence see The Resolution 1685 
(2009) entitled Allegations of politically motivated abuses of the criminal justice system in Council 
of Europe member states adopted on September 30, 2009, wherein the Parliamentary Assembly of 
the Council of Europe (henceforth: CoE) stressed the fundamental importance, for the rule of law 
and the protection of individual freedom, of shielding criminal justice systems throughout Europe 
from politically motivated interference. It held that “[t]rue independence of judges also requires a 
number of legal and practical safeguards, including […] the independence of judges vis-à-vis court 
chairpersons (3.1.4.)”.

13
DIGNITAS ■ How Long is the Long Shadow of the Authoritarian Past – The Case of ...
This de facto internal independence of an individual judge, 
even in the presence of peers who may not always be as virtuous 
as ideally required (a common occurrence in post-socialist judi-
ciaries), is an aspect that has not received enough attention from 
the highest European courts (Avbelj, 2019).
In most post-communist countries, the phrase “judicial inde-
pendence” has gained such an aura that its mere mention can 
suffice to end discussions about it. No debate is met with the pos-
sibility of there being too much judicial independence (Moliterno 
et al., 2018, p. 484). Institutional independence, as the focal point 
of attention, has primarily been viewed as the isolation of the judi-
ciary from pressure or other forms of undue influence from other 
branches. In this context, judicial self-government has become 
the crucial mechanism for achieving, providing, and securing 
structural independence, with the judicial council as the primary 
guardian of judicial independence. It has almost become an im-
perative modeled after the so-called ‘Euro-model’ of the Judicial 
Council, following the Italian example, Consiglio Superiore della 
Magistratura, based on the assumption that “one size fits all”.
Challenging this prevailing concept, which is gaining support, 
even in the jurisprudence of the European Court of Human Rights 
(henceforth: ECtHR), by translating non-binding soft-law (such as 
the views of the Venice Commission and the Commissioner for 
Human Rights, European Charter on the Status of Judges) into 
(at least de facto) binding living law (dritto vivente),
4
 I will take 
as a starting point, and as an inspiration and main foundation for 
my argument, Professor Krygier’s caution to newly established 
democracies. Allow me to quote the entire passage, which goes 
as follows:
“Judicial independence is not of itself necessarily and cer-
tainly, it is not adequate to what we want from the rule of law. 
Sometimes it is contradictory to the rule of law, which is a coun-
terintuitive claim, but I think it‘s absolutely true, if you look at 
post-dictatorship, say post-communist dictatorship. A lot of them, 
some for good motives, said, the first thing we do is render the 
judiciary, which was always valuable, always just an instrument 
of communist government, independent, we give them statutory 
self-organization – and then, a week later you discover in this last 
4 
See e.g. ECtHR, Volkov v. Ukraine, no. 21722/11, dated Jan. 9, 2013, par. 109, 112. For a critical analysis 
of this judgment and other ECtHR case law see Kosař, Nudging, 2017, p. 119 et seq..

14
DIGNITAS ■ Constitutional Law
forever that all that, all these crooks and thugs and incompetents 
and victims or and beneficiaries of negative selection, who are 
put there for that reason in the courts, are irremovable. Some-
times you discover, and this is true for Bulgaria and for a lot of 
post-communist states, where the ex-communist parties won the 
first election, but weren’t sure that they were going to win the sec-
ond election, so what to do. One thing to do is to make sure that 
‘my guys’ are in power, so we decree judicial independence. Very 
often in a failed state or in ex-despotism courts, judges are in a 
position which a friend of mine called autistic corporatism, that is, 
they have been freed from dependence on the state, they defend 
their privileges and their own without reference either, certainly, 
not on the law, but to anything much outside themselves and they 
defend this privilege in liberal ideology which we know so well 
of judicial independence“ (Krygier, 2013).
The cited passage encapsulates the fundamental contradiction 
within institutional judicial independence. This contradiction has 
been meticulously and analytically examined by a new genera-
tion of exceptional Central and Eastern European (henceforth: 
CEE) academics and theorists. Notable scholars in this field, listed 
alphabetically, include Avbelj, Bobek, Čuroš, Kosař, Kühn, Let-
nar Černič, Mańko, Parau, Rodin, Spáč, and Uzelac, to name just 
a few. Therefore, my findings are further substantiated by the 
compelling research conducted by this emerging group of CEE 
scholars. Their work is grounded in empirical experiences and 
the outcomes of their investigations into court management in 
post-communist countries.
The importance of judicial independence for the foundation 
of the rule of law, upon which constitutional democracy is built, 
cannot be overstated. Therefore, Čuroš astutely observes that 
“[i]t serves liberal constitutionalism as the Lacanian objet petit a, 
which is impossible to attain, as there will always be another way 
to amend and improve it” (Čuroš, 2023) The Bangalore Principles, 
which aim to encompass the full scope of the concept of judicial 
independence, begin with a bold paragraph (paragraph 1.1): »A 
judge shall exercise the judicial function independently on the ba-
sis of the judge’s assessment of the facts and in accordance with 
a conscientious understanding of the law, free of any extraneous 
influences, inducements, pressures, threats, or interference, direct 
or indirect, from any quarter or for any reason.« This provision, 

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DIGNITAS ■ How Long is the Long Shadow of the Authoritarian Past – The Case of ...
which could be seen as a comprehensive definition of judicial 
independence, doesn’t even mention the words »accountability« 
or »corruption.« Therefore, Bobek and Kosař convincingly argue 
that, when taken in its entirety, this definition represents an an-
tithesis of judicial accountability (Bobek, Kosař, 2014, p. 1260).
The Bangalore definition of judicial independence is ground-
ed in the idea that it is an individual judge, a single person, who 
should be free from both formal and informal institutional pres-
sures. The Slovenian judiciary, however, serves as a prime exam-
ple of an institutionally independent judiciary that is composed of 
individual judges who are highly dependent within their branch. 
This branch is led by a small group of independent and unac-
countable judicial oligarchs. In the following sections, I will illus-
trate the Slovenian judicial landscape through seven anecdotes, 
each with its empirical power, highlighting the fundamental char-
acteristics of the post-communist transition of the third branch.
First, I will provide a brief overview of the state and condition 
of the Slovenian judiciary during the collapse of the Yugoslav 
communist regime. For this purpose, I will draw upon the semi-
nal study by the renowned Croatian scholar Uzelac titled »Survival 
of the Third Legal Tradition« (Uzelac, 2010, p. 377). In this study, 
Uzelac outlined the key sociological features of the Croatian judi-
ciary both before and after the introduction of nominal democra-
cy and its legal framework, which serves as the first precondition 
for the rule of law. Given that both neighboring countries share 
the same legal tradition, experienced the same Yugoslav totalitari-
an regime, and underwent a comparable process of transition, the 
findings and conclusions of Professor Uzelac are highly relevant 
to the Slovenian judiciary (Kühn, 2011; Moliterno et al., 2018, p. 
505 et seq.).
5
 The commonalities between both judicial systems 
make them suitable for joint consideration and study.
2.  An outline of the main traits of Slovenian 
socialist judiciary
In both Croatia and Slovenia, as in other communist countries, 
it was widely understood that the law and the entire legal system, 
5 
However, in general there are not many differences between judiciaries of different communist 
states..

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DIGNITAS ■ Constitutional Law
including its institutions, existed to serve and protect the ruling 
elites and their ideologies (Uzelac, 2010, p. 382). Lawyers from 
various professional backgrounds were expected to be skillful 
technicians capable of finding the appropriate legal form and jus-
tification for the desired (and predetermined) outcome (Uzelac, 
2010, p. 382).
6
Legal education was lacking and followed an outdated, non-
discursive approach. In most communist states, legal studies 
were designed to be affirmative, apologetic, descriptive, and 
repetitive; in short, memory exercise. A good lawyer was con-
sidered one who had memorized and, therefore, knew the law 
(and could apply simple, static, and mechanical interpretations 
of the law, often using basic syllogistic reasoning). Critical think-
ing, argumentation, and questioning were discouraged (Rodin, 
2009, p. 381; Kühn, 2011, p. 133 et seq.), and it was believed that 
law was a field of study for those who struggled with mathemat-
ics.
The third characteristic of the Croatian (and Slovenian) judici-
ary arises from a fear of decision-making. This fear stems from the 
uncomfortable situation in which a decision that was once desir-
able could become undesirable.
7
 Judges often chose the safest 
path, which was to make no decision at all, or at least not a deci-
sion that would definitively settle the issue in question (Uzelac, 
2010, pp. 383, 391–393). This tendency to resort to hyper-posi-
tivism (formalism) as a way to evade responsibility for decision-
making is based on the logic that by strictly adhering to the black 
letter of the law, it is the legislator, not the judge, who should be 
held accountable for the decision, as the legislator made that de-
cision when enacting the legal provision. Alternatively, as Profes-
sor Henderson (1991, p. 407) has put it, “submission to authority 
became a functional way to abdicate moral responsibility and 
choice.”
8
Furthermore, this mechanical understanding of the law, char-
6 
In this way predictability, as one of the requests of the state governed by law, was fulfilled. However, 
it was predictability based on political speculations, rather than on reliance on law – and hence it 
was an example of legal insecurity. 
7 
Well known is the famous saying of Tito, the leader of Yugoslav nations, that lawyer (a fortiori 
judge) must not hold onto the law like a drunkard to a picket fence. See P. Popović, Yugoslav Crisis 
in the Context of the II Cold War (1980-1990), doctoral thesis, Faculty of Social Sciences, University 
Ljubljana, Ljubljana 2011, p. 163.
8 
The author referenced to Robin West’s observations in: Authority, Autonomy, and Choice: The Role 
of Consent in the Moral and Political Visions of Franz Kafka and Richard Posner« (1985). Georgetown 
Law Faculty Publications and Other Works. 489, p. 424.

17
DIGNITAS ■ How Long is the Long Shadow of the Authoritarian Past – The Case of ...
acteristic of socialist judiciaries, was rooted in the concept of the 
unity of power. The judiciary was not recognized as a distinct 
and independent branch of power. Power was concentrated in 
the hands of the leadership of the Communist Party, seen as the 
embodiment of the »dictatorship of the proletariat,« and the legis-
lative branch was perceived as a natural extension of this power 
(Rodin, 2009, p. 385; Kühn, 2011, p. 64). As a result, “judges were 
supposed to follow, not to interpret, the will of the legislature not 
only and not primarily because of the hierarchical structure of 
the legal system, but because of authoritarian nature of political 
system” (Rodin, 2009, p. 385; Kühn, 2011, p. 64).
All these factors combined to shape the professional character 
of the average judge in the socialist era. A socialist judge tended 
to be timid, timorous, and fearful, often reluctant to take on re-
sponsibilities and apprehensive about potential retribution. Such 
a judge preferred to stay on the sidelines and remain inconspicu-
ous, even anonymous. Therefore, socialist judges were often in-
clined to delay making decisions and relied on logical legalism as 
a way to avoid forming substantive decisions that would require 
authoritative decision-making.
This approach allowed them to escape the responsibility of 
making decisions that carried real weight. A socialist judge acted 
and behaved more like a bureaucrat, seeking protection from au-
thority figures—though not the authority of sound legal reasoning, 
but the protection of powerful political or semi-political figures, 
whether they were within or outside the judiciary. This bureau-
cratic, administrative style of decision-making did not entail au-
thoritative decision-making, as the judge who saw themselves in 
this light viewed themselves as a mere mechanical extension of 
a greater, real power, similar to a police officer or a government 
official behind a counter.
9
9 
The issue is a difference in the mentality. In common law systems, becoming a judge is seen as 
a reward, a “kind of crowning achievement” (Spáč, 2018a, p. 2083; Kühn, 2021, p. 1239,1240). As a 
result,a common-law-judge is an individual with a strong professional and moral personality, a per-
son enjoying high esteem and trust among general public and within professional circles, and is an 
emanating power persona. Someone who becomes a judge after a long and successful career in a 
profession or politics is likely to expect a greater measure of individual autonomy than the person 
who moves through the ranks of a professional corps (O. M. Fiss, The Limits, p. 59). In contrast to this 
the socialist judge is (was) more of an official and therefore more susceptible to pleasing the political 
power than respecting the law. Legal formalism, therefore, also refers more to a blind obedience of 
power and disrespect for the law, than a blind obedience to the law itself. See Kühn, The Judiciary, 
2011, p. 147. Excessive formalism is also characteristic of Roman systems, such as the Italian judicia-
ry, in which, similarly to the post-socialist Slovenian and Croatian judiciary systems, a bureaucratic 
culture was established without the tradition of striving for excellence and hard work (ibid., p . 173).

18
DIGNITAS ■ Constitutional Law
Another characteristic of the socialist Croatian (and Slove-
nian) judiciary is related to its social status. In short, it was low 
but relatively comfortable. These characteristics were, to some 
extent, logical consequences of the judiciary’s bureaucratic po-
sition, which reduced the significance of judges’ work and di-
minished their social standing. Cases of genuine importance 
rarely came before the courts; they were typically decided or 
settled elsewhere, often within closed political (Party) circles. 
Even under the doctrine of workers’ self-management and so-
cial ownership, which, despite being based on Marxism, gave 
more autonomy to economic players, political elites propagated 
agreed solutions, often silently mediated by the Communist Par-
ty (Uzelac, 2010, pp. 385–386).
In the realm of civil law, courts primarily handled minor cases, 
such as private property disputes, neighborhood conflicts, tort 
cases, and family law matters. Judges were appointed by the Na-
tional Assembly (Supreme Court judges and judges of courts of 
second instance) or (first instance judges) by the so-called Mu-
nicipal Assembly (after the Socialist Association of Toiling Peo-
ple—an organization strictly under the control and tutelage of the 
Communist Party—provided its opinion on the »moral-political« 
suitability of the candidate) for eight-year terms and could be re-
elected. Their salaries were modest and comparable to the earn-
ings of many other state or municipal bureaucrats. Nonetheless, 
for those who could adapt to the requirements, a judicial job was 
not uncomfortable. In both countries, the legal profession often 
functioned as a family business, with the judicial position typically 
reserved for the family member who managed the household and 
cared for the children, while the breadwinning spouse worked as 
a private lawyer. This dynamic contributed to the feminization of 
the judiciary (Uzelac, 2010, pp. 386–387).
The social context in which the judiciary operated at the ad-
vent of democracy, as outlined above, should be distinguished 
from the socialist legal context from which the former was de-
rived. The socialist legal context was based more on the rule of 
men (i.e., the Communist Party, or more precisely, the arbitrary 
state) than on the rule of law. It rested on the assumption of the 
unity of power or the united power of the »toiling people« (pro-
letariat), rather than on the separation of powers. The model of 
united power, also known as the »dictatorship of the proletariat,« 

19
DIGNITAS ■ How Long is the Long Shadow of the Authoritarian Past – The Case of ...
was swiftly replaced by the system of separation of powers, and 
the judiciary was elevated to a separate branch of power and 
granted independence almost overnight.
10
However, this transformation is only part of the story. Under 
the new conditions of a market economy and private initiative, 
which constituted the new social and political context (with the 
pluralization of political life and the marketization of the econ-
omy), courts, unprepared for such a tectonic shift, found them-
selves handling important, high-profile, yet challenging and com-
plex cases. Suddenly, the judiciary was thrust into a position of 
power and influence, becoming a significant player in arenas 
where important social, economic, or political interests collided. 
As social life became increasingly judicialized, the courts’ social 
role, influence, and power expanded (Ferejohn, 2002, pp. 41–68). 
Judges began to wield significant power through their decisions, 
they began, in Austin’s terms, “doing things with words”, even 
though most of them were not fully aware of the extent of their 
influence.
A significant portion of the Slovenian judiciary was initially 
created as a mass organization, where individual judges held lit-
tle importance, and this structure remained largely unchanged. 
Slovenia, like most other post-communist countries, could not 
rely on “colonization” of the judicial sector.
11
 Unlike some post-
communist countries, it did not have a democratic region (akin 
to »Western« Slovenia) from which legal professionals could be 
readily transferred to support the newly established democra-
cy.
12
 While it is relatively easy to remove »socialist« labels and 
»communist« symbols, and it can be done overnight, adopting 
a new constitution and establishing a fresh legal framework, 
albeit taking a year or more, is still relatively straightforward. 
However, it is a far more complex and time-consuming pro-
cess to change the social context, particularly the mindset  
of the people. This challenge is not unique to the judiciary but 
extends to all state institutions since they are composed of hu-
10 
Constitution of the Republic of Slovenia 1991, Art. 3.
11 
The term »colonization« of the judicial sector belongs to Uzelac, 2010, p. 389.
12 
The situation was completely different in Germany, where after the collapse of communism and 
the fall of the Berlin Wall, the »Eastern« legal system had figuratively drowned in the »Western« sy-
stem and where the positions of judges and prosecutors were occupied by the personnel from the 
»West«. In 1994, in the »Eastern« states (Länder) only 9.2% of judges had already held a judicial office 
in 1989. Those who left the judiciary were almost entirely replaced by the »Westerners«. See Kühn, 
The Judiciary, 2011, p. 163.

20
DIGNITAS ■ Constitutional Law
man beings who have been shaped by their historical experi-
ences.
13
The transition to a liberal democracy based on the rule of law 
took place with the existing personnel, many of whom were born, 
raised, and trained in the totalitarian regime (Zobec, Letnar Černič, 
2015, pp. 125–136; Avbelj, Letnar Černič, 2020, p. 6). The unity of 
power within the totalitarian system, particularly the unity of the 
working class (the avant-garde, i.e., the Party), significantly influ-
enced and deformed the soul of lawyers. This effect was a com-
mon characteristic of all totalitarian regimes. The socialist legal for-
malism was not merely about following the legal text blindly; it was 
primarily about servitude and submission to power and authority. 
In totalitarian societies, the separation of law from a judge’s ethical 
essence, which is intrinsic to human beings, was starkly evident.
As Bučar, a prominent Slovenian lawyer and dissident, sug-
gests, lawyers were the first and perhaps greatest victims of the 
division between ethics and positive law in socialism. If this as-
sertion holds true, it prompts the question of what a judge was 
during the era of communism, or any other totalitarian system, 
where the gap between the law and ethics was insurmountable 
in various legal domains.
Assessing the state of mind of the post-totalitarian judiciary, 
one cannot ignore the fact that the transition to a liberal democ-
racy based on the rule of law occurred with the existing person-
nel who had been raised in a socialist environment. Bučar argues 
that lawyers, with their often unnecessary or excessive docility, 
inadvertently strengthened the totalitarian system by providing 
at least the legitimation of its acceptability, if not legitimacy itself. 
Their conduct and adaptability unwillingly affirmed the system’s 
righteousness, granted absolution for violations of fundamental 
human rights, and inadvertently bestowed legitimacy on the re-
gime (Bučar, 2004, p. 6). This context is essential to understand-
ing the mindset of the post-totalitarian judiciary.
3. Anecdotes
I have had the privilege of observing the judiciary from two 
different perspectives. One is that of an insider, as an ordinary 
13 
For more on this topic see Gudkov, “Soviet Man”, 2008, p. 6.

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DIGNITAS ■ How Long is the Long Shadow of the Authoritarian Past – The Case of ...
(Supreme Court) judge, and the other belongs to the perspective 
of a judge of the Constitutional Court (henceforth: CC). The for-
mer is my current position and hence seems to be more accurate. 
Besides, if you are a part of the system being observed, you have 
access to information that is otherwise hidden or less visible to 
ordinary observers, contributing significantly to the understand-
ing of the essence of the observed object. As for my observa-
tion from the viewpoint of a constitutional judge, the outlook is 
broader, and the view of the object is clearer and more discerning 
when you are not a part of it. This perspective offers a view of the 
whole forest, not just some particular trees.
From the outset, I could only agree with the old truth that the 
sub-system, as the judiciary obviously is, cannot be detached from 
the system to which it belongs and of which it is a part. Therefore, 
if the system suffers from a lack of democracy and the rule of 
law, as the Slovenian system certainly does, the current situation 
is even deteriorating,
14
 then, the judiciary, as its sub-system, could 
hardly be significantly different. In my opinion, the most charac-
teristic and striking feature of the Slovenian judiciary belongs to 
the authoritarian culture and corporatist, illiberal mentality. Both 
are intertwined and generate each other. Both derive from the 
past - authoritarian culture is most often expressed through the 
way of communication, as an authoritarian discourse that entails 
the proclamation and imposition of one truth as universal and fi-
nal (Rodin, 2005). Such a culture requires an appropriate societal 
environment, an environment that fits one way of communication 
and corresponds to the prevailing and governing mindset within 
the professional population. Certainly, it is not liberal thought; 
indeed, it is a corporatist mentality based on the principle that 
the individual is nothing while the collective is all and above eve-
rything. It corresponds to bureaucratic hierarchical organization 
as an antipode to the coordinative and discursive model of or-
ganization. The distinction between these two concepts can be 
expressed through the observation: „In the Continental system, 
the basic premise is that decisions are not made by individuals, 
but by the institution itself. In the American system, on the other 
hand, the court in itself is not considered an institution. The judge 
is the institution” (Vogel, 2022, p. 749)
14 
For thorough analysis: Avbelj, Letnar Černič, 2020; Avbelj, 2017d, p.43 et seq.

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DIGNITAS ■ Constitutional Law
So what are the features of authoritarian legal thought? Most 
of them are survivals of the socialist mindset; however, the most 
persistent is one that demands and values a powerful president of 
the highest court, heading a rigid and monolithic body of judges. 
Let me share anecdotes that illustrate, depict, explain, and sup-
port my assumptions about the failure of the transition of the 
third branch.
3.1. The First Anecdote
I vividly recall the well-established and highly respected presi-
dent of the Supreme Court (henceforth: SC) in the 1980s. She 
was renowned and valued not primarily for her legal acumen but 
rather for her political influence derived from her membership 
in the highest body of the Communist Party, the Central Commit-
tee. This prominent position and her close ties with the highest 
communist authorities endowed her with the ability to control 
the judiciary effectively. Consequently, the prevailing perception 
of her role was as follows: she was a commendable leader who 
could offer protection and support, but the consequences of fall-
ing out of her favor were to be dreaded.
So here comes the first anecdote: In May 1989, the general meet-
ing of the Association of Judges took place in Postojna. One of the 
retired judges asked for the floor, and since the dawn of liberal de-
mocracy was already in the air, new political parties began emerg-
ing, and political pluralism was deemed imminent, he frankly ex-
posed the question of compatibility of judicial service with the 
membership of the then emerging new political parties. He gave 
an example taken from the so-called old Yugoslav law, which pro-
vided for incompatibility of judicial function with the membership 
of political parties. And he stood for that solution. However, the 
president of the then Supreme Court immediately and suddenly 
intervened, took the floor (uninvited), and fiercely opposed him, 
claiming that nobody ever had done so much for the respect and 
protection of judicial independence as the Communist party had.
She was right. Since the majority of judges felt committed to 
following communist ideology and the politics of the Communist 
Party, the latter didn’t need to make any effort to secure its influ-
ence over the judiciary and retain it in the long run. That’s why 
the Communist Party seemed to be such a keen supporter of ju-

23
DIGNITAS ■ How Long is the Long Shadow of the Authoritarian Past – The Case of ...
dicial independence. It protected a compact body of the judiciary 
from any interference from the outside, i.e., legislative and execu-
tive branches, which were, at least in the first years of democrati-
zation, deemed to be less likely under the solid and stable control 
of the old regime forces.
3.2. The Second Anecdote
A year and a couple of months later, when the newly elected 
government assumed power, the Vice President of the National 
Assembly (Parliament) Mr. Vitodrag Pukl and the then Minister 
of Justice Mr. Rajko Pirnat dropped a hint that the still influential 
lady should consider resigning from the highest judicial post (for 
“healthy reasons”) (Valič Zver, 2012, p. 332). It happened during 
the summer when most judges and court staff were on vacation. 
Nonetheless, the leadership of the Association of Judges (on the 
initiative of several colleagues) called for a general protest against 
the attempt (just a hint) of the Vice President of the National As-
sembly and the Minister of Justice – the latter was, in the eyes of 
the majority of judges, perceived as a harsh political attack on the 
judiciary and interference with their independence. Judges were 
even called to interrupt their vacations, return to work, and strike 
against the attempted removal.
3.3. The Third Anecdote
This anecdote occurred four or five years later. I was a member 
of the civil panel at the Appellate Court of Ljubljana, dealing with 
a case where the crux of the matter lay in a dilemma: which of 
the divorcing parents should be entrusted with custody over their 
child? All the facts and circumstances of the case clearly favored 
the father, indicating that he should be given priority. However, 
the majority came to the opposite conclusion with the following 
explanation: Since the father was a devoted Catholic, while the 
dominant state politics openly favored atheism (at that time led 
by the left-wing LDS, successor of the League of Socialist Youth 
of Slovenia, controlled and conducted by the Communist Party), 
the state’s atheistic policy must be respected, and the outcome of 
the decision must be coherent with that.
15
15 
Cf. Bengoetxea’s observations of the stressful situation if judge did not sympathize with the “ideo-
logy” of the regime. J. Bengoetxea, Courts Managing Stress through Judicial Dialogues. 

24
DIGNITAS ■ Constitutional Law
Even though I cast my vote for the father’s custody and re-
mained in the minority, from a pragmatic perspective nowadays, 
considering the child’s ability to integrate well into contemporary 
Slovene society (inclining towards anti-Catholicism), it might turn 
out that I was wrong and my two colleagues were right.
3.4. The Fourth Anecdote
The fourth story requires a short introduction and an expla-
nation of the formal transition of (the old) judicial cadre to the 
new democratic system. The move to a permanent term in office, 
however, was not automatic. The judges could only transition 
from a limited to a permanent term after a professional evalua-
tion of their judicial work, which was required by the already es-
tablished Judicial Council (Sodni svet) (henceforth: JC). However, 
the evaluation of the judges of courts of first instance was carried 
out by the competent Higher Courts, the evaluation of the judges 
of Higher Courts by the SC, and the evaluation of the judges of 
the SC by this very Court at a plenary session. The final decision 
on the appointment of judges was (and still is) reserved for the 
National Assembly, but on the proposal of the JC.
The new regulation of judicial service envisaged the so-called 
Pučnik’s amendment.
16
 In the third paragraph of Article 8 of the 
Judicial Service Act, this amendment determines, as one of the 
general conditions for the election to a function of a judge, that 
judges who adjudicated or adopted a decision in an investigation 
or judicial proceedings in which human rights and fundamental 
freedoms were violated by a judgment do not fulfill the condi-
tions for re-election to a judicial function after the expiry of their 
term in office. This general condition referred – in contrast to oth-
er general conditions for the election of a judge – only to those 
judges who, at the time when the Judicial Service Act entered into 
force, exercised their function of a judge at regular courts and 
had the right, before and after the expiry of their term in office, to 
apply for the position of a judge under the terms of this Act. On 
one hand, one of the characteristics of the socialist judiciary was 
the above-mentioned limited term in office of a judge (limited to 
16 
It is named after the amendment’s proposer, Jože Pučnik, a key figure in Slovenia’s fight for inde-
pendence from totalitarian state power. He was an outspoken victim of the oppresive regime and 
devoted his life to the causes of democracy and Slovene independence.

25
DIGNITAS ■ How Long is the Long Shadow of the Authoritarian Past – The Case of ...
eight years), and on the other hand, one of the first transitional 
measures in the judiciary was the introduction of the permanent 
term in office.
The Pučnik’s lustration provision was challenged before the 
CC from the viewpoint of various constitutional aspects and it 
survived the constitutional review (Decision U-I-83/94). However, 
that review revealed not only the deficiency of the lustration pro-
vision but also the naivety of the legislature, which is confirmed 
when we look at the inception of the lustration provision from a 
distance of more than thirty years. The lustration clause is naive 
since it is redundant, as some of the judges of the CC correctly 
stressed in their separate opinions. »Lustration« considerations 
are included in every normal evaluation of the work of a par-
ticular judge. In any case, it should be impossible to overlook, 
during the evaluation of his/her work, which is the basis for his/
her election to a permanent term in office, that a judge, under the 
communist regime, submitted to political criteria and violated 
human rights during trials. Such a judge should not be reinstated 
to the position he/she occupies. The expiry of the term in office 
and the need to renew it are connected with the assessment of 
whether the judge whose term in office expired fulfills the condi-
tions for a new (this time permanent) term in office. The lustra-
tion could only be avoided by an automatic transformation of the 
term in office of limited duration to a permanent one. Therefore, 
the provision constitutes nothing more than a mere moral prom-
ise, which the National Assembly gave to itself. However, when 
electing judges, the National Assembly was bound by the expert 
evaluation of judges’ work done by judges themselves – where, 
as usually, loyalty and mutual solidarity prevailed over commit-
ment to the integrity of the judicial profession and constitutional 
values.
17
 As a general rule, the National Assembly did not have 
any other information on each individual candidate. The fact that 
none of the judges was refused a permanent term in office proves 
that the lustration clause was a shot in the dark.
The situation in the Slovene judiciary after twenty years of 
transition irrefutably demonstrates the naivety of the lustration 
17 
In this respect I dare to refer to the term “dirty togetherness”, coined by Polish sociologist Adam 
Podgórecki, when referring to cliquishness and close-knit networks in the context of scarcity and 
distrust of the state, which was endemic to the communist system. Dirty togetherness despite being 
common survival practice essentially eroded ethical standards and deepened the gap between the 
law and morality (Wedel, 2003, pp. 141,142).

26
DIGNITAS ■ Constitutional Law
clause. The candidature procedure in which the president of the 
SC, Mr. Branko Masleša (his presidential term expired in Novem-
ber 2016), was appointed proves that the lustration clause was 
virtually inefficient (an expert evaluation of the judges’ work was 
decisive for the granting of a permanent term in office, which 
means that the judges evaluated themselves).
18
 According to the 
Judicial Service Act, the president of the highest judicial body (of 
general jurisdiction) is appointed by the National Assembly on 
the proposal of the minister competent for justice administration 
and after a preliminary opinion of the JC and the SC en banc is 
adopted.
The candidate (Mr. Masleša) was a highly controversial politi-
cal and legal figure, local communist functionary and ardent sup-
porter of the Yugoslav People’s Army (Avbelj, 2018, p. 1916f). His 
appointment was then proposed by the minister, and supported 
by both the SC en banc and the JC – despite the fact that he was 
the last judge in the Socialist Republic of Slovenia (prior to Slove-
nian independence) to have sentenced somebody to death (the 
convict was even found to be partially insane and later moreover 
fully insane and sent to psychiatric treatment) and despite the 
charges against him, corroborated by the judge of CC and two 
SC judges that the candidate in his previous life in the times of 
undemocratic regime participated at verifications of a killing of 
renegades on the Yugoslav - Italy border.
19
 In addition, all of the 
former Slovenian Presidents of the SC had either academic titles 
or were renowned judicial experts. On the other hand, the nomi-
nated president‘s set of scientific and expert publications shows 
his weakness in the expert area and lack of reasonable reputation 
in the judiciary circles. What is even more paradoxical in this situ-
18 
As concludes professor Uzelac: »The integrity of those who are “lustrating” can be warranted if 
they are impeccable; if they are not, the vicious circle of “lustrating lustrators” appears, as one of the 
fundamental paradoxes that are related to the personal element of the lustration practices« (Uzelac, 
2007, pp. 57, 58).
19 
It is meaningful that at the dawn of Slovene democracy (in March 1990), which from the nowadays 
perspective seems to be the climax of the Slovene democracy, a young and ambitious lawyer publis-
hed an article entitled »Shootings Dead on the Border – an Attempt of Denouncement« (Cerar, 1990, 
pp. 7-9) in which he indignantly argued that killings of renegades lacked any legal basis and should 
be treated as murders - the same as shootings in the Berlin war. Therefore, he openly claimed crimi-
nal prosecutions for all those who had been involved in the killings. Paradoxically, twenty years later 
he, as a renown and well-established legal scholar presides the session of the JC (as a vice president 
of that body) which has given support to the above-mentioned candidate. Later he even publicly 
supported him and strongly condemned public revelation of the candidate’s past in the times of 
the totalitarian regime during the candidacy procedure. In 2014, few weeks before parliamentary 
elections he set up the party, named after him (the Miro Cerar Party, which was later, renamed in the 
Modern Centre Party), won these elections, and became the Prime minister.  

27
DIGNITAS ■ How Long is the Long Shadow of the Authoritarian Past – The Case of ...
ation is the fact that the General Assembly of the SC previously 
opined against the previous candidate for the same vacancy, who 
had a history of a straight and upright decisions in the times of so-
cialism and who is well known for the fight for judicial independ-
ence in that time, most of all for the right to natural judge. In addi-
tion, he has published extensively and his professional biography 
and personal reputation were (and still are) incomparable with 
the winner‘s. This is an example of how the body of professional 
autonomy and independence of the judiciary plays its role in the 
post-communist context.
20
 And it also confirms Kühn‘s finding, 
“the higher one goes in the structure of the judiciary, the higher 
the percentage of ex-communists” (Kühn, 2016, p. 181).
Consequently, the question arises of how should the public 
then trust the judiciary and believe that it will successfully (impar-
tially) carry out its task to rectify the injustices incurred during the 
totalitarian period?
21
 What is then the message of the SC plenum 
that supports such a candidate? The personality of the president 
of the SC also carries significant symbolic meaning. In the eyes of 
a reasonable observer, the president of the SC appears as the best 
of the judiciary - “crème de la crème”. He represents a personifica-
tion of professional and personal qualities of a judge – with his 
professional and personal integrity he is an example for all other 
judges in the state, the epitome of judicial ethics. When the SC 
plenum supports a candidate for the president of the SC it sends 
a message to the judiciary and the public that this is the judge that 
should be regarded as an example.
3.5. The Fifth Anecdote
The following anecdote demonstrates a perception of judicial 
independence, revealing, on one hand, what counts for promo-
tion within the judicial system, and on the other, how Slovenian 
judicial oligarchs treat critical views of their colleagues on defi-
ciencies in the transition of the judiciary.
At the end of 2012, I published a short paper titled „The Soft 
Belly of the Slovene Judiciary“ (Zobec, 2012) addressing the state 
20 
For more of this issue see Avbelj, Judicial Self-Government, 2017c. For a similar experience in Cro-
atian judiciary see: Uzelac, (In)Surpassable, 2007, p. 59.
21 
According to Dvořáková and Halmai, transitional justice deals with two fundamental aspects: the 
rehabilitation of the victims of the regime and the punishment of those responsible for the crimes 
that occurred during the non-democratic regime. See: Dvořáková, Introduction, 2007, p. 13; Halmai, 
Lustration, 2007, p. 21.

28
DIGNITAS ■ Constitutional Law
of the Slovenian judiciary and focusing on the deficiencies of ju-
dicial independence. I pointed out the collectivist and corporatist 
mentality of the Slovene judiciary and highlighted some features 
of such a mindset. I then concluded, among other things, that the 
paramount problem of the Slovene judiciary is the judiciary itself 
- and the politics embedded in it. I maintained, and I still do, the 
old truth (as exposed by Sajo and Losonci and many others as far 
back as 20 years ago) that the introduction of judicial „self-govern-
ment“ in a situation of transition does not entail anything other 
than the preservation of the judiciary as it was established by the 
undemocratic communist regime (Sajo, Losonci, 1993, p. 322). I 
claimed that an authoritarian legal culture and the correspond-
ing ethics of obedience (which is reflected in submissiveness, 
political opportunism, political correctness, and, consequently, 
in judges‘ self-censorship) were (and still are) preserved in the 
impenitent thought patterns of the old regime as a heritage of the 
totalitarian period, and in the collectivist and corporatist mental-
ity. It is preserved there (as one of the forms of a parallel, covert, 
or, if you prefer, deep state, or hijacked state) and, in an autopoi-
etic manner, it feeds and fertilizes itself mentally, with values and 
ideological points of view through the very institutionally closed 
nature and self-sufficiency. In a normal state with a democratic 
tradition and legal culture, such preservation would have a posi-
tive effect - to maintain that which already exists, i.e., an internally, 
mentally independent judiciary. However, I explained further, 
even in states in transition (and Slovenia is, at least regarding the 
judiciary, still deeply in transition), what is maintained is what al-
ready exists - and that, however, is anything but an intellectually 
autonomous and independent judiciary. Hence, I concluded that 
the crucial problem lies in the lack of individual, personal, and 
mental independence, and it is certainly not a problem of institu-
tional structural judicial independence.
The critique not only fell on stony ground but also provoked a 
broadside attack on the one who dared to criticize the judiciary, 
thereby undermining its esteem, authority, and public trust in it. 
The then president of the SC, Mr. Masleša, publicly condemned 
the author for opening the Pandora’s Box of discrediting the Slo-
venian judiciary (Masleša, 2014). The focus of the discourse shift-
ed from the subject matter (judiciary) to the person expressing 
their views on the judiciary—a demonstration of the idea: »Kill 

29
DIGNITAS ■ How Long is the Long Shadow of the Authoritarian Past – The Case of ...
the messenger.« Interestingly, one of the repeated reproaches di-
rected at the critic was regarding their ingratitude. In this case, 
the critic (myself) was accused of ingratitude because, having 
achieved »all« that is possible within the judicial system, they were 
expected to show loyalty and remain silent.
3.6. The Sixth Anecdote – The Patria Case
With the exception of the periods 2004-08, 2011-12, and 2020-
22, Slovenia has mostly been governed by the transformed old re-
gime parties and their satellites. The leader of the opposition, Mr. 
Janša, who also served as Prime Minister during the mentioned 
periods, has been perceived and treated as »public enemy no. 1« 
by the ruling political establishment. This perception stems from 
his commitment to disentangle public and official politics, includ-
ing the state’s government and its subsystems (such as media, 
education, and the banking sector), from the deep-state’s interest 
groups. These interest groups, largely controlled by members of 
the old regime cadres and former members of the communist se-
cret police who have adapted to new democratic and free-market 
conditions, have maintained significant influence. In Slovenia, as 
in Croatia, high-ranking officials of the former nomenclature who 
were involved in human rights violations, including the prose-
cution and killing of political opponents for so-called »contra-
revolutionary activities,« have remained untouched and unpun-
ished. Furthermore, they continue to hold high-ranking positions 
in various sectors, including the secret police, army, companies, 
media, universities, and diplomacy, effectively becoming the »old 
figures in the new context« (Milardović, 2007, p. 93)
22
 They have 
managed to turn their ideological-political defeat into a political-
economic victory, characterized as a “legalized robbery of the 
century” (Wedel, 2003, pp. 142 et seq.).
In 2008, the Patria affair came to light just 20 days before par-
liamentary elections in Slovenia. On September 1, 2008, the Finn-
22 
The author then continues, referencing to the observations of Linz and Stepan observations: ‘’In 
the sphere of motivation, communists (or ex-communists) from the former nomenclature, after being 
defeated in the free and transparent elections, will continue to occupy many significant positions in 
the state apparatus, especially in state institutions. Through their nets of directors, management and 
even secret intelligence, the members of the nomenclature can safely keep their privileged positions 
in the emerging capitalist economy and, by that, a significant political influence. However, they will 
primarily act in their own interest. In the majority of post-communist countries, former officials don’t 
intend to overthrow the regime, or directly establish the new one, but they only want to make profit 
out of it.” (Linz, Stepan, 1996).

30
DIGNITAS ■ Constitutional Law
ish Broadcasting Company YLE aired a documentary that accused 
The Prime Minister Janša of receiving an award from the Finnish 
company Patria. The documentary primarily featured accusations 
from political opponents of Mr. Janša. This documentary had a 
significant impact on the upcoming elections, as all polls had pre-
dicted a convincing victory for Janša’s party (SDS) until the docu-
mentary aired.
Less than two years later, a criminal charge was filed against 
Janša, who was the leader of the opposition at that time. The charge 
was brought by a state prosecutor who happened to be the wife 
of an agent of the communist secret police that had arrested Mr. 
Janša as a political dissident during the communist regime in the 
late 1980s. The timing of these events was again highly convenient, 
occurring less than three months before local elections.
The indictment itself was unusual and controversial. It alleged 
that Janša had committed a criminal offense (Art. 269 of the Slove-
nian Penal Code) by accepting a promise of an unknown award 
at an unspecified time, place, and through an undetermined 
mode of communication, with the intention to use his influence 
as Prime Minister to secure a military contract for the Finnish 
company Patria.
23
Throughout the trial before the Ljubljana District Court, nu-
merous witnesses were heard in over 50 hearings conducted dur-
ing the two years of proceedings. Despite the vague and arbitrary 
nature of the criminal charge, which made it nearly impossible for 
the defendant to mount a proper defense, thereby constituting 
a violation of fundamental human rights related to defense and 
a fair trial, Janša was found guilty and sentenced to two years in 
prison.
24
 This ruling was upheld by the Ljubljana Higher Court, 
23 
For a thorough analysis of the whole case, see Avbelj, 2015a; Avbelj, Slovenia: a de facto failed, 2014b; 
Avbelj, 2014a; Avbelj, 2015b; Avbelj, 2014c.
24 
It is worth to be mentioned that judge Vesna Bergant Rakočević (henceforth: VBR) of the High Co-
urt, the same court that was to decide the case on appeal, wrote an article in the Slovenia’s main legal 
newspaper (Pravna praksa). In this article (VBR, 2013, p. 33) she directly compared the people that 
had gathered before the court (supporters of Mr. Janša, among whom were public intellectuals, peo-
ple from civic society, legal scholars and members of his defense team, as well as masses of ordinary 
people) with the “undernourished North Korean schoolchildren” who, “grimaced in their hysterical 
cry of worship”, experience a visit by their “well-fed leader”. (At the peak of the event Mr. Janša and 
his defense team came out of the court building and appeared before the crowd.) There is a straigh-
tforward metaphor that runs through the article and speaks of, on the other hand, “the darkness in 
your head, which is smoothing that your imaginations fills with stories that have nothing to do with 
the actual darkness around you”, and the actual truth on the other hand, which comes from the light 
represented by “our [ie. judicial] hard work by examining the facts, reading long legal commentaries 
and case law, sometimes even foreign, making comparisons and assessments, interpretations and 
engaging in discussions”. While thus comparing the event to the “visit of the North Korean leader Kim 

31
DIGNITAS ■ How Long is the Long Shadow of the Authoritarian Past – The Case of ...
and Mr. Janša, the leader of the center-right opposition, was sent 
to prison just three weeks before a snap election. The outcome 
of the Patria case and the sight of the opposition leader going 
to prison shortly before the election raised concerns about the 
legitimacy of the election and led to it being seen as an »Alamo« 
moment for the opposition.
 25
During the period when the convict still had an open deadline 
for an extraordinary legal remedy at the SC, a significant event 
took place—the annual meeting of judges organized and spon-
sored by the Slovenian Judges’ Association, known as the »Days 
of Judiciary.« The keynote speaker for this event was Mr. Masleša, 
who was the president of the SC at that time. He delivered a pas-
sionate speech before a gathering of Slovenian judges, with his 
fellow SC judges seated in the front row.
In his speech, Mr. Masleša launched an unusually harsh verbal 
attack against the convict and accused him, along with the SDS, 
of posing the gravest threat to the constitutional and democratic 
order. He called on judges to close ranks against this perceived 
threat. Mr. Masleša’s speech received a resounding round of ap-
plause from the audience at the event (Masleša, 2014). Further-
more, during the »Days of Judiciary« event, the prosecutor in the 
Patria case at that time, Mr. Andrej Ferlinc, was granted the op-
portunity to address the audience, and he seized the opportunity 
to share his perspective on the case. This was an instance of an 
ex-parte performance, with Mr. Ferlinc presenting his side of the 
story. His speech, like Mr. Masleša’s, was met with loud applause
It’s worth noting that only two individuals out of the entire 
body of judges at the event voiced their protest against Mr. 
Masleša’s passionate speech. Later, one of them chose to with-
draw her membership from the Judges’ Association as a result of 
this incident.
26
Jong Un and his wife in one of the North Korean high schools” the judge also remarked that she “did 
not think she would ever see in reality, and even so soon,” how, “because of a politician”, some would 
burst in a “hysterical […] North Korean cry”. The article concludes in a straightforward sarcastic sense 
that of course it was the people in front of the court who knew the truth and justice in this case, and 
“not us (the corrupted judicial gang) who caused this injustice/suffering”…”Goodbye light, welcome 
darkness,” she added. The article ended with a P.S.: “Barbara, wholehearted congratulations for the 
courage”. (“Barbara” was the judge of the Court of First Instance who convicted Janša). Judge VBR 
was later elected as the chief of the Slovenian Association of Judges.
25 
For a more detailed insight and evaluation of the impact of the Patria case on the democracy in 
Slovenia and its political landscape see. M. Avbelj, J. Letnar Černič, 2020, pp. 134ff.
26 
See at: https://www.rtvslo.si/slovenija/vrhovni-sodnik-sorli-maslesa-ne-more-pregnati-senc-ki-so-
-nad-njim/340892.

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DIGNITAS ■ Constitutional Law
The situation of judicial impropriety did not end there. It took 
a further turn for the worse when Mr. Masleša, despite the extraor-
dinary legal remedy being on its way to the SC, made a decision 
to preside over all sessions of the criminal law panel until the end 
of 2014. This decision was unusual and unprecedented. He effec-
tively nominated himself to the panel responsible for deciding 
the Patria case, which ran contrary to the right to a natural judge.
27
 
In response, the defendant requested the disqualification of Mr. 
Masleša from the case, citing at least objective partiality on his 
part. As a result, the SC was presented with a final opportunity to 
rectify the abuses perpetrated by its president.
Nevertheless, a significant majority of judges, gathered en banc 
during the plenary session, voted to deny the disqualification, 
insisting that they „trust their President.“ In doing so, they inad-
vertently paved the way for further human rights violations and a 
continued erosion of the highest Court‘s authority and reputation. 
Consequently, the SC rejected Mr. Janša‘s extraordinary appeal 
against his conviction. In response, Mr. Janša sought recourse at 
the CC for a review of his case just three weeks later.
Ultimately, the CC quashed the entire legal process, leading to 
Mr. Janša’s release from incarceration after 176 days. The CC iden-
tified two constitutional violations, either of which would have 
sufficed to uphold the constitutional complaint. First, all levels of 
the judiciary had violated the constitutional principle of legality 
in criminal law by failing to specify the essential element of the 
alleged criminal act: the manner in which the crime was commit-
ted. This amounted to a violation of the principles of lex certa, 
lex scripta, and lex stricta in criminal law. The second violation 
pertained to the President of the SC himself, who had publicly 
accused the petitioner and his political party of pressuring the 
judiciary. Furthermore, while the case was already pending at 
the SC, he appointed himself as the president of the ruling panel, 
violating the right to a fair trial.
28
Despite the flagrant and serious violations of the human rights 
of the opposition leader, which subsequently distorted the demo-
cratic process and cast doubt on the legitimacy of the parliamen-
tary elections, the Slovenian judiciary displayed a complete lack of 
27 
The Art. 23 (2) of the Constitution stipulates: »Only a judge duly appointed pursuant to rules previ-
ously established by law and by judicial regulations may« adjudicate.
28 
Decision no. Up-879/14, dated April 20, 2015. 

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DIGNITAS ■ How Long is the Long Shadow of the Authoritarian Past – The Case of ...
self-reflection and a refusal to accept responsibility for the identi-
fied violations. Notably, the President of the SC, a central figure 
in the Patria scandal, remained resolute in refusing to consider 
stepping down. He consistently reiterated that he would make the 
same decision again, even though he had been personally held re-
sponsible for violating the defendant’s right to a fair trial.
3.7. The Seventh Anecdote
The final account primarily revolves around the appointment 
of the next President of the SC and the manner in which the JC 
conducted the nomination procedure. This narrative serves to 
support the conclusions of Kosař and Bobek that the EU-model 
of a JC, such as the Slovenian one, is well-suited for undermining 
judicial independence (Bobek, Kosař, 2014, pp. 1283,1289,1290).
After Masleša’s presidential term expired, two SC judges con-
tested for the vacancy,
29
 with Judge Štravs standing out for his 
commitment to liberal and democratic values, seen as represent-
ing a break from the undemocratic legacy. The SC supported 
both candidates but gave priority to Mr. Štravs. However, when 
the matter reached the JC, the procedure took a farcical turn as 
the SC’s opinion was rejected without explanation. This sparked 
strong protests from some academics and one of the SC judges 
(Zobec, B., 2016; Avbelj, 2016a, 2016b). However, the Minister 
decided not to appoint the candidate who was given support by 
the SC, but not by JC.
A new call was issued, and Mr. Štravs decided to run again. This 
time the SC, while still supporting him, gave its preference to an-
other candidate, who, in his program, exposed his commitment to 
stability and preservation of the status quo. However, the JC, sitting 
in the same composition, backed the previously rejected candidate. 
The Minister of Justice then proposed the candidate preferred by 
the SC to the National Assembly, even though, just a few months 
before he had declined the candidate who had been backed by the 
same body. Moreover, the entire procedure lacked transparency, 
with no reasons provided for or against the candidates.
30
29 
Mr. Masleša could have run again, however, presumably due to numerous scandals occurring du-
ring his presidency (also telephone justice among them, which was revealed in the judgment of the 
SC no. I Ips 32088/2011, dated Oct. 6, 2016; see also: Zobec, Telefonska, 2018a), he declined. 
30 
All sessions of the JC take place behind the firmly closed door and the names of the candidates 
(except for the candidates for the president of the SC) are not accessible to the public. 

34
DIGNITAS ■ Constitutional Law
In agreement with Avbelj’s conclusion, this process displayed 
significant arbitrariness and left a negative impact on the JC and 
the elected President of the SC, tarnishing their authority (Avbelj, 
2017c). Barbara Zobec, a SC Judge, publicly protested, citing Da-
vid Kosar’s analysis of the Slovak JC, asserting that this incident 
indicated that the JC in Slovenia had been “created to be hijacked” 
(Avbelj, 2017c; Zobec, B., 2016; Kosař, 2016, p. 409).
The newly appointed president of the SC quickly confirmed 
fears of following in his predecessor’s footsteps. His initial move 
as President was an attempt to discipline judges who were per-
ceived as unruly or too critical of the judiciary’s practices. These 
judges had dared to publicly speak out about issues related to 
the recruitment and promotion of judges and had asserted their 
right to freedom of expression in criticizing the leadership of the 
judiciary (Zobec, B., 2018,p. 248 et seq.).
However, the President did not gain support from the SC sit-
ting en banc, and his proposal was subsequently withdrawn. De-
spite this setback, he pursued other avenues to sanction or re-
move critical voices. For instance, he falsely accused some judges 
of disturbing the peace by not adhering to unwritten rules when 
entering the Court building. This accusation stemmed from their 
protests against physical searches of SC judges by the police and 
instances of police intrusion when entering the Court (Zobec, 
2018c).
Additionally, the President initiated manifestly unfounded pro-
cedures before the Commission for Ethics and Integrity (hence-
forth: CEI), a body attached to the JC. The CEI, composed of only 
five members, could be more easily controlled than the plenary 
session of the SC (Zobec, 2019a, 2019b).Through these actions, 
the new President demonstrated his loyalty to those who had 
installed him as a figure of continuity and »stability« within the 
judiciary (Avbelj, 2017b).
Simultaneously, new additional »presidential« powers were in-
troduced through amendments to the Judicial Service Act. These 
amendments further expanded the authority of the SC President, 
who should no longer be considered primus inter pares.
 31
The President of the SC now holds more than just a supervi-
sory role, as if sitting in the inspector’s lodge equipped with a 
31 
Slovenia ranks high on the scale of the Court President’s Power Index (Blisa, Kosař, 2018, pp. 
2058–2059). 

35
DIGNITAS ■ How Long is the Long Shadow of the Authoritarian Past – The Case of ...
dashboard containing business data and monthly fresh data on 
judicial statistics. The President also has the authority to subject 
judges to disciplinary mechanisms. This includes initiating pro-
ceedings against a particular judge before the CEI or, later in the 
process, lodging an initiative with the disciplinary prosecutor to 
initiate disciplinary proceedings.
In addition to these powers, there are other prerogatives vest-
ed in the President of the SC, which will be discussed in the fol-
lowing sections.
4. The Message of the Anecdotes
These anecdotes speak for themselves and require no further 
explanation. However, the message they convey can be distilled 
as follows: the state of affairs within the Slovenian judiciary illus-
trates the enduring impact of the totalitarian regime’s mental and 
cultural legacy, which cannot be dismantled overnight. It under-
scores that democracy cannot be simply introduced through for-
mal legal frameworks and by transplanting institutional structures 
from Western models (Moliterno et al., 2018, p. 534).
32
 Instead, it 
takes decades and generations to overcome the deep-rooted defi-
ciencies stemming from the past, which have shaped the psycho-
sociological profile of an average member of the (post)commu-
nist society (Avbelj, 2017d, p. 53, 2017a; Fleck, 2021, pp. 1298).
33
Despite the constitutional break with the totalitarian past and 
the notable differences between the former communist judicial 
system and today’s judiciary, which formally operates within a 
modern constitutional democratic framework, the legacy of the 
past still lingers in informal, extralegal, or meta-legal practices. 
As Čuroš has aptly stated, » Somewhat, the heritage of the past is 
hidden in informal practice—the habitus of the agents or mem-
bers of the judiciary. This habitus may be unconscious yet defin-
ing for the behavior of the agents« (Čuroš, 2021, p. 1250; Mańko, 
2013, pp. 207–233).
34
 It is not surprising, then, that members of 
32 
It can be unanimously agreed upon that the pivotal change lies not in the formal institutional 
reforms that established independence but in the shift in judges’ attitude, a newfound courage to 
embrace independence and accountability. 
33 
Avbelj paraphrasing Gudkov’s homo Sovieticus, refers to homo Slovenicus.; 
34 
The findings by Tsereteli regarding the Georgian judiciary are similar. The author observes and 
warns that pre-existing behavioral patterns can compete with and, ultimately, undermine or distort 
new formal rules (Tsereteli, 2022, p. 185).

36
DIGNITAS ■ Constitutional Law
the judicial elite often emphasize that most of the current judicial 
corps have been educated and trained after the period of state 
socialism. The emphasis on this fact suggests a desire to create a 
facade of being untethered to the totalitarian past and committed 
to democratic values and principles.
Slovenia’s situation illustrates two significant negative effects 
related to the input legitimacy of the judiciary. The first is a com-
mon feature in post-communist societies, characterized by a lack 
of institutional and societal mentality based on the internalization 
of constitutional democratic values (Avbelj, Letnar Černič, 2020, 
p. 86). The second negative effect relates to the fact that even 
the relatively mild form of lustration provided for in the Judicial 
Service Act has not been effectively carried out (Kosec, 2018). As 
a result, not only did the old judicial corporatist mentality persist 
and transfer into the new democratic context, but also individu-
als from the old regime who were involved in serious abuses of 
judicial service and human rights during the totalitarian era ended 
up in high judicial positions in the new system. In this regard, the 
statement by former Czech Supreme Court President Eliška Wag-
nerová, »The higher, the worse« (Spáč, 2013, p. 38), continues to 
hold relevance in the context of the Slovenian judiciary.
The most paradoxical aspect here is the fact that the majority 
of examples of miscarriages of the rule of law, as described above 
(pertaining to output legitimacy), were made possible precisely 
due to the strongly protected institutional independence of the 
judiciary and its self-government on the synergetic axis of the JC 
and the President(s) of the Court(s). Samuel Spáč’s observations, 
which suggest that the transfer of powers regarding the profes-
sional careers of judges from politicians to judges themselves is 
not a guarantee of judicial independence, also apply to Slovenia 
(Spáč, 2020, p. 42). As the author rightfully states, judges, just like 
any other actors in power, may be willing to use this competence 
to influence the outcomes of judicial proceedings(Spáč, 2020, p. 
42).
35
What undermines the judicial independence of Slovenian 
judges is not external politics but rather the politics within the ju-
diciary itself, particularly its oligarchies, which skillfully integrate 
35 
The author indicates that many post-communist judiciaries, including those in Romania, Bulgaria, 
Ukraine, and Slovakia, have faced significant problems, even after transferring considerable powers 
in judicial governance to judges themselves (Spáč, 2020, p. 41).

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DIGNITAS ■ How Long is the Long Shadow of the Authoritarian Past – The Case of ...
themselves into structures of political power (Uzelac, 2010, p. 
395; Flack, 2003, p. 129; Bobek, 2008, p. 12 et seq.).
36
 In Slovenia, 
as in most other post-communist countries, there were simply no 
other elites besides the communists who possessed the knowl-
edge and necessary networks to manage the country. This, in 
turn, led to ‘long-term malignant effects, including the establish-
ment of monopolies and rent-seeking behavior” (Bugarič, Kuhelj, 
2015, p. 274).
37
However, it also applies to the Slovenian judiciary what Pop-
ova observes about the Russian counterparts: “In legal areas with 
low political salience, either because they are politically inconse-
quential or because there is broad political consensus over how 
such cases should be adjudicated, […] judiciary functions reason-
ably well. Freed from direct external interference or from the 
burden of trying to guess the preferences of politically powerful 
actors, judges decide cases in accordance with their bona fide 
interpretation of the law” (Popova, 2017, p. 68).
What also characterizes the Slovenian socio-political judicial 
landscape is the fact that the left-wing parties, mostly direct or 
indirect successors of the ex-Communist Party (Association of 
Communists – Zveza komunistov), represent the political force 
that ardently comes to the defense of the judiciary whenever it 
is criticized or attacked and firmly advocates its (structural) in-
dependence, reputation, and trustworthiness. Meanwhile, on the 
other hand, the position of the duty critic of the judiciary belongs 
to the right-wing political option. Thus, this confirms the thesis 
that political and economic ‘winners,’ which in the Slovenian con-
text are those who belong to the left-wing political option (mostly 
36 
I can only agree with Szente who claims that “the most effective way of informally influencing the 
courts is undoubtedly to capture the judicial leadership by appointing people loyal to the gover-
nment to the most important judicial posts” (Szente, 2021, p. 1325). On court presidents as “transmis-
sion belts” see Blisa, Kosař, 2018, pp. 2049, 2074. 
37 
Authors have referenced to Adam, Kristan, Tomšič, Varieties of capitalism in Eastern Europe (with 
special emphasis on Estonia and Slovenia), Communist and Post-Communist Stud. 42, 78. Bobek 
and Kosař powerfully argue that “[t]his may even amount to “hijacking” the new institution by the 
communist-era judicial elites, and sealing it off behind a veil of judicial independence.” See Bobek, 
Kosař, , 2014, p. 1283. See also Avbelj, Letnar Černič, 2020, pp. 30 ff. The authors rightfully argue that 
Slovenia’s model of de facto political and economic continuity with the pre-democratic system has 
allowed its elites to maintain control of the country without displaying any openly authoritarian 
tendencies, capturing the state or backsliding on constitutional principles. The authors then conti-
nue: “Unlike Hungary and Poland, where the political elite had to engage in an overt attack on the 
constitutional and legal framework of the state in order to ensure that their loyalists penetrated the 
essential institutions and gained control over the economy, in Slovenia those loyalists and this control 
of the economy, perfectly legally on the basis of state ownership, have existed for decades” (Avbelj, 
Letnar Černič, 2020 pp. 30–31). 

38
DIGNITAS ■ Constitutional Law
derived from the old regime political organizations), have greater 
confidence in the judiciary than ‘losers,’ irrespective of the de-
gree of independence (van Dijk, 2021, p. 18). Given this, it may 
turn out that there is more than an intimate alliance between the 
judiciary taken as a whole (predominantly its leadership) and the 
aforementioned political option (Avbelj, Letnar Černič, 2020, pp. 
107–108). However, it is not about ideology, nor is it about the 
issue of particular political options (be they left or right, progres-
sive or conservative, liberal or populist). It is simply about the 
power over the third branch, which has been given strong and 
deeply entrenched structural independence. Therefore, the paral-
lel with Djilas’s New Class could be drawn.
38
Professor Avbelj rightly observes that the Slovenian justice sys-
tem failed to prevent or at least sanction the economic criminal 
activities, which in the process of transition imposed huge costs 
on the previous social property and now on the taxpayers (Avbelj, 
2018c, p. 1915).
39
 Given that the most prominent actors in the cro-
ny capitalist transition were the members of the former commu-
nist elite (Avbelj, Letnar Černič, 2020, pp. 146–147), a widespread 
sentiment has grown in the population, fueled by the center-right 
post-communist political parties, that the judiciary is under the 
influence of the former communist nomenclature, indeed its part 
and in service of its interests (Avbelj, 2018c, p. 1915ff; Avbelj, Let-
nar Černič, 2020, p. 120). It became anecdotal when the mayor of 
Ljubljana, deeply ingrained in the old regime structures, one of 
the most influential figures of the winning left-wing political opin-
ion, also involved in numerous scandals (abuse of power, money 
laundering, tax evasion, trading sex for influence), in an interview 
on the Croatian national TV, when being asked if he was worried 
that one day he would be convicted and sent to prison, he frankly 
replied: »Not at all, for in all those years I have been, so to speak, 
the biggest opponent of Janez Janša’s politics in this executive 
branch.«
 40
 During the whole transition period, with the only ex-
emption of 7 years (2004-08, 2011-12, and 2021-2022), the Slove-
38 
In his masterpiece The New Class—An Analysis of the Communist System, Praeger, 1957, M- Djilas 
dismantled mythology of the new Yugo-communist order where the new rulers sit in their villas and 
banquet halls, while Djilas from prison denounces them in the name of the hungry and the under-
privileged. See A. V. Sherman, The New Class by Milovan Djilas, Commentary, Dec 1957, available: 
https://www.commentary.org/articles/a-sherman/the-new-class-by-milovan-djilas.
39 
For further empirical examples of the said alliance between the old regime elites and judiciary see 
p. 1916 ff.
40 
Zakaj Zoran Janković ni nikoli obsojen? - YouTube.

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DIGNITAS ■ How Long is the Long Shadow of the Authoritarian Past – The Case of ...
nian government remained firmly in the hands of direct succes-
sors of the old regime Party (Communist Party and its satellites) 
and under the patronage and tutelage of the underworld politics, 
mostly composed of former members of the secret police aligned 
with organized crime. Most of Slovenia’s subsystems remained 
under the control of the ancient regime: media, academia, educa-
tion, justice, banking system, health system.
 41
5.  Vicious Circle of the Continuation  
of Anecdotes
5.1. Growing Powers of Court Presidents
Anyway, the disquieting stories of the Slovenian judiciary don’t 
stop here. Situation has exacerbated further. After the last Amend-
ment of the Judicial Service Act the position of the presidents of 
the courts has been enhanced even further, as their prerogatives 
expanded, most of all the position and influence of the president 
of the SC Avbelj, Letnar Černič, 2020, p. 109). Currently he is the 
one, who adopts a Schedule of Jurisdiction which determines 
not only the specific jurisdiction of the individual panels but also 
assignment of judges to the panels (that task was previously also 
reserved to the Court, sitting en banc). Within the power to adopt 
“the work schedule”, he appoints the heads of divisions (among 
other privileges this a position also entails higher salary and some 
benefits), and in so doing, he might, as a recent practice has 
shown, ignore even unanimous opinion of the judges - members 
of particular division (what was previously done by the Court sit-
ting en banc).
42
 Previously, it was a well-established custom that 
the position of the head of a particular chamber automatically 
belonged to the judge with the longest term in office. In this way 
the will and influence of an individual judge on the composition 
of the senates had been dispersed and consequently reduced. 
However, the said amendment not only strengthened the power 
41 
For the comprehensive elaboration on this issue see Avbelj, Letnar Černič, 2020.
42 
What is the most telling is the President’s brief explanation of why the judge, who enjoys unani-
mous support from all the members of the Civil Chamber of the SC and should, according to the 
long-standing unwritten customary rule of seniority, be nominated as the head of that Chamber, and 
who is held in high esteem in academic and professional circles, doesn’t deserve his nomination: “He 
is not compatible with the lading structure of the Court”. This leaves one to wonder what the term 
“leading structure of the Court” actually means. See the President’s response to judges, members of 
the Civil Chamber, dated May 8, 2018.

40
DIGNITAS ■ Constitutional Law
of the court president and enhanced the influence of his own 
discretional will on composition of panels, but also to the same 
extent weakened the institution of the natural judge.
43
 He is now 
the one who allocates and disposes with the influential power of 
particular judges.
He, further chairs the Personal Council of the SC, composed of 
other influential judges, where decisions on promotion of judges 
are actually made (Avbelj, 2018c, p. 1911), and renders an opinion 
on the candidates for the SC judges, wherein he may again ignore 
the opinion of the chamber affected (even though its members 
have the hands-on experience with individual candidates). All this 
strengthens the bureaucratic and oligarchic structure of judiciary, 
which, in turn, becomes also susceptible to, especially informal 
and disguised political influences. Court presidents indeed can-
not sit on the JC. Yet, the President of the SC still has several ways 
to control JC indirectly, especially by his power to give an opin-
ion on the candidates for the certain judicial post or for promo-
tion, or, as Kosař rightly observes, he can suggest his preferred 
nominees to the JC to other judges and push them through with 
his authority, and he can sometimes even install his marionettes 
to the leadership of the JC (Kosař, 2016, p. 401).
44
The president of the SC is well equipped with tools for imple-
menting a carrot-and-stick policy, providing special bonuses for 
loyal judges (chairing over panels and Chambers, accompanying 
him on his international meetings, conferences and excursions 
around the globe) and enforcing repressive measures by initiat-
ing proceedings before the CEI or before the Disciplinary Com-
mission for their criticism or publicly expressed opinions and 
statements. These measures include depriving certain judges of 
their right to participate in legal conferences and symposiums,
45
 
hindering their promotion, interfering with their right to privacy 
at the workplace, and, in some extreme cases, even overt bullying, 
for disloyalty and criticism( Avbelj, 2019). All those powers have 
been abused against unruly judges who had criticized the leading 
43 
The right to a natural judge, denoting random case assignment (in terms of the Constitution, the 
right to a legal judge) and composition of senates (panels), is constitutionally guaranteed by Art. 23 
(2) of the Slovenian Constitution; see note 57. 
44 
The influence of court presidents, whether formal or informal, on judicial career decisions remains 
a hallmark of post-communist judiciaries (Tsereteli, 2022, p.169).
45 
The right outlined in Art 64 of the Judicial Service Act is considered an integral aspect of internal 
judicial independence (Statement of the JC, no. Su 293/2022-20, dated Oct. 28, 2022).

41
DIGNITAS ■ How Long is the Long Shadow of the Authoritarian Past – The Case of ...
structure or had publicly warned against abuses of the president’s 
powers.
46
 Such a practice is symptomatic of a judiciary that was 
freed form the oppression of political power but became a slave 
to new masters (Čuroš, 2021, p. 1273). The parallel with Orwell‘s 
Animal Farm is self-explanatory here.
5.2. Autopoietic Renewal of Judicial Habitus
One may speculate that gradually, through generational turno-
ver, the holders of the old mentality will be replaced with a new, 
fresh, and (post)modern liberal-minded generation, leading to 
the inevitable disappearance of the deep state. While it’s true that 
members of the old communist guard are leaving the scene due 
to chronological and biological reasons, they often use their eco-
nomic and political power to enlist much younger cadres who 
then work in their interests. As a result, these new, younger elites 
owe their existence and loyalty to the older elites, making gen-
erational change less impactful than it may seem based solely on 
the structure of current cadres in power (Bugarič, Kuhelj, 2015, 
p. 275). This dynamic applies to the judiciary as well, as it renews 
itself as an autopoietic organism.
If anywhere, the laws of autopoiesis apply to institutions like 
the judiciary. To paraphrase Maturana and Varela, autopoietic 
entities are organized as networks of processes for producing, 
transforming, and destroying components. These components, 
through their interactions and transformations, continuously 
regenerate and realize the network of processes that produced 
them (Maturana, Varela,1980, p. 78–79). Autopoietic systems are 
self-contained, self-determining, self-maintaining, self-reproduc-
tive, and self-referring.
The judiciary follows the law of social reproduction, which 
dictates that every social formation must simultaneously produce 
and reproduce the conditions of its production (Althusser, 1976, 
p. 68). In other words, the judiciary’s functioning depends on 
its ability to maintain and replicate its own structure and values. 
Bourdieu’s concept of habitus, which represents a system of ac-
quired dispositions guiding perception, assessment, and action 
46 
The Slovenian judicial system, like Kosař, Kühn and Blisa suggest, is no exception in demonstrating 
that the strong position of court presidents is the Achilles’s heel of judicial independence in the 
continental legal system. See Kühn, 2021, p. 1239; Blisa, Kosař, 2018, 2031-2075; P. Čuroš, 2021, pp. 
1272,1273.

42
DIGNITAS ■ Constitutional Law
(Bourdieu, 1990a, pp. 12–13),
 47
 denoting „the product of struc-
ture, producer of practice, and the reproducer of structure“ (Wac-
quant, 1998, p. 268) plays a crucial role. Habitual behaviors within 
the judiciary are driven by pragmatism and self-interest, where 
individuals seek to advance through loyalty and subservience 
rather than meritocracy. The ambitious young jurists and candi-
dates for judicial service soon recognize and learn “the rules of 
the game”.
48
 Sooner or later, they meet their goals based on their 
loyalty and subservience, rather than meritocracy, hence serving 
as an example for the new coming members of the legal profes-
sion.
49
 This behavior sets an example for newcomers to the legal 
profession, perpetuating the judicial habitus.
The judicial habitus manifests as corporatism, which refers to a 
closed, hierarchical professional group with privileges and limit-
ed external oversight. In this context, the protection of the institu-
tion often takes precedence over the institution’s actual goals and 
purposes, such as safeguarding human rights.
50
 Thus, the judicial 
corps, particularly the ruling judicial cadre or judicial oligarchies, 
becomes the highest value in itself, overshadowing the goals it 
should serve. Corporatism remains a significant challenge within 
the Slovenian judiciary.
51
47 
Elsewhere he defines habitus as »embodied history, internalized as a second nature and so for-
gotten as history – […] the active presence of the whole past of which it is the product” (Bourdieu, 
1990b, p. 56). 
48 
The leadership of the Slovenian Association of Judges appears to function as a training ground for 
young, ambitious individuals looking to advance in their careers. The current president of the asso-
ciation, Judge VBR, is an example of this trend. 
49 
The situation in the Slovenian judiciary has similarities with the judiciary in Slovakia as well ( Čuroš, 
2021, p. 1247-1281, p. 1254 et seq., p.1274). Even in well-ordered democracies (e.g. Netherlands) judici-
aries are not immune for the risk of so-called »cultural reproduction« (the process by which recruiters 
within organizations, consciously or unconsciously, are inclined to select like-minded people in order 
to create a pleasant working environment in which social and ethical norms can easily be passed on). 
For the Netherlands’ experience with the cultural reproduction and homogeneity of judicial corps 
and how it affects decision-making and the appearance of impartiality (Holvast, Doornbos, 2015, p. 
60).
50 
Characteristic of such an approach is the recent policy of reducing the number of reversals in hig-
her instances. The CS even called for the dialogue with the CC, in which the relationship between the 
two courts should be reassessed. In particular, the CC should have been more careful in applying its 
verdicts of arbitrariness or patent wrongfulness to the decisions of the SC, as it risks compromising 
its own jurisprudence by potentially committing arbitrariness. According to the SC’s Working Group, 
the latter poses a much greater threat to legal certainty than an ocasional incorrect decision of the 
SC. See Avbelj,. Letnar Černič, 2020, p. 118; Vrhovno sodišče, “Poročilo o odločbah Ustavnega sodišča, 
s katerimi so bile razveljavljene odločbe Vrhovnega sodišča”, Vrhovno sodišče objavilo poročilo o 
odločbah Ustavnega sodišča (sodisce.si).
51 
The same pattern can be observed in the Croatian judiciary as well. Professor Zlata Đurđević, an un-
successful candidate for the president of the SC of Croatia, has expressed her belief that the primary 
reason for judicial corporatism lies in the fact that two-thirds of the State Judicial Council (henceforth: 
SJC) members are judges, and that external excellence criteria in the appointment of judges are often 
disregarded. She has also raised concerns that “There is no public discussion about the candidates, 

43
DIGNITAS ■ How Long is the Long Shadow of the Authoritarian Past – The Case of ...
5.3. Nourishing the Culture of Submission
One prominent feature of the Slovenian judiciary is the con-
tinuous control and supervision of rank-and-file judges by high-
er courts and senior judges. This oversight limits the degree of 
»positive« deviation from the judicial mainstream. It goes beyond 
the typical control mechanisms inherent in any judicial system, 
such as the supervision of higher courts through legal remedies. 
Instead, the Slovenian judicial system includes parallel and unof-
ficial channels for control, influence, and the impact of senior 
judges on their younger colleagues.
Selection, promotion, and training within the Slovenian judi-
ciary are conducted exclusively within the judicial system, allow-
ing presidents of the courts and heads of chambers to maintain 
control over personnel policies. Some influential judges may 
even feel entitled to insert false or fabricated remarks into the 
personal files of particular judges who are considered »unruly,« 
overly critical, courageous, or otherwise disruptive. This practice 
is arbitrary, secretive, and typically without notification to the 
affected judge, potentially harming their career and promotion 
prospects.
52
To facilitate the integration of newly appointed judges and to 
ensure the ongoing process of judicial self-regulation, the SC ini-
tiated a special EU-funded project in 2017 called »Let’s Judge To-
gether« (Sodimo skupaj). This project, with its meaningful name,
53
 
aimed to introduce a mentoring system where experienced judg-
es would guide and supervise junior judges, providing them with 
guidance and advice.
The judge mentor not only assists the newcomer in learning 
the practical aspects of their profession but also introduces them 
to the informal rules of professional conduct, the existing values 
within the judicial community, and the key characteristics of the 
judicial habitus. This mentorship is intended to quickly and ef-
fectively familiarize the younger judge with the unwritten rules of 
voting is secret but the SJC president knows how SJC members have voted.” See at: https://n1info.hr/
english/news/jurist-zlata-djurdjevic-corporatism-is-the-main-problem-of-croatias-judiciary/.
52 
In his response to the judge who accidentally discovered false remarks secretly placed in her perso-
nal file, the President of the Ljubljana High Court inadvertently revealed the commonness of such a 
practice. See: Zahteva za umik predloga z dne 28. 6. 2018 iz osebnega spisa sodnice, no. Su 110/2017, 
dated Sept 17, 2018. 
53 
The title is a clever wordplay. In the Slovenian language, the expression »Sodimo skupuaj« carries 
double meaning: “Let›s judge together” and “We belong together”.

44
DIGNITAS ■ Constitutional Law
the profession (Avbelj, Letnar Černič, 2020, p. 110; 2018c, p.1913; 
Čuroš, 2021, p. 1258). However, these elements of habitus can 
potentially, through “the silent unconscious working and weaving 
of the spirit”, altogether erode the mental independence of the 
young judge, leading them to conform to established norms and 
practices. This is encapsulated in the old Slovenian saying: »What 
the little Johnny has learned, the grown-up John knows«.
Further, in June 2013 the then Prime minister, the President 
of the SC and the Minister for Justice signed the joint declaration, 
called “Commitment to citizens” (Zaveza državljanom),. In this 
declaration, representing the unified government, they pledged 
to reduce the duration of all judicial proceedings.
54
 Following 
this declaration, the President of the SC initiated visits to the first-
instance courts, urging the acceleration of judicial procedures 
and the reduction of case backlogs. In criminal cases, there was 
also a push to avoid acquittals, all with the goal of improving the 
efficiency of the criminal justice system.
The pressure on Slovenian judges to handle a high volume of 
cases and prioritize quantity over quality remains a significant is-
sue. Judges, regardless of their court level, often experience stress 
and pressure, not only from external sources like society and 
politics but also from their superiors, particularly the President 
of the SC. There is a constant demand for judges to resolve cases 
quickly, with an emphasis on quantity rather than the quality of 
their adjudication.
55
Historically, the evaluation of a judge’s performance was based 
mainly on quantified criteria, known as the »judicial norm.« This 
approach continued until 2015 when the JC adopted new criteria 
that placed more emphasis on the quality of judicial decisions 
(Avbelj, 2018c, p. 1923). However, court presidents still monitor 
the number of cases resolved by judges and use tools like the 
president’s dashboard to track this data. This strict control and 
management of judges by their superiors create an atmosphere 
where judges often work under fear and subservience, as de-
scribed by Čuroš, drawing a parallel to Bentham’s panopticon 
(Čuroš, 2021).
54 
See for instance, Delo, dated June 4 2013, available: https://www.delo.si/novice/politika/vlada-in-
-sodstvo-podpisala-zavezo-drzavljanom.html.
55 
See for instance the Annual Report of the Supreme Court for the year 2017 (Letno poročilo Vrho-
venga sodišča za leto 2017), where all what matters are statistical data. Critically see Zobec J., Dva 
svetova, 2018b. 

45
DIGNITAS ■ How Long is the Long Shadow of the Authoritarian Past – The Case of ...
Despite the recent amendment of the Civil Procedure Act (ZPP-
E), which transitioned from the cassation model to the leave to 
appeal system as the primary means of unifying case law,
 56
 the 
»leading structure« of the SC (composed of the Court’s President, 
Vice-president, their advisors, and heads of chambers) continues 
to prioritize informal consultations among judges from various 
courts, discussions, and debates between heads of chambers as 
the main instrument for unifying case law.
57
Additionally, there is still a legal remnant from the socialist 
era, as described by Rafał Mańko, referred to as »normative legal 
survival.« This remnant is a special supervisory power of the SC 
to issue legal opinions and legal opinions of principle, similar to 
»guidelines« in other socialist jurisdictions (Mańko, 2013, p.217; 
Bobek, 2009). These legal opinions are adopted by the SC sitting 
en banc during its general sessions. They serve as the sole mecha-
nism for unifying case law at the horizontal level. This power 
could be exercised, in some cases, completely in abstracto with 
no relation whatsoever to an individual pending case (Bobek, 
2009, p. 45; Zobec, Letnar Černič, 2015, pp. 141ff). In these situ-
ations, the SC plays a role that falls somewhere between that of 
a legislature and a legal scholar (Galič, Ude, 2002, p. 1584), and 
these legal opinions remain binding on all senates of the Supreme 
Court.
58
5.4. Some Basic Statistics
The overall picture of the Slovenian judiciary completes the 
data as revealed by the research “Public satisfaction with the ad-
ministration of courts in the Republic of Slovenia – 2021”, Jus-
tice Scoreboard and Eurobarometer. These data show, on the 
one hand, that public trust in judiciary is beyond the European 
average,
59
 yet on the other hand, they reveal that public expendi-
56 
Before the amendment, there were two tiers of access to the SC existed. One was the so-called direct 
revision, which was based on “objective” criteria, while the other was inspired by the appeal model, 
where granting permission (or leave) depended on the importance and novelty of the legal issue 
involved in the case, going beyond the interest of the individual applicant seeking another review of 
their case. See Bobek, 2009, pp. 34, 41 et seq.; Galič, 2014. 
57 
See Otvoritev sodnega leta 2018, Vrhovno sodišče RS, 14. 2. 2018, p. 33, available: http://sodisce.si/
mma_bin2.php?nid=2018021414191090&static_id=20180214133528
58 
Art. 110 of the Courts Act.
59 
According to the research “Public satisfaction with the administration of courts in the Republic of 
Slovenia – 2021” (Republika Slovenija, Vrhovno sodišče, Ljubljana 2022) the reputation of Slovenian 
judiciary, as evaluated by state prosecutors and attorneys scores only 3,5 out of 10 (state prosecu-
tors) or 4 out of 10 (attorneys), while trust in judiciary is slightly higher – it scores 4,5 out of 10 (state 

46
DIGNITAS ■ Constitutional Law
ture is one of the highest among the EU member-states.
60
 Besides, 
the ECtHR has so far decided that Slovenia violated the ECHR in 
342 cases (finding at least one violation) out of 373 judgments de-
livered by the end of 2021.
61
 Those numbers are worrying, even 
more, when considering the number of population (2 million). 
High is also the number of violations of human rights, as found 
by the Constitutional Court. In the year 2022 at least one viola-
tion of human rights was found in 33 cases.
62
 Another factor con-
tributing to the low quality of adjudication is Slovenia’s second-
place ranking in the number of “ful-time working” judges per 
1000.000 inhabitants (41).
63
 Due to the very nature of the natural 
law of limited resources which holds also for human resources, 
the country of only 2 million population simply cannot produce 
more than 800 of good judges. In the past, the problem of sys-
temic and chronic backlogs, which led to the pilot judgment in 
the famous Lukenda case (Judgment No. 23032/02), one of the 
adopted measures aiming to reduce backlogs and to speed-up 
proceedings, was also the increase of the number of judges. How-
ever, such a measure is a double-edged sword. With the increase 
of the number of judges usually comes the decline of the quality 
– as it is the case with adding water to wine.
6. Lessons From Slovenia
The Slovenian judiciary represents an example of a bureaucrat-
ic model, grounded in the marriage between two legacies. One 
belongs to the hierarchical Austrian and German interwar model 
of judiciary,
 64
 while the other consists of remnants from the long 
rule of the communist regime, detached from the Western moves 
prosecutors) or 5,4 out of 10 (attorneys). Ibid. p. 34; The 2023 EU Justice Scoreboard, p. 41, available: 
THE 2023 EU JUSTICE SCOREBOARD (europa.eu) ; Eurobarometer 2023, available: Perceived_inde-
pendence_national_justice_systems_EU_among_general_public_fl519_2023_SI_en.pdf 
60 
The 2023 EU Justice Scoreboard, pp. 28f.
61 
Overview 1959 – 2021, European Court of Human Rights, February 2021, available at: Overview 
1959 - 2021 (coe.int).
62 
Annual Report for 2022, pp. 108, 109, available: USRS_Letno-Porocilo_2022.pdf (us-rs.si). In 2017, at 
least one violation of human rights was found in 82 cases, representing the highest number in the last 
decade. One factor that influenced the higher success rate in 2017 was the fact that the Constitutional 
Court adopted 32 so-called panel decisions in cases of the same type. See Annual Report for 2017, p. 
74, available: rsus_letnoporocilo_2017_web.pdf.
63 
The 2023 EU Justice Scoreboard, p. 30.
64 
It’s no surprise that Kafka’s “The Trial’’ is deeply rooted in the soul, or perhaps the subconscious, 
of the Austro-Hungarian legal tradition. If Kafka had lived in a common law jurisdiction, the world’s 
literary heritage might have been deprived of his novel. 

47
DIGNITAS ■ How Long is the Long Shadow of the Authoritarian Past – The Case of ...
toward a more coordinated ideal (Kosař, 2016, p. 400). These 
bureaucratic and hierarchically structured institutions foster an 
authoritarian mindset, based on the assumption that »there is law 
only where there is power,«
65
 prevailing and rendering a very lim-
ited and tightly controlled space for individual (professional and 
personal) independence of its members. The individual judicial 
independence of an average Slovenian judge and his/her impar-
tiality are not only left unprotected but could also become easy 
prey for their formal or even informal superiors and members 
of judicial oligarchies. The serious drawbacks and flaws of the 
Slovenian justice system, as outlined above, can be distilled into 
some key inferences.
The first point confirms the relatively old truth that the inde-
pendence of the judiciary, especially when concentrated in small 
bodies where judges have a majority vote (as is the case with the 
EU model of a JC), or predominantly when »judicial self-govern-
ment« rests in the hands of the presidents of courts, the independ-
ence of individual (rank-and-file) judges is very likely to become 
captive to more or less informal judicial groups, networks, and 
oligarchies.
66
 The ideal of judicial independence, in its bare form, 
is a contested and internally contradictory concept. When court 
presidents, notably the president of the SC, exert significant con-
trol over judicial independence, there is very little of it left for the 
rank-and-file judges who perform judicial service on the ground. 
The key problem, therefore, lies in de facto independence, which 
often resides in the deep shadow of de jure independence. Av-
belj’s warning is justifiable: ‚‘The dependence of judges can also 
be generated intra-systemically, when the judicial system is struc-
tured bureaucratically and controlled by a strong and politically 
connected ruling judicial class that uses informal collegial as well 
as formal means to control and, if necessary, also silence those 
judges who do not conform to the system” (Avbelj, 2019).
Secondly, as mentioned earlier, these groups and oligarchies 
(which may not necessarily be comprised solely of judges, but also 
of high-ranking public servants in court administration, such as the 
Secretary-General of the SC, the head of the PR service, and cer-
65 
The prevailing perception of law seems to be based on an ideology captured in the First Minute of 
the Radhruch’s Five Minutes of Legal Philosophy (Radbruch, 2006, pp. 13-15). 
66 
For similar observations see Moliterno et al, 2018, p. 535-537; Čuroš, 2021; Spáč, 2020; Tsereteli, 
2022, p. 191 ff.

48
DIGNITAS ■ Constitutional Law
tain administrators within the SC) adeptly integrate themselves into 
structures of political power. They align themselves with formal, in-
formal (underground), political, semi-political, economic, and finan-
cial power holders, thereby becoming the backbone of the »deep 
state.« Or, at the very least, they subject the judiciary to the control of 
political (executive) power and other interest groups.
67
 This effec-
tively allows the invisible long arm of politics and influential interest 
groups to penetrate the judiciary through the back door.
Thirdly, it appears highly probable that the absence of lustra-
tion not only preserved the old regime’s corporatist mindset but 
also contributed to the retention of the most detrimental judicial 
cadres. These individuals, supported by the majority of ordinary 
members of the judiciary and governed by a corporatist mental-
ity, gradually built their careers and occupied senior positions 
within the judicial hierarchy. Even after their retirement, which is 
mandatory at the age of 70 for judges, their cultural and mental 
legacy persists. The most trustworthy individuals had been re-
warded with appointments to the Office for Supervision of Court 
Management (established within the Ministry of Justice and led 
by a judge designated to the post by the JC) and to the CEI upon 
the expiration of their judicial service, pending a ruling by the 
Constitutional Court that found this to be unconstitutional.
68
Although the law stipulates that membership in the commis-
sion ceases upon the termination of judicial service,
69
 until recent-
ly, two of the five members of CEI have been retired judges, both 
over seventy years of age.
70
 These individuals could be described, 
in Bourdieu’s terms, as »yesterday men«—individuals whose past 
significantly outweighs their present due to the long period of 
the past that has shaped their current form (Bourdieu, 1990b, 
67 
The former occurred recently by appointing the self-proclaimed “highly professional, the most 
neutral and politically independent” public servant, who, at that moment served as the head of the 
PR of the SC on the position of the Secretary of State, i.e. the Vice-Minister of Justice. What is most 
striking here, is the fact that he was installed from the Socialist Party (which is successor of the previ-
ous Communist Party) quota. However, the farce doesn’t stop here. The then acting secretary of state 
was simultaneously moved to his previous office, they just switched their posts. Professor Avbelj com-
mented on the described cadre-castling in the following: “Kaczinski in Orban are green with envy. 
[…] Courts are those which apolitically set up their figures on ministries” (Avbelj, 2018a; Avbelj, 2019). 
68 
Decision U-I-159/19.
69 
Art. 51 (1) of the Judicial Council Act.
70 
These two members resigned, as they stated in their resignation statement, due to their commit-
ment to protecting the integrity of the CEI). This decision was made immediately after the CC found 
the provisions of the Judicial Service Act, allowing retired judges to carry out official supervision of 
a judge’s work, to carry out tasks of court management and to manage the office for the Supervision 
of the Management of the Court as assigned judges at the Ministry of Justice to be unconstitutional 
(Decision U-I-159/19).

49
DIGNITAS ■ How Long is the Long Shadow of the Authoritarian Past – The Case of ...
p. 56; Durkheim, 1977, p. 11 .
71
 The »old guard members« within 
CEI have been acting as guardians of the existing (past) corporat-
ist habitus, which, as explained earlier, is anything but a habitus 
of courageous, independent, and principled individuals. There-
fore, it is not surprising that the victims of CEI are predominantly 
those free-thinking, independent judges who openly speak out 
against the malpractices of the governing structures of the judi-
ciary. These judges challenge the status quo and the prevailing 
sense of »dirty togetherness«.
Despite the fact that CEI was established on the recommenda-
tion of GRECO (the Council of Europe anti-corruption body) as 
a body within the JC to prevent corruption, primarily through 
issuing principled opinions on violations of ethical codes and 
providing recommendations and guidelines on upholding ethical 
and integrity standards, conflicts of interest, and situations involv-
ing (former) judges and prosecutors transitioning to the private 
sector,
72
 it is being used to silence critics of the malpractices of 
judicial oligarchies. In this context, the utilization of CEI, designed 
as part of the judiciary’s immune system, to suppress critics of ju-
dicial misconduct resembles a symptom of autoimmune disease.
Fourth, the optimistic scenario, which relies on the natural 
evolutionary cycles leading to the gradual disappearance of post-
totalitarian mindsets, habits, and power structures as explained 
earlier, currently lacks empirical evidence. Additionally, members 
of the new, young, and fresh generation who graduated after the 
collapse of the communist regime often exhibit behavior akin to 
»homo economicus.« Some of them, acting as rational maximizers, 
succumb to the demands of existing power structures and adopt 
similar methods. Others, in the era of a globalized postmodern 
world, choose to leave the country and seek personal and pro-
fessional fulfillment elsewhere. This phenomenon amounts to a 
form of negative selection that is eroding the institutional land-
scape in Slovenia.
71 
The Durkheim then continues: »It is just that we do not directly feel the influence of these past 
selves precisely because they are so deeply rooted in us. They constitute the unconscious part of 
ourselves. Consequently, we have a strong tendency not to recognize their existence and to ignore 
their legitimate demands. By contrast, with the most recent acquisitions of civilization we are vividly 
aware of them just because they are recent and consequently have not had time to be assimilated into 
our collective unconscious« (Durkheim, 1977, p. 11).
72 
Fourth Evaluation Round - Corruption prevention in respect of members of parliament, judges, and 
prosecutors: Fourth Evaluation Round, Compliance Report – Slovenia, adopted 12 December 2014, 
published 18. March 2015, Council of Europe: Group of States Against Corruption (GRECO), available: 
https://www.refworld.org/docid/5a1ff5954.html.

50
DIGNITAS ■ Constitutional Law
Fifth, it is now too late to break the vicious circle. This should 
have been addressed at the very beginning of the transition, pos-
sibly through a process of lustration. However, even in that case, 
Slovenia could not have relied on the »colonization« of the judicial 
sector, as it lacked a Western counterpart from which legal pro-
fessionals could have been imported. The situation in Slovenia is 
quite similar to that in most other post-communist countries, as 
noted by Bobek and Kosař, where »the number of judges from 
the communist era is particularly high at the upper echelons of 
the CEE judiciaries« (Bobek, Kosař, 2014, p. 1281) They also right-
ly argue that “[i]t is hard to imagine communist-era judges turning 
overnight into independent and responsible judicial managers, 
who are willing to put the good of the justice system before their 
own” (Bobek, Kosař, 2014, p. 1281).
Sixth, the Slovenian judiciary is, therefore, a subtype of tran-
sitional judiciaries. Kosař makes a compelling argument that the 
introduction of judicial self-government has ensured structural 
independence, which means it has secured independence from 
politicians but has neglected the independence of individual 
judges (Kosař, 2016, pp. 406ff). From a formal legal perspective, 
this situation may appear acceptable or even exciting.
 73
 However, 
upon closer examination of the actual functioning of this system 
in practice, especially in the context of transitional judiciaries, it 
becomes evident that the judiciary is indeed independent from 
external political forces but has been captured from within. This 
results in a situation where there is »a system of dependent judges 
within an independent judiciary composed of internally depend-
ent judges« (Kosař, 2016, p. 407)
74
 Since an independent judiciary 
made up of dependent judges is inherently contradictory, the vi-
cious circle is complete.
Eventually, we may agree with Professor Avbelj’s observation, 
that orchestrated institutional decay, a widespread system of neg-
ative selection, based on loyalty instead of meritocracy, combined 
with the lack of institutional tradition and the lack of liberal mind-
73 
For a brief outline of the regulation of independence of judges see: Zajc, 2014, p. 753. For the more 
detailed insight see Avbelj, Letnar Černič, 2020, pp. 105 ff. 
74 
Slovenian formal judicial landscape resembles the opening sequence of the David Lynch’s master-
piece Blue Velvet, which depicts the small, idealistic town of Lumbertown. The mise-en-scène of the 
town provides a sense of order and security, showing a waving fireman and dalmatian driving down 
the road on a firetruck. However, this setting also raises a fundamental question that pervades the 
film: Is any of this reality, or is at all a façade hiding a darker truth beneath the surface? 

51
DIGNITAS ■ How Long is the Long Shadow of the Authoritarian Past – The Case of ...
set among typical Slovenian citizens are the main factors inhibit-
ing the development of constitutional democracy (Avbelj, 2017d, 
p. 53). Does this mean that the rule of law in Slovenia and its judi-
ciary are doomed to failure?
7.  Concluding Remarks – Or Rather Some 
Tentative Proposals
The respect for the rule of law and the proper functioning of 
the rule of law primarily and foremost depend on the judiciary. 
The authoritarian culture within the judiciary and semi-formal net-
works, as well as the hierarchical structure based on loyalty and 
subservience to judicial oligarchies, represent the main sources 
of institutional malaise within the third branch and, consequently, 
the primary problem of the rule of law in Slovenia. Three pil-
lars of authoritarianism in the Slovenian judiciary are key: a) the 
strong formal powers of the presidents, especially the president 
of the SC, b) the weakness of the JC, and c) the prevailing corpo-
ratist mentality - the habitus of submissiveness of the overwhelm-
ing majority of judges. Authoritarianism needs subservience to 
flourish. They both are the flip sides of the same coin – as a sadist 
needs a masochist, and vice versa.
Due to organizational and technical weaknesses, the power 
of the JC, which is designed as the key and essential guardian 
of judicial independence, remains more in the books than in ac-
tion (Avbelj, 2018c, p. 1910f).The weaker the JC, the more space 
opens up for other players, mostly for the presidents of the 
courts.
75
 Therefore, a question may arise: whether the gradual 
strengthening of the formal powers of the already de facto influ-
ential court presidents might not even be intentional - because 
it is easier to exercise control over the courts through bodies 
that are easy to manage. The fewer the members of the bodies, 
especially if that body is composed of one person only, the bet-
ter for the ruling political elite (and influential crony groups) to 
advance their agenda through the one-man-band “transmission 
belts”.
76
75 
For the same observations see Avbelj, 2018c, p. 1911ff.
76 
On the metaphor of court presidents as transmission belt see Blisa, Kosař, 2018, p.2049, 2074. 
Authors convincingly warn against the danger of “outsourcing” judicial interference to court presi-
dents (Blisa, Kosař, 2018, p.2049, 2074). 

52
DIGNITAS ■ Constitutional Law
The weakness of the JC (also in terms of submissiveness to 
authoritarian strongmen and holders of informal power within ju-
dicial oligarchies) could be well illustrated through a recent anec-
dote: In the winter 2021/22, a new scandal broke out, once again 
involving Mr. Masleša. For more than two months, the Slovenian 
public was rocked by the non-existence of Mr. Masleša’s diploma. 
During this time, several different copies of the controversial di-
ploma appeared in the public eye, differing from each other and 
also from diplomas issued at that time (in the mid-70s of the last 
century) by the Faculty of Law in Sarajevo, where Mr. Masleša was 
supposed to have graduated. Doubts raised by investigative jour-
nalists still linger as to whether the aforementioned judge even 
has proof of the required legal education. However, Mr. Masleša 
claimed that he keeps his diploma carefully but declined to show 
it to the public. Different versions of his diploma that have since 
appeared in the public had flaws that were already visible from 
the outside, casting doubts on their authenticity.
As time passed, public doubt grew, and the reputation and 
trust in the judiciary, especially in the SC, declined. For that rea-
son, the JC suggested that he publicly display this document, 
thereby halting the further decline of the judiciary’s reputation. 
However, Mr. Masleša turned down the SC’s proposal with in-
dignation. Furthermore, the SC even threatened journalists with 
lawsuits from its official Twitter profile. The PR department of the 
SC wrote on his behalf that the issue of the existence of a judge’s 
diploma, considering the legally prescribed election procedure 
in which the fulfillment of the conditions for holding a judicial 
position is assessed, is superfluous. “The Supreme Court judge 
will file a lawsuit regarding the published untruths. The amount 
of compensation will be donated to charity,” they announced, 
indicating their confidence in the lawsuit’s outcome in advance. 
Later, the CEI (a body at the JC) declared that his conduct was not 
contrary to judicial ethics. Furthermore, the CEI opined that in do-
ing so, Mr. Masleša had defended the reputation of the Slovenian 
judiciary and its public respect.
77
Instead of final conclusions, I will propose some rudimentary 
and tentative solutions to address the discouraging situation de-
77 
Načelno mnenje Komisije za etiko in integriteto pri Sodnem svetu, no. Su Ek 8/2022, dated June 8, 
2022. Eventually, Mr. Masleša revealed his diploma – which differed from the previously displayed 
copies. Hence doubts about its authenticity still exist.

53
DIGNITAS ■ How Long is the Long Shadow of the Authoritarian Past – The Case of ...
scribed and dispel the long shadow of the past. One well-known 
Slovenian legal scholar’s suggestion (expressed informally but 
candidly) was brief: Close all Slovenian law schools and replace 
all Slovenian judges. However, let’s set jokes aside.
This suggestion, nonetheless, encapsulates two major sources 
of judicial decay and can serve as a starting point. The concept 
of the rule of law is not so much a legal phenomenon as it is an 
ethical and moral one, and it cannot be created or prescribed 
solely through legislation. The problem does not primarily reside 
in the formal structure of Slovenian institutions; rather, it pertains 
to their substance. The substance is composed of people, specifi-
cally judges, and more precisely, their moral capabilities and per-
sonal integrity (Avbelj, Prenova).
Therefore, the crucial question is how to establish and safe-
guard the pillars of judicial independence: courage, morality, 
knowledge, and accountability. This would enable judges to act 
in a transparent, fair, and equitable manner.
78
 The ultimate goal is 
to dismantle the authoritarian, corporatist habitus and transform 
the monolithic judiciary into a community of personally inde-
pendent judges.
The first step should be directed towards reforming legal edu-
cation, as it offers a window into society’s legal system and shapes 
fundamental attitudes about the law: what the law represents, the 
roles of legal professionals, how the legal system operates, and 
how it should operate (Merryman, 1975, p. 859). Existing legal 
education needs to undergo a transformation to produce jurists 
who not only memorize legal principles but also understand them 
deeply. This calls for students who are knowledgeable, hardwork-
ing, reflective, creative, and possess critical thinking skills.
79
Quality legal education is not only vital for equipping a judicial 
body with the technical capacity to deliver justice as a tribunal 
78 
In this regard I can only agree with the position of Čuroš, who claims that “[t]he goal is to create 
an independent habitus of judges who are aware of their role in delivering justice”, and who further 
argues, to be “essential to start with this as early as during legal education, highlighting the strong 
personalities among judges who have stood against pressure, teaching about the importance and role 
of the rule of law, and providing training for establishing resilience against inappropriate pressure” 
(Čuroš, 2021, p. 1280).
79 
Cf. in the note 5 mentioned Resolution wherein the Parliamentary Assembly of the CoE 
[noting that the Russian Federation court chairpersons have disproportionate power 
over other judges and hence] called the Russian Federation, inter alia, to promote the 
development of a spirit of independence and critical analysis in legal education in general and in 
initial and continued training of judges and prosecutors in particular, and to robustly sanction any 
local, regional or federal officials that continue to try to give instructions to judges, as well as any 
judges who seek to obtain such instructions (5.5.4.).

54
DIGNITAS ■ Constitutional Law
but also plays a critical role in ensuring public confidence in the 
judiciary. It serves as an additional safeguard for judges’ personal 
independence (Judgment No. 26374/18). Therefore, legal educa-
tion should be elevated to an elite level, with access to law schools 
limited to the most talented individuals selected through rigorous 
criteria, including a law school admission test.
Academic faculties should be comprised of the most distin-
guished national and international legal scholars. Legal studies 
should be conducted in collaboration with top Slovenian law 
schools and respected American or EU law schools.
Furthermore, the education for judges should undergo a fun-
damental transformation and modernization. A Judicial Acade-
my should be established to serve as a professionally managed 
institution for continuous and mandatory judicial training and 
education, providing judges with the highest level of up-to-date 
knowledge. Lecturers should be drawn from the ranks of the best 
domestic and international legal theorists and practitioners.
Additionally, the national judiciary exam should be fundamen-
tally reformed and updated. If we maintain the career model for 
the judicial profession, the training for future judges should fol-
low the successful completion of the bar exam, with the judicial 
exam also including assessments of social and emotional intel-
ligence.
In many ways, constitutional democracy also relies on the ac-
tive engagement of professionals within the legal field, especially 
legal academics. They, in accordance with their academic ethi-
cal commitment, play a crucial role in commenting on and criti-
quing judicial decisions, as well as shaping legal discourse. Legal 
academics bear a responsibility not only for their comments and 
criticisms of judicial opinions but also for their silence on critical 
issues. The ongoing discourse among legal experts, and conse-
quently in society as a whole, is essential for the functioning of 
constitutional democracy. This can only occur if the judiciary re-
mains subject to constant public scrutiny.
To achieve this, it is imperative to ensure the transparency 
of the judicial decision-making process. The administration of 
justice should be clear, open, and accessible for interaction with 
the general public, on whose behalf judges render their judg-
ments. The high quality of judicial service also depends on sys-
temic checks and balances at both internal and external levels. 

55
DIGNITAS ■ How Long is the Long Shadow of the Authoritarian Past – The Case of ...
The latter is extensively carried out by academics, theorists, and 
other legal professionals.
In terms of Čuroš›s allegory of the panopticon, it is crucial to 
consider who occupies the inspector’s lodge. The primary posi-
tion should be reserved for the public, including both academic 
and the general public.
In any case, the supporting role of doctrinal scholarship ap-
pears to be crucial. This can be explained by the determinacy 
paradox, which is pervasive in legal theory and also applies to the 
judiciary at large. Judges are assumed to engage in self-interested 
behavior or, at best, to vote in accordance with their concept of 
sound argumentation in their opinions. As Professor Vermeule 
has put it: “To make sense of doctrinal scholarship, one must 
assume either that the Justices are directly interested in creat-
ing good law, or else that the Justices are indirectly interested in 
doing so, because they care about their reputation with (among 
others) the law professors who care about good law. In the lat-
ter case, the Justices are a real audience for doctrinal scholarship 
because law professors are a real audience for the Justices’ opin-
ions” (Vermeule, 2007, p. 397).
80
Anyways, law professors are among the audiences that reputa-
tion-minded judges aim to impress or please (Posner, 1993, p. 20). 
They also constitute one of the pillars of constitutional democ-
racy, particularly in supplementing or building and maintaining 
the legitimacy of the administration of justice and the judge-made 
law. Constitutional democracy presupposes a culture of delibera-
tive democracy. Furthermore, academics can play an important 
role in helping judges resist undue influence. They can serve as 
strong and trustworthy partners who will defend their independ-
ence and protect them from succumbing to undue influences and 
pressures (Spáč, 2020, p. 42).
81
Therefore, transparency is essential for public and professional 
scrutiny and the latter is crucial for the proper functioning of the 
judiciary. Without transparency, there can be no accountability. 
Transparency ensures that information is readily available, and 
only reliable information can be used to assess the performance 
80 
In the same vein Rodin, 2009, p. 380,381.
81 
Halliday writes of the efficacy of a coalition between judges and lawyers, which can be enhanced 
by a moral economy that binds them together – and of normative economy between bar and bench 
(Halliday, 2024). In the same vein legal, academics and public intellectuals may add to the legal com-
plex in strengthening judiciary and giving support to the resisting judges. 

56
DIGNITAS ■ Constitutional Law
of authorities and guard against potential abuses of power. Lack 
of transparency erodes trust in those who hold power. In the 
absence of transparency and accountability, trust between the 
government and its citizens is compromised. Within the system, 
the prevailing ‘dirty togetherness,’ a legacy of the past and the 
country’s small size and population, should give way to a culture 
of professional accountability. Full transparency in the adminis-
tration of justice and court management is essential for external 
oversight.
The JC should follow the example of the Slovakian JC by open-
ing its doors to the public (Spáč et al., 2018b, p. 1763). This means 
not only publishing its decisions but also making audio record-
ings of its meetings available to the public.
82
 Hearings for can-
didates seeking judicial positions or promotions before the JC 
should be conducted in an open manner, with the names of the 
candidates and their backgrounds disclosed. Additionally, asset 
disclosures of all judges should be made public, including infor-
mation about any family members working within the judicial 
system or in organizations under the Ministry’s jurisdiction, or 
in the field of advocacy. Furthermore, the bios, educational cer-
tificates, and details of the state examination for the legal pro-
fession should also be published.
83
 If the adoption of [judicial] 
appointment decisions should be such that they cannot give rise 
to reasonable doubts, in the minds of individuals, as to the im-
perviousness of the judges concerned to external factors and as 
to their neutrality with respect to the interests before them, once 
82 
ECtHR plays a significant role in evolving the fairness and transparency in the appointment proce-
dure and merit-based selection criteria for judicial posts this is viewed as a crucial component of the 
right to a “tribunal established by law”, which is recognized as a stand-alone right under 
Article 6(1) of the ECHR (Rizcallah, Davio, 2021, p. 587). In this context, it’s worth noting that not only 
the ECtHR cases against Poland and Hungary but also the case Ástráðsson and Tsanova-Gecheva v. 
Bulgaria (judgment, no. 43800/12, dated Sept. 15 2015) support the efforts of those advocating for 
transparency and accountability in the selection and appointment of judges. The Tsanova-Gecheva 
case is particularly instructive, as the transcript of the audio recording of deliberations among mem-
bers of the Bulgarian Supreme Judicial Council (henceforth: CSM) played a significant role in com-
pensating for the lack of reasons provided for the CSM’s decision. See para. 101, 102; Fajdiga, 2021, p. 
74. The author therefore urges the JC to start writing the record of deliberations (Fajdiga, 2021, p. 77).
83 
At the end of 2021 and the beginning of 2022, Slovenia was embroiled in the aforementioned affair 
regarding the diploma of Mr. Masleša. It came to light that he had not passed the state legal profession 
exam (judiciary exam) in Slovenia, rendering his appointment unlawful. According to existing case 
law, he lacks the capacity to represent himself before the SC, despite serving as a judge at the very 
same court. This raises the question of how he could act as a SC Judge when he is not even allowed 
to represent himself before the very Court he serves on. One of the SC Judges who brought up this 
issue in an interview with one of the online portals was later “found guilty” by the CEI of violating 
the Code of Judicial Ethics (Načelno mnenje Komisije za etiko in integriteto, No. Su Ek 10/2022, dated 
25 August, 2022).

57
DIGNITAS ■ How Long is the Long Shadow of the Authoritarian Past – The Case of ...
appointed as judges,
84
 then it is necessary that the appointment 
procedures are transparent and amenable to public oversight.
The reformed JC should consist of a committee of legal experts 
of the highest esteem. I concur with Professor Avbelj’s proposal 
for its composition: three law professors, two former CC judges, 
two former members of international courts, one representative 
from the ordinary judiciary, and one from other sectors of the 
legal profession (Avbelj, Prenova).
Furthermore, the powers of the presidents of courts, including 
the President of the SC, should be significantly reduced and trans-
ferred to other bodies of judicial self-government (plenary ses-
sions, the Court chambers, and their heads). This should position 
them as primi inter pares, akin to the system in Germany, rather 
than acting as superiors to their peers (Kosař, 2016, p. 396; Blisa, 
Kosař, 2018, p. 2056ff). Additionally, the SC should be relieved 
of all administrative, technical, and organizational tasks that cur-
rently blur the lines between the judicial and executive branches, 
creating a fertile ground for corruption.
85
 All such responsibilities 
and associated personnel should be transferred to the Ministry 
of Justice. The SC must be allowed to focus exclusively on its 
primary role, which is creating and unifying case law. Finally, the 
PR service should be redefined as a bridge between the Court 
and the general public, primarily by issuing public releases, espe-
cially in high-profile cases, rather than serving as a propagandistic 
mechanism for judicial oligarchies.
Post Scriptum
Mr. Janša, along with two other falsely accused and subse-
quently sentenced co-convicts in the failed Patria proceedings, 
filed a lawsuit against Mr. Masleša, seeking compensation. The 
court of first instance rejected the claim for damages, and none of 
the plaintiffs appealed this ruling. What is interesting here, inter 
alia, is the fact that until recently, Mr. Masleša’s appointed attor-
ney held the position of a member of the JC.
84 
The CJEU judgment in Joined Cases C-585/18, C-624/18 and C-625/18 dated 19 November, 2019, 
para. 134.
85 
How likely is it that members of the »leading structure« of the Supreme Court may succumb to temp-
tation to misuse their positions for personal financial gain, see Toplak, Sovdat, 2019; Toplak, 2019. 

58
DIGNITAS ■ Constitutional Law
LITERATURE AND SOURCES:
Althusser, L. (1976). Positions. Paris: Éditions Sociales.
Avbelj, M. (2014a). Will Slovenia join Hungary and Romania as examples of constitutional back-
-sliding? Verfassungsblog. URL: https://verfassungsblog.de/slovenia-bound-jail-opposition-leader-
-electoral-period-2/, 12. 1. 2025.Avbelj, M. (2014b). Slovenia: a de facto failed constitutional de-
mocracy, Vefassungsblog. URL: https://verfassungsblog.de/slovenia-de-facto-failed-constitutional-
-democracy, 12. 1. 2025.
Avbelj, M. (2014c). Faild Democracy: The Slovenian Patria Case – (Non)Law in Context. Dignitas, No. 
61/62, pp. 59–84. Avbelj, M. (2015a). Nepravna država, GV Založba, Ljubljana 2015;
Avbelj, M. (2015b). Slovenia constitutionally reloaded, but still failing, Verfassungsblog. URL: https://
verfassungsblog.de/slovenia-constitutionally-reloaded-but-still-failing/, 12. 1. 2025.
Avbelj, M. (2016a). Izbiranje predsednika Vrhovnega sodišča – slovenski sodni svet je farsa, Finance, 
19.9. 2016.
Avbelj, M. (2016b). Bo sodni svet zdaj odstopil?, Finance, 17.12. 2016;Avbelj, M. (2017a). Država über 
alles in homo slovenicus, Finance 15. 4. 2017;
Avbelj, M. (2017b). Nova era ali po Masleši Masleša?, Finance, dated April 29 2017;
Avbelj, M. (2017c). Judicial Self-Government in Slovenia, draft prepared for a workshop organized by 
David Kosař on »The Rise of Judicial Self-Government: Changing the Architecture of Separation 
of Powers without an Architect«, Prague, September 2017 (unpublished manuscript on file with 
author);
Avbelj, M. (2017d). The Sociology of (Slovenian) Constitutional Democracy (October 24, 2017). Hague 
Journal on the Rule of Law 10(2). Avbelj M. (2018a). Črni četrtek in rdeče pravosodje, Finance, 25. 
9. 2018;
Avbelj, M. (2018c). Contextual Analysis of Judicial Self-Governance in Slovenia, German Law Jurnal, 
Vol. 19, No. 7.
Avbelj, M. (2019). Judges Depending on Judges: A Missing Brick in the CJEU Jurisprudence on Judi-
cial Independence, VerfBlog, 2019/7/10. URL : https://verfassungsblog.de/judges-depending-on-
-judges/, 10. 1. 2025.
Avbelj, M., Letnar Černič, J. (2020). The Impact of European Institutions on the Rule of Law and De-
mocracy – Slovenia and Beyond. Oxford: Hart.
Avbelj, M., Prenova sodne veje oblasti v Sloveniji, unpublished manuscript on file with author.
Bengoetxea J., Courts Managing Stress through Judicial Dialogues, Keynote Address, Judges under 
Stress Final Conference, University of Oslo, 17–18 November 2022.
Bergant Rakočević V. (2013). „Zakaj meni nihče ne piše sodb v Murglah“, Pravna praksa, 32/1095, no. 
32, p. 33.Blisa, A., Kosař, D. (2018). Court Presidents: Missing Piece in the Puzzle of Judicial Gover-
nance, German Law Journal, Vol. 19, No. 7, pp. 2049–2074.
Bobek, M. (2008). The Fortress of Judicial Independence and the Mental Transitions of the Central 
European Judiciaries, forthcoming in European Public Law, Vol. 14, Issue No. 1, pp. 99–123.
Bobek, M., Kosař D. (2014). Global Solutions, Local damages: A Critical Study in Judicial Councils in 
CEE. German Legal Journal, Vol. 15, No. 07, pp. 1257–1292. URL: https://www.researchgate.net/
publication/272221543_Global_Solutions_Local_Damages_A_Critical_Study_in_Judicial_Coun-
cils_in_Central_and_Eastern_Europe, 11. 1. 2025.
Bobek, M. (2009). Quantity or Quality? Reassessing the Role of Supreme Jurisdictions in Central Eu-
rope, The American Journal of Comparative Law, Vol. 57, No. 1, pp. 33–65.
Bourdieu, P. (1990a). In Other Words - Essays Towards a Reflexive Sociology (transl. by Adamson M.). 
Stanford: Stanford University Press.Bourdieu, P. (1990b). The Logic of Practice. Stanford: Stanford 
University Press.
Bučar, F. (2004). Pravnik v današnjem času (uvodno predavanje na 30. Dnevih slovenskih pravnikov) 
[Lawyer in the Current Times, The Introductory Lecture at 30th Days of Slovene Lawyers], Pravna 
praksa 2004, No. 36, p. 6.
Bugarič, B. (2015). Kuhelj A., Slovenia in crisis: A tale of unfinished democratization in East-Central 
Europe, Communist and Post-Communist Stud 48 (2015), pp….;
Cerar, M. Jr. (1990). Ustrelitve na meji – poskus ovadbe. Telex, March 22 1990 pp. 7-9.
Čuroš, P. (2021) Panopticon of the Slovak Judiciary – Continuity of Power Center and Mental Depen-
dence, German Law Journal, Vol. 22(7), pp. 1247-1281.
Čuroš, P. (2023) Who Stands in The Mirror And Who Stares Back, Tradition of populism in Slova-
kia. In: Law, Populism, and the Political in central and eastern Europe / Manko, R. et al. (ed.). 
London:Birkbeck Law Press.
Decision U-I-83/94 of 14 July 1994. Constitutional Court of the Republic of Slovenia, 
ECLI:SI:USRS:1994:U.I.83.94.

59
DIGNITAS ■ How Long is the Long Shadow of the Authoritarian Past – The Case of ...
Decision U-I-159/19 of 23 February 2023. Constitutional Court of the Republic of Slovenia, 
ECLI:SI:USRS:2023:U.I.159.19.
Djilas, M. (1957). The New Class: An Analysis of the Communist System. New York: Frederick A. Pra-
eger.
Durkheim, E. (1977). The Evolution of Educational Thought: Lectures on the formation and deve-
lopment of secondary education in France. London, Boston: Routledge & Kegan Paul.
Dvořáková, V. (2007). Introduction. In: Lustration and Consolidation of Democracy and the Rule of 
Law in Central and Eastern Europe / Dvořáková, V., Milardović, A. (ed.). Zagreb: Political Science 
Research Centre Zagreb.Fajdiga, M. (2021). Izbira Sodnega sveta: ignorantia rationis nocet? Ljublja-
na: Zbornik znanstvenih razprav - Ljubljana Law Review, Vol. 81.
Ferejohn, J. (2022). Judicializing Politics, Politicizing Law, Law and Contemporary Problems, Vol. 65, 
No. 3, The Law of Politics.
Fleck, Z. (2003). Judicial Independence in Its Environment in Hungary. In: Systems of Justice in 
Transition. Central European Experiences since 1989 / Přibáň, J., Roberts, P. I., Young, J. (eds.). 
Dartmouth: Ashgate Publishing.
Fleck, Z. (2021). Changes of the Political and Legal Systems: Judicial autonomy, German Law Journal 
(2021) 22, pp. 1298-1315;
Galič, A., Ude, L. (2002). Reforma pravnih sredstev v pravdnem postopku, Podjetje in delo No. 6-7;
Galič, A. (2014). Does a Decision of the Supreme Court Leave to Appeal Need to Contain Reasons? In: 
Festschrift für Peter Gottwald zum 70. Gerburtstag / Adolphsen, J. et al. (eds). CH Beck.
Gudkov, L. D. (2008) “Soviet Man” in the Sociology of Iurii Levada, Sociological Research, Vol. 47. No. 
6 .
Halliday, T. C. (2024). Judges Under Stress: Legal Complexes and a Sociology of Hope. Oñati Socio-
-Legal Series. Oñati: Oñati International Institute for the Sociology of Law. URL: https://papers.ssrn.
com/sol3/papers.cfm?abstract_id=4482114, 12. 1. 2025.
Halmai, G. (2007). Lustration and Access to the Files in Central Europe. In: Lustration and Consolida-
tion of Democracy and the Rule of Law in Central and Eastern Europe / Dvořáková V., Milardović 
A. (ed.). Zagreb: Political Science Research Centre Zagreb.
Henderson, L. (1991). Authoritarianism and the Rule of Law. Scholarly Commons @ UNLV Boyd Law, 
Scholarly Works. 867, pp. 379–456. URL: https://scholars.law.unlv.edu/facpub/867, 11. 1. 2025.Hol-
vast, N. L., Doornbos, N. (2015). Exit, Voice and Loyalty within the Judiciary: Judges’ Responses to 
New Managerialism in the Netherlands. Utrecht Law Review, 11(2).
Judgment No. 26374/18 of 1 December 2020, Guðmundur Andri Ástráðsson v. Island, European Court 
of Human Rights, para. 222.
Judgment No. 23032/02 of 6 October 2005, Lukenda v. Slovenia, European Court of Human Rights.
Ferejohn J. (1999). Independent Judges, Dependent Judiciary: Explainig Judicial Independence, S. 
Cal. L. Rev. 72, p. 353-384.
Kosař D. (2016). Perils of Judicial Self-Government in Transitional Societies. Cambridge: Cambridge 
University Press, UK 2016.
Kosař D. (2017). Nudging Domestic Judicial reforms from Strasbourg: How the European court of 
human rights shapes domestic judicial design, Utrecht Law Review. Vol. 13, Issue 1 2017.
Kosec J. (2018). How Communist is the Judiciary in Slovenia, Centre for Research into Post-Commu-
nist Economies (CRCE), Briefing Paper, 2018.Krygier M. (2013). The Rule of Law: Why, what, where 
- and who cares?, lecture on May 3 2013. URL: https://www.youtube.com/watch?v=fj_2Y1GoTJk, 
10. 1. 2025.
Kühn, Z. (2011). The Judiciary in Central and Eastern Europe: Mechanical Jurisprudence in Transfor-
mation? Boston: Martinus Njihoff Leiden.Kühn, Z. (2016). The Democratization and Modernization 
of Post-Communist Judiciaries. In: Central and Eastern Europe after Transition / Febbrajo, A., Sad-
urski, W. (eds). New York: Routledge pp. 177-200.Kühn, Z. (2021). The Judiciary in Illiberal States, 
German Law Journal, Vol. 22. No. 7, pp. 1231-1246.
Linz, J. J., Stepan, A. (1996). Problems of Democratic Transition and Consolidation in Southern Eu-
rope, South America and Post-Communist. Baltimore: Johns Hopkins University Press.Mańko, R. 
(2013). Weeds in the Gardens of Justice? The Survival of Hyperpositivism in Polish Legal Culture 
as a Symptom/Sinthome, Pólemos, 7 (2), pp. 207-233;
Masleša, B. (2014). President of the Supreme Court, Branko Masleša, address at the annual event „Days 
of Judiciary”, 2014.URL: https://www.youtube.com/watch?v=RCrpP9bwecY, 11. 1. 2025.
Maturana, H. R., Varela, F. J. (1980). Autopoiesis and Cognition: The Realization of the Living. Dordre-
cht: Reidel.
Merryman, J. M. (1975). Legal Educetion There and Here: A Comparison, Stanford Law Review, Vol. 
27. No. 3 (Feb., 1975).
Milardović, A. (2007). Elite Groups in the Waves of the democratization and Lustrations. In: Lustration 

60
DIGNITAS ■ Constitutional Law
and Consolidation of Democracy and the Rule of Law in Central and Eastern Europe / Dvořáko-
vá, V., Milardović, A. (ed.). Zagreb: Political Science Research Centre Zagreb.Moliterno, J. E. et al. 
(2018). Independence Without Accountability: The Harmful Consequences of EU Policy Toward 
Central and Eastern European Entrants. Fordham International Law Journal, Vol 42, Iss 1, Art 7 
[2018], pp. 481-551.
Popova M. (2017). Putin-Style “Rule of Law” & the Prospects for Change, Daedalus, Vol. 146 | Issue 2 
| spring 2017, pp. 64-75.Posner, R. A. (1993). »What Do Judges and Justices Maximize? (The Same 
Things Everyone Else Does)« Coase-Sandor Institute for Law & Economics Working Paper No. 15.
Radbruch, G. (2006). Five Minutes of Legal Philosophy. Oxford: Oxford Journal of Legal Studies, Vol. 
26, No. 1.
Rizcallah, C., Davio, V. (2021). The Requirement that Tribunals be established by Law: A Valuable Prin-
ciple Safeguarding the Rule of Law and the Separation of Powers in a Context of Trust, European 
Constitutional Law Review, 17: 581–606, 2021.
Rodin, S. (2005). Discourse and Authority in European and Post-Communist Legal Culture, Croatian 
Yearbook of European Law and Policy (2005), I, 7-8.
Rodin, S. (2009). Functions of Judicial Opinion: A View from a Post-Communist European State. In: 
The Legitimacy of Highest Courts’ Rulings / Huls, N., Adams, M., Bomhoff, J. (eds.). Haag: T.M.C. 
Asser Press, pp. 369–386.
Sajo, A., Losonc,i V. (1993). Rule by Law in the East Central Europe: Is the Emperor‘s New Suit a 
Straightjacket?, In: Constitutionalism and Democracy - Transitions in the Contemporary World / 
Greenberg, D. et al (eds.). Oxford: Oxford University Press.
Sherman, A. V. (1957). The New Class by Milovan Djilas, Commentary, Dec 1957. URL: https://www.
commentary.org/articles/a-sherman/the-new-class-by-milovan-djilas/, 12. 1. 2025.
Spáč, S. (2013). Judiciary development after the Breakdown of Communism in the Czech Republic 
and Slovakia. Budapest: Central European University.Spáč, S. (2018a). Recruiting European Judges 
in the Age of Judicial Self-Government, German Law Journal, Vol. 19 No. 5, pp. 2077-2104.
Spáč, S. et al. (2018b). Capturing the Judiciary from Inside: The Story of Judicial Self-Governance in 
Slovakia, German Law Journal, Vol. 19 No. 7, pp. 1741-1768.
Spáč, S. (2020). Informal judicial networks and judicial independence in the aftermath of Ján Kuciak’s 
murder, V4, Human rights review, Vol. 2, No. 1 (2020), pp. 40-42.
Sunnqvist, M. (2024). A judge must not be influenced by fear. Must a judge be brave? The duty of 
judges to defend judicial independence and the rule of law. Oñati: Oñati International Institute 
for the Sociology of Law.
Szente, Z. (2021). Stepping into the Same River Twice? Judicial Independence in Old and New Autho-
ritarianism, German Law Journal, Vol.22, pp. 1316-1326.
Toplak, S., Sovdat P. (2019). Kako vrhovno sodišče povečuje zaupanje v sodstvo? S 350 tisoč evri za 
dve spletni strani in projekta, Finance, 17. 3. 2019.
Toplak, S. (2019). Nepravilnosti pri naročilih vrhovnega sodišča: kako daleč gre sodstvo, ko pokriva 
svoje kolege? Do absurda, Finance, 21. 3. 2019.
Tsereteli, N. (2022). Backsliding into Judicial Oligarchy? The Cautionary Tale of Georgia’s Failed Ju-
dicial Reforms, Informal Judicial Networks and Limited Access to Leadership Positions, Review of 
Central and East European Law 47 (2022) pp. 167–201.Uzelac, A. (2007). (In)Surpassable Barriers 
to Lustration: Quis custodiet ipsos custodes? In: Lustration and Consolidation of Democracy and 
the Rule of Law in Central and Eastern Europe / Dvořáková, V., Milardović, A. (ed.),. Zagreb: Poli-
tical Science Research Centre Zagreb.
Uzelac, A. (2010) Survival of the Third Legal Tradition? Supreme Court Law Review, 49 S.C.L.R., (2d), 
pp. 377–396.
Valič Zver, A. (2012). Vloga Demosa v procesu slovenske osamosvojitve in demokratizacije (The role 
of Demos – Democratic Opposition of Slovenia in the process of Slovenian independence and 
democratization), doctoral thesis. Maribor: Univerza v Mariboru, Filozofska fakulteta.
van Dijk, F. (2021). Judicial Independence and Perceptions of Judicial Independence In: Percep-
tions of the Independence of Judges in Europe. Utrecht: Palgrave Macmillan. URL: https://doi.
org/10.1007/978-3-030-63143-7_2, 10. 1. 2025.
Vermeule, A. (2007). Connecting Positive and Normative Legal Theory, Journal of Constitutional Law. 
Vol 10:2, pp. 387-398. URL: https://www.researchgate.net/publication/228139921_Connecting_Po-
sitive_and_Normative_Legal_Theory, 12. 1. 2025.
Vogl, L. (2022). Dynamics of Legal Systems and Legal Education: Interactions in the United States 
and Continental Europe, Seton Hall Law Review, Vol. 15, pp. 744-792.Wacquant, L. (1998). Pierre. 
Bourdieu (Chapter 16). In: Key Sociological Thinkers / Stones, R. (ed.). New York: NYU Press.
Wedel, J. R. (2003). Dirty Togetherness: Institutional Nomads, Networks, and the State-Private Inter-
face in Central and Eastern Europe and the Former Soviet Union, Polish Sociological Review, No. 

61
DIGNITAS ■ How Long is the Long Shadow of the Authoritarian Past – The Case of ...
142.
Zajc, K. (2014). Independence of Judiciary in Slovenia: Economic and Historic Perspective, Acta 
Histriae, Vol. 22. (2014), No. 3.Zobec, B. (2016). Ponižano Vrhovno sodišče, Finance, 19.9. 2016.
Zobec, B. (2018). Sodnikova svoboda izražanja. In: Svoboda izražanja, mediji in demokracija v post-
faktični družbi / Teršek, A. (ed.). Ljubljana: GV Založba.
Zobec, J. (2012). Mehki trebuh slovenskega sodstva, Delo, dated Dec. 7 2012;
Zobec J., Letnar Černič J. (2015). The Remains of the Authoritarian Mentality within the Slovene Judi-
ciary. In: Central European Judges Under the European Influence / Bobek, M. (ed.). Oxford: Hart.
Zobec, J. (2018a). Telefonska justica po slovensko, IUS-INFO, kolumna, dated Apr. 30 2018.
Zobec, J. (2018b). Dva svetova, Ius-Info kolumna, dated 28. 5. 2018.
Zobec, J.(2018c). Odziv Jana Zobca: Policistovo ukrepanje zoper mene sem ocenil kot napad, Delo, 
Sobotna priloga, dated June 23 2018.
Zobec, J. (2019a). Tour de force vodstvene strukture, IUS-INFO column, 29. 7. 2019.
Zobec, J. (2019b). Odgovor na vloženo poboudo (za obravnavo pred Komisijo za etiko in integrite-
to pri Sodnem svetu), Pravna praksa 4. 8. 2019. URL: https://www.facebook.com/notes/pravna-
-praksa/odgovor-na-vlo%C5%BEeno-pobudo-za-obravnavo-pred-komisijo-za-etiko-in-integriteto-
-pri/10156444284954849/, 11. 1. 2025.
Zoldan, E. C. (2021). The Vanishing Core of Judicial Independence, Nevada law Journal, Vol 21: 
(2021), pp. 531-582.