In case No. U-I-246/19 (Decision dated 7 January 2021, Official Gazette RS, No. 22/21), the Constitutional Court decided on a request of the Judicial Council to review the constitutionality of the Parliamentary Inquiries Act and the Rules on Parliamentary Inquiries. The applicant alleged that the stated regulations are inconsistent with the Constitution because they fail to regulate an appropriate mechanism that would prevent unconstitutional interferences with the independent performance of the judicial function by means of a parliamentary inquiry. The applicant also alleged that the Act Ordering a Parliamentary Inquiry in the Case of Franc Kangler and Others entails an unconstitutional interference with the constitutional principle of the independence of judges.
The Constitutional Court first assessed whether the Constitution imposes any restrictions on the National Assembly or the proposers of parliamentary inquiries regarding protection of the independence of judges when deciding on the initiation of a parliamentary inquiry (the first sentence of Article 125 of the Constitution). Relying on its hitherto case law, the Constitutional Court clarified that the constitutional position of the judiciary does not require the complete exclusion of the judiciary from the control exercised by the National Assembly by means of parliamentary inquiries. Within the framework of parliamentary inquiries, the National Assembly may investigate the functioning of the judicial branch of power as a whole as well as trends in the development of the judiciary. Even the investigation of historical events that are also the subject of judicial proceedings does not, in itself, interfere with the independence of judges. However, in conducting parliamentary inquiries into judicial proceedings, the National Assembly may not obstruct or influence in any way the decisions of judges in concrete judicial proceedings. This includes the prohibition on discussing ex post, within its own procedures, the legality or adequacy of individual court decisions or the handling of judicial proceedings, as well as the prohibition on questioning judges as witnesses or investigated persons regarding such questions that relate to concrete (pending or concluded) judicial proceedings. If a parliamentary inquiry is ordered or requested in order to scrutinise the correctness of court decisions and/or to establish the liability of judges for decisions adopted during proceedings, the mere ordering of such a parliamentary inquiry is inconsistent with the constitutional principle of the independence of judges. The Constitutional Court further clarified that this does not entail that judges are beyond reproach in the performance of their judicial function and that their decisions cannot be changed. Irregularities in the handling of proceedings may result in a judge being subject to disciplinary as well as criminal sanctions, and even dismissal.
The Constitutional Court further addressed the issue of the procedural protection of judicial independence in the procedure for ordering a parliamentary inquiry. It established that the legislation does not provide for judicial protection, a legal remedy, or any other effective procedure that could prevent parliamentary inquiries that unconstitutionally interfere with the independence of judges, although the existence of such a procedure is of crucial importance for ensuring judicial independence (Article 125 of the Constitution) and thereby the right of everyone to an independent and impartial court (the first paragraph of Article 23 of the Constitution). The Constitutional Court held that such a procedure could be regulated in accordance with the constitutional system of the separation of powers in a manner that would not jeopardise the effective conduct of parliamentary inquiries. In light of such, it concluded that the Constitution requires such a procedure.
Since the legislature failed to regulate the protection of judicial independence in the framework of the procedure for ordering parliamentary inquiries, the Constitutional Court established that the challenged Parliamentary Inquiries Act and the Rules on Parliamentary Inquiries are inconsistent with Article 125 of the Constitution. It required the legislature to remedy the established unconstitutionality within one year following the publication of its decision in the Official Gazette of the Republic of Slovenia. It further determined the manner of implementation of its decision, holding that, until the established unconstitutionality is remedied, the Constitutional Court shall decide on the conformity of an act ordering a parliamentary inquiry with the constitutionally guaranteed independence of judges upon the request of the Judicial Council.
In accordance with the mentioned manner of implementation, the Constitutional Court proceeded to decide on the constitutional consistency of the Act Ordering a Parliamentary Inquiry in the Case of Franc Kangler and Others. In the framework of the review, it analysed the parts of the Act that refer to judges and assessed that in this part the inquiry refers to a review of the correctness of judicial decisions and to the establishment of the liability of judges for decisions adopted in concrete court proceedings. It therefore decided that in this part the Act Ordering a Parliamentary Inquiry in the Case of Franc Kangler and Others is inconsistent with the constitutional principle of the independence of judges determined by Article 125 of the Constitution and abrogated it in this part.