Janez Janša Walks Out Of Prison. But Is He In The Clear?

Janez Janša walked out of prison earlier today. This followed an injuction by the constitutional court which suspended execution of his two-year prison sentence pending final ruling in the Patria Affair. The court unanimously agreed that – in a nutshell – it’s Janša’s MP status which would have been impeded beyond repair should the final ruling be made in Janša’s favour. Should, however, the court in the end rule against Janša, the leader of the SDS will continue to serve the remainder of his sentence.

Free Ivan (source)

Now, immediately after the injunction was announced, all hell broke loose and (as per usual) Slovenia was all of a sudden teeming with legal experts. Obviously, most of the interpretations were and still are wildly off the mark. Among the disappointed crowd, the story was being spinned as if Janša was released from prison because he is a politician.

Among the faithful, on the other hand, Janša out of was prison akin to quashing the prison sentence against Janša, confirmation of their belief that Janša is a “political prisoner” and prompting them to call for the heads of most of Slovene judiciary, starting with president of the Supreme Court Branko Masleša.

All of the above is painfully wrong.

Janša was released from prison (possibly only temporarily) not because he is a politician but because he is an MP. Now, whether we like it or not, the constitution states that every single MP is the representative of the entire people. While the MPs debated Janša’s ejection from the parliament, his posse kept on babbling about how the rights of his 6000+ voters are being hindered if he is barred from serving as MP while in prison.

The constitutional court, however, took it one step further, but not necessarily in the direction Janša and his crew wanted. Namely, it had stated that it was representation of the people of Slovenia that was at stake. Not just JJ’s 6000 voters. However, the said representation was only at stake if the man is innocent (i.e.: is found to have not been tried fairly).

Meaning that the court en passant confirmed the controversial decision of the parliament to deny MP status to a convict, but had not yet decided if Janša was convicted fairly.

This of course opens up a plethora of other constitutional and political loopholes which the parliament knew existed for years if not decades, but was unwilling to plug them.

So, what at first seems like good news for Janša, really may turn out to be not-so-good news. Because Janša is out only because he is a serving MP. It is this particular specific situation which makes his case different from that of his co-convicts, Ivan Črnkovič and Brigadier (Ret.) Tone Krkovič. The trio was convicted simultaneously, but only Janša gets to walk out. Because he is an MP and not because the constitutional court would imply the final outcome of the ruling.

In fact, in the text of the injuction (Slovene only) the judges make an extended effort to press this exact point: the injunction does in no way, shape or form preclude the final ruling in the matter.

And that is all there is to it. Representation of the people matters most. The court recognises a possibility, however remote, that a serving MP was convicted unjustly and set him free to execute his mandate until final decision. Should that decision be reached in favour of the plaintiff all hell will break loose, possibly forcing early elections. But if the judges find against Janša et al., the leader of the opposition simply continues in prison where he left off today.

    From Prison To Prison

    Janez Janša, leader of the largest opposition party SDS was stripped of his MP seat yesterday on Wednesday, thus bringing to a close a protracted period of post-election second-hand embarrasment this country was collectively experiencing due to the fact that a convicted criminal was elected to the parliament and was indeed executing his office.

    The SDS put up a sign where Janša sat in the parliament saying “Political Prisoner” (source: sds.si)

    In case you live in the real world and not in this sorry excuse for a country, here’s a quick rundown: Janša was sentenced to two years in prison for corruption in the Patria Case. He appealed his sentence, got his appeal dismissed by the higher court and then again by the supreme court. Some time in between (at the height of the election campaign this summer) he started serving his sentence, but was elected to the parliament nevertheless. Thus prompting a legal and political clusterfuck because – you’re not going to believe this – the law says an MP is stripped of office “if convicted to a prison sentence exceeding six months” but doesn’t specify if this means sentences after he/she was confirmed as an MP or does this apply to sentences passed before an MP is elected to office.

    And while this legal minefield was navigated, Janša was sleeping in a prison cell but was coming to Ljubljana whenever parliament was in session. Which was quite often in the past couple of months. And since Janša had no intention of resigning of his own accord (after all, he sees his prison sentence as a result of a global communist conspiracy), a curious situation was created where a person convicted of criminal activity was deciding on laws in this country. Even more – staying true to form, i.e. pushing the envelope to breaking point – Janša tried to have himself appointed in the parliamentary Intelligence Oversight committee.

    Which apparently was the straw that broke the camel’s back as the ruling SMC repeatedly blocked constitution of this committee, on the grounds of Janša being able to access sensitive information as a member of the committee. Which is true. Having a convict attending a surprise inspection of a police wire-tapping facility is simply preposterous. Therefore, the question at hand was not only that of legality of Janša’s MP seat, but that of legitimacy of the parliament. Because what kind of a sorry-ass parliament allows a convict to hold it by the balls through procedural maneuvering?

    After months trying to have the cake and eat it, the ruling SMC of PM Miro Cerar finally got their shit together and realised the situation will require a political decision (preferably one which survives legal challenges) rather than a legal decision passed by a political body. Which was a marked improvement from their initial approach which was designate an ad-hoc committee of outside legal experts since the parliamentary legal service stated that in their view Janša can not legally be stripped of his term.

    Obviously a whole lot of brouhaha was made about this document, especially by the SDS. But the parliamentary legal service is a child everybody likes to kick around when they feel like it and feign to protect when it makes them look good. Virtually every party in the parliament at one stage hailed documents by the legal service but flat-out ignored them at another stage. SDS is no exception. Even worse, whenever they disagreed with the position of the parliamentary legal service, they accused it of currying favour of communists, carrying bag for powers that be, etc, etc. Point being, that the new-found faith of the SDS in the legal experts of the parliament is probaby short-lived and confined to this particular issue.

    Anyhoo, on Wednesday parliament finally voted on the matter and decided to strip Janša of his term as per law. Which means that not only have the parliamentarians ejected a convict from their midst, they’ve also set a precedent and passed an interpretation of the disputed Article 9 of the Law on Deputies. Clause “if convicted to a prison sentence exceeding six months” is now interpreted as “regardless of whether conviction took place prior to MP actually being elected or after he/she was already sworn in” provided the sentence is still being served.

    Again, Janša can and probably will mount a legal challenge, but his luck seems to be running out. Not only is his star-lawyer Franci Matoz repeatedly failing to deliver for his client, he also has a couple of other cases against him due in court. Nothing of the Patria magnitude, but enough to be more than just a hassle. Despite the fact that there is a merry band of followers picketing the Ljubljana Court building every day, there is noticeable and growing dissent among the faithful. Even Reporter magazine, usually a mouthpiece for the most crackpot of SDS ideas (not to be confused with Demokracija magazine, which is actually part-owned by the Party), threw Janša under the bus a couple of weeks ago, much to the man’s annoyance.

    In 1988, when Janez Janša was put in prison, he was catapulted into top-tier politics where he remained ever since. It seems only fitting he should make his exit in the same manner.

      The Tomb Of National Heroes

      Following snap elections on 13 July Slovenian parliament held an inaugural session on Friday which – if one attempted to describe it in full – would be somewhere between a Monty Python act, a wake and select scenes from They Live. In fact, what we had today was people an exercise in different planes of reality converging into the same point of the time-space continuum. The results were predictably ugly.

      Pahor and Janša make it to 9gag. That’s one off the bucket-list (source)

      On one hand we had Janez Janša, the jailed leader of the SDS who was granted a short leave of his prison sentence to attend the session, providing for an extraordinary situation where a convicted criminal serving a prison sentence is elected and starts serving as an MP. On the other side there were a couple of hundred protestors in front of the parliament who demanded the release of Janez Janša from prison, called him a political prisoner and a martyr. Next, there was Janša’s SDS which refused to make nominations in a key parliamentary committee, vowing to do the same for every other parliamentary body until they are given assurances new elections will be held as soon as Janša is acquitted (as the faithful believe will and protest in front of the court daily to happen). Still further, however, are the trials and tribulations of PM-presumptive Miro Cerar who is paying a heavy price for his hardball tactics in the Slovenian EU Commissioner issue. Cerar has all but spent whatever progress he had had with Karl Erjavec of DeSUS and is, for all intents and purposes back to square one in coalition negotiations. If he ever left square one at all, that is. Oh, and then there’s the reality of President Pahor quoting Churchill again and (again) admitting he didn’t know his ass-hole from his ear-hole when he handled the outbreak of crisis in 2008.

      You can’t always get what you want

      The ugly part is that no-one got what they wanted and yet everyone got more than what they bargained for. Case in point being Milan Brglez, the man thought to be the brains behind Miro Cerar Party (SMC) and widely tipped to be the next foreign minister (on account of his international studies tenure at the Faculty of Social Sciences), was forced to accept the nomination for the Speaker of the parliament. This brings about an unusual situation where the Speaker of the Parliament, a post usually manned by the second largest coalition party, is a member of the largest coalition party which is now poised to occupy the upper-most levels of both executive and legislative branches. That it was Miro Cerar, the legalist and a man of high democratic standard, who had to break what little democratic tradition this country has, is especially ironic.

      Having said that, it is possible that – regardless of his and Cerar’s statements – Brglez as Speaker is only a temporary solution. You know, just to get the parliament up-and-running. But for Brglez to make the switch to Foreign Ministry (a.k.a. Mladika, as the building is called), a lot of things must happen, chief among them being DeSUS actually joining Cerar’s coalition and Erjavec wanting to quite as foreign minister and take over as parliament chief. Either that or becoming EU commissioner (yeah, right 🙂 ). Brglez’s chances of clinching the top foreign-affairs job would increase greatly if his party boss were to cobble a coalition sans DeSUS. And if days ago Cerar and his people were wondering why they would make their lives difficult by not inviting Erjavec to the ruling gang, they’re probably starting to see that political life with Erjavec in tow is much more difficult than without him. But, as things stand, Cerar went from setting the pace to putting out fires in a matter of days. He needs to get his act together, fast.

      The person who, amazingly, did hold her act together on Friday was Marjana Kotnik Poropat, an MP for DeSUS who, by virtue of being the oldest MP, chaired the inaugural session. Poropat, obviously coached and prepared, rejected every attempt Jože Tanko, head of SDS parliamentary group, made to derail the parliament from day one. Tanko made numerous procedural demands most of which had to do with MPs confirming the election results, thus finding they do indeed hold the mandate of the people and can start their work. The SDS, however, refused to appoint their members to the relevant committee and called for the parliament legal service to form an opinion on whether these committees can be established if not all parties appoint members. Further to that Tanko demanded time to stuy the legal service’s opinion, obviously trying to extend and possibly derail the parliament even before it would even formally establish itself. Poropat would have none of that and rebuffed Tanko repeatedly, much to annoyance of SDS masters of procedure and to amazement of the interested public (i.e. the Slovenian tweetosphere which had a field day yesterday).

      Prison break

      Whether Tanko was following a real plan or was just buying time for his boss remains a mystery. Namely, Janez Janša got a daily pass to leave prison and attend the session of the parliament to which he was elected. This predictably precipitated all sorts of false dilemmas on whether his mandate should be confirmed or not, whether he is fit to stand as MP or not et cetera. But the issue is indeed a fairly simple one. While an MP, sentenced to a prison term of six monts or more can be stripped of office (by a majority vote of his colleagues), there is currently no law that would prohibit a convict to stand for elections. Which is precisely the case with Janša. And since he was legally elected, MPs had no choice but to confirm his mandate, leaving it for later (and probably quite soon) to navigate the legal minefield of stripping Janša of his MP status.

      Because as things stand now, the leader of the opposition gets to leave the prison every time he has stuff scheduled in the parliament and gets to complain that “even the old Yugoslav regime treated him better than Slovenian authorities do”. Which is bullshit, of course, but Janša and the SDS are forced tp resort to increasingly preposterous lies in order to maintain the enthusiasm of the faithful. But still, it must have been quite a downer to see only three-hundred people, mostly well beyond retirement age, chanting his name, cursing the communist conspiracy that runs the country and demanding Janša be released from prison. Which proved for a lot bizarre scenes where Janša went to meet his supporters during a break in session and the flock shouted that he should be let out of prison while he was there. In all honesty, factually, they are correct. But in terms of space and time, well… They funny 🙂

      But the scenery was even more bizzare than the content. The Janša crowd gathered in a small park on the West side of the parliament and spent hours chanting to their hero, praising him as the saviour of the nation and insisting the country will not be free until he is. But long gone are the days when tens of thousands chanted Janša’s name in front of the parliament, like in 1994 when Janša was being removed from the post of defence minister in the wake of Depala vas Affair. From 30.000 to 300 people in twenty years is a sure-fire sign that Janša’s political star is fading. In a true Freudian twist, Friday’s pro-Janša rally was held only ten metres away from the tomb of national heroes. In the end, we’re all dead. Politically or for real.

      Please, stop quoting Churchill

      But stupidity, she is immortal. Case in point being President Pahor’s speech which was, as per usual, high on big words but low on actual content (but, admittedly, still much better than his Lorem Ipsum speech aboard Greenpeace’s Rainbow Warrior days ago). In his parliament speech Pahor invoked Churchill and said that “after years of trying to solve the crisis the wrong way we now finally know what it is all about and can do it the right way”. Now, quoting Churchill is one of Pahor’s favourite political activities. And to be honest, Churchill is a quotable man with much to be quoted about. But what President Pahor was alluding to, however, was supposed Churchill statement that one can count on America to do the right thing after it had done everything else.

      Now, for starters, President Pahor freely admitted that all of his 2008-2011 bravado, long-as-fuck press conferences and moving small red and green dots on a magnetic board that represented reform attempts, he didn’t know shit about tackling the crisis. You know, not even an “oops, sorry”. Just more bravado to the tune of “we finally nailed it this time.” Unfortunately, he didn’t. You see, the quote is taken out of context. What Churchill was supposedly referring to was an intervention of an outside power in what was then still a European armed conflict. Which of course is somewhat different from “we finally know what to do now”. And just to add insult to injury: Churchill never actually said that. So much for knowing how to tackle the crisis, when you can’t even pick a correct Churchill quote.But hey, as president, you can do whatever you like, I guess. Even shake hands with a convicted felon. Figure the tomb of national heroes won’t be needing an expansion any time soon after all.

        Dob Prison Blues

        Among many of his accomplishments, Janez Janša can now claim to be one of the few people on this planet to have attended their own wake. This at least was the impression given last Friday, when Janša started serving his two-year prison sentence passed on him in the Patria Affair. Namely, hundreds (thousands, by some accounts) of his followers descended on Dob prison facility and staged “a spontaneous” gathering with loudspeakers and all. The event, protracted as it was, culminated with Janša arriving and addressing the faithful one last time.

        Janša’s prison summons. (source)

        But what was no doubt meant to be the mother of all speeches turned out to be a lackluster campaign rally with Janša giving the impression of a man who finally realised the gravity of his situation. Namely, only the previous evening the SDS leader took part in an election debate and admittedly did a fair job, quite unlike a man who will not be picking up soap from the floor again until 2016. Perhaps he thought the Supreme Court would come to his rescue at the eleventh hour and suspend his serving of the sentence or even rescind the sentence altogether. No such luck. With the Constitutional Court nixing Janša earlier in the week with a 6-3 vote, the Supreme Court just added insult to injury. From Janša’s point of view this was just another proof that the entire judiciary (save the three constitutional judges with their dissenting opinions) was out to get him. Under orders of a secret communist kabal headed by Milan Kučan, of course. The alternative interpretation, although admittedly boring, is that Janša simply fired his last shot and is out of legal and political ammo. Next stop: prison cell.

        The brouhaha this created was (and to an extent still is) of epic proportion. After all, it is not every day a former PM is put behind bars. Some (Frankfurter Algemeine Zeitung (paywall) among them, apparently) questioned the timing, saying that putting a man in the brig three weeks before elections is fishy. Others hold that the decent thing would be a presidential pardon, since this is what self-respecting countries apparently do. Deputy chief of government’s legal service Janez Pogorelec wrote as much in the last issue of Pravna Praksa, a magazine on legal issues. And even Matevž Krivic, former judge of the constitutional court, now a tireless campaigner for the rights of the Erased says the legitimacy of the upcoming elections is compromised with Janša in prison. And last, but certainly not least, the SDS maintains the elections will neither be free nor fair.

        Now, let’s take these arguments apart, one by one. First of all, the legitimacy of these elections has nothing to do with a political being put in jail. Janša was convicted some time before elections were called. He knew this was coming. And even if he honestly expected his appeal to be upheld, he could have at least planned for a contingency. Afterall, the SDS list of candidates was announced six days after JJ got summoned to prison. It’s not as if someone issued a Nach-und-Nebel order on him and dragged him out of his flat in the middle of the night on unspecified charges (although the SDS faithful will have you believe something along those lines happened). Quite to the contrary, in fact: the SDS leader is taking part in these elections and will most likely get elected to the parliament. And while there is a legal provision terminating MPs serving more than six months’ prison sentence, no such clause exists for members of the government. Meaning that if the SDS somehow secures an absolute majority, then can actually appoint Janša Prime Minister. The scenario is highly unlikely (even the Party doesn’t have the audacity to pull a stunt like that) but possible.

        Janša in prison, therefore, does absolutely nothing for legitimacy of these elections. Yes, his incarceration will affect the outcome, but so would his remaining on the outside (especially if elections were cited as a reason). Everything we do affects the elections one way or another. Sure, Janša will not be able to attend election debates. But that is neither his right not prerogative. There can be debates without him. His two rights (to vote and run for office), however, are in no way infringed.

        Legitimacy of elections is also questioned in the sub-text of FAZ’s reporting. But it needn’t be. Would the situation be any different if Janša were to start serving a sentence six months before elections? Wouldn’t the definition of “just prior to elections” be simply adjusted for time scope? What if the court had waited (as Krivic suggested) and summoned him to prison after he had won the elections? Just how ugly would that look? No, summoning him before elections was the only sensible thing to do. Even more so since Slovenia held at least one election per year in past seven of eight years. We tend to cast our votes around quite a lot in this country. And if we waited for a “clear stretch of non-voting” to put corrupt politicos behind bars, we might find to be in for a long wait.

        Lastly, rule of law is paramount in any half-decent democracy. Granted, this sorry little excuse for a country is occasionally lacking in this respect, but this is no reason to go actively ruining what’s left of the concept. The important thing here is that a high-profile person who committed a felony is behind bars. Countries where the law applies to both rich & famous as well as the common man are more likely to have their political system seen as legitimate. This goes for the idea of presidential pardon as well. Pogorelec maintains that a presidential pardon would be a face-saving operation for Janša and the country, allowing the illustrious fighter for Slovenian independence to retire gracefully from public life.

        Which is about as naive a notion as there ever was. Just what in Bob’s name forces Janša to quit public life if president Pahor issues a pardon? A gentleman’s agreement? Between Janša and Pahor? Yes, thought so… Also, a pardon would send a message that despite all the rage that was directed against the political class a year and a half ago, there are still perks which come free of charge if you play the game long enough. A presidential pardon of a high-profile politician would mean sweeping things under the rug. In fact, only if president Pahor stays true to form and does not pardon Janša (formal request to do so had not yet been made), will the people perhaps start believing that we are indeed all equal before the law.

        And as for SDS claim about elections not being free nor fair? Well, this…

        But far more intriguing than yet another attempt to pre-emptively undermine elections are the people who are coming out making the case in Janša’s favour. A plethora or people and organisations who have been trying for years to present themselves as independent, who were obviously astroturf but still shamelessly functioned as sort of think-thanks (or, at least, PR tanks), now rush to Janša’s rescue, each denouncing the judiciary from their own angle but all of them doing so without mercy or intellectual distance. Case in point being Matej Avbelj, the young dean of one of faculties founded during Janša government 1.0. More importantly, this included former Ljubljana archbishop and now Vatican cardinal Franc Rode, giving credence to the theory that the former leadership of Slovenian Catholic Church (since beheaded by pope Francis) was in cahoots with Janša, often at the expense of the more natural political ally of the Church, the ChristDem Nova Slovenija. Whether these are spontaneous cases of trying to please the master or a concerted effort ran from party HQ to shoot down the Patria verdict (after-all, the Supreme Court still has to rule on the issue), it doesn’t really matter.

        Although his prison sentence is relatively mild (Igor Bavčar, for example, got seven), Janša out of the picture does mean great things are afoot. While the left remains in ruins and will probably be ruined some more on 13 July, the real development will be ob the right. Whoever takes over as interim leader of the SDS, will be forced to make decisions in an environment that is rapidly changing on account of Janša not being there. The SLS and NSi are growing a spine, the new party of Miro Cerar seems to be the electorate’s darling at the moment and the voters who tolerated Janša’s escapades will probably be much less keen on a person imitating Janša’s style of leadership. Doubly so if the SDS were to win the elections and appoint the PN (pengovsky still sees Romana Tomc as being earmarked for the job).

        Janez Janša got transferred to a minimum security facility today. This means that he can again use modern means of communications, probably trying to run the Party from within prison. This will probably not work. Not on the operational level, at least. Sure, he might install someone he trusts to simply stick to his agenda and not have any ideas. But the last guy to try something like that in Slovenia saw his party split down the middle.