The principle of separation of powers is a fundamental precondition for the existence of democracy. The separation of powers in modern, postmodern state systems cannot exist without an independent, accountable, and publicly trusted judiciary. It is the judiciary that ensures control over the system of checks and balances.
In its first, general part of the dissertation, the research field is focused mainly on the questions of what the third branch of government is, what the (Slovenian) judiciary is, who its basic building blocks are, to what extent it is influenced by the legal tradition to which it belongs, and in what its internal strength is in relation to the political branches of government. In the second part of the research which focuses on the position of the Slovenian judiciary in the system of checks and balances, the following questions are at the forefront. Where is the center of the Slovenian system of separation of powers from the judicial point of view? What are the specific relations between the judiciary, legislative, and the executive branch of power? What are the roles of the judicial self-government and a special constitutional body – the Judicial Council of the Republic of Slovenia – in the process?
The findings of the first part of the dissertation can be summarized in the ascertainments that the judiciary in the system of separation of powers is both the weakest and the most dangerous power, that three preconditions are crucial for the proper position of the judiciary in the system of separation of powers (its independence, responsibility, and public confidence), that the functioning of the judiciary is largely conditioned by the legal tradition to which it belongs, and that the power of the judiciary cannot be based on populist discourse, strong, recognizable, and popular leaders, and even much less on the arbitrariness of its decisions. Instead, it must be based on consistent adherence to uniform case law.
The findings of the second part of the dissertation regarding the Slovenian judiciary and its position in the system of separation of powers can be summarized in the findings that several decades of judicial activity in an undemocratic communist system left certain damage to it. Nevertheless, the foundations of the modern Slovenian judiciary are democratic. Although Slovenia has an inadequate system for electing judges in the parliament, the core of the system of checks and balances in practice is not between the judicial and legislative branches of government but between the judicial and executive branches of government. The latter prepares practically all legislation, provides material conditions for the functioning of the judiciary, and has broad inspection powers related to the functioning of the judicial administration and an important role in the election of the President of the Supreme Court of the Republic of Slovenia. And finally, most importantly, in everyday practice, the sharpest and most common tensions do not arise in the relationship between the judiciary and parliament but between the judiciary and governmental representatives.
Judicial self-government has an important and, in principle, positive role in strengthening the judiciary as an independent and autonomous branch of government. The Slovenian judiciary cannot be automatically equated with the judicial systems of Central and Eastern European transition countries in which court presidents have practically absolute power and are the real masters of the judiciary. Nevertheless, the presidents of Slovenian courts are gradually gaining new legal powers at the expense of the so-called participatory management of courts in which all judges of an individual court or judicial department participated previously. This trend of strengthening the position of the judiciary in the system of separation of powers is not favorable. Because the judiciary is judges, the Judicial Council of the Republic of Slovenia, which actually selects future judges, has a key influence on what the Slovenian judiciary is like and how strong it is in relation to the other two branches of government. Empirical research has shown an encouraging ascertainment that the basic criterion that the Judicial Council of the Republic of Slovenia takes into account when selecting all candidates it proposes for election to the parliament is their professionalism.
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