The Impact of European Institutions on the Rule of Law and Democracy: Slovenia and Beyond (EU Law in the Member States)

Since 2010 the European Union has been plagued by crises of democracy and the rule of law, which have been spreading from Central and Eastern Europe (CEE), catching many by surprise. This book argues that the professed success of the 2004 big bang enlargement mirrored the Potemkin villages erected in the new Member States on their accession to Europe. Slovenia is a prime example. Since its independence and throughout the accession process, Slovenia has been portrayed as the poster child of the 'New Europe'. This book claims that the widely shared narrative of the Slovenian EU dream is a myth. In many ways, Slovenia has fared even worse than its contemporary, constitutionally-backsliding, CEE counterparts. The book's discussion of the depth and breadth of the democratic crises in Slovenia should contribute to a critical intellectual awakening and better comprehension of the real causes of the present crises across the other CEE Member States, which threaten the viability of the EU and Council of Europe projects. It is only on the basis of this improved understanding that the crises can be appropriately addressed at national, transnational and supranational levels. Acknowledgement of Funders 6 Contents 8 List of Authors 12 List of Abbreviations 14 1. Constitutional Backsliding in Central and Eastern Europe in Lieu of Back to Europe 16 I. Introduction 16 II. The Argument of this Book 24 III. Acknowledgments 27 2. The Genesis of Slovenian Constitutional Democracy 30 I. A People that Came from Nowhere 30 II. The Road to Independence and Construction of a New Constitutional Legal Order 35 III. Slovenia as a Constitutional Democracy 38 IV. The Sociology of Slovenian Constitutional Order 41 V. A Semi-Permanent Transition and the New Normal 47 3. Historical Reasons for Failures of the Rule of Law and Constitutional Democracy in Slovenia 49 I. Introduction 49 II. The Pitfalls of the Past 52 III. Transitional Justice Measures 55 IV. The Impact of the Unresolved Past on the Rule of Law and Democracy 65 V. Conclusion 69 4. The (Non) Reforms of Slovenia’s Economy 70 I. Introduction 70 II. Slovenia's Economy in the 19th and the Early 20th century 72 III. The Centrally Planned Times of the SFRY and the Pretransition Era 74 IV. State of Play after Independence 76 V. The Crash: The 2008 Global Financial Crisis 78 VI. Differences in Some Policies 79 VII. Analysis of Different Economic Concepts 84 VIII. Conclusion 87 5. The Current Crises of Human Rights Protection, the Rule of Law and Democracy in Slovenia 90 I. Introduction 90 II. The Current Crises of Human Rights Protection in Slovenia 93 III. The Current Crises of the Rule of Law and Constitutional Democracy in Slovenia 100 IV. Theorising Reasons for the Current Crises of the Rule of Law And Constitutional Democracy in Slovenia 107 V. Conclusion 112 6. The Judiciary and the Rule of Law in Slovenia 113 I. Introduction 113 II. Systemic Violation of the Right to a Trial in a Reasonable Time 115 III. Challenges to Judicial Independence 119 IV. Impartiality of the Judiciary 126 V. Ordinary Courts and Human Rights Protection 131 VI. Distrust of the Judiciary 134 VII. Conclusion 136 7. The Vicious Circle of Slovenian Democracy 140 I. Introduction 140 II. Three Crises of Input Legitimacy 142 III. The Crisis of Throughput Democratic Legitimacy 152 IV. The Crisis of Output Legitimacy 157 V. Conclusion 161 8. Freedom of Press under Stress in Slovenia 163 I. Introduction 163 II. The Constitutional and Institutional Frameworks of Press Freedom in Slovenia 166 III. Freedom of the Press under Stress in Slovenia 173 IV. Overall Assessment 184 V. Conclusion 188 9. Welfare State and Solidarity in Slovenia 189 I. Introduction 189 II. (In)equality, Equal Capabilities and Socioeconomic Livehoods in Slovenia 192 III. The Normative Protections of Welfare State and Socioeconomic Rights in Slovenia 195 IV. Regional Inequality in Slovenia 200 V. The Impact of Weak Rule of Law and Constitutional Democracy on the Level of Welfare State and Socioeconomic Rights in Slovenia 204 VI. The Future of the Welfare State and Human Development in Slovenia 207 VII. Conclusion 209 10. The Influence of the Council of Europe on the Rule of Law in Slovenia 211 I. Introductory Remarks 211 II. The European Commission for Democracy through Law 213 III. The Commissioner for Human Rights of the Council of Europe 221 IV. The European Court of Human Rights 223 V. Conclusion 233 11. The Impact of the European Union on Constitutional Democracy in Slovenia 234 I. Pre-Accession Phase 236 II. Poster-Child Membership Phase 239 III. Post-Crisis Phase 244 IV. Conclusion 253 12. The Case for a Resilient Constitutional Democracy 256 I. The Concentric Circles of Western Democratic Decay 256 II. In Pursuit of a Resilient Constitutional Democracy 259 III. Why Is the East More Fragile than the West? 260 IV. Democratic and Academic Decay 263 V. Making the Case for a Resilient Constitutional Democracy 264 VI. What Can the Council of Europe Add to its Existing Activities to Strengthen the Resilience of Constitutional Democracy in CEE Countries? 267 VII. By Way of Conclusion: Concrete Proposals for the Reform of Slovenia's Constitutional Democracy 270 Bibliography 275 Index 306 "Since 2010 the European Union has been plagued by the crises of the rule of law and democracy, which has been spreading from Central and Eastern Europe and has caught many by surprise. Unjustly so. This book argues that the professed success of the 2004 big bang enlargement was in many respects mirroring only the Potemkin village erected in the new member states on their way back to Europe. The spearheading country of the Potemkin village has been Slovenia. Since its independence and throughout the accession process, Slovenia was portrayed as the best disciple and as a poster-child of the New Europe. This book claims that the widely shared narrative of the Slovenian EU dream has, unfortunately, been just a myth. In many ways, Slovenia fares even worse than its contemporary constitutionally-backsliding CEE counterparts. The understanding of the depth and breadth of the rule of law and democracy crises in Slovenia, the authors of this book hope, will also contribute to a critical intellectual awakening and better comprehension of the real causes of the present crises across the other CEE member states, which threaten the viability of the EU and the Council of Europe projects as such. It is only on the basis of such better understanding that the causes of the crises could be more accurately identified and, consequently, also more appropriately addressed on the national, transnational and supranational level"-- Provided by publisher