Editor’s Note: Today we publish the 2016 Report on Slovenian constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
–Matej Avbelj,* Jan Zobec,** Katarina Vatovec***
I. Introduction
The year 2016 was symbolic for the Constitutional Court and the Slovenian constitutional order as it marked the celebration of the 25th anniversary of the Constitutional Court in an independent and democratic state.[1] The role and the importance of the Constitutional Court in the Republic of Slovenia cannot be overstated. It is widely considered as one of the very few institutions of the Slovenian state that has managed to preserve its institutional integrity and independence.[2] It has not only lived up closely to the highest rule of law standards, but it has also succeeded in countering many corrosive effects that the rule of law and democracy in Slovenia have been subject to due to the unfinished project of democratic transition combined with the contemporary economic crisis. Different than several Central and Eastern European states which have been in the critical international spotlight due to their constitutional backsliding, Slovenia despite its many problems with the failed,[3] diminished, corporatist democracy,[4] which exhibits a great discrepancy between the rule of law on books and that in practice, has escaped almost any international attention. The reason for that might be also sought in the preserved capacity of the Constitutional Court to act as a final rule of law bulwark against the pervasive attempts of informal, but not infrequently also formal, capture of the state. The Slovenian Constitutional Court has thus succeeded in preserving the meta-framework of constitutional democracy, while many of the sub-systems inside it have fared much worse.[5]
II. A Brief Overview of the Slovenian Constitutional Order
The Constitution of the Republic of Slovenia was adopted on 23 December 1991, six months after Slovenia had declared independence. The Constitution, introduced by a preamble, which is followed by the normative part, divided into ten chapters, is recognized as a modern constitution. It does not only guarantee an extensive catalogue of human rights and fundamental freedoms, but it is also based on the principles enshrined in European constitutional legal orders, such as the principle of democracy, the rule of law, the principle of a social state, and the principle of the separation of powers. Human dignity, as the source and the common expression of all human rights, forms the foundations of the Slovenian constitutional order.[6] The important milestones were also the integration of Slovenia into the Council of Europe in May 1993, the ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the ECHR), and the accession to the European Union in May 2004.
The role of the guardian of the constitutional order is entrusted to the Constitutional Court. This Court is the highest (as well as autonomous and independent) body of the judicial power with a number of competences intended to ensure the protection of constitutionality, legality, human rights, and fundamental freedoms. It decides on certain jurisdictional disputes, on the accountability of the President of the Republic, the President of the Government and individual ministers, on the unconstitutionality of the acts and activities of political parties, and on appeals in the procedure for confirming the election of deputies. The Constitutional Court Act adopted in 2013 further vested in the Constitutional Court the power to decide in disputes on the admissibility of a legislative referendum.
However, the two most frequently used powers of the Constitutional Court are to assess the conformity of laws and other regulations with the Constitution and to decide on constitutional complaints. With regard to the review of the constitutionality and legality of regulations, a subsequent constitutional review is established in the Slovenian constitutional order, i.e. the review of constitutionality of acts that have already entered into force. The only exception is the preliminary control when assessing whether international treaties that are in the process of their ratification conform with the Constitution. A constitutional complaint may be lodged due to a violation of human rights or fundamental freedoms against individual acts by which state authorities, local community authorities, or bearers of public authority decided on the rights, obligations, or legal entitlements of individuals or legal entities. The Constitutional Court decides on a constitutional complaint, as a general rule, only if all legal remedies have been exhausted and if it has been lodged within 60 days of the day the individual act is served.
In all proceedings, the decisions of the Constitutional Court are binding[7] and are constitutive of the Slovenian living constitution. When the Constitutional Court decides whether a law is consistent with the Constitution or whether human rights or fundamental freedoms of individuals were violated in procedures before state authorities, it also regularly considers the ECHR and the case law of the European Court of Human Rights (hereinafter referred to as the ECtHR).[8] The Constitutional Court can apply the ECHR directly as the underlying reason for its decision or, as a general rule, it considers it indirectly through the standpoints of the ECtHR when interpreting the provisions of the Slovenian Constitution.[9] The duty of the Constitutional Court is also to take account of European Union law and to consider the case law of the Court of Justice of the European Union (hereinafter referred to as the CJEU). The relevant constitutional foundation for the position of European Union law in the Slovenian legal system is Article 3a of the Constitution.
III. The Constitutional Court in the Year 2016 Through a Statistical Lens
In 2016, the Constitutional Court received 1,092 constitutional complaints and 228 applications for a review of the constitutionality and legality of regulations.[10] The year 2016 discontinued the downward trend, which started in 2009. The Constitutional Court received a total of 1,324 cases, which represents an 8.2% increase of the received cases. With regard to the cases resolved, it should be underlined that in 2016 the Constitutional Court resolved less cases than in 2015 (1,094 cases compared to 1,197 cases, which entails an 8.6% decrease). There were 870 constitutional complaints and 214 petitions and requests for a review of constitutionality resolved. At the end of 2016, the Constitutional Court had a total of 1,219 unresolved cases remaining. The important statistical information remains the number of cases that the Constitutional Court resolved by a decision on the merits. In 2016, the Constitutional Court adopted a substantive decision in 42 constitutional complaint proceedings (out of 870 resolved constitutional complaints) and in 38 proceedings for a review of constitutionality and legality (out of 214 reviews of constitutionality and legality).[11]
IV. Main Controversies
In the year 2016 Slovenia amended its Constitution in order to protect – as one of the first European states – access to drinking water.[12] Under newly proclaimed Article 70a everyone has the right to drinking water. Water resources shall be a public good managed by the state and used to supply the population with drinking water and water for households.[13] The discussion and the exchange of views in the process of adopting this constitutional change and after its proclamation involved some differing opinions as to the need for such a constitutional amendment and the reasons behind its adoption.[14]
The year 2016 ended with domestically and internationally highly debated proposed legislative amendments to the Slovenian Aliens Act, according to which the Slovenian National Assembly would be entrusted with the power to act if the changed circumstances in the migration field were deemed necessary due to a threat to public order or national security. The adoption of these legislative amendments at the beginning of 2017 indicated the possibility to challenge its constitutionality before the Constitutional Court.
V. The Constitutional Court in the Year 2016 Through the Lens of a Selection of its Important Decisions
Among those constitutional complaints and reviews or petitions of the constitutionality and legality of regulations that have been decided in the year 2016, 11 decisions are mentioned. It is worth adding that only important parts of these decisions are emphasized. These decisions are separated in three headings.[15]
A. The protection of human rights and fundamental freedoms
1. Decision No. U-I-115/14, Up-218/14 of 21 January 2016: Search on the premises of a lawyer’s offices – Lawyer’s right to privacy – Proportionality
In this case, the Constitutional Court reviewed the constitutionality of the Criminal Procedure Act and the Lawyers Act. The applicant’s main allegation was that the mentioned acts do not regulate the search on the premises of a lawyer’s offices, his personal home and personal vehicles in a way that would guarantee the protection of the right to privacy and the confidentiality of the lawyer-client relationship. This was the first case in which the Constitutional Court had the opportunity to define the content of the lawyer’s privacy. The role of a lawyer is indispensable when providing legal assistance to its clients, including representation in court proceedings. The right to a lawyer is therefore generally regarded as a constituent part of the right to a fair trial. The Constitutional Court stressed that the constitutional protection of the lawyer’s privacy is not his privilege. Instead, it is meant to protect and safeguard his clients and in the end their right to a fair trial. The foundation of the lawyer-client confidentiality lies in the performance of the lawyer’s work. The Constitutional Court established that the lawyer’s right to privacy has several aspects and therefore assessed the right to privacy, deriving from this confidential relationship, and its spatial and communication aspects, which are protected under Article 35, the first paragraph of Article 36, and the first paragraph of Article 37 of the Slovenian Constitution. The spatial aspect of privacy does not protect the space itself, but the privacy therein. The confidentiality of the lawyer-client relationship also serves as an equalizer as it evens out the differences between, on the one hand, a person who does not need a legal assistance and does not have a lawyer and, on the other hand, a person who is represented by a lawyer. The Constitutional Court established that, inter alia, the challenged regulation is not consistent with the Constitution as it disproportionately interferes with the lawyer’s privacy, because the goal of effective prosecution of criminal offences could equally be achieved by a less severe interference. The Constitutional Court consequently held that the investigative acts at the premises of lawyers and law firms that were not suspects of a criminal offence were carried out on the basis of an unconstitutional statutory regulation.
2. Decision No. U-I-122/13 of 10 March 2016: Protection of personal data – Proportionality
The Tax Procedure Act allows web publication of personal data on tax debtors (natural persons who are not engaged in business activity) whose debt is older than 90 days and exceeds EUR 5,000. The Constitutional Court assessed, upon the request of the Information Commissioner, whether this regulation was consistent with the protection of personal data, provided by Article 38 of the Slovenian Constitution. The purpose of the protection of personal data is to ensure respect for a special aspect of privacy, i. e. information privacy. The fundamental underlying value of this constitutional provision is the realisation that individuals have the right to keep information regarding themselves private and that, essentially, it is they who decide how much information about themselves they will reveal and to whom. What is at stake here is not one’s reputation, but one’s freedom to dispose one’s personal data in any way he or she wants. However, the Constitutional Court stressed that the right to information privacy is not an absolute right. In accordance with the established constitutional case law, an interference with human rights is admissible under conditions determined by the Constitution. The Constitutional Court established that the interference of a challenged statutory regulation with the right to protection of personal data is proportionate. The challenged regulation pursued constitutionally legitimate goals, namely to encourage voluntary, orderly and timely payment of tax, to improve transparency, and to enable the public (i.e. tax payers) to access information on tax debt and tax debtors. The Constitutional Court emphasized that an efficient tax system and the right of the public to see who does not contribute their share to a common pot outweighed the interference in the right of the protection of personal data of tax debtors. The information of the fact that a particular individual owes money to the community on account of his or her tax debt, cannot deserve a strong protection. This could be regarded as a point at which a personal sphere passes to a public realm. Namely, since tax duties are individuals’ duties to the community and are thus intended to enable public and hence common interest, the public has a legitimate interest to control the exercise of tax duties. The Constitutional Court also emphasized that the existing regulation allows an individual to achieve the removal of inadequate, inaccurate, or no longer relevant personal data. It referred to the well known judgment of the CJEU in the case of Google Spain SL, Google Inc v. Agencia Española de Protección de Datos (AEPD) and Mario Costeja González, C-131/12, of 13 May 2014 (ECLI:EU:C:2014:317) and to conditions laid down therein. Therefore, the possibility of an individual to achieve the removal of the link between his name and the data published on the Internet significantly diminishes the invasiveness of the interference with information privacy.
3. Decision No. U-I-289/13 of 10 March 2016: Right to strike – Military personnel – Duty of national defence
This case deals with the right to strike during the performance of military service. The Defence Act stipulates that military personnel in the performance of military service are prohibited from striking. The Constitutional Court reviewed the applicants’ allegations of an unacceptable interference with the right to strike, protected by Article 77 of the Constitution, since the Constitution allows only limitations on the right to strike but not a prohibition of strike. The duty to participate in the national defence is stipulated in the Constitution. Its first paragraph of Article 123 determines that the participation in the national defence is compulsory for citizens within the limits and in the manner provided by law. Military service as one of the three pillars of the national defence represents a special, statutory regulated manner in which the civic duty to participate in the national defence is exercised. It makes no difference whether such duty has been undertaken on a voluntary basis and whether the relationship between the state and individual has been governed by a contract of employment. Both, professional military service of the Slovenian Armed Forces and the call-up of recruits are two forms of exercising the constitutional duty to participate in the national defence. The Constitutional Court stressed that the defence of the inviolability and integrity of the national territory as well as fulfilling international obligations in the field of defence could only be possible by a continuous and unhindered performance of military service. The Constitutional Court thus held that this constitutional duty to participate in the national defence entails that the military personnel is excluded from the right to strike.
4. Decision No. U-I-68/16, Up-213/15 of 16 June 2016: Right to family life – Same-sex partnership – Right to non-discriminatory treatment
The Constitutional Court reviewed the constitutional complaint against the position of the Supreme Court, by which, on the basis of the International Protection Act, the complainant and his partner could not be treated as spouses or common-law spouses and thus could not form a family. The complainant, who was an applicant for international protection, claimed that he and his partner live in the de facto same-sex partnership. The International Protection Act – valid at the time of the decision taken by the administrative court – did not explicitly list persons, living in the de facto partnerships of same-sex partners, among family members. Although the challenged statutory provision ceased to be in force during the proceedings before the Constitutional Court, the Constitutional Court is competent to decide on its constitutionality if the consequences of its unconstitutionality were not remedied.
In the case at issue, there was a fundamental question of whether the statutory regulation of the position of family members of applicants for international protection signifies discriminatory treatment, prohibited by the first paragraph of Article 14 of the Slovenian Constitution. The challenged provision did not explicitly cite same-sex partners (registered partners and same-sex partners who live in a long-term partnership with applicants) among persons that can be family members. The Constitutional Court made abundant references to the case law of the ECtHR and reiterated its previous decision (No. U-I-212/10 of 14 March 2013) that it is undisputable that in today’s society loving and lasting relationships are established by same-sex and different-sex couples alike. The same-sex partnerships concern the situation in which two persons are connected as a couple, whereby their (relatively lasting) relationship is defined by their emotional, moral, spiritual, and sexual attachment on their shared life path. The partners in an unregistered same-sex partnership are thus bound by similar close personal ties as common-law spouses. It thus follows that the position of same-sex partnerships is comparable to the position of partnerships between different-sex persons (spouses or partners in registered same-sex partnerships) in protecting the right to family life in procedures for granting international protection.
Given that the provision of the International Protection Act did not allow same-sex partners to be included among the persons who may be considered as family members of an applicant for international protection, the Constitutional Court established the inconsistency of this provision with the right to non-discriminatory treatment in the exercise of the right to family life.
5. Decision No. Up-407/14 of 14 December 2016: Freedom of expression – Right of honour and reputation – Human rights in collision
The Constitutional Court decided on the constitutional complaint of the complainant, i.e. the press undertaking, against decisions of the Higher Court and the Supreme Court, issued in civil proceedings. The complainant published an article in the satirical section of its weekly periodical, together with a photograph of a well-known Slovenian politician (the plaintiff in civil proceedings) and his family alongside a photograph of the German Nazi propaganda minister Joseph Goebbels and his family. The Constitutional Court examined the admissibility of the standpoints on which the Higher Court and the Supreme Court based their decisions in the case at issue. It is worth mentioning that, in its assessment, the Constitutional Court took into account the criteria adopted in its previous case law as well as those adopted by the ECtHR (see, for example, judgements in the cases of Von Hannover v. Germany (No. 2), nos. 40660/08 and 60641/08, of 7 February 2012 and Axel Springer AG v. Germany, no. 39954/08, of 7 February 2012).
There were several important constitutional circumstances which affected the weighing between the freedom of expression, provided in the first paragraph of Article 39 of the Constitution, on the one hand, and the right of honour and reputation, protected by Article 35 of the Constitution, on the other. On the photograph the plaintiff was also (or in the first place) acting as the father. Also from the perspective of his role as a politician the plaintiff deserves and is allowed to have the same constitutional protection against an inadmissible interference with his honour and reputation, especially when, as a member of the family, he protects the reputation of his family. Even if, as a politician, he is obliged to accept a very harsh and provocative criticism on his own account, he must be legally protected when critique or satirical publication extends to his family members. The Constitutional Court held that the Higher Court and the Supreme Court considered and weighed both human rights in collision. The courts also followed the criteria adopted in the constitutional case law and in the case law of the ECtHR and considered all constitutionally relevant circumstances. Weighing between human rights led the courts to the conclusion that publishing family photographs constituted an inadmissible interference with the plaintiff’s right to the protection of honour and reputation. The Constitutional Court thus concluded that the published photographs of two families – the plaintiff’s and the Goebbels family – overstepped the line of permissible comparison of methods of the plaintiff’s political propaganda and the political propaganda of his political party to the propaganda used by Goebbels and the German Nazi party. The publication of the photographs hence did not contribute to a debate of general interest, instead it exceeded the debate. The comparison with the symbol of Nazism can undoubtedly be regarded as a harsh value judgement. Such value judgement could still be acceptable, yet only if the complainant would have demonstrated sufficient factual basis for such. The Constitutional Court, however, found that the complainant did not mention or prove any factual basis for such value judgement emerging from the comparison between the two mentioned photographs. With regard to the above, the Constitutional Court dismissed the constitutional complaint as unfounded.
6. Decision No. Up-164/15 of 18 February 2016: Principle of trust in the law – Principle that the law must adapt to social relations – Right to the equal protection of rights
The case deals with the two conflicting principles, both emanating from the rule of law, provided in Article 2 of the Slovenian Constitution, namely the principle of trust in the law on the one hand and the principle that the law must adapt to social relations on the other. The former demands that decisions, which are in conformity with statute and passed without any reservation made in advance and are not transitory in nature, be enduring. Law may exercise its function of regulation of the life of a society if it is stable and permanent as far as possible. Such law, as well as the whole conduct of all state bodies, should be foreseeable. The principle that the law must adapt to social relations, on the other hand, derives not only the right but also a duty to amend the statutory regulation if societal changes require such. Therefore, this principle expresses the viability and thus adaptability and changeability of the law, be it codified or judge-made law. However, the Constitutional Court stressed that while adapting the law to social relations, human rights and fundamental freedoms must be respected and the constitutional principles, such as the trust in the law, must be ensured.
The principle of trust in the law reflects itself in the right to the equal protection of rights determined in Article 22 of the Constitution – hence, it demands that a court may not treat parties unequally such that it decides differently in their case than it normally decides in contextually similar cases. However, the right to the equal protection of right does not and must not entail the immutability of the judge made law. When applying the new or the changed case law, the judge must always seek the balance between stability and foreseeability, and thus the trust in the law, on the one hand, and the need for development and evolution of law and hence its adaptation to changing social relations through the case law, on the other hand. However the judge must always give reasons as to why his decision was based on the previous case law or why his decision applied the recent case law. Namely, this duty represents one of the primordial constitutional guarantees originating from Article 22 of the Constitution.
In the case at issue, the complainant’s constitutional guarantee has been violated – not only because the court when applying the new interpretation concerning his position, neglected the question of the effect of the new interpretation of the legal provision on the complainant’s legal position and the reasonable foreseeability thereof, but also because the application of the new (and changed) interpretation was not reasonably foreseeable for him, thereby he was deprived of the possibility to defend and argue against the interpretation of the law that was unfavourable for him. It is worth mentioning that the complainant lodged his appeal in the civil proceedings before the adoption of the new interpretation of the statutory provision concerning the time limit for lodging an appeal, according to which it was lodged in due time, whereas the appellate court dismissed it on the ground of the new interpretation.
B. In the grip of (migrant, refugees, and financial) crises
1. Decision No. U-I-28/16 of 12 May 2016: Migrant and refugee crises – Armed forces empowered with special (police) powers – Principle of clarity and precision of regulations
In this case, the Constitutional Court acted on the request of the Human Rights Ombudsman and reviewed the constitutionality of the amendment to the Defence Act. In light of the tighter security situation and with a goal of mitigating the current EU migrant and refugee crises (that have an impact on Slovenia as a Schengen Area member state with an external Schengen border with Croatia) the provisions of this Act empowered members of the Slovenian Armed Forces with special (police) powers. The applicant challenged the consistency of certain statutory provisions with the principle of clarity and precision of regulations as one of the principles of a state governed by the rule of law (Article 2 of the Slovenian Constitution). The applicant stated that such a general and loose definition of the powers does not determine the scope of application of these powers and thereby allows a broad interpretation and arbitrary conduct of the state authorities. The question of whether the Slovenian army may use coercive measures when exercising the challenged powers has also been raised. The applicant further asserted that the regulation of the responsibility of the members of the Slovenian Armed Forces for possible violations resulting from the exercise of individual powers was unclear, with no appeal procedures and control mechanisms with regard to individuals established in advance. Furthermore, it was allegedly unclear whether the Slovenian Armed Forces exercise their powers autonomously and the regulation of the mutual relationships of superiority and subordination between the Slovenian Armed Forces and the Slovenian Police was unclear. Clear and precise rules are necessary when repressive authorities of the state interfere with human rights.
The Constitutional Court reiterated its position that the invoked principle of clarity and precision of regulations requires that rules be clear and precise, so that their content and purpose can be determined using established methods of interpretation and the conduct of the authorities who have to implement these rules is determinable and predictable. As the content of the powers and open-textured legal terms from the challenged statutory provisions can be construed through established methods of interpretation, the Constitutional Court did not establish an inconsistency of these provisions with the Constitution. It held that it is possible to determine the content of powers of the members of the Slovenian Armed Forces granted by the Defence Act in order to cooperate with the Slovenian Police in the context of a wider protection of the state border.
The Constitutional Court further stressed that the exercise of certain powers by the members of the Slovenian Armed Forces under the Defence Act does not signify a decision on the rights, obligations, or legal entitlements of individuals. In fact, such powers are bare deeds of the members of the Slovenian Armed Forces when performing their duties. Article 25 of the Constitution does, hence, not guarantee the right to appeal against such deeds.
2. Decision No. U-I-295/13 of 19 October 2016: Financial crisis – The reference for a preliminary ruling – Right to judicial protection
The Constitutional Court reviewed the constitutionality of the provisions of the Banking Act that – in the context of the financial crisis – envisaged the extraordinary measure of writing off or converting eligible bank liabilities with a goal of achieving the financial recovery of banks.
In this case the Constitutional Court for the first time referred questions on the validity and the interpretation of European Union acts to the CJEU for a preliminary ruling and therefore stayed the proceedings until the CJEU adopted its judgement in the case of Tadej Kotnik and others v. Državni zbor Republike Slovenije, C-526/14, on 19 July 2016 (ECLI:EU:C:2016:570).
The assessment of the Constitutional Court focused on the consistency of the challenged provisions of the Banking Act with several constitutional principles and rights, namely the prohibition of retroactivity (Article 155 of the Constitution), the principle of trust in the law (Article 2 of the Constitution), the right to private property (Articles 33 and 67 of the Constitution), and the right to judicial protection (first paragraph of Article 23 of the Constitution). The extraordinary measure of writing off or converting meant that a particular category of creditors of the bank would not be rescued with public funds. The writing off or conversion were applied only to those financial instruments for which the creditors had known in advance that their legal position was relatively weak and bears a bigger default risk. The Constitutional Court established that the adopted measure was not inconsistent with the prohibition of retroactivity, the principle of trust in the law, and the right to private property. As to the breach of the right to judicial protection, the Constitutional Court stated that the affected persons did not have a possibility to abrogate the decisions of the Bank of Slovenia. In fact, they only had an action of damages at their disposal. This judicial protection was not an effective one as the legislature failed to take into account the significantly weaker position of the holders of eligible liabilities in comparison with the position of the Bank of Slovenia. The important and convincing characteristics that, according to the Constitutional Court, had shown the ineffectiveness of the judicial protection of the creditors of the written-off or converted liabilities are mainly the inaccessibility of the information and data relating to the assessment of the value of the capital of banks that would allow the plaintiffs to draft an action and engage in a dispute, and the absence of procedural rules that would put an average holder of eligible liabilities on equal footing with the Bank of Slovenia.
C. Interactions between European courts
In its decisions, the Constitutional Court very often refers to the ECHR and to the ECtHR case law, both in constitutional complaint proceedings and in the procedures for the review of the constitutionality of general legal acts.[16] Since Slovenia’s accession to the European Union in May 2004, the Constitutional Court when exercising its competences also respects legal order of the European Union and takes into consideration the case law of the CJEU. Therefore, during its proceedings, the Constitutional Court diligently reviews and studies the case law of the ECtHR and/or the CJEU before it adopts each of its important decisions, even though this may often not be evident from its decisions.[17] Many of the decisions, mentioned in this report, albeit being divided into different chapters, referred to the ECHR and to the case law of the ECtHR. Moreover, as mentioned already, in its case No. U-I-295/13, the Constitutional Court referred questions on the validity and the interpretation of European Union acts, for the first time, to the CJEU for a preliminary ruling.[18] As in previous years, the Constitutional Court continues to stress the obligations of the courts with regard to the preliminary ruling procedure before the CJEU.
1. Decision No. Up-185/14, U-I-51/16 of 28 September 2016: Contempt of court in criminal proceedings – Right to impartial tribunal – Case law of the ECtHR – Reconsidering previous standpoint
In this decision, the Constitutional Court was faced with its standpoint taken in its previous decision (namely, Decision No. U-I-145/03 of 23 June 2005), against which the petitioner lodged an application with the ECtHR (judgment in the case of Alenka Pečnik v. Slovenia, no. 44901/05, of 27 September 2012). The Constitutional Court found that the regulation (determining that the judge criticised by the participants of the procedure is also the one who had pronounced the verdict and imposed a sanction) was clearly not in breach of the right to impartial tribunal. It emphasised that the protected interests were the protection of the authority of and the trust in the judiciary, and not the reputation and the good name of a particular judge.
The ECtHR referred to its previous case law and reiterated that two approaches are normally used in testing for impartiality, namely a subjective and an objective approach. It noted that proceedings concerning contempt of court failed to meet the required ECHR standard under the objective test. The confusion of roles between complainant, witness, prosecutor, and judge disclosed a functional defect and raised objectively justified fears as to the impartiality of the court. In this situation the ECtHR did not find it necessary to reach a conclusion on the basis of a subjective test. Finally, the ECtHR noted that the Higher Court and the Constitutional Court did not remedy the defect in question, although they appeared to have power to quash the decision on the grounds that the first-instance judge had not been impartial. The ECtHR concluded that there had been a violation of the conventional right to an impartial tribunal.
In the case at issue, the petitioner lodged a constitutional complaint against an order by which, as a counsel, he had been convicted of contempt of court in criminal proceedings by the sitting judge because he allegedly insulted the sitting judge. He claimed there had been a violation of the right to an impartial tribunal, provided in the first paragraph of Article 23 of the Slovenian Constitution. In his submission, it was unacceptable that a judge who felt personally affected by the impugned statements could convict him and impose a fine. The Constitutional Court could not respond to allegations without the simultaneous assessment of the constitutionality of the provisions of the Criminal Procedure Act at issue. The Constitutional Court decided to reconsider its previous standpoint, adopted in Decision No. U-I-145/03. The appearance of impartiality is curtailed where a judge decides on the punishment of participants in proceedings for contempt, which is intended to the same sitting judge, and it is no longer possible to speak of an impartial tribunal. The Constitutional Court held that the right to an impartial tribunal demands that another judge decides cases of contempt. The constitutional complaint was therefore granted.
2. Decision No. Up-1006/13 of 9 June 2016: Search warrants – Case law of the ECtHR – Right of spatial privacy – Right to a reasoned court decision
In this case the Constitutional Court assessed the constitutional complaint of a complainant who was found guilty of the criminal offence of unlawful manufacture of and trade in illegal drugs. The complainant alleged a violation of several constitutional rights. An investigating judge issued two search warrants related to the criminal offence of robbery. When the police conducted the search, items related to the criminal offence of robbery were not found. Instead, the evidence of the criminal offence of unlawful manufacture of and trade in illegal drugs were found. Throughout the criminal proceedings the complainant had argued that these warrants had not been sufficiently reasoned and thus the search had been unconstitutional and unlawful. In its case law the Constitutional Court has already adopted the position that a decision of the court must explain each significant point in a specific manner in order to enable an assessment to be made as to whether the state has sufficiently met all the requirements imposed by the statutory provisions regarding the burden of allegation and the burden of proof. The importance of the reasoning of courts’ orders was also pointed out by the ECtHR. The Constitutional Court explicitly mentioned the judgment of the ECtHR in the case of Dragojević v. Croatia of 15 January 2015 (no. 68955/11). In the case at issue, the search warrants should initially contain a concrete reasoning as to why there are reasonable grounds for believing that the offence of robbery was committed and a justification on what basis the judge built his assessment. The investigating judge who issued a search warrant that had not contained reasons for assessing the fulfilment of conditions for interference with the right of spatial privacy violated the right to a reasoned court decision guaranteed by Article 22 of the Slovenian Constitution.
3. Decision No. 384/15 of 18 July 2016: European arrest warrant – Case law of the CJEU – Failure to take a position on the motion to submit the case to the CJEU for a preliminary ruling
The Constitutional Court assessed the constitutional complaint of a complainant with regard to whom the three-judge panel of the District Court allowed his surrender to Germany on the basis of the European arrest warrant, and the Higher Court agreed with this decision. The important constitutional issue involved in this case was the complainant’s allegation that the courts had not expressly taken a position on his motion to submit the case to the CJEU. The Constitutional Court has already emphasised in its case law that the CJEU is a court in the sense of an independent, impartial court constituted by law (as referred to in the first paragraph of Article 23 of the Slovenian Constitution). This human right also guarantees that in the event a question of the interpretation of European Union law and/or the validity of secondary European Union law should arise in a dispute, it is the CJEU that is competent under Article 267 of the TFEU to reply thereto. In proceedings to decide upon a constitutional complaint, the Constitutional Court only assesses whether the individual was ensured judicial protection before a court constituted by law, namely in such a manner that with regard to the transfer of the exercise of part of the sovereign rights of the Republic of Slovenia to the European Union (the third paragraph of Article 3a of the Constitution), also the separation of jurisdiction between the courts of the Republic of Slovenia as a Member State of the European Union and the CJEU is taken into consideration (Article 267 of the TFEU). In the case at issue, the courts failed to take a position on the complainant’s motion to submit the case to the CJEU for a preliminary ruling. The Constitutional Court therefore abrogated the challenged decisions and remanded the case to the District Court for new adjudication.
VI. Concluding remarks
On the basis of the review of the Constitutional Court’s activities in 2016 it can be concluded that the Court continues to play a central role in laying down and upholding the legal foundations of the Slovenian state. By regarding the Constitution as a living document, the Court has been successful in bringing the cases and controversies, sometimes also of highly political nature, inside the valid constitutional framework, contributing its fair share to the improvement of constitutional democracy in Slovenia. In so doing, the Court has preserved its status of one of the most influential institutions in Slovenia and has also, following the principle of dialectical openness, striven to be an active member in the European as well international judicial dialogue.
VII. Short bibliography
AVBELJ, Matej. Naše pravo in pravo ljudstvo : kako braniti ustavno demokracijo pred populizmom. In: Dnevi slovenskih pravnikov, 13. do 15. oktober 2016, Portorož, (Podjetje in delo, ISSN 0353-6521, [Year] 42, [No.] 6/7). Ljubljana: GV Založba [i. e.] IUS SOFTWARE, 2016, 42, [No.] 6/7, pp. 1221–1233.
LETNAR ČERNIČ, Jernej. Iskanje najmanjšega skupnega imenovalca evropskih vrednot. In: Zalta, Anja (ed), Svetlič, Rok (ed). Identiteta Evrope, (Poligrafi, ISSN 1318-8828, Year 21 (2016), No. 81–82). Koper: Univerza na Primorskem, Znanstveno-raziskovalno središče, Univerzitetna založba Annales, 2016, Year 21, No. 81/82, pp. 211–224.
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* Associate Professor of European Law, Graduate School of Government and European Studies, Nova Univerza in Slovenia. The author would like to acknowledge the generous support of the Slovenian Research Agency within the framework of the research project: The Reform of the Rule of Law and Democracy in Slovenia, grant No J5-7359 (A).
** Former Justice of the Constitutional Court of the Republic of Slovenia and Supreme Court Justice.
*** Adviser at the Constitutional Court of the Republic of Slovenia, Assistant Professor at the Graduate School of Government and European Studies, Nova Univerza in Slovenia.
[1] Jadranka Sovdat (ed), Constitutional Court of the Republic of Slovenia – 25 Years, [International Conference, Bled, Slovenia, June 2016, Conference Proceedings] (Constitutional Court of the Republic of Slovenia, Ljubljana 2016).
[2] Bojan Bugarič, Alenka Kuhelj, Slovenia in Crisis: A Tale of Unfinished Democratization in East-Central Europe, Communist and Post-Communist Studies, 2015, no. 4, vol. 48, str. 273–279.
[3] Matej Avbelj, Failed Democracy: The Slovenian Patria Case – (Non)Law in Context (July 4, 2014). Originally published in Slovenian in the journal Pravna praksa, as Matej Avbelj, Zadeva Patria – (ne)pravo v kontekstu, Pravna praksa, No. 26, July 3, 2014. Available at SSRN: https://ssrn.com/abstract=2462613 or http://dx.doi.org/10.2139/ssrn.2462613
[4] See Bojan Bugarič, Alenka Kuhelj, supra note 2.
[5] For an overview, see in particular, the chapters by Jernej Letnar Černič, Jan Zobec and Matej Avbelj in: Michal Bobek (ed), Central European Judges under the European Influence: The Transformative Power of the EU Revisited (Hart, Oxford 2015).
[6] See Decision of the Slovenian Constitutional Court No. U-I-109/10 of 26 September 2011, para. 7.
[7] For more on the position and organisation, the jurisdiction and the procedure before the Constitutional Court, see the Constitutional Court Act and the Rules of Procedure of the Constitutional Court, available at http://www.us-rs.si/en/.
[8] For more on the cooperation of the Slovenian Constitutional Court with the ECtHR, the Court of Justice of the European Union, and other constitutional courts, see, Verfassungsgerichtshof Österreich, XVIth Congress of the Conference of European Constitutional Courts : The Cooperation of Constitutional Courts in Europe : Current Situation and Perspectives (Volume II, Verlag Österreich, Wien 2014), pp. 923–942. On the status of the ECHR in the Slovenian legal order and on the case law of the ECtHR in relation to Slovenia see Jan Zobec, Slovenia: Just a Glass Bead Game? In: I. Motoc and I. Ziemele (eds), The Impact of the ECHR on Democratic Change in Central and Eastern Europe : Judicial Perspectives (Cambridge University Press, Cambridge 2016), pp. 425–456.
[9] Verfassungsgerichtshof Österreich, supra note 8, p. 925. By Decision No. U-I-65/05 of 22 September 2005 (para. 7), the Constitutional Court specifically underlined that when assessing the constitutionality of a law it must take into consideration the case law of the ECtHR, regardless of the fact that it was adopted in a case in which Slovenia was not involved in proceedings before the ECtHR.
[10] Besides cases involving a review of the constitutionality and legality of regulations and general acts issued for the exercise of public authority and cases involving constitutional complaints the Constitutional Court in 2016 also received four cases involving jurisdictional disputes.
[11] Detailed statistical data and graphic representations are presented in the 2016 Annual Report, available at http://www.us-rs.si/media/rsus_letnoporocilo_2016__splet.pdf.
[12] See the Constitutional Act Amending Chapter III of the Constitution of the Republic of Slovenia, which was adopted on 25 November 2016 and entered into force on 25 November 2016 (Official Gazette of the Republic of Slovenia No. 75/16).
[13] Article 70a of the Constitution reads as follows:
»Everyone has the right to drinking water.
Water resources shall be a public good managed by the state.
As a priority and in a sustainable manner, water resources shall be used to supply the population with drinking water and water for household use and in this respect shall not be a market commodity.
The supply of the population with drinking water and water for household use shall be ensured by the state directly through self-governing local communities and on a not-for-profit basis.«
[14] See, for more, several articles in the Slovenian journal Pravna praksa: Jakob Ahačič et al, Zapis pravice do čiste pitne vode v slovensko ustavo, Pravna praksa, No. 1, January 7, 2016, pp. 13–14; Blaž Kovač, Pravica do pitne vode : papir prenese vse, z njim pa si lahko tudi kaj obrišemo, Pravna praksa, No. 5, Februar 10, 2017, pp. 10–11.
[15] For an English translation of mentioned decisions, please, see http://odlocitve.us-rs.si/en/.
[16] If a particular right guaranteed by the ECHR is also guaranteed by the Constitution to an equal or greater degree, the Constitutional Court assesses the challenged statutory provision or the alleged violation of a human right only from the viewpoint of the provisions of the Constitution. If the Constitution does not guarantee a particular human right or it guarantees such to a lower degree than the ECHR, the Constitutional Court conducts the assessment of the alleged violation or the disputed legislation from the viewpoint of its consistency with the ECHR.
[17] See Verfassungsgerichtshof Österreich, supra note 8, pp. 923–942.
[18] See the CJEU case of Tadej Kotnik and others v. Državni zbor Republike Slovenije, C-526/14, on 19 July 2016 (ECLI:EU:C:2016:570).
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