Statistical data

Number of decisions:
The Constitutional Court held 12 sessions during the above period. It dealt with 109 cases in the field of protection of constitutionality and legality (cases denoted U- in the Constitutional Court Register) and with 10 cases in the field of protection of human rights and basic freedoms (cases denoted Up- in the Con-stitutional Court Register and submitted to the plenary session of the Court; other Up- cases were processed by a senate of three judges at sessions closed to the public). There were 155 U- and 148 Up-unresolved cases from the previous year at the start of the period (1 January 1995). The Constitutional Court accepted 71 U- and 60 Up- new cases in the period of this report, confirming the trend of a steady increase in the number of new cases over the last five years.
In the same period, the Constitutional Court resolved a total number of 57 cases (U-), as follows:
• 34 cases (U-) in the field of protection of con-stitutionality and legality, of which there were 18 decisions taken by the plenary and 16 resolutions
• 23 cases (U-) joined to the above mentioned cases for common treatment and decision.
In the same period, the Constitutional Court resolved 48 cases (Up-) in the field of protection of human rights and basic freedoms (2 decisions taken by the plenary, 46 decisions taken by a Senate of three Judges).
All decisions have been published in the Official Gazette of the Republic of Slovenia. Resolutions of the Constitutional Court are not as a rule published in an official bulletin, but only handed over to the participants in the proceeding.
However, all decisions and resolutions:
• are published in an official yearly collection (Slovene full text version with English abstracts) and

Important decisions

Identification: SLO-95-1-001
a) Slovenia / b) Constitutional Court / с) / d) 19.01.1995 / e) U-l-47/94 / f) / g) Official Gazette of the Republic of Slovenia, no. 13/95; to be published in the official digest of the Constitutional Court of RS, IV 1995 / h) Pravna praksa (Legal Practice Journal), Ljubljana, Slovenia (abstract).

Keywords of the systematic thesaurus:
General principles - Legality.
Institutions - Legislative bodies - Powers.
Institutions - Legislative bodies - Law-making procedure.
Fundamental rights - General questions - Limits and restrictions.
Fundamental rights - Civil and political rights - Procedural safeguards - Access to courts.
Fundamental rights - Civil and political rights – Right to participate in political activity.

Keywords of the alphabetical index: Legislative initiative / Referendums.

Headnotes:
The abrogation of a law can be achieved by a referendum which adopts another law abolishing the existing one.
When the Constitution provides for the regulation of a specific right by law, this laws must not restrict the right but only define the manner of its exercise.
The legislator may regulate the way referendums are held but must not restrict the right to request the holding of a referendum in such a way that certain types of laws could not be changed by way of referendum.
 A law providing for the assessment by the National Assembly of whether a question put to a referendum is clear enough is unconstitutional in circumstances where such an assessment is not subject to judicial review.

Summary
The provisions of Article 90 of the Constitution do not require that the Law on referendums and popular initiatives (Official Gazette of the Republic of Slovenia, no. 15/94) envisage all known forms of referendums (preliminary, supplementary, abrogative). An arrange-ment which does not expressly provide that a law may be abrogated by referendum is not in conflict with the Constitution. In fact, the annulment of a valid law may also be achieved by means of a legislative initiative for adopting another law on the abrogation of this law, and to this is bound the demand for the holding of a preliminary referendum on the proposal of such a law.
Article 90.5 of the Constitution, which provides that referendums shall be regulated by law, does not allow for the restriction of the constitutional right to request the holding of a referendum in such a way that this right would be totally abolished in respect of specific types of law. Article 90.1 of the Constitution itself determines the scope of this right, and provides that referendums may be held on (all) matters regulated by law. Therefore, any restriction on the right under Article 90 of the Constitution indirectly also limits the constitutional right under Article 44 to directly or indirectly participate in the administration of public affairs. Nor does the provision in Article 44 of the Constitution, that this right shall be exercised "in accordance with the law", give the legislator the authority to restrict it, but only the authority to regulate the manner of its implementation.
Under Article 15.3 of the Constitution, the law may only restrict a constitutional right when this is crucial for the protection of the rights of others in accordance with the principle of proportionality, or in cases where the Constitution so determines, by legislative proviso using the formulations "under conditions set by law", "in the cases which are defined by law", "within the boundaries of the law", "restricted by law", etc. Where the content and extent of a right is already determined in the Constitution, the proviso that this right shall be exercised "in accordance with the law" or that it "shall be regulated by law" means that the legislator, in accordance with Article 15.2 of the Constitution, has the power to prescribe the way in which this right can be exercised but has no authority to restrict it.
A legal provision which authorises the National Assembly to assess the clarity of a question put to referendum, enables the National Assembly to decide that a referendum will not be held because of the unclarity of the question which is intended to be put. However, such a provision does not provide sufficient Judicial protection, as required by Article 157.2 of the Constitution, for the effective safeguarding of affected constitutional rights (if such a case is in fact conceiv-able - this question has remained open).

Supplementary information:
By resolution of the Constitutional Court of 5 May 1994, the case under consideration was joined to case U-l-66/94 for common treatment and decision.

Languages: Slovene, English (translation by the Court).

Identification: SLO-95-1-002
a) Slovenia / b) Constitutional Court / с) / d) 19.01.1995 / e) U-l-147/93 / f) I g) Official Gazette of the Republic of Slovenia, no. 18/95; to be published in the official digest of the Constitutional Court of RS, IV 1995 / h) Pravna praksa (Legal Practice Journal), Ljubljana, Slovenia (abstract).

Keywords of the systematic thesaurus:
General principles - Legality.
General principles - Proportionality.
Fundamental rights - General questions - Limits and restrictions.
Fundamental rights - Civil and political rights - Equality.
Fundamental rights - Civil and political rights – Right to property - Privatisation.

Keywords of the alphabetical index: Companies, regulation, public interest/Denationalisation.

Headnotes:
The legislator determines the rights of legal subjects by abstract and general legal norms. The exercise of these rights and their limits are dependent on the social intention of the legal norm. Since the rights of legal subjects are conditioned by the economic and political interests of society, the form of protection of rights varies.
The legislator sets time limits for the exercise of these rights and for the performance of acts in procedures for asserting these rights. The legislator thus guarantees legal protection as an essential element of a State based on the Rule of Law. With the expiry of the time limit, the right of a legal subject, which is a specific right on the basis of abstract and general norms, is either extinguished or its validity becomes obsolete.
The legislator may also lay down time limits in procedures for validating abstractly defined rights. Rules on time limits are generally of a mandatory character and are not subject to agreement by the parties in proceedings.

Summary:
The law on the transformation of ownership of com-panies (Official Gazette of the Republic of Slovenia, nos. 55/92, 7/93 and 31/93) regulates the transforma-tion of companies with socially owned capital into companies with known owners. Its social aim is that the process of transformation starts and is completed as quickly as possible. In order to protect the rights of denationalisation claimants in these processes, and to enable at the same time the implementation of the law, it required that claims for the return of assets of companies which are being privatised be protected on application by the claimant. The consequence of a claim remaining unprotected is the loss of rights to companies. However, the right to validation of denationalisation claims does not as such cease but is converted into a right to compensation which is assessed  in  accordance with the  Law on denationalisation and the regulations to which this law refers.
The Constitutional Court further finds that, with the impugned provisions of the Law on the ownership transformation of companies, the legislator seeks to facilitate the process of ownership transformation of companies. Without the regulation of questions ex-pressly related to denationalisation, claimant com-panies would be entirely unable to start the procedure of ownership transformation and, in view of the legal time limit set for the transformation, would not be privatised at all.
Therefore, the Constitutional Court finds that the impugned regulation pursues the aims of the law on the ownership transformation of companies, which are in accordance with social needs and interests. Restrict-ing the rights of denationalisation claimants by impos-ing strict time limits is a measure which is necessary in order to ensure the undisturbed and timely flow of privatisation. The measure only requires specific action by the party to the proceedings, and is proportional to the aims it pursues and necessary for the undelayed and undisturbed transition from the system of economic subjects with social capital to a system of subjects with known owners.

Supplementary information:
The decision was taken by the Court with 1 concurring opinion.
By resolution taken by the Court of 14 July 1994, the case in question was joined to case number U-l-149/93 for common treatment and judgment.

Languages: Slovene, English (translation by the Court).

Identification: SLO-95-1-003
a) Slovenia / b) Constitutional Court / с) / d) 23.02.1995 / e) U-l-24/94 / f) / g) Official Gazette of the Republic of Slovenia, no. 15/95; to be published in the official digest of the Constitutional Court of RS, IV 1995 / h) Pravna praksa (Legal Practice Journal), Ljubljana, Slovenia (abstract).

Keywords of the systematic thesaurus:
Constitutional justice - The subject of review - International treaties.
Sources of constitutional law - Hierarchy – Hierarchy as between national and non-national sources-Treaties and legislative acts.
General principles - Legality.

Keywords of the alphabetical index:
Transport of dangerous goods / Treaty, compatibility.

Headnotes:
The European Agreement on International Road Transport of Dangerous Goods contains the minimum standards for the transport of hazardous substances and binds the States parties to it not to fall below these standards in their legislation. States parties may prescribe in their legislation additional conditions and stricter standards for the transport of dangerous substances. The Law on the transport of dangerous substances, which prescribed such additional conditions and higher standards, is not in conflict with the Agreement.

Summary:
That both the impugned Law on transport of dangerous substances and the European Agreement on International Road Transport of Dangerous Goods are still part of the law of the Republic of Slovenia derives from the Constitutional Law for implementing the Charter on the Sovereignty and Independence of the Republic of Slovenia, the Constitutional Law for implementing the Constitution and from the Act on notification of succession. Their hierarchical relation is determined in Article 153.2 of the Constitution, which states that laws shall be in accordance with valid international treaties which have been ratified by the National Assembly. Although the Federal Executive Council of the Assembly of the Social Federal Republic of Yugoslavia ratified the Agreement by decree, the National Assembly adopted the Act of notification which includes the Agreement, and thus the latter acquired the status of an international treaty ratified by the legislator.
The Agreement was concluded "desiring to increase the safety of international transport by road". In accordance with such an intention, the Agreement determines the most important rules and standards intended to increase the safety of international road transport of hazardous goods. The Agreement itself does not prevent States from applying stricter stan-dards through their legislation. In Article 4, the Agree-ment determines that each party shall retain the right, for reasons which do not relate to safety during the journey, to regulate or forbid the handling of dangerous goods on its territory. Article 5 provides that transport to which the Agreement refers is still bound to national or international regulations which mainly relate to road traffic, international road transport or international trade. The articles of the impugned law, which the applicant considers in conflict with the Agreement, determine some additional obligations for transport, professional qualification and age of personnel handling dangerous substances, and for the fitting of vehicles which perform such transport. These simply contribute further to achieving the basic aim of the Agreement and are therefore not in conflict with it.

Languages: Slovene, English (translation by the Court).

Identification: SLO-95-1-004
a) Slovenia / b) Constitutional Court / с) / d) 23.02.1995 / e) U-l-209/93 / f) / g) Official Gazette of the Republic of Slovenia, no. 18/95; to be published in the official digest of the Constitutional Court of RS, IV 1995 / h) Pravna praksa (Legal Practice Journal), Ljubljana, Slovenia (abstract).

Keywords of the systematic thesaurus:
General principles - Rule of law.
General principles - Legality.
Institutions - Courts - Organisation.
Fundamental rights - Civil and political rights -Procedural safeguards - Access to courts.

Keywords of the alphabetical index: Tribunal, impartial.

Headnotes:
The provisions of the civil and criminal court rules, and the schedule of work of the judges, which regulate the assignment of individual civil cases to individual judges are not in conflict with the Constitution in that they fail to provide that a case concerning an action which has been withdrawn and then instituted again will be reassigned to the same judge to which it had been assigned at the time it was initially instituted.

Summary:
The principal aim of the provision of Article 23.2 of the Constitution (Due Process of the Law) is to prevent any arbitrary influence on the courts as regards the assignment of a particular case to a judge. The said
 provision does not prevent the parties to a case from having any influence whatsoever on who will be the judge dealing with their case. Such an arrangement, which would in advance make impossible for either one or both parties in all instances to have any in-fluence on the selection of the judge, is itself impossible, even conceptually. The parties know who are the judges who have been appointed in a particular court of justice and assigned to particular fields of work. If only by the application of agreed-upon jurisdictional rules, both parties can exercise indirect influence also on the circle from which the judge who will decide on a particular case is to be selected. By the use of the rules of optional jurisdiction, each party may exercise influence on who will be the judge that will decide on his or her case. Such possibilities of exercising influence on the assignment of the judge in a particular case by a party do not, however, jeopardise the constitutional guarantees contained in Article 23 of the Constitution. Neither will any such action be in violation of the same right of the opposite party, since the matter will still be tried by a judge who has been selected on the basis of such rules as have been prescribed in advance by statute and judicial practice, and not by a judge having been selected on an ex posr basis by the court of justice or any other body.
A rule whereby a civil case which is filed again after having been withdrawn would be assigned to the judge to whom it was previously assigned would in any case require a decision on the merits as to whether the civil case is the same as the one previously submitted and withdrawn. The question of the identity of a case or claim in a lawsuit is known to be one of the most difficult practical and theoretical questions, the resolu-tion of which would introduce in the process of assign-ment of cases to individual judges numerous criteria and, consequently, uncertainty. In addition, the plaintiff who has withdrawn his action and has filed it again with a view to excluding the judge having been initially assigned to the case would not be prevented even by such an arrangement from making such a manoeuvre: for, in filing an action again, the plaintiff always has the possibility of partly modifying the action and, con-sequently, the identity of the claim, without running any other risk than that of the rejection of the part of the claim newly introduced.
It is therefore evident that such a solution would introduce into the process of assignment of cases uncertainty and would consequently decrease the accountability and automatic nature of the assignment of cases. It is true that the possibility for a party to exercise influence by certain procedural acts on the assignment of judges may jeopardise the principle of trial by an impartial judge. If, however, a judge who is not impartial has been selected, the other party may enforce his or her right to an impartial court on the basis of the rules on the disqualification of judges.

Supplementary information:
The decision was taken by the Court with 1 concurring opinion and 1 dissenting opinion.

Languages: Slovene, English (translation by the Court).

Identification: SLO-95-1-005
a) Slovenia / b) Constitutional Court / с) / d) 09.03.1995 / e) U-l-158/94 / f) / g) Official Gazette of the Republic of Slovenia, no. 18/95; to be published in the official digest of the Constitutional Court of RS, IV 1995 / h) Pravna praksa (Legal Practice Journal), Ljubljana, Slovenia (abstract).

Keywords of the systematic thesaurus:
General principles - Separation of powers.
General principles - Rule of law.
Institutions - Executive bodies - Powers.
Institutions - Public finances - Principles.

Keywords of the alphabetical index:
Decision, interpretative / Property, socially-owned control.

Headnotes:
The organisation of the Agency for Payment Operations as a public institution, the specific forms of subordinating the Agency to the Government and the management and control of its activities through its board, which have all been provided for as if the Agency were a public institution, are contrary to the constitutional concept of an autonomous and independent entity whose duties under the Constitution and its statute are to control and audit the manner of disposing of socially-owned property in the process of ownership transformation.
In a State governed by the rule of law, statutory provisions must be drafted in such a way as to make possible their effective implementation.

Summary:
The essence of the constitutional provision dealing with the separation of powers lies not in the manner of organising the relationships between individual branches of government or government organisations, but in its fundamental function of protecting individual freedom and dignity in relations with the government. Democratic efficiency of separation of powers depends primarily on the quality of mutual controls and restrictions, as well as on co-operation in the collective, balanced and efficient attainment of national objectives. This is why it is possible to have, and why indeed there are, various organisational forms of implementation of the principle of horizontal, vertical and functional separation of powers in accordance with specific historical and cultural circumstances of the constitutional system actually in force.
Modern constitutional systems also incorporate bodies and organisations which, due to their organisational characteristics and formal powers, cannot be ranged among any of the three branches of government. Such constitutional institutions include for example: the central bank ("monetary authorities"), the ombudsman, and the Court of Auditors.
In constitutional systems, where they exist, all these bodies and organisations are indisputably highly autonomous in relation to each branch of government. Their autonomy on the one hand, and their responsibility on the other are ensured by specific institutional requirements governing their independence, such as the professional and technical responsibility of holders of relevant public powers, procedural working rules prescribed by statute, a system of legal remedies against illegal acts, responsibility within the organisation, stability and transparency of the mandate of holders of responsible positions, a system of financing, etc.
The mere fact that in the former system the Public Audit Service was autonomous and that its indepen-dent status was provided for in the Constitution would be a sufficient reason for this status to be maintained while still dealing with socially-owned property. This is even more so because it is obvious that in the field of control over government expenditure in the new constitutional system, the Public Audit Service has been replaced by the Court of Auditors, which has also been granted an independent status by the Constitution. Nor is the Court of Auditors part of either judicial or of executive authorities, but is an institution sui Jeneris, whose function of controlling government expenditure makes it essential for it to be able to control financial aspects of all three branches of the State.

On the basis of the foregoing it was the duty of the National Assembly to provide the Agency for Payment Operations, Control and Information with an autonomous status and to make it bound by the Constitution. This is why the organising of this service as a "public institution", the specific forms of subor-dinating the Agency to the Government and the management and control of activities of the Agency through its board, which have been provided for as if the Agency were a public institution, are contrary to the constitutional concept of an autonomous and independent entity whose duties under the Constitution and statute are to control and audit the manner of disposing of socially-owned property in the processes of ownership transformation.

Supplementary information:
The decision was taken by the Court with 2 dissenting opinions.
For reasons of joint consideration and adjudication, this case was joined with case U-l-162/94 (resolution of 13 September 1994).

Languages: Slovene, English (translation by the Court).

Identification: SLO-95-1-006
a) Slovenia / b) Constitutional Court / с) / d) 30.03.1995 / e) U-l-285/94 / f) / g) Official Gazette of the Republic of Slovenia, no. 20/95; to be published in the official digest of the Constitutional Court of RS, IV 1995 / h) Pravna praksa (Legal Practice Journal), Ljubljana, Slovenia (abstract).

Keywords of the systematic thesaurus:
General principles - Separation of powers. General principles - Rule of law - Certainty of the law.
Institutions - Executive bodies - Territorial ad-ministrative decentralisation - Municipalities.

Keywords of the alphabetical index: European Charter on Local Government / Local government.

Headnotes:
The transfer of all the powers of the former municipalities to the State by a general legal provision is incompatible with the rule of law and the separation of powers, which require a normative arrangement of powers in one or several laws because provisions on powers include powers to take decisions on individual administrative matters.
The legal provision whereby the competences of the former municipalities - including their original powers
- were transferred to the State was found to be unconstitutional on the grounds that the concept of "matters within State competency" was not defined by any regulation.

Summary:
The principle of local government is included among the basic constitutional provisions and analysed in detail in a special chapter on local and other self government. The basic constitutional guarantee on local government ('The autonomy of local government shall be guaranteed in Slovenia", Article 9 of the Constitution) is the institutionalised framework for decision-making on local public matters and also a reflection of the basic constitutional right of each person to participate in the administration of public affairs (Article 44 of the Constitution). Similarly, the European Charter on Local Government, in the preamble, directly juxtaposes the following three provisions:
- that local authorities are one of the main foundations of every democratic government,
- that the citizens' right to participate in public matters is one of the democratic principles common to all member States of the Council of Europe, and
-  that this right can be most directly exercised at the local level.
Based on these key principles the European Charter, in Article 3, develops a definition of local government as "the right and the ability of the local authority to regulate within the limits of the law and to carry out an essential part of public affairs within its own jurisdiction and for the benefit of the local population".
The takeover by the State of administrative tasks that are connected with the execution of local government or local public matters, and which the municipalities perform as an authority, would be contrary to Article 140 of the Constitution. In relations between the State and its inhabitants, the municipality is the local authority. This is also indirectly confirmed by the three provisions of the European Charter on Local Government referred to. The first refers to local authorities as one of the main foundations of any democratic government, the second and the third to the democratic principle of citizens' participation in the administration of public matters, both at the central and the local level, the difference being that at the local level it is done "more directly".
The Constitutional Court has clearly stated that in the transition to a system of local government, the National Assembly must separate and define the powers of the State and of the local communities (Decision no. U-l-13/94 of 20.01.1994).
However, this was not done by the National Assembly. Instead of a clear division of powers and a definition of the functions to be taken over by the State, it passed the impugned provision (Article 101.1 of the Law on Administration, Official Gazette of the Republic of Slovenia, no. 67/94) with its unclear content, which according to the explanation of the National Assembly means that with this provision all State functions in the field of administration previously performed by the municipalities are to be transferred to the State ad-ministrative bodies. Its decision originated in the presumption that the mere fact that the powers of the old municipalities were prescribed by law means that they are State and not local matters. In so doing, the National Assembly interfered with the powers of the municipalities in a manner inconsistent with Article 140 of the Constitution.

Supplementary information: The decision was taken by the Court with 1 dissenting and 1 concurring opinion.
In the reasons explaining the Resolution the Constitu-tional Court refers to Decree U-l-13/94 of 20 January 1994.
For reasons of joint deliberation and adjudication, this case was joined with case U-l-297/94 (resolution of 1 December 1994).

Languages: Slovene, English (translation by the Court).