Statistical data: 1 May 1996-31 August 1996

Number of decisions

The Constitutional Court had 12 (plenary) sessions during this period, in which it dealt with 141 cases in the field of protection of constitutionality and legality (cases denoted U- in the Constitutional Court Register) and with 34 cases in the field of protection of human rights and basic freedoms (cases denoted Up- in the Constitutional Court Register and submitted to the plenary session of the Court; other Up- cases were processed by chambers of three judges at sessions closed to the public). There were 254 U- and 263 Up-unresolved cases from the previous year at the start of the period (1 May 1996). The Constitutional Court accepted 75 U- and 92 Up- new cases in the period covered by this report.

In the same period, the Constitutional Court resolved:
• 45 cases (U-) in the field of protection of constitutionality and legality, of which there were (taken by Plenary Court)
- 16 decisions and
- 29 resolutions
• 15 cases (U-) were joined to above mentioned cases because of common treatment and decision; according-ly, the total number of resolved cases (U-) is 60.
• In the same period, the Constitutional Court resolved 61 cases (Up-) in the field of protection of human rights and basic freedoms (4 decisions taken by the Plenary Court, 57 decisions taken by a Chamber of three judges).

The decisions have been published in the Official Gazette of the Republic of Slovenia, while the Resolutions of the Constitutional Court are not as a rule published in an Official Bulletin, but are rather handed over to the participants in the proceedings.

However, all decisions and resolutions are published and have been submitted to users:

• in an official yearly collection (Slovene full text version, including dissenting/concurring opinions, and English abstracts);
• in the Pravna Praksa (Legal Practice Journal) (Slovene abstracts, with the full-text version of the dissenting/concurring opinions);
• since 1 January 1987 via on-line available STAIRS database (Slovene and English full text version);
• since August 1995 on Internet (Slovene constitutional case law of 1994 and 1995, as well as some important cases prepared for the Bulletin of the Venice Commission from 1992 through 1995, in full text in Slovene as well as in English "http://www.sigov.si/us/eus-ds.html");
• since 1995 some important cases in English full-text version in the East European Case Reporter of Constitutional Law, published by BookWorld Publications, The Netherlands. The East European Case Reporter is available also on Internet.

Identification: SLO-96-2-006
a) Slovenia / b) Constitutional Court / с) / d) 21.03.1996 / e) U-l-67/94 / f) / g) Uradni list RS (Official Gazette), no. 24/96; Odlocbe in sklepi Ustavnega sodisca (Official Digest of the Constitutional Court), V/2,1996 / h) Pravna praksa, Ljubljana, Slovenia (abstract).

Keywords of the systematic thesaurus:
Sources of Constitutional Law - Categories – Unwritten rules - General principles of law.
General Principles - Rule of law.
General Principles - Legality.
Fundamental Rights - Civil and political rights - Procedural safeguards - Fair trial - Presumption of innocence.

Keywords of the alphabetical index:
Arbitrary determination / Danger for the community / Illegal trade / Violation of basic principles recognised by civilised nations.

Headnotes:
Certain provisions of the Act on Suppression of Illegal Trade, Prohibited Speculation and Economic Sabotage were found to be in conflict with the general principles recognised by civilised nations and also contrary to the Constitution, on the grounds that they failed to consider the dangerousness for the community as an element of criminal offences, but allowed for an arbitrary application of the statute, and, what is more, violate certain human rights and fundamental freedoms.

Summary:
The Act on Suppression of Illegal Trade, Prohibited Speculations and Economic Sabotage was found to be unconstitutional to the extent that it left to the discretion of the courts the distinction, as regards some forms of illegal behaviour, between a misdemeanour and a criminal offence. The criterion which should be adopted is the danger for the community, which in many cases had not been considered by the legislator.
The same definitions of "illegal trade", "prohibited speculation" and "economic sabotage" are not clearly determined, in contrast with the principle of legality, which implies a clear definition of every criminal offence (nullum crimen sine lege previa). Apart from cases where the legislator is really unable to determine in an abstract way all the possible forms of committing a special kind of crime, the use of legal analogy or analogia iuris is not consistent with the principle of legality.
According to the Statute, the owner of a company is responsible for the conduct of his agents or servants except when he proves that he was unaware of such conduct and that in this connection he cannot be accused of negligence.
These provisions do not respect the principle of presumption of innocence expressed by Article 27 of the Constitution.
The Statute (Article 16) authorised local people's committees to establish a commission for the suppression of illegal trade and prohibited speculation. These organs exercise a combination of functions of detection, prosecution and adjudication totally inconsistent with the constitutional system. In addition to that, these extraordi-nary courts do not ensure the right to defence, generally recognised by all civilised nations; nor do they provide for guarantees of the right to due process of law, as well as the right to appeal (expressed, respectively, by Articles 23 and 25 of the Constitution). The Constitutional Court decided not to prohibit the application of the entire Act, but only of the provisions which were found to be in conflict with the basic principles of criminal law recognised by civilised nations, and which were inconsistent with the Constitution and the Conven-tion on the Protection of Human Rights and Fundamental Freedoms.
In so doing, however, the Court declined to list in detail those provisions which could continue to be applied, giving only some examples, while indicating the criteria that must be followed by the courts.

Supplementary information:
Legal norms referred to;
Article 136 of the Constitution of the FPRY.
Articles 8, 23, 25, 27, 28 and 125 of the Constitution.
Articles 6.1, 6.2 and 7.1 ECHR.
Article 416 of the Criminal Proceedings Act (CPA).
Article 23.1.5 and Article 40.1 of the Constitutional Court
Act (CCA).
One concurring opinion of a judge of the Constitutional Court.

Cross-references:
In stating the reasons for its decision, the Constitutional Court made reference to its decision U-l-6/93 (OdIUS III,33) of 1 April 1995. For reasons of joint consideration and adjudication, the Constitutional Court decided by its resolution of 22 December 1994 to attach to the case under consideration cases U-l-68/94, U-l-69/94 and U-l-70/94.

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

Identification: SLO-96-2-007
a) Slovenia / b) Constitutional Court / с) / d) 04.04.1996 / e) U-l-1/96 / f) / g) Uradni list RS (Official Gazette), no. 23/96; Odlocbe in sklepi Ustavnega sodisca (Official Digest of the Constitutional Court), V/2,1996 / h) Pravna praksa, Ljubljana, Slovenia (abstract).

Keywords of the systematic thesaurus:
General Principles - Separation of powers.
General Principles - Rule of law.
Institutions - Executive bodies - Application of laws - Delegated rule-making powers.
Institutions - Executive bodies - Relations with the legislative bodies.
Fundamental Rights - Economic, social and cultural rights - Commercial and industrial freedom.

Keywords of the alphabetical index: Price fixing, emergency / Prices of medical goods / Ultra vires.

Headnotes:
By determining maximum prices of medical goods without fulfilling all of the requirements prescribed by the relevant regulation, the government exceeded the power granted to it by the Senate.

Summary:
The Government, by adopting a decree (no. 70/95 Official Gazette of the RS), fixed the maximum prices of medical goods as they were when the Decree or the Method of Price Formation for Human Use and Medical Aids was in force (No 41/95, Official Gazette RS). However, this regulation had been partly abrogated by a decision of the Constitutional Court (U-l-145/95), and as a con-sequence the question as to whether Government disregarded the decision of the Court, and whether the new Decree in other respects satisfied the requirements of the authorising Statute (Prices Act).
The Constitutional Court pointed out that, in its previous decision, it had stated that it was incorrect and contrary to the Statute (Foreign Exchange Transactions Act) to link the net wholesale prices of medical goods to the foreign exchange rate applicable on a specific date (in this case on 20 June 1995).
Nevertheless the government, by its disputed decree, prescribed that maximum prices of medical goods shall be determined on the basis of the exchange rate of 20 June 1995. As a result, the actual price which the importers of medical goods were forced to pay was not considered in calculating the net wholesale price, thus interfering with the rights of such importers granted by applicable legislation.
Even if Article 5 of the Prices Act allowed for an "extension" of the price-fixing measures in cases of emergency, it was unconstitutional and illegal for such extraordinary measures to be transformed into a permanent system by their extension. In this case, the government claimed that the existence of an oligopoly in the wholesale of medical goods justified the adopted measures. The Court found that the government failed to provide evidence of such claims, though recognising that wholesale traders of medical goods were in a privileged position in comparison with other wholesalers.
The data provided by the Government could have justified the initial adoption of the measures, but could not justify their extension. Thus, the Court stated that in extending the price-fixing measures in respect of wholesalers of medical goods, the Government exceeded the powers granted to it under Article 5 of the Prices Act.

Supplementary information:
Legal norms referred to:
Articles 1, 2, 3, 74, 120 and 153 of the Constitution;
Articles 11 and 27 of the Foreign Exchange Transactions Act (ZDP);
Article 5 of the Prices Act (ZCen).

Cross-references:
In stating the reasons for its decision, the Constitutional Court made reference to its decisions U-l-145/95 and U-l-145/93 of 17 March 1994 (OdIUS III.24).
For reasons of joint consideration and adjudication, the Constitutional Court decided by its resolution of 16 February 1996 to attach to the case under consideration case U-l-19/96.

Languages: Slovene, English (translation by the Court).
 
Identification: SLO-96-2-008
a) Slovenia / b) Constitutional Court / с) / d) 11.04.1996 / e) U-l-8/95 / f) / g) Uradni list RS (Official Gazette), no. 25/96; Odlocbe in sklepi Ustavnega sodisca (Official Digest of the Constitutional Court), V/2,1996 / h) Pravna praksa, Ljubljana, Slovenia (abstract).

Keywords of the systematic thesaurus:
Constitutional Justice - Types of litigation - Admis-sibility of referendums and other consultations.

Keywords of the alphabetical index: Referendum, introduction of local contributions.

Headnotes:
Local community bodies must not hold a referendum on the same proposal of law within one year of such a referendum.
The identity of the two proposals must not only be verified by looking at their wording: it is necessary to compare also the contents of the proposals.

Summary:
An initiator contested the legality of two decisions of a Local Community. By the first, dated 1994, a referendum was called on a proposal to introduce local contributions; by the second, following the referendum, the contributions were actually introduced.
The initiator claimed that the referendum called in 1994 was a mere repetition of another one called in May 1993, in contrast with the provision of Article 22 of the Law on Referendums and Other Forms of Personal Ex-pression, which states that "Local community bodies may not issue a decision that would be contrary to the result of a referendum nor may they conduct a referendum on the same proposal within one year".
The Constitutional Court held that the differences between the resolutions of 1993 and 1994 were merely formal and that there was no difference in substance between the two programmes submitted to referendum.
As a consequence, the Court annulled the resolutions taken in 1994, as well as the subsequent decision to introduce local contributions.

Supplementary information:
Legal norms referred to:
Article 22.2 of the Law on Referendums and Other Forms of Personal Expression (ZRDOOI);
Articles 26 and 45 of the Law on the Constitutional Court (ZUstS).
One separate dissenting opinion.

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

Identification: SLO-96-2-009
a) Slovenia / b) Constitutional Court / с) / d) 11.04.1996 / e) U-l-159/95 / f) / g) Uradni list RS (Official Gazette), no. 25/96; Odlocbe in sklepi Ustavnega sodisca (Official Digest of the Constitutional Court), V/2,1996 / h) Pravna praksa, Ljubljana, Slovenia (abstract).

Keywords of the systematic thesaurus:
Fundamental Rights - Civil and political rights -Non-retrospective effect of law - Taxation law.

Keywords of the alphabetical index: Construction land, price / Retroactivity, municipal regulation.

Headnotes:
The decision of the local community to set a higher points value for the calculation of the price of construction land for the time before the entry into force of the relevant regulation was found to be contrary to the ban on the retroactive validity of legal acts.
The Constitutional Court established that the retroactive decision of the local community, which ceased to be valid during the proceedings before the Constitutional Court, was an unconstitutional measure and that the con-sequences of its unconstitutionality or illegality had not yet been removed.

Summary:
A decision of a local community, which came into force on 11 August 1995, set a higher points value for certain business premises as from 1 July 1995 until the end of the calendar year.
The retroactivity of the decision was not consistent with Article 155 of the Constitution, which allows for the retroactive effect of a regulation only in cases of non-interference with accrued rights. As pointed out by the Constitutional Court, only a law (and never a local community regulation) can stipulate that individual provisions thereof apply retroactively, and even this only when acquired rights are not undermined.
The Resolution of the Court had the nature of a derogation, because, as stated in Article 45 of the "Law on the Constitutional Court", if it has been established that an unconstitutional rule causes harmful consequences, this rule must be removed, even if, as in this case, it no longer applies.

Supplementary information:
Legal norms referred to:
Articles 2, 155 and 160 of the Constitution;
Articles 21, 26, 45, 46 and 47 of the Law on the Constitutional Court (ZUstS).

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