Presentation by Dr Ciril Ribičič, Judge of the Constitutional Court of Slovenia

 
1. Introduction
 
In the present paper I discuss two issues which are important for the functioning of the Constitutional Court of the Republic of Slovenia following the integration of Slovenia into the European Union. The first refers to the constitutional amendments connected with integration into the European Union (collectively referred to as the European article), by which the constitutional framework for the functioning of the Constitutional Court when deciding cases in the jurisdiction of the European Union is determined. The second issue is an analysis of the previous decisions of the Constitutional Court which refer to international law and particularly to Council of Europe law, and which are important from the viewpoint of preparing for the new tasks which await the Constitutional Court following the integration of Slovenia into the European Union. In the conclusion I also propose adopting an agreement on the mutual co-operation of the constitutional courts of the member states of the European Union.
 
2. The Amendments of the Constitution of the Republic of Slovenia required by Integration into the European Union
 
Why were the amendments of the Constitution of the Republic of Slovenia connected with the integration of Slovenia into the European Union (collectively referred to as the European article), needed and necessary? At least for practical problems with reference to such issues as are regulated by the amendments that address the extradition of citizens of Slovenia[1] and the purchase of real estate by aliens,[2] the justification of which  is doubtful in the opinion of many, or at least not reasoned convincingly enough.[3] To a much greater extent they were necessary for principled reasons.
 
The 1991 Constitution of the Republic of Slovenia is an independence constitution that was adopted half a year after the attainment of independence, as it concluded the process of gaining independence of Slovenia which had originated in the former Yugoslav federation as one its member republics. The constitutional process of its development, in which the transition (the changing of the economic and political systems) and the attainment of independence ran parallel, can be traced back to at least 1989. Until that time numerous amendments to the Constitution of 1974[4] had been adopted, whose number rose to exactly one hundred by the attainment of independence. It is indeed true that individual documents and political statements from the period of attaining independence indicated that the attainment of independence on the grounds of self-determination does not serve its own purposes and does not mean that Slovenia gave up the prospect of aligning itself with states arising in the territory of the former Yugoslav Federation or with other European states. However, the Constitution of the independent Republic of Slovenia did not contain provisions which would at least indirectly address integration into international organizations in general, and into organizations of a supra-national nature separately, nor did it mention the European Union. Therefore, the opinion of certain respected lawyers who co-authored the Constitution that constitutional amendments are not necessary in order to join the European Union, as the right to self-determination, as provided by the Constitution, enables not only the transfer of the exercise of sovereign rights to the bodies of international organizations but also to return such rights to the competence of the state, could not be accepted.[5] Similar also holds true for the viewpoints claiming that the constitutional provision regarding treaties also suffices for accession into the European Union.[6] Integration into the European Union entails consequences too far-reaching to be enabled without an explicit constitutional basis or to be treated as the mere ratification of a treaty.
 
Integration into the European Union is of such importance not only from the viewpoint of constitutional law, but also from the viewpoint of international law, that it could not be carried out correctly without constitutional amendments. In 1997 the associate membership of Slovenia alone required a minor intervention into the Constitution, thus even before the ratification of the part of the Association Agreement which referred to the acquisition of ownership rights to real estate by aliens.[7] On the other hand, it is indeed true that certain members of the European Union do without the explicit constitutional provisions which would form the basis for integration into the European Union and for establishing the primacy of EU law over internal (domestic, national) law.
 
A change of the constitutional order upon integration into the European Union is very far-reaching for every new member state. Therefore, it is difficult to thoroughly express such a change with amendments to only certain individual provisions of the normative part of a Constitution. From this viewpoint, what were not studied thoroughly enough in the proceedings to amend the Constitution were deliberations on amending the preamble to the Constitution,[8] on creating a special preamble to the Constitutional Act Amending the Constitution,[9] and on creating a larger number of new constitutional provisions which would in detail regulate numerous important changes.[10] In view of the fact that none of the above-mentioned suggestions were seriously discussed, we may speak about a "European deficit" in the Constitution of the Republic of Slovenia until the eventual new amendments are adopted. There can be no allowance for the excuse of a lack of time and knowledge, as the integration of Slovenia into the European Union did not come about overnight, and not unexpectedly quickly.
 
More convincing is the argument that such a deficit could be observed in the constitutions of almost all members of the European Union, including the new ones. The European articles are more like unnatural supplements, and the constitutions like patched trousers, rather than like amendments which are brought into constitutional systems as a result of membership in the European Union and which are systematically integrated into their texts. The truth is that the European articles in general deal more with the form than with the contents of European integration, and more with the manner, proceedings and limitations regarding the transfer of competencies than with the competencies itself. If such patching is comprehensible in the old members of the European Union who co-created a gradual transformation of the European Communities, it is less justified in the new members, who joined the European Union at a time when it had already gained a distinctive supra-national, supra-state meaning. Its supporters draw attention to the possibility of further constitutional amendments following integration into the European Union.
 
In amending the Constitution of the Republic of Slovenia a realistic, restrictive, pragmatic, and, it could be said, minimalist approach prevailed: what should be amended was only what was necessary in order for Slovenia to be smoothly integrated into the European Union. One of the starting points of such an approach was the standpoint that it is not realistic to expect that by means of the constitutional amendments Slovenia could be ensured a better position and awarded a greater influence in the European Union than the Union is willing to acknowledge to other member states.[11] Indeed, such a realistic approach is by itself convincing: Slovenia was not in the position to negotiate for itself a special, asymmetrical position in the European Union. The task of the constitutional amendments should thus have been to enact in the Constitution approximately certain content in a manner and the structure similar to that of other member states. Perhaps it is not essential that such an approach deprived Slovenia of a creative restlessness and (perhaps also a naive) feeling of sovereignty and freedom in deciding on integration into the European Union as well as a search for the best possible constitutional solutions.
 
More fundamental is the question of whether such a minimalist approach contributed to the fact that Slovenia did not succeed and knew or did not even try to ensure for itself in any area something similar to what Denmark (regarding real estate) and Finland (regarding the role of the parliament in deciding on the matters referring to the European Union) had previously managed, or to what this time around Poland (regarding the transitional period for the purchase of real estate) and Slovakia (regarding a statement on the option to leave the European Union) did.[12] The statement on the option to leave the European Union could be one of such particularities of the Slovenian Constitution whose purpose would naturally not be to ensure a special privileged position for Slovenia, but which would mean an explicit statement on something which would as a potential option be acquired by all the member states (and thus before the option of leaving the Union was explicitly included in the Constitution for Europe). The argumentations that the option of leaving is in any case a matter of course or that Slovenia would not have benefited in the process of attaining independence if the right to secede had been provided in its Constitution are not convincing enough. The truth is just the opposite - that such statement on the option to leave would be substantiated by the practical experiences of Slovenia and would be an expression of the conviction of its citizens that they are joining the European Union on the basis of their free choice, and that no one can ever prevent them from leaving the Union if such will changed.
 
A pragmatic and realistic approach already prevailed regarding the initial question: a concrete, abstract or combined approach. It was a question of whether to concretely mention the integration of Slovenia into the European Union in the Constitution, or to define rules for the integration of the state into international organizations (and defensive alliances) in general. An examination of the materials of the Constitutional Commission shows that the official reasoning in favour of adopting an abstract approach, as opposed to numerous and extensive arguments in favour of adopting concrete or combined approaches,[13] were limited to reasons of a mostly pragmatic nature.[14] In addition, a certain discrepancy between the adopted abstract approach and the fact that for the referendum on integration into the European Union (and NATO) it could be observed that the rules which generally apply for a (legislative) referendum were changed. Particularly two changes (to consider only valid votes and the prohibition on calling a second referendum regarding the same question – both regarding the adoption of a law on the ratification of a treaty)[15] were foreseen with the purpose of increasing the possibility of the passage of the concrete referendum on integration into the European Union (and particularly into NATO).
 
The adopted constitutional amendments enabled the constitutionally correct integration of Slovenia into full European Union membership. With reference to such, the text stating that  the legal acts and decisions of international organizations shall be applied in Slovenia "in accordance with the legal regulation of these organizations" is decisive. This concerns the primacy of EU law over national law. Not adopting a standpoint which would conceal this fatal change with the excuse that it is a case of something which is understandable per se, is comprehensible and correct. By this provision Slovenia consented not only to the direct application of EU law but also to the supremacy of such law over the national legal order. However, it would be an exaggeration to understand its contents as if EU law was superior also to the Constitution of the Republic of Slovenia. It is the Constitution and its amendments that are the legal basis for the integration of Slovenia into the European Union. To deny the Constitution, to relegate it to the status of a legal act inferior to EU law, would undermine the constitutional foundation of the integration of Slovenia into the European Union. Provided that EU law was by itself superior to the Constitution, the constitutional amendments would not be needed, as with the integration of the state into the European Union its legal order would automatically apply, notwithstanding the contents of the constitutional provisions. In such a case, it would not be a matter of transferring the exercise of individual sovereign rights of the state to the European Union but an overall denouncement of the sovereignty of Slovenia and its Constitution.
 
Only one of the consequences of such unacceptable interpretation would be that the Constitutional Court of the Republic of Slovenia, as a guardian of human rights and constitutionality, would lose the reason for its existence. The fact that in individual cases the European Court of Justice has indeed given priority to EU law over a national constitution does not entail a final resolution of this issue. It is expected that also in the future there will be dialogues between the constitutional courts of the individual member states and the European Court of Justice in cases of conflicts between the EU law and national constitutions, as has been the case in the past, e.g. with the German Federal Constitutional Court (Solange I and II). This particularly applies for the area of the protection of human rights.
 
In the European article the above-mentioned amendment of the Constitution which ensures the primacy of EU law in Slovenia has its anti-pole in the provision which determines that international organizations to which the exercise of part of the sovereign rights is transferred must be based "on respect for human rights and fundamental freedoms, democracy and the principles of the rule of law."[16] This is the most important part of the adopted amendments.[17] This provision is in compliance with the general approach of the Constitution towards human rights, both in the preamble and in the normative section. It left the door slightly open for interventions by the Constitutional Court in exceptional cases. The Court will not be allowed to react in cases in which national interests in general are violated by EU law, but only in cases if violations occur in connection with ensuring human rights and fundamental freedoms, democracy and the principles of the rule of law.
 
It is an instance of a particular safety fuse which will "burn out" only in the event something important goes very wrong in the European Union. Certainly this could happen only very exceptionally. Particularly if it is considered that the European Union has of late invested a great deal in the development of human rights.[18] For example: in drafting the Constitution of Europe, the Union placed great stress upon human rights, as (1)  it included a modern catalogue of rights and freedoms in the Constitution (The Charter of Fundamental Rights of the European Union), (2) it recognized the great importance of the provisions on human rights in the constitutions of the member states and that of the European Convention on Human Rights, (3) it emphasized the meaning of the case-law of the European Court of Human Rights, and (4) it obligated itself the European Union to accede to the European Convention on Human Rights.[19] However, the European Convention on Human Rights and the case-law of the European Court of Human Rights do not proceed from the primacy of European law concerning human rights over national law,[20] but from the principle of subsidiarity and from the principle that in concrete cases the law which guarantees a higher degree of protection of rights must be applied.
 
3. The Constitutional Court and the European Court of Human Rights
 
Notwithstanding the particularities, complexity and the difficulties of having a clear overview of EU law, the Constitutional Court has been preparing for the new challenges which await in the European Union by resolving all the legal issues which have arisen in connection with international law in general, European law regarding human rights in particular, the case-law of international courts, and particularly the European Court of Human Rights.
 
The particularity of the Slovenian Constitutional Court compared to the constitutional courts of other new member states of the European Union is that in Slovenia the Court has more than forty years of tradition, as it was established already in 1963 (as the court of one of the republics of the former Yugoslav federation). Irrespective of its then substantially narrower competencies, the Constitutional Court had acquired the basic knowledge, experience and technical conditions for its later activities already before the attainment of independence. Prior to the change in the political system the Court represented the institution which weakened the system of the assembly system based on the principle of the unity of powers.[21] By reviewing the constitutionality of laws it limited the arbitrariness of the legislature, and by certain decisions it made an important contribution to the development of human and minority rights.[22] The above-mentioned applies for the period after 1974 when the Constitution of the Republic of Slovenia and the Constitutional Court were given a more important role,[23]  which was particularly emphasized at the time of attaining independence, when the federal powers could not legally prevent certain constitutional amendments and the attainment of the independence of Slovenia based thereupon.[24]
 
Numerous times in the reasoning of its decisions the Constitutional Court has referred to the case-law of some of the most respected foreign courts (particularly the German Federal Constitutional Court[25] and the Supreme Court of the USA[26]) and to the UN conventions and charters.[27]
 
From the viewpoint of the future role of the Constitutional Court, while resolving individual disputes it has been  most important to consider the European Convention on Human Rights and the case-law of the European Court of Human Rights, not only regarding constitutional complaints but also when reviewing the constitutionality of regulations. The European Court of Human Rights operates on the grounds of the principle of subsidiarity, thus the affected persons may refer to it only after they have exhausted all the legal remedies provided in the state which they have taken action against. It must be taken into consideration that the Council of Europe has developed an effective system for the protection of human rights. Minimum standards for the protection of human rights[28] determined in the case-law of the European Court of Human Rights, are binding on all the member states of the Council of Europe. These states more or less regularly pay the amounts determined by the European Court of Human Rights in its decisions as just satisfaction to injured persons for the violations of rights determined by the European Convention on Human Rights, as well as the costs of proceedings. If they do not do so they are threatened with criticism and eventual sanctions imposed on them by the Council of Europe. In certain states, also in Slovenia, retrials regarding criminal proceedings for which the European Court of Human Rights has established violations of human rights may occur, and such decisions may also be respected in passing measures of clemency. Nevertheless, the possibilities which the European Court of Human Rights has in enforcing human rights must not be overestimated, as the Court cannot itself substitute for weaknesses which the judicial systems of the member states have in this area.[29]
 
However, in its decisions the European Court of Human Rights broadly interprets the range and the boundaries of the discretion of states (the margin of appreciation): they are obliged to fulfill minimum standards of the protection of human rights, but are independent in deciding on the manner of protection and in determining higher standards and a higher level of the protection of rights in accordance with their particularities and needs.[30] Slovenia has already had some painful experiences with the decisions of the European Court of Human Rights. This particularly refers to Slovenia being found guilty in November 2000 for the inhumane treatment by the police which injured German citizen Rehbock while arresting him (Rehbock v. Slovenia, App. No. 29462/95), and who had entered its territory with the intention to sell drugs. Currently Slovenia is facing conviction in numerous cases regarding violations of the provision of the European Convention on Human Rights which refers to adjudication within a reasonable time.[31] Up to the present a decision by the European Court of Human Rights which directly incriminates the Constitutional Court of Slovenia for a violation of human rights determined in the European Convention on Human Rights, has not yet been adopted, but decisions have always referred to the judgments of regular courts.
 
The European Convention on Human Rights has been directly cited in more than 300 decisions of the Constitutional Court, and in approximately 80 cases the Constitutional Court has directly referred to the case-law of the European Court of Human Rights in the reasonings of its decisions. Such reference can also be observed in several separate opinions filed by constitutional court judges.[32] Furthermore, it must be considered that often the expert materials (the reports which are drafted by the legal advisers of the Constitutional Court), which are a basis for the decisions of the Constitutional Court, contain an overview of the case-law of the European Court of Human Rights without always directly mentioning such in the text of the decision. Since the ratification of the European Convention on Human Rights in 1994, references to the Convention and the case-law of the European Commission for Human Rights and the European Court of Human Rights has continuously increased, and as a consequence in recent years there has hardly been any important decision which has not arisen from an analysis of the decisions of the European Court of Human Rights. Thus, the Constitutional Court has referred to the European Convention on Human Rights and the case-law of the European Court of Human Rights also in cases in which the complainants have not mentioned them in their applications.
 
The Constitutional Court is naturally not restricted to cases in which the European Court of Human Rights decided on the basis of applications from Slovenia, although the Court pays particular attention to them. It is understandable that one of the preliminary questions which the Constitutional Court must answer in conducting a review is whether a constitutional complainant would be successful before the European Court of Human Rights. If the answer to this question is affirmative, the Constitutional Court must grant the constitutional complaint as admissible, as in Slovenia the European Convention on Human Rights is a binding legal act, superior to national legislation. Moreover, it is also entirely undisputed that regarding the interpretation of the European Convention on Human Rights, the opinion of the European Court of Human Rights is decisive. Such interpretation is not formally binding on the Constitutional Court, however in reality it must nevertheless be respected considering similar subsequent cases if the Court does not wish to risk Slovenia being found in violation before the European Court of Human Rights.
 
In recent years constitutional complainants have more and more often referred not only to constitutional provisions but also to the provisions of the European Convention on Human Rights, but less often, however, to the decisions of the European Court of Human Rights in cases similar to theirs. The Constitutional Court reviews constitutional complaints differently in relation to the European Convention on Human Rights as compared to the case-law of the European Court of Human Rights, and thus regarding the relation of the contents of the European Convention on Human Rights to the Constitutional provisions regulating individual constitutional rights. In cases in which the provisions of the Constitution and the European Convention on Human Rights regarding an individual right are the same or very similar, the Constitutional Court foremost applies the Constitution and only exceptionally are violations of both the Constitution and the European Convention on Human Rights reviewed in parallel.[33] In a few cases the Constitutional Court explicitly stated that in such cases the European Convention on Human Rights could not have been violated if the Court had established that there had been no violation of the Constitution.[34] Moreover, the Constitutional Court refers to the Constitution in cases in which the Constitution guarantees a higher level of the protection of an individual right compared to the European Convention on Human Rights. In cases in which the European Convention on Human Rights is more demanding than the Constitution or the case-law of the European Court of Human Rights guarantees a higher level of protection of rights, the Constitutional Court refers to the European Convention on Human Rights and the decisions of the European Court of Human Rights. Only such manner of deciding by the Constitutional Court is in compliance with the last paragraph of Article 15 of the Constitution, which explicitly determines that no rights regulated by legal acts in force in Slovenia (the European Convention on Human Rights is undoubtedly such an act) may be restricted on the grounds that this Constitution does not recognize that right or recognizes it to a lesser extent.
 
An overview of all the decisions in which the Constitutional Court referred to the European Convention on Human Rights and/or to the case-law of the European Court of Human Rights shows that most often these were cases that concerned the following rights (listed in the order of frequency of the reference): detention and other forms of the deprivation of liberty,[35] adjudication within a reasonable time,[36] the right to a fair trial,[37] the right to examine witnesses and present evidence,[38] the right to asylum and extradition,[39] inhuman treatment,[40] the right to family life and rights of children,[41] religious freedom,[42] impartiality and exclusion of a judge,[43] the adversary principle and the principle of equality of arms,[44] the free choice of a legal representative,[45] the right to judicial protection (access to court),[46] the position of minor offence judges,[47] the right to an effective legal remedy,[48] calling a public hearing,[49] privilege against self-incrimination,[50] the presumption of innocence,[51] the protection of personal data,[52] freedom of trade unions,[53] the right of residence,[54] the right to the protection of property,[55] etc.
 
4. Conclusion
 
The fundamental characteristic of the Constitution of the Republic of Slovenia is connected with the fact that its adoption in 1991 rounded off the beginning of a sovereign and independent Slovenia. Therefore, the amendments which were required by integration into the European Union were perhaps even more necessary than in most other new member states. By adopting these constitutional amendments a minimalist and abstract approach prevailed, due to which we may speak about a European deficit in the Constitution, nevertheless they enabled the correct and smooth integration of Slovenia into the European Union from the constitutional point of view. With reference to this, it is important that on one hand they explicitly enabled the direct application and recognized the primacy of EU law, and on the other hand, by emphasizing values on basis of which Slovenia is integrating into the European Union, they preserved the position of the Constitution and left the door slightly open for interventions by the Constitutional Court in exceptional cases if the enforcement of the constitutionally determined level of the protection of human rights and freedoms, democracy and principles of the rule of law were endangered. This is an instance of a particular safety fuse, whose meaning is narrowed considering the fact that the European Union has of late invested a great deal in the development of human rights and will become even narrower if the Constitution for Europe is adopted and the written guidelines regarding human rights and freedoms, particularly the approach of the European Union to the European Convention on Human Rights, are implemented.
 
The previous case-law of the Constitutional Court regarding cases in which it has encountered the case-law of foreign courts, international law in general, and European human rights law in particular, shows that its ability to successfully operate in this area has been building up gradually, from concrete case to concrete case. The case-law in this area is for the Constitutional Court of such a young state as Slovenia, enviably extensive and consistent, and particularly refers to the application of the European Convention on Human Rights and the case-law of the European Court for Human Rights. An analysis of the above-mentioned case-law shows that the Constitutional Court has grown gradually as regards such contents, organization and personnel, as the first instances of formally mentioning the European Convention on Human Rights differ like night and day from the recent decisions, which follow from a complex analyses of the provisions of the European Convention on Human Rights and the case-law of the European Court for Human Rights, and from the elaborated criteria on the mutual effect thereof and the Constitution. This has also already positively reflected on decisions in the first cases which refer to EU law.
 
On the other hand, due to the complexity, scope, extensiveness, the difficulties of having a clear overview, and other particularities of EU law, the role of the Constitutional Court following integration into the European Union is undoubtedly more complex and demanding than it was in relation toward Council of Europe law. Furthermore, for the member states substantially different obligations naturally follow from EU law than from Council of Europe law. However, by implementing their new role the Constitutional Court of the Republic of Slovenia and the constitutional courts of all other new member states of the European Union can lean directly on the abundant experience of the EU - fifteen members. Not only regarding the question of how to prepare to work in the new organizational circumstances and personnel wise, but also in reviewing individual concrete cases. It is namely very unlikely that disputable questions with reference to the application of any norm of EU law would appear only before one of the constitutional courts of one of the member states, but such will rather simultaneously appear in different parts of the European Union. With reference to such, it would be worthwhile in Slovenia to once again consider the proposal for an amendment to the Constitution which would revoke the competence of the Constitutional Court to constitutionally review executive regulations. This competence may namely cause the situation that before the Constitutional Court disputes will be reviewed which refer to the implementation of EU law, which in other states will be considered only at the level of lower instances of the regular judiciary.
 
For the successful functioning of constitutional courts in the member states of the European Union, in general and for their activities which refer to the European Court of Justice in particular, knowledge of the case-law and other information about the same activities of other courts are of great importance. Therefore, I propose that the constitutional courts gathered at the conference "The Position of Constitutional Courts Following Integration into the European Union" (the Constitutional Court of the Republic of Slovenia and the Venice Commission, Bled, 2004) initiate a petition to draft a special agreement on the mutual co-operation of the constitutional courts within the framework of the Conference of European Constitutional Courts, by which fast and up-to-date mutual informing at the request of any of the courts will be ensured. It would be worth determining by such agreement the instances, framework of the contents, and the manner of carrying out such, perhaps even a form for filing petitions to other constitutional courts, signed by the president of the relevant constitutional court, as well as to determine the timeframe in which the constitutional courts obligate themselves to reply thereof. Such mutual assistance would be particularly valuable for the constitutional courts of the new member states of the European Union in the initial period of their membership, and in the future also for the constitutional courts of the states which are candidates for integration into the European Union regarding its future enlargement.