U-I-109/10

Reference no.:
U-I-109/10
Objavljeno:
Official Gazette RS, No. 78/2011 and OdlUS XIX, 26 | 26.09.2011
ECLI:
ECLI:SI:USRS:2011:U.I.109.10
Act:
The Ordinance on Determining and Changing the Names and Course of the Roads and Streets in the Territory of Ljubljana Municipality (Official Gazette RS, No. 44/09), Article 2
Operative provisions:
Article 2 of the Ordinance on Determining and Changing the Names and Course of the Roads and Streets in the Territory of Ljubljana Municipality (Official Gazette RS, No. 44/09) is annulled. 
Abstract:
Human dignity is at the centre of the constitutional order of the Republic of Slovenia. Its ethical and constitutional significance already proceeds from the Basic Constitutional Charter, which is not only the constitutional foundation of Slovenian statehood, as also certain principles that demonstrate the fundamental legal and constitutional quality of the new independent and sovereign state are outlined therein. By adopting the independence documents not only the fundamental relationship entailing state sovereignty between the Republic of Slovenia and the Socialist Federal Republic of Yugoslavia (hereinafter referred to as: the SFRY) was severed, but there was also a fracture with the fundamental value concept of the constitutional order. Differently than the former SFRY, the Republic of Slovenia is a state whose constitutional order proceeds from the principle of respect for human rights and fundamental freedoms. Human dignity is the fundamental value which permeates the entire legal order and therefore it also has an objective significance in the functioning of authority not only in individual proceedings but also when adopting regulations.
 
As the fundamental value, human dignity has a normative expression in numerous provisions of the Constitution; it is especially concretized through provisions which ensure individual human rights and fundamental freedoms. As a special constitutional principle, the principle of respect for human dignity is directly substantiated in Article 1 of the Constitution, which determines that Slovenia is a democratic republic. The principle of democracy in its substance and significance exceeds the definition of the state order as merely a formal democracy, but substantively defines the Republic of Slovenia as a constitutional democracy, thus as a state in which the acts of authorities are legally limited by constitutional principles and human rights and fundamental freedoms. This is because individuals and their dignity are at the centre of its existence and functioning. In a constitutional democracy the individual is a subject and not an object of the functioning of the authorities, while his or her (self)realization as a human being is the fundamental purpose of the democratic order.
 
It can be stated that a regulation or other act of the authorities which has symbolic significance is unconstitutional in cases in which such symbol, through the power of the authority, expresses values which are entirely incompatible with fundamental constitutional values, such as human dignity, freedom, democracy, and the rule of law. A symbolic dimension of Titova cesta [Tito Street] is inseparably connected with the symbolic significance of the name Tito. The fact that Josip Broz Tito was the President for life of the former SFRY entails that it is precisely his name that to the greatest extent symbolizes the former totalitarian regime. Once again naming a street after Josip Broz Tito, who is a symbol of the Yugoslav communist regime, can be objectively understood as recognition of the former non-democratic regime.
 
In the Republic of Slovenia, where the development of democracy and free society based on respect for human dignity began with the break up with the former system, the glorification of the communist totalitarian regime by the authorities by naming a street after the leader of such regime is unconstitutional. Naming a street after Josip Broz Tito namely does not entail preserving a name from the former system and which today would only be a part of history. The challenged Ordinance was issued in 2009, eighteen years after Slovenia declared independence and established the constitutional order, which is based on constitutional values that are the opposite of the values of the regime before independence. Such new naming no longer has a place here and now, as it is contrary to the principle of respect for human dignity, which has its foundation in Article 1 of the Constitution, which is at the very core of the constitutional order of the Republic of Slovenia.
Password:
1.5.51.1.19 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In abstract review proceedings - Annulment ab initio of an executive regulation.
1.6.3 - Constitutional Justice - Effects - Effect erga omnes.
2.1.1.4.13 - Sources of Constitutional Law - Categories - Written rules - International instruments - International conventions regulating diplomatic and consular relations.
3.3 - General Principles - Democracy.
5.3.1 - Fundamental Rights - Civil and political rights - Right to dignity.
1.5.5.1 - Constitutional Justice - Decisions - Individual opinions of members - Concurring opinions.
Legal basis:
Arts. 1, 2, 3.2.2, Constitution [CRS]
Arts. 45.2, Constitutional Court Act [ZUstS]
Document in PDF:
The full text:
U-I-109/10
26 September 2011
 
 
DECISION
 
 
At a session held on 26 September 2011 in proceedings to review constitutionality and legality initiated upon the petition of Lidija Drobnič, Ljubljana, and others, represented by Radovan Cerjak, lawyer in Ljubljana, the Constitutional Court
 
 
decided as follows:
 
 
Article 2 of the Ordinance on Determining and Changing the Names and Course of the Roads and Streets in the Territory of Ljubljana Municipality (Official Gazette RS, No. 44/09) is annulled. 
 
 
Reasoning
 
 
A
 
1. The petitioners challenge Article 2 of the Ordinance on Determining and Changing the Names and Course of the Roads and Streets in the Territory of Ljubljana Municipality (hereinafter referred to as: the Ordinance), which regulates the name and course of Titova cesta [hereinafter referred to as: Tito Street] in the territory of Ljubljana Municipality. Petitioner Jernej Vrtovec substantiates his legal interest by alleging that he lived under the communist regime in which human rights and fundamental freedoms were systematically violated. Naming the street after Josip Broz Tito therefore allegedly interferes with his right to personal dignity. Petitioner Lidija Drobnič substantiates her legal interest by alleging that in 1949 and 1950 she was arrested as an opponent of the communist regime and on that account the competent authority recognized her status as a former political prisoner by a decision in 2000. As a victim of the former totalitarian regime, the petitioner feels that she has been punished once again due to the naming of a street after Josip Broz Tito. Petitioners Franci Slak and Ignac Polajnar are councillors in the Municipal Council of Ljubljana Municipality. They are convinced that Article 2 of the Ordinance is unconstitutional, and substantiate their legal interest to challenge such by the fact that as councillors they must act in accordance with the Constitution.
 
2. The petitioners substantiate the unconstitutionality of the challenged provision of the Ordinance by stating the same reasons. They allege that naming the street after Josip Broz Tito, who, in their opinion, personifies the former communist regime in the Socialist Federal Republic of Yugoslavia (hereinafter referred to as: the SFRY), entails a violation of the right to personal dignity determined in Article 34 of the Constitution of the victims of this regime as well as others who lived under this regime. Article 2 of the Ordinance, in their opinion, also violates Article 63 of the Constitution, which prohibits incitement to discrimination and intolerance and prohibits incitement to violence and war. This provision of the Constitution allegedly protects constitutionally guaranteed categories of equality, human dignity, and a democratic state governed by the rule of law. These values are allegedly the complete opposite of the values fostered in totalitarian regimes, which the communist regime in the former SFRY also was. The President of the SFRY and the leader of Yugoslav communists, Josip Broz Tito, allegedly personally controlled the communist regime and dictated its development. The petitioners are convinced that Josip Broz Tito was, regardless of certain positive elements, historically a negative person, a non-democrat, and a dictator. For him, human rights and fundamental freedoms were only empty words on paper. In the consciousness of many residents of Slovenia, he allegedly still today arouses fear and dark memories with regard to the people executed during the communist regime. In the opinion of the petitioners, naming the street after him therefore entails a particular kind of incitement to hatred and violence. The petitioners compare naming the street after Josip Broz Tito to naming a street after Adolf Hitler, Benito Mussolini, or Joseph Vissarionovich Stalin. Every such naming can violate the personal dignity of individuals and incite discrimination, intolerance, and violence. The challenged Ordinance allegedly once again humiliated people who during the communist regime were unjustifiably forced to the margins of society due to their political convictions and commitment to democracy and human rights. With reference to such, the petitioners draw attention to the Basic Constitutional Charter on the Sovereignty and Independence of the Republic of Slovenia (Official Gazette RS, No. 1/91 – hereinafter referred to as: the BCC), the Preamble to which states, inter alia, that the SFRY did not function as a state governed by law and that within it human rights were grossly violated. In addition, they draw attention to the European Parliament resolution of 2 April 2009 on European conscience and totalitarianism (OJ C 137 E, 27 May 2010, p. 25), in which the European Parliament condemned all crimes against humanity and the massive human rights violations committed by all totalitarian and authoritarian regimes.
 
3. The opposing party – Ljubljana Municipality, represented by mayor Zoran Janković – in the response to the petition alleges that the petitioners did not demonstrate legal interest for the initiation of the procedure for the review of the constitutionality and legality of the Ordinance. Only individuals to whom Article 3 of the Act on Designating Areas and Naming and Marking Settlements, Streets, and Buildings (Official Gazette RS, No. 25/08 – hereinafter referred to as: the ADANMSSB) refers allegedly have legal interest therefor. Ljubljana Municipality opposes the allegations that the challenged Ordinance is inconsistent with Articles 34 and 63 of the Constitution. It alleges that the disputed street was named after a historical figure who made an important mark on the period during World War II and the decades following the War. Josip Broz Tito was allegedly an important historical figure for Slovenes, as he was commander-in-chief of the Partisan army, which in 1945 liberated the territory of present-day Slovenia from fascist occupation. Testifying to his great historical role are also numerous medals and awards which Josip Broz Tito received from other countries as well as the fact that many cities around the world have streets or squares named after him. The opposing party adds that discussions on naming streets can be a matter of democratic dialogue, however, the final decision regarding such is the democratic right of the majority in the municipal council.
 
 
B – I
 
 
4. The challenged Article 2 of the Ordinance is a regulation (i.e. a general legal act), which, in accordance with the ADANMSSB, determines that in Ljubljana a part of the existing Štajerska cesta [Štajerska Street] and a part of a newly planned street be named Tito Street and that its course be determined[1]. For the concretisation of this provision, thus for the naming of the determined road section Tito Street to take effect, the ADANMSSB and the Ordinance do not envisage the issuance of any further administrative decisions or other individual acts which would be necessary for its implementation. The naming of streets and roads by an ordinance of the local community takes direct effect, and thus not only in relation to state and other authorities which must respect such new fact ex officio (e.g. in various public records and registers), but also in relation to individuals and other legal subjects in their daily life and business activities. Naming public spaces does not only concern the residents of these areas, but such also has legal effect with regard to everyone who encounters or apprehends such name. Such naming has an emphasized symbolic significance that also concerns everyone. Naming such road section Tito Street thus has erga omnes effects, which arise directly on the basis of the Ordinance on the day of its implementation. [2] Furthermore, in the case at issue questions are raised which refer to human dignity as the fundamental value and legal starting point of Slovene democracy. These concern the most elementary questions regarding the relation of the state or authorities towards individuals, regarding the position and significance of human beings and humanity in the state, and regarding the fundamental purpose of a free and democratic state in general. In the case at issue, the petitioner Lidija Drobnič undoubtedly demonstrated legal interest; she was recognized the status of former political prisoner by the decision of the Government Commission for the Implementation of the Redressing of Injustices Act of 17 October 2000, which was issued on the basis of the Redressing of Injustices Act (Official Gazette RS, No. 59/96). The Constitutional Court therefore did not have to decide whether other petitioners demonstrated legal interest.
 
5. The Constitutional Court accepted the petition for consideration and, in consideration of the fact that the requirements laid down in the fourth paragraph of Article 26 of the Constitutional Court Act (Official Gazette RS, No. 64/07 – official consolidated text – hereinafter referred to as: the CCA) are fulfilled, proceeded to decide on the merits.
 
 
B – II
 
 
6. Respect for human dignity (German: Menschenwürde) is the legal-ethical foundation of contemporary states based on the concept of constitutional democracy, i.e. on the presumption that authority must be restricted by certain fundamental rights and freedoms humans are entitled to due to their inherent worth. The awareness that human dignity is the highest ethical value and that respect for human dignity must be a criterion of and limitation on the functioning of state authority, has gradually been strengthening throughout the centuries.[3] Human dignity was first recognised at the constitutional level as a universal value inherent to all individuals at the end of the 18th century following the adoption of the key constitutional documents in the period of the constituting of the independent United States of America and of the French Revolution.[4] Following a certain standstill in the development of human rights in Continental Europe in the 19th and at the beginning of the 20th century, after World War II the principle of respect for human dignity developed as a special universal principle, first in some of the most important international documents, and later as the fundamental constitutional principle in the constitutions of new democracies, which, by codifying human rights, placed the individual at the centre of the constitutional order.[5] The Preamble to the Charter of the United Nations of 1945, for instance, stresses that it was adopted by the people of the United Nations, who were determined to reaffirm “faith in fundamental human rights, in the dignity and worth of the human person”. This was followed by the Universal Declaration of Human Rights of 1948, the Preamble to which opens by stressing that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”, while the normative part already in Article 1 determines that “all human beings are born free and equal in dignity and rights”. Furthermore, the International Covenant on Civil and Political Rights of 1966 (which entered into force on 23 March 1976) in its Preamble emphasises that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world” and that the rights determined in this Covenant “derive from the inherent dignity of the human person”. The European Convention on Human Rights (hereinafter referred to as: the ECHR) does not explicitly mention human dignity, however, the contracting parties in the Preamble expressed “their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world” and looked for the inspiration for the adoption of the Convention in “a common heritage of political traditions, ideals, freedom and the rule of law”. In alliance with such spirit of commitment to human rights, also the European Court of Human Rights in its judgments clearly upheld that the very essence of the ECHR is respect for human dignity.[6] Also the Charter of Fundamental Rights of the European Union, which became binding law for the European Union[7] by the entry into force of the Treaty of Lisbon, in its Preamble states that “conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice.” The Charter protects human dignity also as a special human right, as already in Article 1 it determines that human dignity is inviolable and must be respected and protected.
 
7. Human dignity is also at the centre of the constitutional order of the Republic of Slovenia. Its ethical and constitutional significance already proceeds from the BCC, which is not only the constitutional foundation of Slovene statehood, as also certain principles that demonstrate the fundamental legal and constitutional quality of the new independent and sovereign state are outlined therein. In its Preamble the BCC first proclaimed the fact that the SFRY did not function as a state governed by law and that within it human rights were grossly violated, while Section III, as the antipode to the above-mentioned, emphasized that the Republic of Slovenia would guarantee the protection of human rights and fundamental freedoms to all persons in the territory of the Republic of Slovenia irrespective of their national origin, without any discrimination whatsoever, in accordance with the Constitution of the Republic of Slovenia and the treaties in force. This new constitutional quality of the new state is even more clearly demonstrated in the Declaration of Independence (Official Gazette RS, No. 1/91), which was adopted together with the BCC (on 25 June 1991), and in which the former Assembly of the Republic of Slovenia emphasized the commitment of Slovenia to respect human rights and fundamental freedoms and its orientation towards joining international organisations which are based on respect for human dignity and which in their acts determine the fundamental international standards of human rights protection. Thus, by adopting these independence documents not only the fundamental the fundamental relationship entailing state sovereignty between the Republic of Slovenia and the SFRY was severed, but there was also a fracture with the fundamental value concept of the constitutional order.
 
8. Differently than the former SFRY, the Republic of Slovenia is a state governed by the rule of law whose constitutional order proceeds from the principle of respect for human rights and fundamental freedoms already on the basis of the basic constitutional documents. From the BCC, the Preamble to the Constitution, and numerous constitutional decisions there proceeds the fact that human dignity is the fundamental value which permeates the entire legal order and therefore it also has an objective significance in the functioning of authority not only in individual proceedings but also when adopting regulations. In its substance, human dignity entails the presumption that every human being has equal and absolute inner worth because he or she is a human being. Respect for human dignity therefore entails the protection of the inherent worth of the individual against unjustified interferences by and requirements of the state and society.
 
9. As the fundamental value, human dignity has a normative expression in numerous provisions of the Constitution; it is especially concretized through provisions which ensure individual human rights and fundamental freedoms; they are intended precisely for the protection of different aspects of human dignity.[8] Among them, those that are especially strongly connected with the individual as a person with absolute inherent worth can be pointed out: the prohibition of discrimination (the first paragraph of Article 14), the inviolability of human life (Article 17), the prohibition of torture (Article 18), the protection of personal liberty (Article 19), the protection of human personality and dignity in legal proceedings (Article 21), the legal guarantees in criminal proceedings (Article 29), the right to personal dignity and safety (Article 34), freedom of expression (Article 39), and freedom of conscience (Article 41).[9]
 
10. As a special constitutional principle, the principle of respect for human dignity is directly substantiated in Article 1 of the Constitution, which determines that Slovenia is a democratic republic. The principle of democracy (with which also other constitutional principles are most tightly connected, such as the principle of a state governed by the rule of law determined in Article 2 of the Constitution and the principle of the separation of powers determined in the second sentence of the second paragraph of Article 3 of the Constitution[10]) in its substance and significance exceeds the definition of the state order as merely a formal democracy in which laws and other regulations are adopted in accordance with the rule of the majority. On the contrary, the principle of democracy substantively defines the Republic of Slovenia as a constitutional democracy, thus as a state in which the acts of authorities are legally limited by constitutional principles and human rights and fundamental freedoms, precisely because individuals and their dignity are at the centre of its existence and functioning. In a constitutional democracy the individual is a subject and not an object of the functioning of the authorities, while his or her (self)realization as a human being is the fundamental purpose of the democratic order. Only such state order is truly democratic in which respect for human dignity is the principle guideline for the functioning of the state. In a substantive democracy based on respect for human dignity of every person it therefore cannot be said, as was erroneously stated by the opposing party, that adopting regulations in representative bodies at the state or local level entails the exercise of “a democratic right of the majority” of the elected members of the representative body. The principle of democracy determined in Article 1 of the Constitution in fact envisages free and periodic elections to representative bodies, thereby, however, it does not grant rights to the elected majority, but imposes a duty on all authorities – first of all on those that issue general legal acts – to respect the boundaries which proceed from the constitutional order, whose central principle is precisely the principle of respect for human dignity, when exercising their constitutional and statutory powers.
 
11. Regardless of the above-described constitutional regulation, a firm and complete a priori definition of human dignity is not possible, as, in addition to constitutional and international standards, the notion is filled with historical and ethical substance that has been developing and expanding over time. The substantive openness of this principle (as well as individual human rights and freedoms) therefore entails that individual aspects of human dignity are realised in individual legal proceedings, whereby the courts and the Constitutional Court play a key role in determining the possible violations thereof. The boundaries of the admissible conduct of state authorities are developed through the decisions of the courts and the Constitutional Court, which take into consideration the specific circumstances of individual cases. In such manner an abstract but fundamental constitutional value becomes living law.
 
12. In the case at issue, the question is raised whether Article 2 of the Ordinance which reintroduced a Tito Street in Ljubljana[11] is inconsistent with the principle of respect for human dignity. With reference to such, the Constitutional Court stresses that the objective of these proceedings is not a review of the personality and individual actions of Josip Broz Tito, nor a historical review of facts and circumstances. The Constitutional Court is a guardian of the Constitution and consequently a guardian of the values on which the Constitution is based. Its task is to establish constitutionally important circumstances taking into consideration the constitutional order in force and on such basis decide on the constitutionality of the challenged regulation.
 
13. In the case at issue, a symbolic dimension of Article 2 of the Ordinance is constitutionally relevant. When reviewing the constitutionality of regulations of local communities by which streets, roads, squares, parks, or other public spaces are named, namely not only the practical (i.e. informative) purposes of such naming can be taken into consideration (e.g. to enable easier orientation, greater transparency and accessibility of data in public records and registers, and demonstrating residence or place of business). When naming public spaces the public interest is indeed in the foreground, so that easier everyday functioning in personal and public life is ensured. However, it cannot be overlooked that such naming also bears clearly evident symbolic significance and therefore demonstrates the manner of symbolic conduct of the public authority concerned. Naming public spaces always emphasises the significance of important historical events or historical figures,[12] and consequently inevitably emphasises or exposes social values that mark such events or figures. Due to the fact that naming public spaces is an official act, this entails that the authority gives such values recognition, supports them, or identifies with them.[13] Naming public spaces after certain individuals thus undoubtedly expresses public recognition of their work, achievements, or the values that they encouraged. Due to its symbolic expressive power, such naming can also contribute to spreading and strengthening certain opinions, ideas, and values.
 
14. It can be stated that a regulation or other act of the authorities which has symbolic significance is unconstitutional in cases in which such symbol, through the power of the authority, expresses values which are incompatible with fundamental constitutional values, such as human dignity, freedom, democracy, and the rule of law. Official acts of state and municipal authorities which have a symbolic significance can namely not be considered to be equivalent to a situation in which individuals or groups express different opinions and convictions; their right to express opinions and standpoints that can even be contrary to the fundamental constitutional values is within the framework of a free and pluralistic society supported in the constitutional provisions on freedom of conscience and freedom of expression. However, when authorities express certain values it is not a matter of freedom of expression, as it is in the nature of this human right that only individuals and associations are entitled to it, and not authorities. Authority must always act in the public interest, whereby it must respect the constitutional restrictions which proceed from constitutional principles and from human rights and fundamental freedoms. Due to the fact that expressing values that are contrary to the fundamental constitutional values cannot be in the public interest, the review of the constitutionality of the acts of authorities is not subject to the principle of proportionality (i.e. weighing between the public interest and the affected constitutional values), but such acts are in and of themselves unconstitutional. From the constitutional point of view, there is a great difference if certain unconstitutional values are defended and supported by individuals due to their personal convictions or if authority identifies with such values through symbols.[14]
 
15. A symbolic dimension of Tito Street is inseparably connected with the symbolic significance of the name Josip Broz Tito, Marshal of Yugoslavia and later President for life of the SFRY. The name Tito does not only symbolize the liberation of the territory of present-day Slovenia from the Fascist occupation in World War II, as alleged by the opposing party, it also symbolises the post-war totalitarian communist regime, which was marked by extensive and gross violations of human rights and fundamental freedoms, especially in the decade directly following World War II. Historical facts recorded in numerous documents and scientific historical works bear witness also to extrajudicial post-war executions, political criminal proceedings,[15] executions of persons fleeing across the state borders, and to abuses of authority in order to preserve the one-party system and to prevent democracy. The fact that Josip Broz Tito was the leader of the former state entails that it is precisely his name that to the greatest extent symbolises the former totalitarian regime. Tito’s symbolic significance cannot be divided such that only the significance of the actions that the opposing party attributes to his historical role and personality are considered. Once again naming a street after Josip Broz Tito, who is a symbol of the Yugoslav communist regime, can be understood as support not only for him as a historical figure or his individual actions, but also as support for the entire historical period of his rule and for his rule as such. Therefore, it is not important what the municipal authority wished to achieve by introducing Tito Street or which objectives it pursued; it is important that the challenged Ordinance must objectively be understood as a form of recognition conferred on the former undemocratic regime.
 
16. Authorities expressing recognition of the totalitarian regimes which in the 20th century shook Europe and led to millions of victims and systematic violations of human rights is contrary to promoting respect for human dignity, human rights and fundamental freedoms, and other values which contemporary European constitutional democracies share. In past years, various European institutions adopted documents condemning the totalitarian regimes, including those of Nazism, Fascism, and Communism. The following documents must be mentioned: Resolution No. 1481 of the Parliamentary Assembly of the Council of Europe of 26 January 2006 on the need for international condemnation of crimes of totalitarian Communist regimes, and the European Parliament resolution of 2 April 2009 on European conscience and totalitarianism. In these resolutions the emphasis is most of all on honouring the memory and faiths of the individuals who in totalitarian regimes, including the communist regime under the leadership of Josip Broz Tito, experienced violations of human rights in criminal and other proceedings or were inflicted with great sadness and pain due to the unlawful suffering of those close to them. Authorities at all levels must show the victims of all totalitarian regimes, if not active sympathy, understanding, and recognition of their suffering, at least passive respect by refraining from acts which are not in compliance with the fundamental constitutional values and for which it can be foreseen and expected that they will cause new pain. Also the National Assembly of the Republic of Slovenia in its Declaration of awareness of the European Parliament resolution of 2 April 2009 on European conscience and totalitarianism (Official Gazette RS, No. 84/09) stated, inter alia, that by adopting this Declaration it expresses “respect for all victims of totalitarian regimes” and that it will “strive that the tragic acts and divisions during World War II and during the one-party socialist system following the War and their consequences be remembered as historical facts which should not cause new divisions, opposition, or hatred.”
 
17. The incompatibility of the former communist regime with the European standards for the protection of human rights and fundamental freedoms, to which the Republic of Slovenia is committed, has also been established several times by the Constitutional Court. In Decision No. U-I-69/92, dated 10 December 1992 (Official Gazette RS, No. 61/92, and OdlUS I, 102), the Constitutional Court held that the former state was “a state whose authorities of that period had after the war conducted mass executions of former military and current political opponents, legally unacceptable criminal trials followed by death penalties, illegal seizures of property, the obstruction and liquidation of political parties in violation of its own legal system, etc., thus making the injured parties afraid, with good reason, for their lives in case they resided in such a country.” In the same spirit, in Decision No. U-I-158/94, dated 9 March 1995, the Constitutional Court wrote that “the former Yugoslav system of constitution and government institutions, as well as the former Slovene system within its framework, did not put human rights in the first place and did not define any clear legal restrictions applying to state authorities and their violence. Thus, it made possible arbitrary government, and its Constitution was not a legal instrument in the full sense as understood by modern European legal civilization.” The Constitutional Court emphasized the difference between the former totalitarian regime and the new system, which is based on the protection of individual human rights as well as on free democratic elections, in Decision No. Up-301/96, dated 15 January 1998 (Official Gazette RS, No. 13/98, and OdlUS VII, 98) as follows: “Due to the painful experience of Slovene society during the period of governance by the former totalitarian system, one of the most fundamental goals of the Slovene Constitution is to prevent any attempt at restoring the totalitarian regime; this was included in its historical mission.” Furthermore, mention must be made of Decision No. U-I-248/96, dated 30 September 1998 (Official Gazette RS, No. 76/98, and OdlUS VII, 176), in which the Constitutional Court stressed that a free democratic society can be spoken of only in a system “which, by excluding any kind of violence and arbitrariness, represents the social order of a state governed by the rule of law which is grounded on the self-determination of its people respecting the will of the majority, freedom, and equality. In the basic principles of such an order at least the following key presuppositions should be included: respect for the human rights determined in the Constitution, the right of the individual to life, the inviolability of personality rights, the sovereignty of the people, the separation of powers, the responsibility of the Government and the lawful functioning of the executive branch of power, the independence of the courts, a multiparty political system, and equal opportunities for all political parties, including the right to form an opposition and participate therein according to the Constitution.” In complete opposition to the above-mentioned, the Constitutional Court continued in the Decision, in Slovenia the post-war authorities were ready to enforce their power “by also using violence, by violating the law in criminal proceedings, and by systematically and severely violating human rights. Statutes were not only applied with the intent to punish collaborationists, but also to destroy the class enemy, to assume power, and to consolidate the totalitarian system. A free social system was established in Slovenia only in 1990, after the first free elections to the multiparty parliament had been held.”
 
18. In Slovenia, where the development of democracy and free society based on respect for human dignity began with the break up with the former system, whereby this break-up is clearly evident also at the constitutional level (first with the amendments to the Constitution of the Socialist Republic of Slovenia and subsequently with the adoption of the BCC and the Constitution, as the fundamental constitutional documents), the glorification of the communist totalitarian regime by the authorities by naming a street after the leader of such regime is unconstitutional. Such new naming of a street no longer has a place here and now, as it is contrary to the principle of respect for human dignity, which is at the very core of the constitutional order of the Republic of Slovenia. Naming a street after Josip Broz Tito namely does not entail preserving a name from the former system and which today would only be a part of history. The challenged Ordinance was issued in 2009, eighteen years after Slovenia declared independence and established the constitutional order, which is based on constitutional values that are the opposite of the values of the regime before independence. Not only the victims or opponents of the former regime, but also other members of the public can understand such act of the authority at issue in the present time as newly emerged official support for the former communist regime. Such act is contrary to the values on which the Constitution is based.
 
19. On the basis of the above-mentioned, the Constitutional Court decided that Article 2 of the Ordinance is unconstitutional as it violates the principle of respect for human dignity. This principle is substantiated in Article 1 of the Constitution and entails a limitation on the deciding of democratically elected representative bodies. The Constitution binds the state as well as municipalities when exercising their competences. The decision of the Municipal Council of Ljubljana Municipality that a street in Ljubljana be once again named after Josip Broz Tito is therefore subject to substantive limitations which proceed from the Constitution, especially if the case concerns the protection of the fundamental values of the constitutional order, among which human dignity holds the central position. As Article 2 of the Ordinance is inconsistent with the principle of respect for human dignity, the Constitutional Court annulled it.
 
 
C
 
 
20. The Constitutional Court reached this Decision on the basis of the second paragraph of Article 45 of the CCA, composed of: President Dr Ernest Petrič, and Judges Dr Mitja Deisinger, Dr Dunja Jadek Pensa, Mag. Marta Klampfer, Dr Etelka Korpič – Horvat, Mag. Miroslav Mozetič, Jasna Pogačar, Mag. Jadranka Sovdat, and Jan Zobec. The Decision was reached unanimously. Judges Jadek Pensa, Korpič – Horvat, Sovdat, Petrič, and Zobec submitted concurring opinions.
 
 
Dr Ernest Petrič
President
 
 
 
Endnotes:
[1] The challenged provision of the Ordinance reads as follows:
“In the territory of Ljubljana Municipality, in the settlement of Ljubljana:
- the name of the following street is hereby changed thusly:
A part of Štajerska cesta Štajerska Street in the part of the northern artery from the roundabout at the northern ring road at Tomačevo to the intersection with Zasavska cesta Zasavska Street and Dunajska cesta Dunajska Street is renamed Tito Street.
- the following street is hereby newly named thusly:
A part of the planned “new Tomačevska cesta Tomačevo Street” from the roundabout at Plečnikove Žale to the intersection with Kranjčeva ulica Kranjčeva Street and in the extension of the newly planned northern artery to the north and northeast to the roundabout at the northern ring road at Tomačevo is hereby named Tito Street.
- the course of the following street is determined and changed thusly:
The newly named Tito Street runs from the roundabout at Plečnikove Žale to the north and northeast along the route of the newly planned northern artery towards and over the Tomačevo roundabout to the intersection with Zasavska cesta Zasavska Street and Dunajska cesta Dunajska Street.
The course of Štajerska cesta Štajerska Street is changed so that it runs from the intersection of Zasavska cesta Zasavska Street and Dunajska cesta Dunajska Street to the municipal border with Trzin Municipality.”
[2] With reference to such, it is not relevant that the ADANMSSB and the Ordinance envisage certain substantive acts after the naming is implemented – the Surveying and Mapping Authority of the Republic of Slovenia must register the change in the register of spatial units, the street must be marked by a street sign indicating the name of the street, while buildings along the street must be assigned house numbers (Sections VI and VII of the ADANMSSB, Article 5 of the Ordinance). The direct effect of the ordinance by which a street is renamed or newly named is also not influenced by the fact that the natural persons who reside on the street or legal entities which have their registered office thereon must consequently in relevant proceedings change or in some other manner adapt their personal documents or documents used in business operations.
[3] Among the pivotal historical documents, certain key English documents must be mentioned, i.e. the Magna Carta (The Great Charter) of 1215, the Habeas Corpus Act of 1679, and the Bill of Rights of 1689. The beginnings of the modern structure of human rights can be traced back to the Age of Enlightenment, to the legal-philosophical thought of numerous authors of the 17th and 18th centuries.
[4] The Virginia Declaration of Rights of 1776 can be deemed to contain the first definition of universal human rights in positive constitutional law. It was followed by the Declaration of Independence of the USA of 1776, the Constitution of the USA of 1787 – the Bill of Rights to the Constitution was adopted the same year, and the French Declaration of the Rights of Man and of Citizen of 1789. For more on the historical development of fundamental rights, see: L. Pitamic, Država [The State], Cankarjeva založba, Ljubljana 1996, pp. 188 – 207, and V. Simič, Temeljne pravice kot pravnocivilizacijska dediščina, in: M. Pavčnik, A. Polajnar-Pavčnik, D. Wedam-Lukić (Editor), Temeljne pravice, Cankarjeva založba, Ljubljana 1997, pp. 21 – 51.
[5] Jens Meyer-Ladewig (Menschenwürde und Europäische Menschenrechtskonvention, Neue Juristische Wochenschrift, Year 57, No. 14 (2004), p. 982), stated that in the case of the Federal Republic of Germany, human dignity was “a symbolic formula of the new democracy”. Article 1 of the German Federal Constitution (i.e. Grundgesetz – the Basic Law) namely determines that human dignity is inviolable and that it is the duty of all state authorities to respect and protect it.
[6] See, for instance, paragraph 65 of the reasoning in Pretty v. The United Kingdom (judgment dated 29 July 2002).
[7] The Treaty of Lisbon refers to the Charter of Fundamental Rights of the European Union in the first paragraph of Article 6 of the Treaty on European Union, the first sentence of which reads as follows: “The Union recognizes the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.”
[8] This is precisely the reason why in constitutional theory human dignity is defined as the origin of human rights and as a precondition for respect for other human rights. See, for instance, L. Šturm in: L. Šturm (Editor), Komentar Ustave Republike Slovenije [Commentary on the Constitution of the Republic of Slovenia], Fakulteta za podiplomske državne in evropske študije, Ljubljana 2002, p. 362.
[9] The constitutional significance of human dignity is clearly evident also from Article 3a of the Constitution, which determines that the exercise of part of the sovereign rights can be transferred only to international organisations which are based on respect for human rights and fundamental freedoms, democracy, and the principles of the rule of law (the same applies for the state entering into a defensive alliance). The ratification of the Treaty of Lisbon and Slovenia’s support for the Charter of Fundamental Rights of the European Union to become binding EU law thus also emphasised the commitment of the Republic of Slovenia to respect human dignity.
[10] As regards the principle of the separation of powers, in Decision No. U-I-158/94, dated 9 March 1995 (Official Gazette RS, No. 18/95, and OdlUS IV, 20), the Constitutional Court stressed that its role is, inter alia, to protect and ensure the freedom of individuals.
[11] On 8 October 1991, the former Assembly of the City of Ljubljana renamed sections of Tito Street as Dunajska cesta Dunajska Street, Štajerska cesta Štajerska Street, and Slovenska cesta Slovenska Street (Articles 2 and 3 of the Ordinance on Determining, Changing, and Terminating Names or Courses of Streets and Squares in the Territory of the City of Ljubljana, Official Gazette RS, No. 21/91).
[12] The second paragraph of Article 20 of the ADANMSSB determines that the name of a street is determined in accordance with a geographical name, the name of an event or date connected to history, or after a person who significally contributed to the development of the settlement or is important in the broader social environment, or in accordance with the cultural heritage.
[13] Numerous historical experiences confirm this. During important social changes, foreign occupation, or changes of the state order, the names of streets, roads, squares, and other public spaces, as a general rule, were extensively changed, which was undoubtedly a direct consequence of the change in values which were expressed through these names and for which the authorities of relevant periods had preference.
[14] Cf.  The European Court of Human Rights in Vajnai v. Hungary (judgment dated 8 October 2008), in which the Court held that the prohibition on wearing the red star is an inadmissible interference with Article 10 of the ECHR, which guarantees freedom of expression. In its judgment the Court pointed out that there is an important difference if an individual wears such red star during a political speech or if a bearer of public authority when exercising power identifies with such symbol (Paragraphs 48 and 49 of the reasoning).
[15] The Constitutional Court dealt with this topic in Decision No. U-I-247/96, dated 22 October 1998 (Official Gazette RS, No. 76/98, and OdlUS VII, 195).
 
 
The concurring opinion of Judge Dr Dunja Jadek Pensa  
 
I agree with the principles which case No. U-I-109/10 establishes. I am submitting this concurring opinion because I wish to express some thoughts that were motivated by the process of deciding in the case at issue and which refer to the following: (1) the scope of the message which is embedded in the disputable name Titova cesta Tito Street, and (2) the need that authorities proceed from all known facts when adopting decisions and that they direct their acts towards ensuring tolerance in society proceeding from respect for human dignity.
 
1. Words in and by themselves have no reality.[1] If they are read in a one-dimensional way, without depth perspective, they hide ideas rather than communicate them.[2]
 
2. Naming a street by municipal ordinance serves the purpose of learning the state of the facts that does not directly proceed from the naming of an element of the public infrastructure (in the case at issue, a street). As the name in such an instance does not indicate the essence of such element (i.e. that it is a street) itself, it goes beyond the perception of this element of the public infrastructure. The informative value of the name by which such element (i.e. a street) is named, is thus not neutral.
 
3. Naming an element of the public infrastructure – after an important person – exceeds the informative purpose for which the naming of streets in towns is intended. This surpassing of the informative purpose of such naming is double. First, naming a street after a person by an official act informs one that this person is attributed special significance by the authority, that the authority confers recognition on such person. In this sense, the fact of naming the street itself as an official act bears a symbolic significance. And secondly, the name of a person who made an important mark on a certain historical period, due to the person having had a great influence thereon, exceeds connecting his or her name merely with the person as such.
 
4. The name of a person will symbolise[3] a certain historical period if the name is connected with a certain amount of information relating to the characteristics of such period. If this is true, the name itself operates in the field of associations, as it stimulates the formation of associations between the name (of the person) and a certain historical period. It is not necessarily for such associations of individuals to be the same.
 
5. The dispute at issue has its origin precisely due to the fact that the name Tito evokes different associations in the petitioners and the opposing party. The petitioners namely (inter alia) allege that regardless of certain positive elements which can be attributed to (Josip Broz) Tito, the disputable naming of the street after him recalls the period of violence, intolerance, and executions of people by the communist regime, as he personifies the communist regime. The opposing party also points out the historical significance of (Josip Broz) Tito. However, the opposing party focuses on his achievements (inter alia, on his role in World War II), which, in the opinion of the opposing party, contributed to creating the possibilities for the independence of Slovenia. As follows from the allegations of the petitioners and the opposing party, the name Tito (and the disputable naming of the street) incorporates messages that are opposing regarding values. It is not possible to distinguish between such messages in the disputable instance of naming.
 
6. Individuals’ understanding of messages that are conveyed through the name of an important person is an expression of values and thereby necessarily subject to numerous and various subjective assessments. In addition, it is clear that meanings are not embedded in words (i.e. in the name of a person) but emerge and are perspicuous in the light of the background conditions of intelligibility[4] and are, understandably, different in the case of every individual. Therefore, it is not surprising that individuals have different ideas, opinions, value judgments, and beliefs regarding the same statements. In a democratic and pluralistic society it is usual that individuals, as a general rule, freely express such different, opposing, or even exclusive opinions and beliefs. Polemics are usual in a pluralistic society. As it is a characteristic of individuals’ beliefs that they are not based on (all) the facts, facts (which do not support their beliefs) therefore cannot refute them.[5] It is precisely because of this that the beliefs of certain individuals, even if they are in the majority, are never a reliable enough criterion nor can they be the only argument for the decisions of authorities. It is also clear that the concept of “democracy” cannot be reduced merely to looking for an answer to the question of what the opinion of the majority is. In a pluralistic and democratic society it is thus necessary that the authorities in their functioning devote as much attention as possible to all the different views and conflicting standpoints of individuals, whereas when adopting decisions they should consistently take into consideration all the known facts and the value system in which respect for human dignity has the central role.
 
7. A name which evokes associations with a totalitarian regime inevitably also evokes associations with the victims of the violence of the authorities of this regime and their horrible and intolerable suffering. Naming a street such a name by an official act can be understood such that the authority is (at least) neglecting the horrible and intolerable suffering of these victims. This act of the authority (i.e. naming the street) which has such an effect and which therefore does not express due respect for all victims of violence within recent history is not in compliance with the requirement that the inviolability of human dignity be respected as the fundamental legal ethical and constitutional principle, which holds the central role in the formation of the value system of the Republic of Slovenia and which due to its daily implementation binds all authorities in their functioning. Such official act is also contrary to the basic guideline on the functioning of authorities, i.e. maintaining and promoting tolerance among residents, which is necessary for harmony.
 
 
Dr Dunja Jadek Pensa
 
Endnotes:
[1] E. Fromm, The Art of Being, Blackstone Audiobooks, 2006.
[2] E. Fromm, The Art of Being, Blackstone Audiobooks, 2006.
[3] “Thus a word … is symbolic when it implies something more than its obvious and immediate meaning.” C. G. Jung ... [et al.], Man and His Symbols, London: Aldus Books & Jupiter, 1974, p. 20.
[4] Don’t Know Much About the Middle Ages: Posner on Law and Literature (in) Doing What Comes Naturally, p. 295. Cited after T. Martino, Trademark Dilution, London Press Oxford, 1996, p. 87.
[5] This thought is paraphrased from a novel by M. Proust, V Swannovem svetu (English: Swann’s Way), Delo, d.d., Ljubljana 2004, p. 145.
 
 
 
The Concurring Opinion of Judge Dr Etelka Korpič - Horvat Joined by Judge Mag. Marta Klampfer 
 
 
1. I voted in favour of the Decision, as I agree with its operative provision that Article 2 of the Ordinance on Determining and Changing the Names and Course of the Roads and Streets in the Territory of Ljubljana Municipality (Official Gazette RS, No. 44/09) be annulled; I do not, however, agree with the entire reasoning of the Decision.
 
2. I voted in favour of the Decision primarily because an important informative value of the Decision of the Constitutional Court is that it deemed the interference with human dignity to be a violation of the fundamental constitutional principle determined in Article 1 of the Constitution, i.e. that Slovenia is a democratic republic. With reference to such, the Constitutional Court clearly explained that constitutional democracy in Slovenia does not merely entail that the formal state order of Slovenia is that of a republic, but that in its substance it also includes the protection of human dignity, which in a broader sense also includes other human rights from the catalogue of human rights and fundamental freedoms determined in the Constitution. The Constitutional Court, as a guardian of constitutionality, for the first time elaborated the substance of Article 1 of the Constitution and attributed special significance and weight to the protection of human dignity. As stated in the Decision, in certain countries already the constitution framers determined the inviolability of human dignity to be a value and placed it among the general principles of the constitution. In the Republic of Slovenia this was now done by the Constitutional Court.
 
3. By the Decision at issue the Constitutional Court thus expressed that it would protect human dignity against all interferences by authorities. In the democratic state of Slovenia there is no place for any act by authorities that harms the dignity of individuals, even if such is adopted by a majority decision of a representative body. Therefore, Article 2 of the above-mentioned Ordinance does not belong in the present time, as some citizens were harmed because of injustices and suffering in the former system under the rule of Tito. Many have justifiably taken the name Titova cesta Tito Street as a provocation and can be injured.
 
4. The Decision of the Constitutional Court should be conciliating, namely in that the residents of Slovenia will be protected against such and any interferences with human dignity, which is the highest value of a human being. Therefore, the reasoning of the Constitutional Court should only be based on a constitutional review and not on an explanation and evaluation of the facts and circumstances of the relevant historical period, which is indeed stated in Paragraph 12 of the Decision, however, in my opinion, this is not respected most of all in Paragraphs 15 and 16 of the Decision and its scope is unbalanced in the reasoning on which the review is based. In addition, the main emphasis in the Decision is lost; namely that human dignity is a fundamental value already protected by the fundamental principle of Article 1 of the Constitution.
 
5. The Decision of the Constitutional Court should not harm those to whom Tito’s name symbolises the positive aspects of his era. Recognition and respect for human rights is what unites us and not what divides us. This is the minimal consensus that we must reach in order to live in peace with each other.
 
 
Dr Etelka Korpič – Horvat
 
Mag. Marta Klampfer
 
 
The concurring opinion of Judge Dr Ernest Petrič 
 
 
1. I agree with the Decision of the Constitutional Court, not only with the operative provision, but also with the main logic of its reasoning. However, I wish to point out certain reasons that led me to such position, regardless of the fact that I might have reservations over individual positions in the reasoning.
 
2. First, I wish to point out that I see the essence of the decision therein in that it implements a constitutional position that that which – even if only on a symbolic level – expresses recognition and consequently approval of any totalitarian regime and its “values” is contrary to the constitutional values of the present democratic order of our state, and thus contrary to the Constitution, which proceeds from respect for human dignity and fundamental human rights.
 
3. It is precisely respect for human dignity and fundamental human rights that is the value and legal-ethical essence of the constitutions of democratic states, including the Constitution of the Republic of Slovenia. Such respect arose and was consolidated in the historical process from the end of the 18th century until the adoption of the contemporary constitutions of democratic states, and has also been implemented at the international level in numerous documents dealing with respect for human dignity and the fundamental human rights proceeding therefrom. The implementation of these values was also an essential element – in addition to its aspirations regarding national liberation – of Slovenia’s efforts with regard to independence.
 
4. What totalitarian regimes, including the former Yugoslav communist regime, have in common is that in the name of some “great goal” (e.g. “a new order in Europe”, “a classless society”, “communism”) they brutally trampled human dignity and fundamental human rights. Regardless of the specific differences between them, they entailed the denial of those values and the legal-ethical principles on which the constitutional order of the Republic of Slovenia is based, and they caused violent death, torture, suffering, discrimination, and gross denial of fundamental human rights to millions of people. They harmed and strained the development and normal lives of numerous nations, especially in Europe – also that of the Slovene nation by it being tragically divided and other consequences as regards its development in the circle of other European nations.
 
5. The consequences of totalitarianism still burden numerous nations and European history. It is precisely for this reason that the Parliamentary Assembly of the Council of Europe emphasised the need for condemnation of the crimes of totalitarian regimes and these regimes as such, and the European Parliament expressed respect for the victims of all totalitarian regimes. Furthermore, in numerous decisions the Constitutional Court of the Republic of Slovenia pointed out the incompatibility of the former communist regime with contemporary European standards of protection of fundamental human rights.
 
6. The consequence of the above-mentioned was that official expressions of recognition of the “values” of the totalitarian regimes was deemed constitutionally unacceptable. Every glorification, also on a symbolic level, of the “values” inherent in totalitarian regimes by authorities is inconsistent with the principle of respect for human dignity as proceeds from Article 1 of the Constitution. The same applies for Article 2 of the reviewed Ordinance on Determining and Changing the Names and Course of the Roads and Streets in the Territory of Ljubljana Municipality, regardless of the intentions of those who voted in favour of the Ordinance and regardless of the fact that I do not claim that their intention was to glorify any totalitarian regime.
 
7. It is important that the Constitutional Court of the Republic of Slovenia did not enter into a review of the specific historical circumstances and specific roles of the protagonists of these events, including J. B. Tito. It remained at the level of a review of whether the official recognition of “Tito” by naming a street after him, regardless of the various dimensions of his role in specific historical events, thus recognition of this symbol of the Yugoslav communist totalitarian order, which “Tito” undoubtedly was, thus entailed an interference with constitutionally protected values, specifically with human dignity, and thus with the Constitution that protects such values.
 
8. With regard to my support for the unanimous Constitutional Court decision, it is also important that the case at issue does not concern preserving a name from the former order and which is thus a part of history. The reviewed Ordinance was adopted in a period when new constitutional values had already been implemented which proceed from the dignity of human beings and are contrary to what “Tito” symbolises and contrary to the new naming of a street after him. The Constitutional Court did not interfere with the evaluation of history nor with what recalls the past periods and events and which at the same time calls to mind past evils. By the Decision that newly naming something after what symbolises any totalitarian order or other official recognition thereof is constitutionally unacceptable from the viewpoint of the Constitution and the values on which such is based and which it protects, the Constitutional Court has contributed to the prevention of divergences and future disputes in similar cases. In this I see the special value of the unanimous decision in the case at issue.
 
9. Allow me to particularly point out that regarding the decision of the Constitutional Court on the legal interest in the case at issue I join the argumentation of Judge Mag. Jadranka Sovdat in her concurring opinion. I only wish to add that although the protection of human values entails that we all have a duty to respect and protect such, this does not entail that everyone has a specific legal interest (actio popularis) in cases such as the case at issue. Recognizing legal interest to everyone would also entail a substantial departure from the hitherto case law of the Constitutional Court of the Republic of Slovenia, which recognises the legal interest to challenge general legal regulations only to individuals whose legal interests are direct and specific, if a successful challenge of such regulation would improve their specific legal position.
 
 
Dr Ernest Petrič
 
 
The concurring opinion of Judge Mag. Jadranka Sovdat 
 
1. I voted in favour of the Decision because I agree with the fundamental message which is conveyed in the argumentation of the Constitutional Court. However, I am of the opinion that certain parts of the reasoning require additional emphases, which I wish to point out in this separate opinion. The first part of my viewpoints that I wish to especially present refers to legal interest, whereas the second part refers to the essential reasons for the established unconstitutionality.
 
I
 
2. There are several petitioners in the case at issue, however, not all of them, in my opinion, can be recognised legal interest. The Constitutional Court did not enter into a review of the legal interest of all the petitioners, as it recognised such to one of the petitioners. However, with reference to such, something must nevertheless be added regarding Paragraph 4 of the reasoning of the Decision. If the Constitutional Court had decided on the legal interest of the petitioners, it would have had to decide, in my opinion, that they did not have legal interest. What reasons lead to such a conclusion? In accordance with the established constitutional case law, legal interest to challenge the regulation of the municipality is not demonstrated by referring to the fact that the regulation is challenged by the councillors of the municipal council that adopted the challenged regulation. I have to agree with this. In addition, in my opinion, legal interest also cannot be recognised to a petitioner who claims that he lived in the former state in which human rights were violated. These three petitioners could have been recognised legal interest only if such had been recognised to everyone. From certain statements in Paragraph 4 of the reasoning of the Decision it could even be concluded that the Constitutional Court in fact recognised everyone’s legal interest and that therefore the first and second parts of paragraph 4 are in contradiction. However, I think that this is not the case.
 
3. I agree that naming elements of the public infrastructure, such as a public street, has legal effect with regard to everyone. I also agree that naming streets after historical figures has an emphasised symbolic significance. However, this does not entail that everyone who walks on such street or who lives in the country that has such a street has a legal interest to challenge the regulation that determines its name. A legal interest must namely be direct and specific, while the petitioner’s successful challenging of the regulation before the Constitutional Court must affect his or her legal position. This cannot be said for the grounds offered by the above-stated petitioners. Furthermore, Paragraph 4 of the reasoning of the Decision states that in the case at issue questions are raised which refer to human dignity as the fundamental value and legal starting point of Slovene democracy. Such questions indeed are raised. However, this does not entail that anyone who raises such questions has a legal interest to initiate proceedings for the review of the constitutionality of the regulation. Recognizing everyone’s legal interest already on the basis of the fact that in an individual case (also) a question of human dignity could be raised would namely entail that a direct and specific legal interest is replaced by a general interest. A general interest is the interest that everyone has, especially every citizen of this country, that laws and other regulations are in compliance with the Constitution, that they are in compliance with all its provisions and especially with the fundamental values on which the Constitution is based and which are as such a constituent part of the Constitution – that regulations are thus also in compliance with the fundamental value which is the starting point of the constitutional order in force, i.e. with the value of human dignity, which precisely in this Decision the Constitutional Court finds within the ambit of Article 1 of the Constitution. The fact that a general legal interest is not sufficient to open the door to access to the Constitutional Court also undoubtedly proceeds from the established constitutional case law. If such had sufficed for the constitutional review proceedings to be initiated, this would have been a case of actio popularis. However, a petition is not such already according to the Constitution (the second paragraph of Article 162), and even less so according to the law (Article 24 of the Constitutional Court Act). However, this part in the reasoning, in my opinion, cannot be understood in this manner. Therefore, there is no contradiction in the reasoning. I understand this part of the reasoning precisely in connection with the reasoning of the recognition of the legal interest of the petitioner. I do agree that she demonstrated such.
 
4. The petitioner was recognised the status of a former political prisoner by a special act. The essence of this act is not that on its basis the petitioner has certain special (possibly also property) entitlements with which the challenged regulation could interfere. The decision on the recognition of the status of political prisoner is primarily and most of all intended to morally rehabilitate the petitioner, whose human rights were violated in the former state. Her right to freedom of expression was violated by punishment and humiliating deprivation of liberty (i.e. in a correctional camp). The symbolic significance of such rehabilitation in a democratic state is therefore an integral part of the petitioner’s legal position that she was recognised by this special act. The allegations of the petitioner have to be considered in the light of the above-mentioned, namely that she experiences the naming of the element of the public infrastructure after the person who symbolises the regime in which her human rights were grossly violated as a new punishment for her political convictions, although her rehabilitation has already been recognised. Human dignity in this respect acquires direct and specific significance. And in the case at issue this suffices for the recognition of a legal interest.
 
II
 
5. I agree with the basic starting point of the Decision, namely that the Constitutional Court in the role of guardian of the Constitution is not called upon to evaluate history. Therefore, it is also not called upon to review what kind of person Josip Broz was and what his significance or the significance of his actions in the history of the former state were. This evaluation is in the domain of historians. It may as well be in the domain of every individual, as the question of how an individual evaluates his role is a constituent part of individuals’ right to freedom of expression (the first paragraph of Article 39 of the Constitution). By no means, however, does such evaluation fall within the competence of the Constitutional Court. Therefore, it cannot be sought in the Decision because it is not there.
 
6. It is a fact, however, that the additional name of Josip Broz, namely “Tito”, represents a symbol (the same as a five-pointed red star) of the former federal state, which was established during the National Liberation War against the occupying forces and which after the War was first constituted as the Democratic Federal Yugoslavia, later as the Federal People’s Republic of Yugoslavia, and finally as the Socialist Federal Republic of Yugoslavia. I agree with this. Individuals may use this symbol, they may identify with it; also this is a constituent part of freedom of expression, which is a human right. If such symbol is used by public authority – either state or municipal or their bodies, the question arises whether the use of such a symbol is constitutionally admissible – whether it is in compliance with the Constitution.
 
7. I fully agree with the position stated in the Decision that public authority does not have rights, but has powers which are, in their legal nature, duties that are granted to public authority by the legal order.[1] All bearers of public authority, state and local alike, should be very well aware of this. They were given a mandate to perform these duties by democratic election. A fundamental duty in this regard is precisely to respect the Constitution. Respect for the Constitution especially entails respect for the human rights and fundamental freedoms of all (not only some!) citizens and other residents. Public authority cannot violate human rights under the guise of referring to rights to which it is not entitled. On the contrary, it must ensure that they are respected with regard to all, to which it is especially and explicitly bound also by the first paragraph of Article 5 of the Constitution. This provision is binding to the same extent also on local community authorities in the state. Precisely because public authority does not have rights but duties, it does not suffice for conduct to be deemed to be in compliance with the Constitution to refer to the fact that a decision was adopted by a democratically elected body in proceedings which are determined for adopting regulations and by the majority which is prescribed for the adoption of such regulation. If this were sufficient, every regulation adopted in such manner would have been in and of itself in compliance with the Constitution. Therefore, I agree with the emphasis that public authority is in a substantive sense bound by the Constitution, as otherwise human rights would be an illusion and the Constitution would be empty words on paper. And this is what the Constitutional Court reviewed in the Decision at issue. It did not review what kind of a person Josip Broz was; it reviewed whether it is in compliance with the Constitution that public authority, which is bound to respect the Constitution, prescribes that a public street be named after “Tito” considering the objective contents of this symbol of the former state. The annulment of the challenged regulation is an answer to this question and not to the question of what kind of a person Josip Broz was and what historical significance his actions had for the existence and development of the Slovene nation.
 
8. I agree that the significance of the symbol “Tito” cannot be divided, although such can also be multi-dimensional. I furthermore agree that he is a symbol of the former state, which the Preamble to the BCC, i.e. the fundamental constitutional document by which independent Slovenia was constituted, states gravely violated human rights. Citizens of Slovenia gave up this state in 1990 by an extremely convincing majority at a plebiscite. As I have already stated in my separate opinion to Decision No. U-II-2/11, dated 14 April 2011 (Official Gazette RS, No. 30/11), the constitutional essence of the independence of the Republic of Slovenia can be found not only in the fact that as a former unit of the federal state we became an independent and sovereign state, but “most of all also in the fact that this independent state was established as a democratic state governed by the rule of law that recognises human dignity and the human rights and fundamental freedoms of every person. Therefore, independence and sovereignty will in our conscience always entail primarily also that the state was established on new value foundations, which, regardless of the fact that independence was achieved in a lawful manner, entail a fracture with the former undemocratic state in which grave and severe violations of human rights took place.” I can thus only agree with the fact that the Constitution of this state is based on the fundamental value of respect for human beings and their dignity. I furthermore agree that this fundamental starting point of the Constitution and as such contained in Article 1 of the Constitution and further concretised in a number of individual human rights. Precisely this is an essential difference between a democratic order and an order of this or that type of totalitarian state, regardless of the fact that there were (important) differences between them in different periods; however, their common essence was precisely in denying the dignity of human beings and their human rights and fundamental freedoms. Therefore, I agree that the use of this symbol by authorities is contrary to Article 1 of the Constitution.
 
9. I thus agree with the argumentation of the Decision that leads to the above-mentioned conclusion. However, I wish to particularly draw attention to the argument which the Constitutional Court stated in Paragraph 19 of the reasoning of the Decision and which was very important for me in reaching this decision. We were not dealing with the name of a street that has been retained still today as a part of history. We were dealing with the naming of a street after such symbol that happened today in a democratically elected representative body. The conduct of an existing public authority, which is bound to respect the Constitution, was thus reviewed. The situation would namely not have been the same if we had been dealing with the name of a street that was a part of the historical remains of the former state. This thus concerns a question whether the Constitutional Court by this Decision adopted a position that every use of this symbol in the legal order, even if such remained in force after the entry into force of the Constitution and had been determined before that, already entails an unconstitutionality. I think that the Constitutional Court in the Decision at issue answered this question. And the answer is: no, it did not adopt such position.
 
10. The implementation of the constitution of a democratic state, which the Constitution of the Republic of Slovenia is, after a change in the social and political system does not entail that such requires the removal of all symbols, for instance monuments which are a part of history. If the implementation of the Constitution entailed this, then a number of elements of the public infrastructure and monuments would be demolished, for instance also Napoleon’s monument in front of Križanke. Napoleon certainly does not symbolize the values on which the Constitution is based. How far back in history do we have to go? It is natural that upon a change in the regime from undemocratic to democratic or directly following its change the anger of people is directed towards the symbols of the former regime. This has always happened and is still happening, not only in Slovenia. This also indicates how important symbols are in the objective sense. However, such does not constitute conduct of the authorities and does not entail that a new, in this case democratic, system must demolish half of the elements of the public infrastructure in the country if they happen to display the historical facts of the former regime. This concerns elements of the public infrastructure built in the past. The case at issue, however, concerns the functioning of the authorities today. Precisely this distinguishing aspect is, in my opinion, important in the case at issue. What occurred in history should remain a part of history, even if we cannot be entirely or particularly proud of it, also as a part of the national cultural heritage, such as, for instance, monuments are. The Constitution requires the preservation of the cultural heritage (the first paragraph of Article 5). What occurred in history, occurred in the period in which public authority was not bound to respect the Constitution. Today, however, public authority is bound by the Constitution and all its obligations to act in a certain manner are reviewed in accordance with the Constitution. The state and local public authorities or their bodies must respect fundamental constitutional values and the human rights and fundamental freedoms of all its citizens, including the victims of the former undemocratic regime. It is not a coincidence that the European Parliament resolution on European conscience and totalitarianism requires that authorities ensure the victims of totalitarianisms at least passive respect by refraining from acts which are not in compliance with fundamental constitutional values and for which it can be foreseen and expected that they will cause new pain, as also stressed by the Decision. Human dignity is precisely this fundamental value. Also, therefore, there is an essential difference whether we are dealing with something that occurred in history and has been preserved in an objective sense as a part of history (e.g. the names of streets, squares, monuments) or if the matter concerns a situation in which public authorities today adopt active measures which, contrary to the above-mentioned, objectively cause new pain for the victims of the former political trials.
 
11. The message of the Decision of the Constitutional Court at issue is, in my opinion, clear. The Constitutional Court is not called upon to judge history and its figures. It is called upon to protect the Constitution, and in performing its fundamental duty there is a message: It is unconstitutional for public authority to prescribe the use of a symbol of the former undemocratic state which, by its significance, objectively expresses values that are incompatible with the Constitution – especially with its fundamental staring point: human beings and their dignity.
 
 
Mag. Jadranka Sovdat
 
Note:
[1] Pavčnik M., Teorija prava, Prispevek k razumevanju prava [Theory of Law, A Contribution to Understanding Law], Cankarjeva založba, Ljubljana 2007, p. 205.
 
 
 
 
The Concurring Opinion of Judge Jan Zobec Joined by Judge Mag. Miroslav Mozetič 
 
 
“You are responsible as individuals.”
J. P. Sartre
1. With this concurring opinion I wish to emphasize and explain my position that in the case at issue all petitioners and not only Lidija Drobnič have a legal interest. I agree with the position in Paragraph 4 of the reasoning that “naming public spaces does not only concern the residents of these areas, but such also has legal effect with regard to everyone who encounters or apprehends such name,” that “such naming has an emphasised symbolic significance that also concerns everyone”, that therefore the naming at issue has “erga omnes effects, which arise directly on the basis of the Ordinance on the day of its implementation” and that the case at issue concerns “the most elementary questions regarding the relation of the state or authorities towards individuals, regarding the position and significance of human beings and humanity in the state, and regarding the fundamental purpose of a free and democratic state in general.”
 
2. Precisely because of the general legal effect of naming a public space after someone who symbolises values that are completely opposite to the eternal, unchangeable, and inviolable core of constitutionality, i.e. human dignity, legal interest cannot be recognised only to those whose factual and real suffering is based on personal, direct experience of the repressiveness of a totalitarian regime. Is it really necessary for factual and real personal suffering that a petitioner himself or herself, directly, on his or her own skin (physically) felt and experienced what the petitioner Lidija Drobnič experienced? I am firmly convinced that it is not. If the Constitutional Court is to effectively protect human dignity as the cardinal constitutional value, then it must recognize the legal interest to file a petition to review the constitutionality of general acts which at least at the symbolic level violate such value, to everyone who could achieve a specific practical goal by the petition (i.e. a “casuistic cassation effect”) – in the case at issue, the abolishment of the naming of a public good after someone whose name symbolises the totalitarian regime. I accept with difficulty the idea that because of such acts of state or self-governing local authorities only those who had personal, direct experience of totalitarianism, which the challenged official act glorifies and for which it expresses support, would be recognised as having experienced procedurally relevant suffering. Is the question of humanity and democracy not something that directly touches upon every human being – simply because these questions are not limited only to (an ever) narrower circle of people, but because they par excellence concern everyone? We do not have, respect, and protect the fundamental constitutional values of humanity (i.e. human dignity) and democracy (only) because of the victims of totalitarianisms (of this or that colour), but first of all because of people, because of every single human being, here and now.
 
3. Denying procedural legitimacy to those who did not directly experience the horrors of totalitarianisms, while they are, however, aware of the deep unconstitutional nature of the acts of the authorities that sympathise with totalitarian regimes, support them, glorify them, hold them up as an example, or offer them as a solution for this or that (political, social, economic) crisis and are affected because of that (which they express externally already by filing a petition with the Constitutional Court) would entail nothing other than legal unresponsiveness to the articulation of the individual’s critical conscience and his or her historical memory – although precisely these two components of human conscience are the strongest remedies for the anti-totalitarian immune system. I ask myself what then when there is no one left who suffered directly and physically in the totalitarian regime (I hope that time and nature will take care of this, and not some person). After the death of the last victim of Nazi fascism, will it be constitutionally admissible to name streets, squares, and towns after persons who symbolize such regimes and to glorify their achievements (although with the excuse that they successfully dealt with unemployment and crime, that they provided pensions, built highways, encouraged economic growth, etc.) – if none of the statutorily determined privileged official and semi-official petitioners (in the case at issue, these are the National Assembly, one third of the deputies of the National Assembly, the National Council, the Government, and the Ombudsman for Human rights) defend human dignity, as they failed to do in the case at issue involving such naming?
 
4. Therefore, in my opinion, in cases such as the case at issue it cannot be otherwise than to accept the thesis with regard to the legal interest of every atomised bearer of human dignity that a petitioner does not need to particularly prove his or her direct, personal suffering – such is simply assumed; assumed already on the basis of the fact that he or she is entitled to human dignity as a human being and that by acts of official glorification of the symbols of totalitarianism (with this or that ideological-political connotation)[1] human dignity is jeopardised, hurt, humiliated – not yesterday, not tomorrow, but here and now. And that he or she is, being aware of his or her human essence, as a being endowed with reason and ethical sensibility, hurt because of it. I am wondering if also for challenging, for instance, laws on establishing concentration camps, on the execution of persons fleeing across the state border, on segregation, on secret political police, etc., legal interest would be recognised only to those who were or are directly personally hurt due to such (that is to say, concentration camp prisoners or shot, segregated, and monitored opponents of the regime). In order to challenge laws on establishing concentration camps for Jews or for persons holding different opinions, would a petitioner have to demonstrate that he or she is a Jew or holds different opinions? Would denying legal interest to an individual, a bearer of the sovereignty of the people, in such cases also entail denying his or her critical conscience and historical memory and thereby the right to control bearers of power (although such power naturally originates from him or her) – or would he or she be recognised such right only by casting a vote in an election every four years? Would this not entail a constitutional conceptualization of an individual as an apathetic, uninterested, static unit existing in limbo? Regardless of the fact that an individual (in addition to the courts) is the only one determined by the Constitution who can initiate proceedings before the Constitutional Court – other so-called privileged petitioners can initiate proceedings only if such is determined by a law.
 
5. Therefore, in my opinion, the presumption holds true that upon the acts of authorities against human dignity, even if such “merely” concern a symbolic glorification of a regime based on systematic violations of human rights, every individual, a bearer of human dignity, is directly (personally) injured and therefore has a legal interest to challenge such acts of the authorities (regarding which it is correctly stated in paragraph 4 that they have legal effect with regard to everyone who encounters or apprehends such symbolic glorification). Only because he or she is a human being and because of such is assumed to be sensitive with regard to what is imminent and inalienable in humans – i.e. human dignity. Regardless of the fact whether he or she has experienced in person, directly, what it means to be monitored, politically persecuted, incarcerated because of a different conviction, world-view, skin colour, etc., and regardless of the fact whether he or she at all belonged to a social group whose human dignity was violated by a totalitarian regime. The matter concerns the question of on what to build the interpretation of the notion “legal interest”: on an active citizen, on an individual, who is, as stated by Stéphane Hessel, a free and active participant in the complex system of social relations who is aware of and therefore also assumes responsibility for the existence of the fundamental ethical consensus in society, i.e. universal agreement on, acceptance of, and respect for human dignity;[2] or on the “sand of individuals” who are focused on their own narrow private, direct, tangible (more or less financial) interests and benefits, on the uninterested, indifferent, apathetic masses, permeated by a lack of concern, resigned to their fate, the fundamental particles of which have in common only the conviction that, no matter what, they cannot change anything – and which, sooner or later (at least that is what historical experience teaches), become an easy target of totalitarianisms.[3]
 
6. There will be as much rule of human dignity as there will be individuals who are aware of this highest constitutional and civilization values and as much as they themselves are willing to do to affirm it.
 
 
Jan Zobec
 
 
I join the concurring opinion of Judge Jan Zobec and I support it in its entirety. In cases which concern a question of fundamental values, especially human dignity, without the respect and protection thereof we cannot speak of real (true) democratic order and constitutional democracy, I cannot agree with the position that every human (citizen) is not called upon to protect these fundamental values, in the first place with all legal remedies, also with a petition for the review of the constitutionality of regulations that inadmissibly interfere with these fundamental values. Therefore, I strived for this to be clearly written in the Decision.
 
It is my deep conviction that the Constitutional Court is a guardian and guarantor of the constitutional order. In Decision No. Up-301/96, dated 15 January 1998 (Official Gazette RS, No. 13/98), the Constitutional Court stated that the historical mission of the Slovene Constitution includes its most fundamental goal, i.e. to prevent any attempt at restoring the totalitarian regime. The protection of this goal is also the task of the Constitutional Court. Naming a street after the most visible representative of the totalitarian system certainly does not (yet) entail an attempt at restoring such system. However, I completely agree with the position of the Decision at issue that in the new constitutional order, which is based on respect for human dignity, which is at the very core of the constitutional order of the Republic of Slovenia and is its foundation and one of the key reasons for Slovenia’s independence, such new naming of a street no longer has a place. I deem that not only such new naming but also the existing names [of elements of the public infrastructure], if they bear such symbolic message, are determined to be unconstitutional in the Decision.
 
 
Mag. Miroslav Mozetič
 
 
I completely agree with and join the written opinion of Judge Mag. Miroslav Mozetič.
 
Jan Zobec
 
 
Endnotes:
[1] From a constitutional perspective, totalitarianisms are entirely colourless and one-dimensional. It is utterly unimportant what nature any of them declares itself to be or what nature its opponents believe it to be – “left” or “right”, “progressive” or “reactionary”, “conservative” or “liberal”, religiously fundamentalist or fundamentalist atheistic. From the constitutional perspective, they are all the same – the same in their essence, entailing contempt for human dignity.
[2] Cf.  The presentation of his booklet Time for Outrage! (French title: Indignez vous!) that was organised by Forum 21 in Ljubljana on 12 September 2011. On the active status of citizens, see also the German Federal Constitutional Court – R. Zuck, Das Recht der Verfassungsbeschwerde, C. H. Beck, München 2006, Marginal No. 9, 12, 13 and the cited decisions.
[3] For more on such masses being like the humus from which totalitarianisms are born, see H. Arendt, Izvori totalitarizma (English title: The Origins of Totalitarianism), Claritas, Ljubljana 2003, pp. 388 et sub.
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
municipal regulation
Applicant:
Lidija Drobnič, Ljubljana, and others
Date of application:
28.04.2010
Date of decision:
26.09.2011
Type of decision adopted:
decision
Outcome of proceedings:
annulment or annulment ab initio
Document:
AN03530