U-I-194/19

Reference no.:
 U-I-194/19
Objavljeno:
 Official Gazette RS, No. 58/2020 and OdlUS XXV, 5 | 09.04.2020
ECLI:
 ECLI:SI:USRS:2020:U.I.194.19
Abstract:
Changes made to statutory regulation by the legislature in the scope of its discretion entail exercise of the legislative power in the system of the separation of powers in accordance with the second sentence of the second paragraph of Article 3 of the Constitution. The legislature is not bound by the interpretations of laws and executive regulations based thereon that courts adopt in individual proceedings. From the principle of the separation of powers there also follows the requirement that no individual branch of power may assume the powers of other branches nor inadmissibly interfere with the exercise of their authority. The legislative branch of power therefore may not assume powers that are of a typically executive nature and thus pertain to the executive (or administrative) branch, and it may also not interfere with the typical powers of the judicial branch to decide on the rights, obligations, and legal benefits of individuals and legal entities and supervise the legality of the decisions of the executive branch in concrete individual relationships. It is inconsistent with the principle of the separation of powers if the legislature regulates content that entails exclusively or to an essential extent an act of an individual and concrete nature. By doing so, it would assume the typical power of the executive branch in the exercise of which the latter decides in concrete individual relationships. At the same time, it inadmissibly interferes with the power of the judicial branch to exercise its typical power of deciding on the rights, obligations, and legal benefits of individuals and legal entities and supervising the legality of the decisions of the executive power in concrete relationships as required by the first paragraph of Article 157 of the Constitution. The Act Regulating the Intervention Culling of Specimens of Brown Bear (Ursus Arctos) and Common Wolf (Canis Lupus) from the Wild with Annexes in an essential part determines in a concrete manner the exact number of culled bears and wolves in terms of time and territory and the conditions and restrictions that hunting associations must observe when carrying out such culling. The content of the law would become irrelevant without the mentioned provisions. Although it was adopted in the form of a law, the challenged regulation therefore has in its essential aspect the nature of an individual legal act. Since it is inconsistent with the principle of the separation of powers determined by the second sentence of the second paragraph of Article 3 of the Constitution, the Constitutional Court abrogated it.
 
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[Publisher's Note: The full text of this Decision/Order is available only in Slovene. The text published below is a summary prepared for the annual report.]
The Intervention Culling of Bears and Wolves from the Wild
 
In Decision No. U-I-194/19, dated 9 April 2020 (Official Gazette RS, No. 58/20), upon the initiative of two non-governmental organisations functioning in the public interest in the field of environmental protection and nature conservation, the Constitutional Court decided on the constitutionality of the Act Regulating the Intervention Culling of Specimens of Brown Bear (Ursus Arctos) and Common Wolf (Canis Lupus) from the Wild. This law determined the scope and conditions for the selective and limited intervention culling of 200 bears and 11 wolves from the wild until 30 September 2020 and the supervision of the culling and record-keeping of the animals culled from the wild.
 
The Constitutional Court established that the challenged Act with annexes substantially determined in a concrete manner the exact number of culled bears and wolves in terms of time and territory and the conditions and restrictions that must be observed when carrying out such culling. It held that the challenged regulation was essentially an individual legal act, although it was adopted in the form of a law. In terms of content, it was essentially the same decision as adopted by the Government in past years by ordinances, whose legality has been the subject of review before the Administrative Court several times. As, in accordance with the legal regulation in force, the regulation of concrete individual relationships and the adoption of appropriate measures related to the protection of protected animal species, including the species brown bear and common wolf, fall within the competence of the Government, the Constitutional Court had to assess whether the legislature acted in accordance with the principle of the separation of powers determined by the second sentence of the second paragraph of Article 3 of the Constitution when it adopted the regulation with the stated content.
 
The principle of the separation of powers has two important elements: the separation of the individual branches of power and the existence of checks and balances among them. From this constitutional principle there also follows the requirement that no individual branch of power may assume the powers of the other branches, nor may a branch inadmissibly interfere with the exercise of the authority of the other branches. The legislative branch of power may therefore not assume powers that are of a typically executive nature and thus pertain to the executive (or administrative) branch, and it may also not interfere with the typical powers of the judicial branch to decide on the rights, obligations, and legal benefits of individuals and legal entities or to review the exercise of the executive power to decide on concrete individual relationships. If deciding on concrete individual relationships is previously reserved for executive (or administrative) decision-making, the latter must be subject to an independent review by the judicial branch of power since such mutual relationship of the individual branches of power is defined by the Constitution (the first paragraph of Article 157 of the Constitution). The requirement of an independent court competent to decide impartially on a right, obligation, or legal benefit is the reason for separating the judicial branch not only from the executive branch but also from the legislative branch, which significantly defines the content of the principle of the separation of powers.
 
The Constitutional Court held that by adopting the challenged law the legislature did not exercise its typical (legislative) power within the system of state authority but assumed the power of the executive branch, while simultaneously also inadmissibly interfering with the powers of the judicial branch as it prevented it from exercising an independent judicial review of the work of the executive branch or a review of the legality of individual acts issued by its bodies in accordance with the first paragraph of Article 157 of the Constitution. The legislature deprived the non-governmental organisations that play a significant role in the system of environmental protection, and the protection of endangered animal species as a significant part thereof, of an important right that derives from international law and enables them to challenge individual acts related to environmental protection before the Administrative Court in order to protect common legal interests in the field of environmental protection and nature conservation. It thereby failed to take into account the right to effective judicial review of the work of the executive branch of power as envisaged by the first paragraph of Article 157 of the Constitution. A constitutional review of a law cannot substitute for such right. In a review of the constitutionality of individual legal acts the Constitutional Court merely plays a subsidiary role that is exercised only within its competence to decide on constitutional complaints against the decisions of regular courts (the sixth indent of the first paragraph and the third paragraph of Article 160 of the Constitution). By enacting the challenged law, the legislature thus substantially enacted a concrete individual act, thereby inadmissibly assuming the typical function of the executive branch of power and interfering with the authority of the judicial branch of power. The Constitutional Court therefore decided that the challenged law is inconsistent with the principle of the separation of powers determined by the second paragraph of Article 3 of the Constitution and abrogated it.
 
 
 
 
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Type of procedure:
 review of constitutionality and legality of regulations and other general acts
Type of act:
 statute
Applicant:
 Pravno-informacijski center nevladnih organizacij - PIC, Ljubljana
Date of application:
 05.07.2019
Date of decision:
 09.04.2020
Type of decision adopted:
 decision
Outcome of proceedings:
 annulment or annulment ab initio
Document:
 AN04002