U-I-809/21

Reference no.:
U-I-809/21
Objavljeno:
Official Gazette RS, No. 99/2022 | 23.06.2022
ECLI:
ECLI:SI:USRS:2022:U.I.809.21
Abstract:
 
Publisher's Note: The full text of this Decision/Order is available only in Slovene. This is a summary that has been prepared for informational purposes only. 
 
 
In proceedings initiated upon a request of the Police Trade Union of Slovenia, the Constitutional Court adopted a partial decision on the constitutionality of the seventh and eighth paragraphs of Article 43 of the Organisation and Work of the Police Act, which prohibit the simultaneous performance of the duties of a police officer and the office of a non-professional mayor, a non-professional deputy mayor, or a municipal councillor. The employment contract of a police officer who assumes any of these non-professional offices is terminated on the basis of the law.
 
The Constitutional Court established that such a prohibition entails an interference with the right to stand for election, which is protected within the framework of the passive right to vote determined by Article 43 of the Constitution. It found that the prohibition is a significant obstacle to the exercise of this right because it deters police officers from freely deciding whether to stand as candidates in local elections. Before making such a decision, police officers must decide whether they are prepared to risk the loss of secure employment and to put their professional career on hold in order to actively participate in the exercise of local self-government. In this context, the Constitutional Court took into consideration that secure employment has a significant impact on the property, private life, and health of individuals. It enables them to plan a family, arrange their housing, and realise other personal plans, and it ensures their social security.  
 
However, on the basis of a proportionality test, the Constitutional Court assessed that the interference with the passive right to vote is consistent with the Constitution. It held that the protection of the rights of others is a constitutionally admissible objective for an interference with this right. It clarified that, among other powers that may severely interfere with an individual’s freedom, police officers are also authorised to use coercive measures, which is a direct expression of the state’s monopoly on physical force. Therefore, there must be no doubt that the police as a whole or any individual police officer performs his or her duties professionally, impartially, and in a politically neutral manner. The state has the duty to adopt such legislation that will prevent the creation of situations that could give rise to justified doubt regarding the politically neutral and impartial exercise of police powers. The Constitutional Court assessed that the challenged prohibition is appropriate for the achievement of this objective. By assuming the office of a local official, the police officer participates in the adoption of the most important political decisions in a municipality. The challenged prohibition therefore eliminates situations that could give rise to justified doubt in the public that police officers or the police are acting in a politically neutral and impartial manner. The Constitutional Court further decided that such prohibition passes the test of necessity as it produces effects only after it becomes clear that a police officer was elected and could assume a non-professional political office. In the framework of proportionality in the narrower sense, it then assessed that the gravity of the interference with the passive right to vote is outweighed by the expected benefits that will allegedly ensue from the protection of the rights of others. If police officers could also hold political functions, a justified doubt could arise in the public as to whether the police carry out their powers in the public interest, which could lead to negative consequences in society. Therefore, the regulation is not inconsistent with Article 43 of the Constitution.
 
The Constitutional Court further held that the challenged regulation is not inconsistent with the principle of equality determined by the second paragraph of Article 14 of the Constitution, more specifically regarding the comparison between police officers, on the one hand, and soldiers, public officials, and other professional office holders who may carry out an additional activity, on the other. Finally, the Constitutional Court decided that the challenged prohibition is not inconsistent with the principle of protection of trust in the law determined by Article 2 of the Constitution. It established that in the case at issue the legal position of police officers who at the time of the implementation of the prohibition were already performing a relevant office in local self-government did not deteriorate as, despite the ambiguous statutory wording, the prohibition cannot be interpreted in a constitutionally consistent manner so as to have an effect on past legal positions, but rather merely affects future positions.
 
 
 
Note:
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Document in PDF:
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute
Applicant:
The Police Trade Union of Slovenia, Ljubljana
Date of application:
22.11.2021
Date of decision:
23.06.2022
Type of decision adopted:
decision
Outcome of proceedings:
establishment – it is not inconsistent with the Constitution/statute other resolutions other resolutions
Document:
AN04096