Up-132/96

Reference no.:
Up-132/96
Objavljeno:
OdlUS V, 187 | 24.10.1996
ECLI:
ECLI:SI:USRS:1996:Up.132.96
Act:
Resolution of the Judicial Council of the Republic of Slovenia No. 3/96-112 of 25 April 1996
Operative provisions:
1. The Resolution of the Judicial Council of the Republic of Slovenia No. 3/96 - 112 of 25 April 1996 is abrogated ab initio. 2. Candidate D.C. shall be recommended to the National Assembly to be elected a judge to the published free judicial position in the Basic Court in Koper. 3. On the basis of Paragraph 2 of Article 161 of the Constitution and Articles 59 and 30 of the Constitutional Court Act, proceedings shall be commenced for reviewing the constitutionality of Paragraph 2 of Article 16, Paragraph 2 of Article 19 and Article 35 of the Judicial Service Act.
Abstract:
Whenever the Constitutional Court decides in a concrete case on asserted violations of human rights or fundamental freedoms committed through individual acts of a state body, and on the basis of Article 59 of the ZUstS, it hands down a decision with which it grants the constitutional complaint, abrogates or abrogates ab initio an individual act in whole or part and returns the matter to the organ which has jurisdiction for making a decision. By the mutatis mutandis application of Article 62 of the Administrative Lawsuit Act, the organ to which the case was returned for a new decision, is bound in reaching a new decision to the legal opinion of the Constitutional Court and is thus in the new procedure, in compliance with this, bound to remove the unconstitutionality or illegality found. If this is not done, by the mutatis mutandis application of Article 63 of the Administrative Lawsuit Act, on the basis of a newly lodged constitutional complaint, the Constitutional Court not only abrogates ab initio the impugned act but generally itself decides on the matter, whereby the decision of the Constitutional Court replaces the act of the competent organ.

Article 60 of the Constitutional Court Act also authorizes the Constitutional Court itself to decide on disputed rights or freedoms when it abrogates ab initio a specific act. Before deciding, it must resolve two questions: whether it is possible to decide on the basis of the data on record, and whether the condition of urgency is met in the sense of the urgency of mitigating already created effects or the urgency of such a decision because of the nature of the constitutional right. - The urgency of removing created effects is shown in the concrete case by the fact that the complainant has already been without employment since 28 October 1994, and since November 1995, also without pay or income.

The statutory regulation for composing a review of judicial service, in Article 29 of the Judicial Service Act, requires of competent organs a complex overall assessment of a candidate according to all the criteria and on the basis of such an assessment, produces a final common assessment. Item 6 of Article 29 is only one of seven criteria for producing an assessment. A judgement of unspecific legal concepts in this Item 6 (attitude to associates and behavior outwith the post) must be very considered, weighed and responsible in order not to become arbitrary. The exclusion of a candidate for judicial service from further application procedures cannot thus be based only on unverified accusations about suspected conflicts with associates and neighbors.

Whether the assessment of the actual circumstances, ascertained by criteria under Article 29 of the Judicial Service Act, dictates a positive or negative view of judicial service, is in essence a decision on legal and not factual questions. So the standpoint is even more unacceptable that when the responsible personnel councils have already adopted this view in the statutorily prescribed procedure, the matter be raised of the "free judgement of the evidence" or "matters of fact", whether this view must be counted as positive or negative. A question of fact here could be, e.g., the question of whether the submitted documentation on this legal assessment is pure or falsified - the question of what in this assessment the written words and sentences mean (positive or negative view), is explicitly a question of law.

The somewhat unclear diction of Article 28 of the Judicial Service Act must be reasoned in the context of the total statute and not in isolation. According to such an interpretation of Article 28, the Judicial Council does not have jurisdiction for adopted a legally binding view of judicial service, it is only charged when making a choice among candidates (who meet the conditions) to behave by the same criteria as apply for producing an assessment of a judges work.

The real obligation of the Judicial Council to observe statutory criteria under Article 29 of the Judicial Service Act binds the Judicial Council to a reasoning of its decision on such a choice, since judicial review is also allowable in an administrative lawsuit against a decision made on the basis of free judgement (discretionary rights), and this would not be possible without mandatory reasoning.

The great differences which have occurred in the use of the Judicial Services Act between the interpretations of the Judicial Council, the Supreme Court and the Constitutional Court, as well as within the Constitutional Court, indate that the statute itself is insufficiently clear and is deficient and that it is debatable whether the current statutory arrangement in general guarantees, on the one hand the realization of the constitutionally determined task of the Judicial Council and, on the other, respect for the constitutional rights of candidates, so on the basis of Paragraph 2 of Article 59 and Article 30 of the ZUstS, the Constitutional Court widened the procedure to a judgement of the compliance of some of the statutory provisions with the Constitution.
Password:
Appointment of a judge, procedure.
Judicial Council, position, jurisdictions.
Protection of a person's personality and dignity.
Equal protection of rights.
Right to judicial review
Freedom of work.
Independence of the judiciary.
Equality before the law.
Temporary order (constitutional complaint).
Concurring opinion of a Constitutional Court judge.
Dissenting opinion of a Constitutional Court judge.
Legal basis:
Constitution, Articles 14, 21, 22, 23, 25, 49, 161, 125 Administrative Lawsuit Act (ZUP), Article 63.
Judicial Service Act (ZSS), Articles 28, 29, 7 to 14, 31 to 36, 104, 16, 17, 18.
Constitutional Court Act (ZUstS), Article 1, Paras. 1 and 2 of Article 59, Paras. 1 and 2 of Article 60, Article 30, Para. 2 of Article 40, Articles 40 and 6
Note:
In the reasoning of its decision, the Constitutional Court refers to its case Up-134/95 of 14 March 1996.
Document in PDF:
The full text:
Up-132/96
24 October 1996
 
D E C I S I O N
 
At a session held on 24 October 1996, in proceedings for deciding the constitutional complaint of D.C. of P., the Constitutional Court
 
d e c i d e d:
 
1. The Resolution of the Judicial Council of the Republic of Slovenia No. 3/96 - 112 of 25 April 1996 is abrogated ab initio.
 
2. Candidate D.C. shall be recommended to the National Assembly to be elected a judge to the published free judicial position in the Basic Court in Koper (call for applications published in Official Gazette of the RS, No. 30/94).
 
3. On the basis of Paragraph 2 of Article 161 of the Constitution and Articles 59 and 30 of the Constitutional Court Act, proceedings shall be commenced reviewing the
 
constitutionality of Paragraph 2 of Article 16, Paragraph 2 of Article 19 and Article 35 of the Judicial Service Act (Official Gazette of the RS, No. 19/94 and 8/96).
 
R e a s o n i n g:
 
A.
 
1. The Judicial Council, in a procedure for electing judges to vacant places on the judiciary at the Basic Court in Koper (call for applications published in the Official Gazette of the RS, No. 30/94), and repeated on the basis of decision of the Constitutional Court No. 134/95 of 14 March 1996, decided at a session held on 25 April 1996 not to recommend the complainant to the National Assembly of the Republic of Slovenia because she does not meet the criteria defined in Item 6 of Paragraph 1 of Article 29 of the Judicial Service Act (Official Gazette of the RS, No. 14/94, 8/96 - hereinafter : ZSS).
 
2. It thus decided when it again dealt with the complainant's candidature and again judged the candidate's attitude to date or behavior both on the job and outside it when she was still a judge of the Basic Court in Koper, Piran Unit.
 
As is clear from the reasoning of the resolution, the Judicial Council referred to the provisions of Articles 28 and 29 of the ZSS, made their judgement on the basis of the opinion of the Basic Court in Koper and the assessment of the Superior Court in Koper, and the opinions and assessment are claimed to rely on data which demonstrates the complainant's inappropriate attitude to administrators, other associates and neighbors. The Judicial Council stresses that in the opinion of the Personnel Council of the Basic Court in Koper, which was acquainted with the complainant's behavior, the complainant does not meet the criteria under Item 6 of Paragraph 1 of Article 29 of the ZSS, and concludes in view of the assessment of the Superior Court that it is negative because in content it determines negatively the meeting of criteria under Item 6 of Paragraph 1 of Article 29 of the ZSS. Thus, when an inappropriate attitude of the complainant to associates and people in the immediate surroundings is shown, in the view of the Judicial Council, circumstances are shown which prevent the performance of such an important state function as that of judge.
 
3. The Judicial Council further stresses that in its decision, in compliance with the provision of Article 28 of the ZSS, it had to respect the finding that the complainant's behavior outwith the service and her behavior to associates is such that she does not meet these criteria. It would also not be possible to conclude that the complainant has the necessary abilities for judicial service, or that she has to date successfully performed a judicial function, since for such a finding, the complainant would have to meet all the criteria under Article 29 of the ZSS. Only a positive assessment, whereby all the criteria under Article 29 of the ZSS must be met, would provide the basis for a positive decision of the Judicial Council on her candidature.
 
4. The Judicial Council draws particular attention to its constitutional and legal position of proposer of candidates for election to a permanent judicial function (Article 30 of the Constitution) and the fact that under the ZSS, it is the only body which enables the statutory termination of a judicial function (Item 7 of Paragraph 1 of Article 74 of the ZSS), when it confirms a negative assessment under Article 33 of the ZSS.
 
It stresses that it respects all legally relevant data in implementing personnel policies, and especially the assessment of judicial service, which can only be the professional assessment of the personnel council and as such the basis for deciding, while the choice of candidates and their proposal for election is reserved for decision be the Judicial Council.
 
5. In a constitutional complaint to the Judicial Council, in the first place the complainant makes the reproach that in the decision making, it did not respect the interpretations of the ZSS reasoned in decision of the Constitutional Court No. Up 134/95, and that the impugned resolution is thus not founded on statute, that is, on Articles 15, 17, 28 and 29 of the ZSS, which is a violation of Article 153 of the Constitution. She asserts that under the cited interpretation of the Constitutional Court, the Judicial Council had to propose her to the National Assembly for election, as the only candidate that met all the conditions and in the public interest.
 
6. The complainant stresses that in the repeated procedure of deciding about her candidature, the Judicial Council followed the standpoint of the Constitutional Court, only insofar as it did not accuse her of not fulfilling the criteria under Item 3 of Paragraph 1 of Article 29 of the ZSS, and that this time it issued a reasoning to the decision, but it again (for the third time) violated the complainant's rights and fundamental freedoms under Articles 25, 29, 49, 22, 38 and 14 of the Constitution, and also violated the right to a fair trial under Paragraph 1 of Article 6 of the European Convention on the Protection of Human Rights. The complainant therefore in the continuation of the complaint, repeats the claims and arguments which she already stated in relation to the asserted violation of constitutional rights in a constitutional complaint against the resolution of the Judicial Council which was abrogated ab initio by the cited decision of the Constitutional Court.
 
7. In addition, the complainant again asserts that she meets in full the criteria under Article 29 of the ZSS, and refers to the resolution of the Personnel Council of the Supreme Court of the Republic of Slovenia No. Ps 1/94, by which the only valid and legally binding assessment of her judicial work is the assessment of the Personnel Council of the Superior Court in Koper of 26 September 1994, which is positive in relation to all criteria under Article 29 of the ZSS. She claims again that the "assessment" of the Personnel Council of the Basic Court in Koper of 29 October 1994 is not in terms of content an opinion as the Judicial Council states, but an assessment of judicial work, but which is invalid because it was not issued by a competent organ and because she had no opportunity to answer to it. The Judicial Council thus, by the claim of the complaint, decided on the basis of material that contains unverified, partisan and false data, about which the complainant was heard by neither the Personnel Council of the Basic Court in Koper, nor by the Judicial Council.
 
8. In relation to the content of claims in the impugned resolution of the Judicial Council which refer to an inappropriate attitude of the complainant to associates and neighbors, the complainant refers to the statements in the constitutional complaint in case No. Up 134/95, in which she again stresses that the findings of the Judicial Council are untrue and unjust. She refers to the written statement and opinion of individuals and state bodies, which she attaches to this constitutional complaint.
 
9. The complainant proposes to the Constitutional Court that it: - abrogates ab initio the impugned resolution of the Judicial Council,
 
- finds that the assessment of the Personnel Council of the Superior Court in Koper of 26 September 1994 is the only legally binding assessment in relation to the complainant's judicial service and that the opinion of the Personnel Council of the Basic Court in Koper of 12 January 1994 is the only valid opinion of the Personnel Council and that the Judicial Council is thus bound to respect the cited assessment and opinion in deciding on the candidature of the complainant,
 
- restrain implementation of the impugned resolution of the Judicial Council and forbid the Judicial Council any decision on the choice of another candidate to the advertised place of judge to which the complainant responded on 12 June 1994, - finds that the complainant meets the criteria under Article 29 of the ZSS and that the Judicial Council is thus bound to propose her to the National Assembly for election.
 
10. The complainant makes the cited proposals to the Constitutional Court when on the basis of Paragraph 2 of Article 51 of the Constitutional Court Act (Official Gazette of the RS, No. 15/94 - hereinafter ZUstS) she proposes an extraordinary decision by the Constitutional Court prior to the exhaustion of extraordinary legal remedies. She bases (the assertion) that the asserted violations of constitutional rights are plain on the fact that in deciding, the Judicial Council did not respect the interpretation of the ZSS contained in decision of the Constitutional Court No. Up 134/95, and irreparable consequences would be created or have already been created for the complainant in that she is without employment and because the danger exists that the complainant's judicial post will be occupied. Damage would also be created for the state, since there is a lack of judges in county courts, where the post is advertised.
 
11. By resolution No. 132/95 of 15 May 1996, by eight votes against one, the Constitutional Court found in favor of the complainant's proposal for deciding on the basis of Paragraph 2 of Article 51 of the ZUstS, and accepted the constitutional complaint for hearing. It found, namely, that from an analysis of the impugned act itself, without a more detailed analysis of the statements and arguments of the constitutional complaint, there is clear patency of the asserted violations and irreparable consequences for the complainant of the impugned act. The clearness of the violation of Articles 22 and 49 of the Constitution in the conclusion of the Constitutional Court is given by the fact that when the Judicial Council in the fresh decision, except for abandoning the primary claim that the complainant also did not fulfill the "conditions" under Item 3 of Paragraph 1 of Article 29 of the ZSS, and except that the Judicial Council now reasoned the present decision, it did not remove any of the established violations of the complainant's constitutional rights, nor did it state in the reasoning why it did not follow the judicial review of the organ which abrogated ab initio its individual act. The irreparability of the consequences was created when the complainant's employment relation ceased because of the unlawful non-proposal for election, and has only increased since then. It also found in favor of her proposal for a temporary restraint and restrained implementation of the impugned resolution of the Judicial Council pending final decision on the constitutional complaint.
 
12. The Judicial Council proposes in answer to the statements in the constitutional complaint that the Constitutional Court rejects the constitutional complaint.
 
13. The Judicial Council stresses that the complainant is guaranteed the constitutional right to equal protection of rights in a procedure before a state organ and the right to access to any working post under equal conditions, and that it proceed in the case being heard entirely the same as in other cases. The candidate - complainant was handed both assessments of the judicial service of the Personnel Council of the Superior Court in Koper, and she also received all the opinions of the Personnel Council of the Basic Court in Koper and was acquainted in general with all data relevant to a decision about her candidature in the procedure of making a proposal for a judicial function. It is true that in the majority of cases to date it has decided otherwise - positively, but always on the premise of a positive assessment of the judicial service.
 
14. The Judicial Council also believes that it respected the decision of the Constitutional Court on 13 April 1996 (properly 14 March 1996), that it reasoned in the context of the guidelines for its decision, based on a negative assessment of the Personnel Council, and that in this way no violations of the complainant's constitutional rights could have arisen in the fresh procedure. It claims to have respected, in compliance with the standpoint that in a case of abrogation or abrogation ab initio of a decision, it is bound only to procedural guidelines and not to an evidential assessment, all the guidelines of a procedural nature contained in the decision of the Constitutional Court, thus when in the fresh procedure it reasoned its decision exactly, and it claims also to have respected the guideline which is bound to a positive legally binding assessment of the judicial service, and that in this case it would have had to propose the candidate, as the only one, for election. The question of whether in a concrete case the assessment of the judicial service is in its content positive or negative, should be a question of fact, so the Judicial Council believes that it was not bound in this part to the findings of the Constitutional Court.
 
15. Together with the starting point that an assessment on the basis of which a candidate is assessed negatively by any of the criteria under Article 29 of the ZSS, the Judicial Council considered the final assessment of the Personnel Council of the Superior Court in Koper is negative since in terms of content the fulfillment of criteria under Item 6 of Paragraph 1 of Article 29 of the ZSS is negatively determined. In connection with the complainant's reference to the resolution of the Personnel Council of the Superior Court of 3 October 1996, the Judicial Council makes clear that the objection of the complainant was rejected by this resolution, and thus a negative decision adopted for her and thus also in terms of content confirmed the negative decision of the Personnel Council of the Superior Court in Koper. That part of the text of the resolution of the Supreme Court to which the complainant refers, in the opinion of the Judicial Council, is unclear and thus non-binding in the sense that it cannot change in fact or law the content itself of the assessment of the Personnel Council of the Superior Court.
 
16. The Judicial Council presents in the continuation of the answer in connection with standpoints adopted in the decision of the Constitutional Court, its legal opinion in relation to its jurisdiction and its role in the selection and proposing of candidates for judicial functions. As in submissions to date, it draws attention to its constitutional and legal position of proposer to the National Assembly of candidates for election to a permanent judicial function, and that it is the only organ which enables the statutory termination of a judicial function, when it confirms a negative assessment under Article 33 of the ZSS. In the opinion of the Judicial Council, this provision does not exclude encroachments of the Judicial Council into other assessments of judicial service and opinions of the personnel councils. The Judicial Council bases its standpoint in that it is an organ which decides autonomously on proposals for election and in its judgement is bound only to criteria under Article 29 of the ZSS, which provides the Judicial Council the basis for judging the fulfillment of general and special conditions for election which are of a content nature, based on the provisions of the ZSS (Articles 15, 18 and 28) and the Courts Act (Official Gazette of the RS, No. 19/94 - Article 28). In the opinion of the Judicial Council, for the conclusion that a candidate has successfully performed a judicial function, s/he must meet all the criteria under Article 29, since a judge may only be someone who is not only professionally suitable but also in other aspects is such a person as will at least protect the reputation of the judicial profession. Similarly, according to the standpoint of the Judicial Council the provisions of Article 19 of the ZSS do not bind the Judicial Council to propose the only candidate for election. It further stresses that of a total of 450 candidates proposed to date, none has been proposed with such an assessment as in the concrete case.
 
B. - I
 
17. According to the provisions of Article 1 of the ZUstS, the Constitutional Court is the highest organ of judicial authority for the protection of constitutionality and legality and human rights and fundamental freedoms. Decisions of the Constitutional Court, by the provisions of Paragraph 3 of the same article of the ZUstS, are mandatory.
 
18. Whenever the Constitutional Court decides in a concrete case on asserted violations of human rights and fundamental freedoms committed by individual acts of state organs, and on the basis of Article 59 of the ZUstS, it issues a decision whereby it finds in favor of a constitutional complaint, abrogates or abrogates ab initio the disputed individual act in whole or in part, and returns the case to the organ which has jurisdiction to decide, and under Article 60 of the ZUstS, together with abrogating the act, under specified conditions (see B.-II) it may itself decide on the disputed rights. By mutatis mutandis application of Article 62 of the Administrative Lawsuit Act (Official Gazette of the SFRY, No. 4/77), the organ to whom the matter has been returned for a fresh decision, is bound in making the new decision to the legal opinion of the Constitutional Court and is thus in compliance with this bound in the fresh procedure to remove the established
 
unconstitutionality or illegality. If it does not do this, by mutatis mutandis application of Article 63 of the Administrative Lawsuit Act, on the basis of a freshly lodged constitutional complaint, the Constitutional Court shall not only abrogate ab initio the impugned act and generally itself decide on the matter, wherein the decision of the court entirely replaces the act of the competent organ. In this case - in compliance with authority under Article 6 of the ZUstS - the Constitutional Court applied mutatis mutandis the cited provisions of the Administrative Lawsuit Act.
 
19. When the Constitutional Court, by decision No. Up 134/95 of 14 March 1996, abrogated ab initio the resolution of the Judicial Council No. 751-4/94 of 7 November 1994 as unlawful and unconstitutional, it returned the matter to the Judicial Council for a fresh decision with explicit instructions that it is bound in the decision making to respect such an interpretation of the valid statutory arrangement as is reasoned in the decision of the Constitutional Court. The Judicial Council did not follow in making its fresh decision the interpretation of the ZSS which is contained in the reasoning of the decision of the Constitutional Court.
 
20. As the Constitutional Court has already stated in the resolution of 15 May 1996, the Judicial Council, in the present impugned resolution (in comparison with the resolution about was decided in case Up-134/95) except for abandoning the then assertion that the complainant also does not meet the "conditions" under Item 3 of Paragraph 1 of Article 29 of the ZSS (protecting the reputation of an impartial judiciary etc), and except that the present impugned resolution is reasoned, none of the then established violations of the complainant's constitutional rights has been removed nor is it stated in the reasoning why it did not follow the legal opinion of the Constitutional Court and why the established violations have not been removed in the fresh decision making but are repeated.
 
21. These repeated unlawfulness in the fresh decision making (which are at the same time violations of constitutional rights under Articles 22 and 49 of the Constitution - equal protection of rights and accessibility to the position of judge under equal statutorily defined conditions) are in particular the following :
 
- failure to respect that the statute (ZSS) determines general and specific conditions for the position of judge in Articles 7- 14, and wrongly understanding the criteria under Article 29 of the ZSS as conditions,
 
- from this misunderstanding derives the mistaken idea that a candidate must "meet all the criteria under Article 29 of the ZSS" - instead of the proper interpretation of the statute whereby by (all) criteria under Article 29 of the ZSS is judged whether the candidate meets Item 6 of the general conditions under Article 8 and appropriate special conditions under Articles 9 - 12 of the ZSS, and this does not relate to each of these conditions specifically (or distinguished by individual criteria - except of course in the reasoning) but "synthetically ... from one of the four assessments under Article 32 of the ZSS",
 
- failure to respect the fact that in the statutorily prescribed "procedure for assessing a judge's work" (in Articles 31-36 of the ZSS) the candidate received a positive "synthetic" assessment and thus met the cited statutory conditions, - failure to respect the statutory arrangement whereby the Judicial Council is bound to the assessment of judicial service by the statutorily competent personnel council and it may not alter it (only a negative assessment under Item 1 of Article 32 of the ZSS is subject to their confirmation - but it may not therefore itself alter it),
 
- failure to respect crucial differences between the assessment of judicial work under Articles 31-36 and 104 of the ZSS, to which the Judicial Council is bound and which signifies evidence of fulfilling the previously cited statutory conditions, and the "assessment of suitability of the candidate" under Articles 16 and 17 of the ZSS, which signifies only the opinion of the personnel council on which of the candidates should be given priority, and to which, by the explicit provision of Article 18, the Judicial Council is not bound.
 
22. The applicable statutory arrangement thus leaves the choice among candidates who meet the statutory conditions in entirety to the Judicial Council, which is not bound in this to the opinion of the competent personnel council (it is bound only to respect the criteria under Article 29 of the ZSS and must thus reason the decision) - but it does not give the Judicial Council the right to exclude from competition as a candidate who does not meet the conditions, a candidate for whom the competent personnel council has given a positive assessment of judicial work.
 
23. In the reasoning of the impugned resolution, the Judicial Council claims that the "final assessment of the personnel council of the Superior Court in Koper was negative, since in terms of content, it negatively determines fulfillment of criteria under Item 6 of Paragraph 1 of Article 29 of the ZSS - that is an appropriate attitude to associates and appropriate behavior outside the service". This assertion of the Judicial Council does not correspond to the real content of the cited final assessment, in which the Personnel Council of the Superior Court in Koper first stresses that even in its original assessment, because of a lack of data, it did not declare on suitability for election and then again avoids such a declaration (or "synthetic assessment") - with the words (underlined in the original): "Because despite this the Personnel Council of the Superior Court persists (in the view that) whether or not we support the candidate, we stress unanimously ... that in relation to her professionality we see no hindrance to her election as a judge of the county court. In this we also draw explicit attention to another aspect, that is her "conflictual attitude", in relation to which the Personnel Council of the Superior Court does not have data available and it is thus necessary to connect our opinion with the assessment of the Basic Court in Koper in taking into consideration all the available data". Thus it is not must "respect the assessment of the Basic Court as part of our assessment", but "our assessment is linked to the assessment of the Basic Court" and "taking into consideration all available data" (thus also possible data which the assessment of the Basic Court did not take into account).
 
24. This "final assessment" was thus in itself neither negative nor positive. However, the statutorily prescribed "procedure of assessing a judge's work" is not in fact ended with this "final assessment", since the candidate submitted an objection to it to the Personnel Council of the Supreme Court under Paragraph 2 of Article 36 of the ZSS. Only with the resolution of this organ of 3 October 1994 was this procedure of assessment actually completed. Although the Personnel Council of the Supreme Court rejected the answer of the candidate it was not because it too associated itself to "confidence in the warning of the Basic Court" on her unsuitability but - on the contrary - it "concluded that the Personnel Council of the Superior Court in Koper explicitly states in relation to professionality that the candidate is suitable for election. In relation to other criteria its fresh assessment is to be understood such that they are not such that would not justify her candidature since they are not defined in the assessment ..." and ends that precisely because of that it decided that the candidate's objection was not well-founded. After this intervention of the Personnel Council of the Supreme Court, the until then undetermined "final" assessment of the Personnel Council of the Superior Court must be understood as positive.
 
25. The impugned resolution of the Judicial Council does not mention this crucial decision of the Personnel Council of the Supreme Court, signed by the President of the Supreme Court, Dr. B.S., as if it that not been given. However, although even prior to this intervention, the cited "final assessment" of the Personnel Council of the Superior Court cannot be interpreted in conflict with the subsequent interpretation of the Personnel Council of the Supreme Court, thus as negative, but could at most be considered undefined or not final, the Judicial Council also in its answer to the constitutional complaint (answer of 20 May 1996) persists in the claim that this "final decision" of the Personnel Council of the Superior Court is negative. In principle it recognizes its obligation to the legal opinion of the Constitutional Court (that in the choice of candidates, the Judicial Council is bound only to a positive legally binding assessment of a personnel council), but considers this concrete assessment to be negative and adds: "The question of whether in a concrete case the assessment of judicial service is in its content positive or negative is a matter of fact (a factual assessment of the content of the assessment)" and that the Judicial Council was not bound to the view of the Constitutional Court that this assessment was positive.
 
26. The standpoint that a (free) evidential evaluation remains as to whether in a statutorily regulated procedure an assessment issued by a competent organ should be considered positive or negative is unacceptable. A free judgement of the evidence in this procedure is in reality, e.g., a judgement of what behavior of the candidate relevant to the assessment, with which she is reproached, shall be considered proved. All these reproaches remained unchecked in the procedure of producing the assessment, and asserted facts cannot be considered proven, especially since the candidate was given no opportunity to object to these accusations at individual phases of the procedure, and to propose contrary evidence to them - such evidence submitted later was ignored. From the impugned resolution of the Judicial Council itself, it is clear that these "negative" assessments are based only on some notes, minutes, and the notes and statements of neighbors, etc. Such a "free assessment of the evidence" would also be impugned in the procedure of resolving a constitutional complaint (in order to establish violations of constitutional rights under Articles 22, 23 and 25 of the Constitution) if they had led to a negative assessment of judicial service - but in the concrete case, the lawful procedure nevertheless led to a positive assessment and so the complainant of course did not impugn this assessment but the resolution of the Judicial Council which did not respect this lawful assessment.
 
27. As has already been stated, in the procedure of deciding on the constitutional complaint, even the free evaluation of evidence of fact would have been impugned (suspected behavior of the candidate), insofar as it had caused a violation of the constitutional rights of the candidate. Even the question of what kind of assessment of the capacity of a candidate for judicial service, from properly and lawfully established actual states (thus from possible genuinely ascertained "conflicting" behavior of the candidate) would have to be followed, and it is already a question of law - the question of the proper subsumption of the established material state under legal norms. The statutory regulation of this question in Article 29 of the ZSS is not such that the finding of the smallest degree of this kind of "conflicting attitude" would require that the candidate be found unsuitable for judicial service. On the contrary, it requires of the competent organs a complex, overall assessment of the candidate by all criteria and on the basis of such an assessment, the production of a final "synthetic" positive or negative assessment. Item 6 of Article 29 of the ZSS is only one of seven criteria for producing an assessment and a judgement of the very undefined legal notion in this Item 6 (attitude to associates and behavior outside the service) would have to be very considered, weighed and responsible in order not to be arbitrary. The Constitutional Court would have to abrogate the exclusion of a candidate (after 10 years of judicial service) on the basis of completely unverified accusations of suspected conflicts with associates and neighbors, even in a case in which the competent organ had done so according to the statute.
 
28. Already the assessment of whether the properly established state of facts dictates a positive or negative assessment of judicial service is thus (despite its complicated legal and material questions) essentially a legal and not a factual question. The standpoint that when the competent personnel councils have already adopted this assessment, in a statutorily prescribed procedure, the matter should be a "free judgement of the evidence" or "matters of fact", whether this assessment should be considered positive or negative, is still more unacceptable. A question of fact here could be, e.g., the question of whether the submitted documentary evidence on this lawful assessment was genuine or falsified - but questions of what in this assessment the written words and sentences mean (a positive or negative opinion), is explicitly a legal question.
 
29. The resolution of the Personnel Council of the Supreme Court of 3 October 1994 (see above Item 25) has already clearly answered this question, which the impugned resolution of the Judicial Council has completely ignored. In answer to the constitutional complaint, the Judicial Council claims that this resolution of the Personnel Council of the Supreme Council adopts a negative decision for the complainant and that the formulation in the reasoning of this resolution of how the assessment must be understood, is only an "unclear formulation" which the Judicial Council considered non-binding. In view of the review of the real content of this resolution of the Personnel Council of the Supreme Court in Item 25 above, additional proof of the unfounded nature of the cited claims in the answer of the Judicial Council is unnecessary.
 
30. For the reasons cited, it was necessary to abrogate ab initio the impugned resolution.
 
31. Since in their answer to the constitutional complaint, the Judicial Council based their behavior also by referring to Article 28 of the ZSS, it is necessary - in addition to the above reasons - to clarify this question, too. Relying on an analysis of the statute already made in the reasoning of the previous decision (Up-134/95), and in the short summary in that decision, the Constitutional Court additionally warns that the somewhat unclear diction of Article 28 of the ZSS must of course also be dealt with in the context of the whole statute and not in isolation. If this provision says that in the selection of candidates for judicial service the Judicial Council must behave "according to criteria which this statute determines for establishing whether a candidate has professional knowledge and the capacity to perform judicial service" (thus according to criteria under Article 29 for the assessment of judicial service), this is not to say that the Judicial Council adopts this "finding of whether the candidate has professional knowledge and capacity". This finding (thus the assessment of judicial service), namely, is adopted by other organs (personnel councils) in a special procedure precisely regulated in Articles 31-36 of the ZSS. The provision of Article 28, therefore, does not give the Judicial Council jurisdiction to adopt these "findings", or assessments, but only requires it in the selection of candidates (who meet the conditions) to behave by the same criteria as apply for the production of the assessment of judicial work (but for which personnel councils have statutory jurisdiction).
 
32. Precisely this obligation of the Judicial Council to the same statutory criteria under Article 29 of the ZSS also in the selection of candidates who meet the conditions, binds the Judicial Council to reason its decision on such a selection, since judicial review in an administrative dispute also exists against a decision on the basis of discretion, and this would not be possible without mandatory reasoning. Insofar as in its answer to the constitutional complaint, the Judicial Council, with its claim that the statute gives "authority ... autonomously to decide on the merits of the candidatures" is thinking of the statutorily obligation to decide discretionarily, it is necessary to confirm this - but not also its claim that it has "statutory authority autonomously to judge the merits of the assessment of the personnel councils from the standpoint of criteria under Article 29 of the statute". Article 28 of the ZSS does not give it this authority, and under Article 33, it has only authority for such a judgement of a negative assessment of a judge's work. The provisions of Article 28 of the Courts Act, to which it also refers, must of course be similarly understood in the context of the detailed arrangement of these questions in the ZSS, which in relation to this is lex specialis - and the provision of Paragraph 2 of this article does not have the claimed content at all (it does not stress that the Judicial Council shall decide on proposals for the election of judges, as the Judicial Council interprets it, but in this paragraph there is only a procedural decision on what kind of majority shall decide such questions).
 
33. The demonstrated disunity in interpretation or in understanding of individual overly obscure statutory provisions or above all too obscure statute as a whole directed the Constitutional Court to a decision on widening the proceedings to a judgement of the constitutionality of some of the legal provisions - about which more under B. - III.
 
B. - II
 
34. Paragraph 1 of Article 60 of the Constitutional Court Act reads: "If the Constitutional Court abrogates ab initio an individual act, it may also decide on disputed rights or freedoms if this is urgent in order to remove effects which have already been created on the basis of the individual act abrogated ab initio, or if this is required by the nature of the constitutional rights or freedoms, and if it is possible to decide on the basis of data on record".
 
35. On adopting Item 2 of the holding, whereby instead of the Judicial Council, the Constitutional Court itself proposed the candidate to the National Assembly for election to the advertised position of judge, it was necessary to resolve two questions: whether on the basis of the data on record it was possible to decide on this, and whether the first condition was also met (the urgency of removing already created consequences or urgency of such a decision because of the nature of the constitutional rights). The Constitutional Court came to affirmative answers to both questions.
 
36. Whether the complainant meets the conditions for election to a permanent term of office is a question on which under the valid statutory arrangement the Judicial Council does not decide. In the complainant's case, this was decided with the assessment of the Personnel Council of the Superior Court in Koper, which according to the resolution of the Personnel Council of the Supreme Court of 3 October 1994 must be considered positive. All other organs that decide in the further procedure are bound to this legally binding assessment - both the Judicial Council and the Constitutional Court.
 
37. In connection with the question of whether Item 2 of the holding is urgent "in order to remove effects which have already been created on the basis of the individual act abrogated ab initio" (Paragraph 1 of Article 60 of the ZUstS), such a decision of the Constitutional Court is urgent by the fact that because of the unlawful decision of the Judicial Council the complainant has already been without employment since 28 October 1994, and since November 1995, also without pay or income.
 
B. III
 
38. The fact that, in the use of the statute which regulates such an important and sensitive matter as the Judicial Service Act, there can be such differences between the interpretations of the Judicial Council, the Supreme Court and the Constitutional Court, is more easily understandable and explicable in that the statute itself is too unclear and deficient and that it is debatable or disputable whether the current statutory arrangement in general guarantees on the one hand the implementation of the constitutionally determined role of the Judicial Council and on the other, consistent respect for the constitutional rights of candidates. Even the interpretation of the Constitutional Court in the first decision on this matter (Up-134/95) was not adopted unanimously, but with major differences both between the majority and minority and within the majority itself which voted for adoption of the holding. So at the time of fresh decision making on this case, the Constitutional Court decided in compliance with Paragraph 2 of Article 59 of the ZUstS and with Article 30 of the ZUstS, to extend the procedure to a judgement of the compliance of some of the statutory provisions with the Constitution.
 
39. The Constitutional Court decided in Item 3 of the holding that, on the basis of Paragraph 2 of Article 161 of the Constitution and Articles 59 and 30 of the Constitutional Court Act, that proceedings would be commenced for judging the constitutionality of some of the provisions of the ZSS, thus the statute on the provisions of which the acts were founded which the Constitutional Court abrogated ab initio in Item 1 of the holding.
 
40. The impugned resolution of the Judicial Council is based directly on the use of two of these provisions, first Paragraph 2 of Article 16 of the ZSS, under which the relevant opinion of the personnel council under Paragraph 1 of this article (or the "assessment of suitability of the candidate" - Article 17) shall be sent only to the Ministry (and thus not also to the candidate), on which in this case the Judicial Council based its behavior, and the judgement in an administrative lawsuit on this question is not defined. The commencement of proceedings for the judgement of this statutory provision is thus based directly on the use of Paragraph 2 of Article 59 of the ZUstS. In the process, according to the answer of the National Assembly, it will be necessary to answer the question of whether the provision of Paragraph 2 of Article 16 of the ZSS, insofar as neither the personnel councils nor the ministry is required to provide also their opinions to the candidate (with an appropriate time limit for a possible answer to this opinion), in compliance with the Constitution, in particular Article 21 of the Constitution (respect for a person's personality and dignity in all proceedings), and with the principle of a state governed by law. Although the Judicial Council is not bound to these two opinions, the claims about candidates in these two opinions could undoubtedly influence their decision, so it will be necessary to judge whether this kind of influence on the decision of the Judicial Council with the opinions of state organs about which the person affected is not informed - or they can be acquainted at most in their context of their right to examine the record, but which if this right were to be recognized would still not enable a timely reaction to potentially unfavorable statements in it - is constitutionally permissible.
 
41. The impugned resolution of the Judicial Council is further directly based on Paragraph 2 of Article 19 of the ZSS, in which it is determined that the Judicial Council shall propose to the National Assembly one candidate for election to each advertised position - but it is not defined that it must issue a reasoning of the decision, against which a candidate not chosen (or perhaps - because of a partially unfavorable reasoning - even the chosen candidate) has the right to judicial review, and that the National Assembly must halt the procedure of reaching a decision on the impugned proposal until the decision of the court (with a short time limit). Since the decision of the Judicial Council on the choice of candidate under Article 28 of the ZSS is not entirely (except procedurally) a statutorily unbound decision, such as, e.g., the following decision of the National Assembly on the election or non-election of the proposed candidate, but the Judicial Council is statutorily bound in this to respect the criteria under Article 29 of the ZSS, it will be necessary to evaluate in the procedure whether the principle of a state governed by the rule of law require that in such a case it must be the responsibility of the Judicial Council that it decide on the choice with a reasoned decision, explicitly inscribed in the law and that there must also be inscribed in the law the responsibility of the National Assembly to restrain deciding on the impugned proposal of the Judicial Council until resolution of an administrative dispute.
 
42. The statutory provisions of Article 33 of the ZSS (especially Paragraphs 1 and 2) however were not used in the impugned two acts, or these two acts were not based on them, but they are so closely linked with the direct uses of the statutory provisions that the Constitutional Court, during the analysis of the statute as a whole, crucially came against the question of their compliance with the Constitution. Because of the exceptional importance of a possible unconstitutionality of these provisions not only for respecting the constitutional rights of candidates in possible later disputed cases, but in general for respecting constitutional principles in the choice of judges as holders of the third branch of authority, the Constitutional Court decided in this case on a wide interpretation of Paragraph 2 of Article 161 of the Constitutional Court Act, by which it may decide on the constitutionality of regulations whose unconstitutionality is found "in deciding on a constitutional complaint" - so not only in a case under Paragraph 2 of Article 59 of the ZUstS, when in the procedure of deciding on a constitutional complaint the act abrogated ab initio is also based on such an unconstitutional regulation, namely precisely on the unconstitutional provisions of such a regulation. At the commencement of the proceedings for judging the constitutionality of the cited provisions of the ZSS, therefore, the Constitutional Court did not rely on Paragraph 2 of Article 59 of the ZUstS, but on Article 30 of the ZUstS (which under Article 49 of the ZUstS may be applied mutatis mutandis also in a procedure of deciding a constitutional complaint, unless the ZUstS determines otherwise), according to which the Constitutional Court assesses also the constitutionality of other provisions of the same or even the entire other regulation, a review of constitutionality of which was not proposed (or - in this case - it is not crucial for the resolution of the constitutional complaint itself), if these provisions are interconnected (or if this is crucial for resolution of the case).
 
43. With Article 35 of the ZSS, the question is raised whether the arrangement by which an assessment of judicial service for county and district judges is adopted by the personnel council of the district court, and for superior judges the personnel council of the superior court (and not the personnel council of the superior court of instance), is in compliance with the Constitution or with the constitutional role and position of judicial authority. Also in the view of some personnel councils, from whom the Constitutional Court requested an opinion in this proceeding, that the Judicial Council is not bound to the opinion of judicial service is important if these assessments are not adopted by the superior court of instance (although the Constitutional Court found that under the valid arrangement, the Judicial Council is also not bound to these assessments).
 
However, also in the case of the Judicial Council not being bound to these assessments, their decision would still have an important influence. In the further proceeding, it will be necessary to judge whether such an arrangement can be considered unconstitutional because it does not to a sufficient extent realize the constitutional principle of the independence of the judiciary (Article 125 of the Constitution), in that it allows the danger that, for instance, a relatively closed circle of county and district judges would be created, from which it would also not be possible to exclude unsuitable individuals, since this circle would always give a positive assessment. It will thus be necessary to judge whether judges really can be independent and sovereign holders of the "third branch of authority" only with the appropriate high quality and reliable selection mechanisms which guarantee this - in view of the fact that the judicial authority has neither direct democratic origin in elections nor parliamentary control, as, for example, the executive and it must therefore be subject to that much stricter and more reliable selection mechanisms. It will also be necessary to judge whether the selection mechanism within the judicial ranks (only by possible movement from lower to higher personnel councils) is sufficient for a professional assessment of meeting the minimum conditions for judicial service (who may be a candidate) - and whether it is necessary to guarantee to the Judicial Council the possibility of intervention also in positive and not only in the case of a negative assessment of judicial service under Article 32 of the ZSS (respecting of course in this all relevant constitutional legal questions, including the question of whether in this case the statute would have to determine at least in outline - in order to guarantee the equality of candidates before the law - in what kind of cases the Judicial Council could intervene in such a way).
 
C.
 
The Constitutional Court made this decision on the basis of Paragraphs 1 and 2 of Article 59, Paragraphs 1 and 2 of Article 60, Article 30, Paragraph 2 of Article 40 and Article 6 of the ZUstS, composed of: President Dr. Tone Jerovšek and Judges Mag. Matevž Krivic, Mag. Janez Snoj, Dr. Janez Šinkovec, Dr. Lovro Šturm, Franc Testen, Dr. Lojze Ude and Dr. Boštjan M. Zupančič. The decision was come to by five votes against three. Judges Šinkovec, Ude and Zupančič voted against. Judge Krivic gave an concurring and Judge Ude a dissenting opinion.
 
 
 
President of the Constitutional court:
Dr. Tone Jerovšek
Type of procedure:
constitutional complaint
Type of act:
other acts
Applicant:
OdlUS V, 187
Date of application:
10.05.1996
Date of decision:
24.10.1996
Type of decision adopted:
decision
Outcome of proceedings:
annulment or annulment ab initio
Document:
AN01226