U-I-121/97

Reference no.:
U-I-121/97
Objavljeno:
Oficial Gazette of RS, no. 34/97 and OdlUS VI, 69 | 23.05.1997
ECLI:
ECLI:SI:USRS:1997:U.I.121.97
Act:
Request for an assessment of the constitutionality of the contents of a demand to call for a referendum on the Law on the Changes and Additions to the Law on Denationalisation.
Operative provisions:
The first point of the question included in the demand to call for a preliminary referendum on changes and additions to the Law on Denationalisation (LD-B), which reads as follows: "not to return land, forests and other property of feudal origin" is not contrary to the Constitution, except insofar it applies to cases when the bodies entitled to the denationalised property are churches and other religious communities, their institutions or orders. The second point of the referendum question, which reads as follows: "that an individual entitled to the denationalised property is not returned land or forests larger than 100 hectares of comparable agricultural land" is contrary to the Constitution. The third point of the referendum questions, which reads as follows: "that in cases under 1 and 2 no compensation is to be awarded and that forests remain public property" is not contrary to the Constitution, except in the part that reads as follows: "and that forests remain public property." The fourth point of the referendum question, which reads as follows: "that a mandatory review of the denationalisation rulings is carried out in those cases where the probability has been demonstrated that the law was violated and social property damaged" is contrary to the Constitution. The first point of this resolution it to be carried out so that ballot papers under point 1 of the referendum question carry an explanation that the question does not apply to cases where the bodies entitled to the denationalised property are churches and other religious communities, their institutions or orders. The third point of the disposition of this Resolution is to be carried by removing in point 3 of the referendum question the texts "and 2" and "that forests remain public property".
Abstract:
The constitutionality of the contents of the referendum question was assessed by the Constitutional Court based on the position adopted in Resolution No. U-I-107/96 of 5 December 1996, pursuant to which, as far as its purpose is concerned, the LD, as a transitional law, is a system law which clearly defines all the fundamental principles of the denationalisation process which, in compliance with the principles of the rule of law, may only be altered if the conditions and circumstances satisfying the criteria of the strictest Constitutional Court review have been met. The conditions and circumstances of this strictest Constitutional Court review are: (1) the legislator's reasons, motives and objectives for changing the LD must be materially justifiable and constitutionally legitimate (not only definable); (2) the envisaged measures must be unavoidable in a democratic society, being dictated by urgent public need; (3) the legislator's interference (measures, legal solutions) must be in compliance with the principle of proportionality, inevitable in order to meet the legislator s objectives and proportionate to the value of the pursued objectives. The Constitutional Court is bound by these criteria in the assessment of this particular referendum question as well.

The reasons dictating point 1 of the referendum question are materially justifiable and constitutionally legitimate and are dictated by compelling public need. Insofar as it permits the restitution of estates of feudal origin, the Law on Denationalisation has been contrary to the principle of constitutional regulations, according to which Slovenia is a democratic country (Article 1 of the Constitution) from the very start of its validity. The restitution of estates of feudal origin is not in compliance with the system embraced by Slovenia with its independence acts, i.e. the Basic Constitutional Charter on the Independence and Sovereignty (Official Gazette of the Republic of Slovenia, No. 1/91-I) and the Declaration of Independence (Official Gazette of the Republic of Slovenia, No. 1/91-I), nor with the new Constitution which was just about to be adopted at the time of the adoption of the LD.

The Constitutional Court, in accordance with the position adopted in Resolution No. U-I-107/96 of 5 December 1996 (point 28 of the Reasons), that in view of their role as institutions of general benefit and with regard to their position in our legal system, it would be constitutionally impermissible to equate the nationalised property of churches and other religious communities with the estates of feudal origin, ruled that point 1 of the referendum question was in compliance with the Constitution only if it did not apply to the cases in which the bodies entitled to the denationalised property were churches and other religious communities, their institutions and orders. In addition to the conditions which justify the special status of religious institutions as the bodies entitled to the denationalised property, the Constitutional Court took into account: first, that the LD in Article 14 explicitly recognises the right of religious communities to the restitution of property, but only under the conditions applying at the time of its enforcement in Slovenia; second, that religious communities are Slovenian legal entities; and third, that for these reasons they may not be equated with private owners of the estates of feudal origin - especially not if they reside abroad - and that from the viewpoint of the national and public interest, they cannot be granted special status in the way in which religious communities are.

The Constitutional Court, in the assessment of the constitutionality of point 2 of the referendum question, took into account the fact that a legal change restricting the restitution of farmland and forests would interfere with the constitutionally protected entitlements of all those persons entitled to denationalised property who satisfy the conditions for the restitution of nationalised property, and that such a change would only be possible if the conditions and circumstances could withstand the strictest Constitutional Court review. Since point 2 of the proposed referendum question does not prove the existence of materially justifiable and unavoidably necessary reasons for the proposed changes to the LD, dictated by urgent public need, the Constitutional Court ruled that the point of the question is not in compliance with the Constitution.

If it is not contrary to the Constitution to not return property of feudal origin to its former owners then it is not contrary to the Constitution not to recognise the right to compensation in such cases.

Since the restriction on the restitution of land and forests is not in compliance with the Constitution, the part of the question which envisages restrictions to the restitution without compensation became superfluous. Therefore, the Constitutional Court, on the basis of the provision according to which it may determine the manner of execution of its resolutions (second paragraph of Article 40 of the Law on the Constitutional Court), decided that this change had to be accounted for when the referendum question was made.

An unclear referendum question is contrary to the principle of a state governed by the rule of law (Article 2 of the Constitution) and contrary to the essence of the referendum itself as a direct form of decision-making by citizens, who must be informed precisely of the contents of the question on which they are voting. Because the part of the question which reads: "and that forests remain public property" is not sufficiently clear and does not form a part of a whole with the other part of the referendum question, it is contrary to Articles 2 and 90 of the Constitution.

The subsequent introduction of a legal remedy against final denationalisation rulings constitutes an interference in the principle of trust in the law and the principle of legal certainty (Article 2 of the Constitution), and an interference in the constitutionally protected property entitlements, thus making such interferences only permissible if all the elements of the strictest review of proportionality have been met. Since the referendum question proposes a general review of the denationalisation rulings when the persons who have been affected by a denationalisation ruling have already had an opportunity to have the violations committed in the determination of the actual state and violations of material law established by applying legal remedies under the Law on the General Administrative Procedure, or by pressing a suit in an administrative dispute, and because the referendum question proposes that a review be carried out five years from the moment they should have been carried out and because a new legal remedy that would only apply to cases where social property is violated but not also when a violation was detrimental to the persons entitled to the denationalised property would be contrary to the constitutional principle of the equal protection of rights (Article 22), the referendum question, in the part where it proposes the introduction of a mandatory review for the denationalisation rulings, when probability exists that a violation of the law has been committed and social property damaged, is contrary to the Constitution.
Password:
Denationalisation, restitution of farmland and forests Restitution of property of feudal origin
Restitution of property, subsequent limitations
Denationalisation, position of those entitled to denationalised property
Denationalisation, review of rulings
Farmland, denationalisation
Conventions, international treaties, international documents - 1st Protocol to the (European) Convention on the Protection of Human Rights and Fundamental Freedoms, case law citation.
Referendum, preliminary, legislative
Referendum, clarity of a referendum question
The right to private property and to inherit
Equal protection of rights
Equality before the law
Constitutional Court, execution of a Constitutional Court ruling Constitutional Court, competencies under Article 16 of the Law on Referendums and Popular Initiatives
Principle of a state governed by the rule of law
Principle of trust in law
Principle of legal certainty
Regulations, retroactivity of a law
Ban on retroactivity
Finality, denationalisation rulings
Separate concurring opinion of a constitutional judge Separate dissenting opinion of a constitutional judge.
Legal basis:
The Constitution, Articles 2, 14, 22, 33, 90, 155, 158, XCIX Constitutional Amendment, Point 3
Law on Referendums and Popular Initiatives (LRPI), Articles 14,15 and 16
Law on the General Administrative Procedure (LAP), Articles 3, 60, 223, 230, 240, 249
Law on Administrative Disputes (LAD), Article 2
Law on the Constitutional Court (LCC) Article 21, Article 40, second paragraph.
Note:
In the reasons for its decisions the Constitutional Court refers to cases No. U-I-265/96 of 31 July 1996 (CCRes V, 125), No. U-I- 107/06 of 5 December 1996 (CCRes V, 174), No. U-I-25/92 of 4 March 1993 (II,23), No. U-I-140/94 of 14 December 1995 (CCRes IV, 124), No. U-I-23/93 of 20 March 1997, No. U-I-266/95 of 20 November 1995 (CCRes IV,116), No. U-I-153/94 of 5 October 1995 (CCRes IV, 92) and No. U-I-133/93 of 31 March 1994 (CCRes III, 28).
Document in PDF:
The full text:
U-I-121/97
23 May 1997

R E S O L U T I O N

At a session held on 23 May 1997 in a procedure to assess the constitutionality of the question contained in the demand to call for a referendum, initiated at the request of the National Assembly, the Constitutional Court

passed the following Resolution:

1. The first point of the question made in the demand to call a preliminary referendum on changes and additions to the Law on Denationalisation (LD-B), which reads as follows: "not to return land, forests and other property of feudal origin", is not contrary to the Constitution, except insofar as it applies to cases where the bodies entitled to the denationalised property are churches and other religious communities, their institutions or orders.

2. The second point of the referendum question, which reads as follows: "that an individual entitled to the denationalised property is not returned land or forests larger than 100 hectares of comparable agricultural land", is contrary to the Constitution.

3. The third point of the referendum question, which reads as follows: "that in cases under 1 and 2 no compensation is to be awarded and that forests remain public property", is not contrary to the Constitution, except in the part that reads as follows: "and that forests remain public property".

4. The fourth point of the referendum question, which reads as follows: "that a mandatory review of the denationalisation rulings is carried out in cases where probability has been demonstrated that the law was violated and social property damaged", is contrary to the Constitution.

5. The first point of this Resolution is to be carried out so that ballot papers under point 1 of the referendum question carry an explanation that the question does not apply to cases where the bodies entitled to the denationalised property are churches and other religious communities, their institutions or orders.

6. The third point of the disposition of this Resolution is to be carried out by removing in point 3 of the referendum question the texts "and 2" and "that forests remain public property".

Reasons:

A.

1. On the basis of a Resolution adopted in compliance with Article 16 of the Law on Referendums and Popular Initiatives (Official Gazette of the Republic of Slovenia, No.15/94, 13/95 - CCRes, 38/96 and 43/96 - CCRes; hereinafter; the LRPI), the National Assembly requested from the Constitutional Court an assessment of whether the question contained in the demand made by 50,823 voters in favour of calling for a preliminary referendum on changes and additions to the Law on

Denationalisation (the LD-B) - EPA 1644 (hereinafter: the referendum request) by its content contradicts the Constitution, in particular the provisions of Articles 2 (state governed by the law), 14 (equality before the law), 15 (exercise and limitations of rights), 22 (equal protection of rights) and 33 (the right to own and inherit property). The request is not explained separately; the reasons are given in the proposal of the Social Democrat deputy group's proposal to submit a request for an assessment of the constitutionality of the referendum request (hereinafter: the request proposer).

2. The referendum request reads as follows: "Are you in favour of the National Assembly regulating the Law on the Changes and Additions to the Law on Denationalisation (LD-B) - EPA 1644 that:

1. land, forests and other property of feudal origin are not to be returned

2. that individual persons are not returned land or forests larger than 100 hectares of comparable agricultural land

3. in cases under 1 and 2 no compensations are paid and that forests remain public property

4. a mandatory review of denationalisation rulings is introduced for cases where a probability exists that a violation of the law has been committed or that social property has been damaged." 3. In substantiating the claim of the discord between the first point and the Constitution, the proposer of the request for an assessment of the referendum question refers to two Constitutional Court resolutions: Resolution No. U-I-107/96 of 5 December 1996 (Official Gazette of the Republic of Slovenia, No. 1/97 - hereinafter: Resolution U-I-107/96) and Resolution No. U- I-25/92 of 4 March 1993 (CCRes II, 23). The request proposer is referring to the Constitutional Court remarking in the first resolution that "in view of its role as an institution of general benefit and the position in our legal system, it would be constitutionally impermissible to equate churches or religious communities, when appearing as bodies entitled to denationalised property, with estates originating in property relationships stemming from historically proven feudal relationships." In the second resolution the Constitutional Court wrote: "The state and religious communities are separate; the essence of the separation is that church organisations and institutions are linked to national law and, with regard to its legal character, depend on national regulations. These bodies were, during the nationalisation of their property as well as throughout the entire period prior to the adoption of the Law on Denationalisation, in accordance with the valid regulations, were treated as Slovenian national entities and were defined as such by positive law."

The second and third points of the question are declared to be contrary to the legal system of the country as defined by the Constitution, especially by the fourth paragraph of Article 15 and Article 33 of the Constitution. The Constitutional Court has apparently already adopted a position according to which legal provisions placing general restrictions on or excluding the property right are not in compliance with the Constitution (Resolution No. U-I-105/91 - CCRes I, 28, No. U-I-122/81-CCRes I, 56 and No. U-I-57/92 - CCRes III, 117). The provision of Article 33 of the Constitution does not limit the property rights, but only permits a law to determine the manner of acquiring and enjoying the property in order to ensure its commercial, social and environmental functions (Article 67). The Constitution only exceptionally allows for the property right to be restricted or revoked for public benefit, and only against a compensation in kind or in money (Article 69). In Resolution U- I-107/95 the Constitutional Court allegedly states that the reasons for restricting the right to the restitution of confiscated property have no materially justifiable grounds and were presented in the legislative proceedings in the media and other forms of public information without being examined or carefully assessed. A legal system introduced on the basis of points 2 and 3 of the question would put these persons, who are entitled to the denationalised property and have not yet received a binding legal ruling, into an unequal position with those whose applications have been ruled on with a binding legal ruling. This is a violation of the provisions of Articles 14 and 22 of the Constitution and the principle of trust in the law (Article 2 of the Constitution).

Since it does not specify who is to prove the probability that the law has been violated or socially owned property damaged, and in what way, point 4 of the referendum question is accused of being unclear. Avowedly, the possibility of a review has been envisaged with the regulations on administrative procedures. The problem is that the state bodies are unfamiliar with these regulations or do not enforce them. The referendum request is not supposed to deal with possible abuses committed in the denationalisation procedures. Legalising such provisions would in all probability mean a further delay to denationalisation procedures.

4. All three political parties which acted as the representatives of the referendum proposers, the Associated List of Social Democrats (hereinafter: the ZLSD), the Slovenian National Party and the Green Alternative of Slovenia (hereinafter: the representatives of the referendum proposers) submitted their comments to the request for an assessment of the referendum question. Since the arguments related to the reasons of the referendum request and the replies overlap to a large degree, the Constitutional Court is summing them up jointly.

5. The representatives of the referendum proposers maintain that the referendum request is not contrary to the guarantee to property from Article 33 of the Constitution and Article 1 of the Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms (Official Gazette of the RS, Nos. 27/91, 56/92 - CCRes, 13/93-CCRes, 31/93, 24/95-CCRes, 29/95 and 74/95 - hereinafter: the LD), which allegedly only set the basis for the restitution of property; the property is to be returned to the persons entitled to the denationalised property with binding legal denationalisation rulings. Until a binding legal ruling has been passed the entitlements of the former owners could take priority over the entitlements of others with vested interests, but cannot bind the state into not returning the confiscated property. Until a binding legal ruling has been issued the state is allegedly entitled to assess whether the material and legal reasons for changing the law do exist. That such a change is not contrary to Article 33 of the Constitution was allegedly confirmed by the Constitutional Court Resolutions No. U-I-23/93 of 20 March 1997 (Official Gazette of the Republic of Slovenia, No. 23/97 - hereinafter: Resolution U-I-23/93).

Article 1 of the Protocol, in the opinion of the representatives of the referendum proposers, does not protect the expectations, but only the property once it has been re-established. The Protocol allegedly allows countries to enforce the laws necessary in order to supervise the use of property if so required by the public interest.

The legislator was thus given a high degree of discretion in assessing the public interest in ensuring the commercial and social functions of property. Accounting for essential changes in the conditions and for the actual inability of the state to fulfil the obligations could not be contrary to the Protocol.

With regard to point 1 of the question, the representatives of the referendum proposers believe that the introduction of feudal estates would be contrary to the Constitutional provisions, according to which Slovenia is a democratic state, and contrary to the material capacities of the state. The Constitutional Court has apparently already pointed out in Resolution U-I- 107/96 the fact that there could be a limit on the return of property of feudal origin. Property of feudal origin is "property that was bestowed by the ruler with absolute powers and who with this property granted the recipients rights deriving from feudal property, which include, in particular, serfdom, the right to tithe and other rights." The fact that the acquired title has not changed in the intervening period is also important. The representatives of the referendum proposers emphasise that secular as well as ecclesiastical property can be of a feudal origin. Ecclesiastical estates cannot be excluded just on the grounds of the claim that it is an institution of general benefit. In the opinion of the representatives of the referendum proposers it cannot be claimed that the referendum question, which does not assume the more or less privileged position of the church, is contrary to the Constitution. A special assessment of the origin and existence of ecclesiastical estates in Slovenia is allegedly proven by the fact that the church is claiming one tenth of the entire property claimed by those entitled to the denationalised property, and that this property is worth one billion German Marks. (The representatives of the referendum proposers here gave their views on the origin of a part of ecclesiastical property, described in the material written by Milan Cajnar, entitled "Special characteristics of the denationalisation of forests - Why changes to the Law on Denationalisation?).

The representatives of the referendum proposers justified the determination of a limit on the return of land and property with a claim that if the return was carried out in the extent from the valid LD, Slovenia could not fulfil its functions and tasks deriving from the principle of the welfare state. The assessment of the scope and value of the property requested to be returned differs essentially from the one made at the time the LD was enforced (the extent of requested agricultural land increased by 100%, forests by 25%, the value of the property at the time the LD was adopted was three and a half billion German Marks - in the opinion of the previous minister of justice it equals 7 billion German Marks now, which constitutes one national budget). Under the valid LD those entitled have the right to request more land and forests than are available. The return of large areas would be detrimental to those who ask for a little: with a restriction on the return of property a possibility of at least a partial return of as much as possible would be facilitated (at the time of nationalisation over 16,000 hectares of farmland were given to individual beneficiaries of land reform and at least 3,000 hectares were used for construction purposes). All East European countries and Germany are allegedly returning property in very limited extents. The proposed changes to the LD are supposedly not interfering with the accrued rights or violating the principle of equality before the law; the solution proposed was allegedly contrary to the Constitution even when the LD was adopted. The Constitutional Court, in Resolution U-I-107/96 and Resolution U-I-81/94 of 20 March 1997 (Official Gazette of the Republic of Slovenia, No. 20/97 - hereinafter: Resolution U-I-81/94) allegedly interfered with the valid legal system. Because it is a transitional law and all its consequences could not have been foreseen at the time of the adoption, the legislator is allegedly entitled to interfere with already adopted solutions.

Conditions that are essentially different justify the necessity of changes to the LD. In view of these constitutionally impermissible solutions the legislator is allegedly even entitled to change them retroactively.

If it is constitutionally permissible for the property of feudal origin not to be returned and for its scope to be restricted, then it is constitutionally permissible to not pay contributions in this case. The representatives of the referendum proposers at the same time express their conviction that all forests exempt from denationalisation should be protected from further privatisation and that the law should envisage that they remain public property.

The representatives of the referendum proposal reject the claim that point 4 of the referendum question is unclear. In the reason for the referendum proposal, examples and reasons for the introduction of this legal remedy against a biding legal denationalisation ruling were cited. A review would be justified, at least in cases where (1) a public attorney was not involved in the proceedings; (2) special decisions on the citizenship were issued; (3) the person entitled to the property is a former citizen of the SFRY who at the time of the nationalisation had already left Slovenia; (4) the appraisals of compensation paid to the entitled persons at the time of the nationalisation; (5) the appraisals of the compensation concerning an increase in the value of the nationalised property have been carried out; (6) the restitution would not be possible if all the requests concerning an individual person entitled to these claims were examined.

The representatives of the referendum proposers believe that a review can be prescribed (1) in cases where it was established subsequently that legal solutions and the rights accrued on their basis were unconstitutional (restoration of property of feudal origin) or objectively unacceptable; (2) in cases where the law has been violated and legal remedies allowing the removal of the illegality were either not envisaged or not enforced. A review is allegedly envisaged by the changes to the Law on the Property Transformation of Companies (Official Gazette of the Republic of Slovenia, No. 7/93 - hereinafter: the LPTC-B) and these reviews were considered by the Constitutional Court to be in compliance with the Constitution. The Law on Civilian Casualties of War (Official Gazette of the Republic of Slovenia, Nos. 63/95, 8/96, 44/96 - hereinafter: the LCCW) also envisaged a revision to a much smaller extent of property.

B.

6. The Constitutional Court examined the compliance of the referendum question with the Constitution because the request by the National Assembly explicitly refers to the provision of Article 16 of the LRPI, which specifies the jurisdiction of the Constitutional Court to assess the constitutionality of the contents of a request to call for a referendum. The request did not explicitly state that the National Assembly considered the referendum question to be unconstitutional, but it can be concluded from the decision to initiate a procedure before the Constitutional Court under Article 16 of the LRPI that its view was such. The Constitutional Court reacted in a similar manner in case No. U-I-265/96 of 31 July (Official Gazette of the Republic of Slovenia, No. 43/96). The Constitutional Court's view is that procedural requirements for the examination of the constitutionality of the referendum question have been satisfied.

7. The constitutionality of the contents of the referendum question was assessed by the Constitutional Court from the position taken in Resolution U-I-107/96, to which both the proposers of the request to call for a preliminary referendum, as well as the proposer of the request to assess the constitutionality of the referendum question are referring to.

The basic view adopted by the Constitutional Court in this matter is that with regard to its purpose the LD, as a transitional law, is a system law, which clearly defines all the basic principles of denationalisation which, in compliance with the principle of a state governed by the rule of law, may only be altered if the conditions and circumstances that satisfy the criteria from the strictest constitutional court review are met. The conditions and circumstances of such a review, which were clearly specified by the Constitutional Court in point 15 of the reasons, are: (1) the reasons, motives, purposes and objectives of the legislator in changing the LD must be materially justifiable and constitutionally legitimate (not just definable); (2) the proposed measures must be unavoidable in a democratic society, dictated by urgent public need; (3) the legislator s measures (measures, legal solutions) must, in compliance with the principle of proportionality, be appropriate/unavoidably necessary in order to reach the legislator's objectives and proportionate to the value of the pursued objectives. The Constitutional Court is bound to the cited criteria in the assessment of the contents of the referendum question under examination.

Assessment of the constitutionality of the referendum question under point 1:

8. It is clear from the Proposal of the Law on Changes and Additions to the LD, in connection with which the preliminary legislative referendum has been proposed, that the suggested legal solution does not regulate the return of feudal estates separately and proposes the return of farmland and forests in an extent which would not exceed the land maximum determined by the regulations valid on 6 April 1941 (the first paragraph of Article 27a). The owners of estates, regardless of the origin of their estate, may, according to this proposal, acquire the status of a person entitled to the denationalised property (and satisfy legal requirements for the acquisition of the status of a person entitled to the denationalised property) and are to have the right to compensation for that part of the property which is not being returned (Article 10 of the proposal). The referendum question in point 1 proposes a different arrangement for the return of estates of feudal origin. From the contents of point 1 of the referendum question and the reasons for the request, it follows that, with this referendum question, it is to be decided that "land, forests and other property of feudal origin is not to be returned", i.e. that none at all is to be returned, which means that the owners of the property of feudal origin are not entitled to the denationalised property at all.

Such an interpretation of point 1 of the referendum question is confirmed by point 3 of the referendum question, which suggests that in cases under point 1 no compensation is to be paid.

9. From point 29 of the reasons of Resolution U-I-107/96 it is clear that the Constitutional Court ruled that the annulment of the ban on the return of property in excess of 200 hectares of farmland and forests takes effect six months from the day of its publication in the Official Gazette of the Republic of Slovenia precisely for the reason that this would allow the legislator to re-examine all the reasons that could dictate possible legal changes and additions to the LD. The Constitutional Court itself notified the legislator that it was necessary to reassess whether the return of estates of feudal origin whose existence at the time of nationalisation is proven by historic sources is in compliance with the constitutional system of the Republic of Slovenia. The Constitutional Court based the notice on the assessment that the return of feudal estates in kind would be incompatible with the notion of a republic as a state form and with the notion of a democratic country.

10. The LD was prepared, adopted and came into force (on 7 December 1991) prior to the adoption of the Constitution. From the legislative material prepared at the time of adoption of the LD, it is clear that the legislator did not treat separately the question of the restitution of feudal estates, nor did it discuss it separately, especially not from the aspect of the new constitutional regulation. The issue of the restitution of feudal estates only emerged after the enforcement of the LD, when it was established that, provided that general conditions for the acquisition of the status of a person entitled to the denationalised property were satisfied, estates of feudal origin could be returned under the LD. On this basis the Constitutional Court assessed that when discussing this issue during the adoption of the LD, the legislator must have assessed that the return of estates of feudal origin was not in compliance with the national system, chosen by the Republic of Slovenia with its independence documents, i.e. the Basic Constitutional Charter on the Independence and Sovereignty (Official Gazette of the Republic of Slovenia, No.1/91-I) and the Declaration of Independence (Official Gazette of the Republic of Slovenia, No. 1/91-I), nor with the new Constitution which was just about to be adopted. Insofar as it permits the restitution of estates of feudal origin, the LD has thus from the very beginning been contrary to the principle of Slovenia being a democratic republic (Article 1 of the Constitution). The reasons dictating point 1 of the referendum question are justifiable and constitutionally legitimate for the cited material reasons, and are dictated by an urgent public need. The envisaged measure, i.e. to not recognise the status of a person entitled to the denationalised property as the previous owners of estates of feudal origin is unavoidable for a democratic society and proportionate to the value of the set objectives.

11. The Constitutional Court hereby points out that property of feudal origin in most and, according to the information gathered in the procedure of deciding on the disputed referendum matter, in all cases could not be returned, even on the basis of the valid provisions of the LD. Under the starting provision the chapter on the persons entitled to the property only included the persons who at the time of nationalisation were Yugoslav citizens and were, after 9 May 1945, recognised as citizens, either with a law or an international treaty (first paragraph of Article 9). As it derives from the 11th Report on the Implementation of the Law on Denationalisation (Reporter, No.7/97), in order to remove any illegalities, a procedure of reviewing all decisions on citizenship has been underway at the Ministry of Internal Affairs. Furthermore, the LD explicitly excludes from the category of persons entitled those who have already received compensation from a foreign country and those who were entitled to it but did not use it (second paragraph of Article 10).

12. What the proposer of the request to assess the constitutionality of the referendum question points out in particular is that the position of the representatives of the referendum proposers is that point 1 of the referendum question also covers cases where the body entitled to denationalised property is the church or other legal entity of canon law, if it is established that ecclesiastical property is of feudal origin.

13. Such a position of the representatives of the referendum proposers clearly contrasts with the view adopted by the Constitutional Court in Resolution U-I-107/96 (point 28 of the reasons) according to which it would not be constitutionally permissible to equate the nationalised property of the church and religious communities in view of their role as institutions of general benefit and their position in the Slovenian legal system, with the estates of feudal origin. The Constitutional Court again refers to the reasons from the cited resolution and points out that, in the assessment of a possible change to the law, it would completely withdraw the right to the restitution of property of feudal origin from the persons from Article 14 of the LD, and it could not account for the arguments of the representatives of the referendum proposers according to which all the property of feudal origin must, in view of the principle of equality, be treated equally, regardless of the entity entitled to the denationalised property. In addition to the circumstances justifying the special position of religious institutions as the bodies entitled to the denationalised property, and which have already been explained by the Constitutional Court in the cited resolutions, the following must be emphasised as well: first, the LD in Article 14 explicitly recognises the right of religious communities to the return of the property, but only under the condition that at the time of its enforcement they operated on the territory of Slovenia; second, that religious communities are Slovenian legal entities operating within the legal system of the Republic of Slovenia (see Resolution U-I-25/92); and third, that for these reasons they cannot be equated with private owners of estates of feudal origin - in particular if they now live abroad - and from the position of the national and public interest they cannot be recognised any special status akin to that held by religious communities. These are the reasons why the Constitutional Court concluded that point 1 of the referendum question, which proposes that the return of property of feudal origin should be excluded by law, is in compliance with the Constitution only if it does not apply to cases where the bodies entitled to the denationalised property are churches and other religious communities, their institutions or orders.

14. It is clear from the reasons for the request to call for a preliminary legislative referendum and from the proposer's reply that point 1 of the referendum question also applies to the nationalised property of churches and religious communities for whom it is established that it is of feudal origin. Because the contents of point 1 of the referendum question were understood and explained in this way, for the reasons described in the preceding point, it is not in compliance with the Constitution and could mislead the voters to the conclusion that the Constitutional Court also ruled on the constitutionality of the restitution of property of feudal origin to legal entities from Article 14 of the LD, the Constitutional Court decided that the ballot paper must, in point 1 of the referendum question, include an explanation that point 1 of the referendum question is not about deciding on the return of church property (second paragraph of Article 40 of the Law on the Constitutional Court, Official Gazette of the Republic of Slovenia, No.15/94 - hereinafter: the LCC).

15. A tape recording of the 4th session of the National Assembly of 24 April 1997, where the request for an assessment of the constitutionality of the contents of the referendum question was adopted, shows that individual deputies cited as possible reasons during the discussion for unconstitutionality the fact that the term "property of feudal origin" has not been defined anywhere and that a referendum on a question which is not clearly defined or definable could mislead the voters, i.e. most of the voters would not have a clear idea what property of feudal origin really is. Hence the Constitutional Court assessed point 1 of the referendum question from this aspect as well.

16. In Article 14 the LRPI stipulates that a question which is the subject of a referendum must be clearly set. Article 15 foresees the event that the National Assembly believes that the question to be asked at the referendum is not clearly set out.

The Constitutional Court in the cited Resolution U-I-107/96 uses the term "estates of feudal origin" or "an estate deriving from the former feudal relationship" and also cites the sources which show that before World War Two the estates in Slovenia, by their origin, could be divided into feudal, church and capitalist.

These sources include the already cited work by Dr C11epič, by Dr Milivoj Erić ("Land Reform in Yugoslavia 1918-1941", Sarajevo, 1958) and by Albin Prepeluh ("Land Reform: Our Great Social Issue", Ljubljana, 1933). For some time now a discussion has been running in Slovenia on the return of feudal estates and the public media has kept the public well informed of the return of estates, in particular of forests, by publishing lists of names and historic sources. Given these reasons the Constitutional Court concluded that the content of point 1 of the referendum question was sufficiently clear, even though the term "property of feudal origin" has not yet been legally defined and will be specified on the basis of the existing professional definitions by a law, provided that the referendum proposal wins. The legislator will have to take a stand on whether this term only covers farmland and forests or whether, and to what degree, it could cover the immovable and moveable property of feudal origin. The term "other property of feudal origin" is so undefined that when regulating the question it will be necessary to establish from a constitutional aspect whether a property (for example, tangible property, housing in settlements) may be defined as property of feudal origin.

Assessment of the constitutionality of the referendum question in point 2:

17. The Constitutional Court has adopted its position with regard to additional restrictions on the return of nationalised and confiscated property with Resolution U-I 107/96 and other resolutions on which the proposer of the request to assess the constitutionality based his argument of unconstitutionality of the referendum question under point 2.

18. The legislative material accumulated at the time the LD was adopted (Reporter, Nos.7/91 and 21/91) shows that the issue of returning farmland and forests was one of the most controversial and that the legislator, in accounting for point 3 of the XCIX Constitutional Amendment (Official Gazette of the Republic of Slovenia, No. 7/91), which removed the provision of the old Constitution prescribing land maximums for farmland and forests, ruled that this maximum does not apply to the return of farmland and forests. The legislator, by adopting the LD whose intention was to rectify the injustice committed in the past, regulated the return of farmland and forests without introducing any restrictions as regards its scope. The LD was created as a result of the decision to rectify the injustice committed after the Second World War. The decision was based on the principle of justice, and the legislator could have decided during the adoption of the law to place certain limitations on the return of farmland and forests. In Resolution No. U-I-140/94 of 14 December 195 (CCRes IV, 124) the Constitutional Court adopted the stand that the legislator, in cases of the interlinked transitional regulations of the issues of privatisation and the redressing of injustices caused by nationalisation which, at the same time, are issues that the legislator cannot have any experience of nor can search for solutions in comparable legislation, the legislator is given a comparatively wide field of discretion. The principle of equality before the law in this case demands that the legislator's decision be intelligent, non- arbitrary and that there be a rational link between the chosen solution and the pursued objective. Only in such cases may the Constitutional Court, when making an assessment, not be bound by the strictest constitutional review.

19. With the adoption of the LD the legislator determined both the circle of persons entitled to the denationalised property, as well as the bulk of the nationalised property to be returned. Those who satisfied the conditions for the acquisition of the position of a person entitled to the denationalised property received the right to the restitution of the nationalised property if they lodged a denationalisation claim (Article 64) within 24 months of the implementation of the LD (by 7 December 1993, except for legal entities for whom the deadline expired on 13 May 1995). The legislator also decided that the first instance ruling on the request must be issued and delivered to the entitled persons within a year of submitting a correct claim, whereby the date an incomplete claim was completed is to be considered as the date of a correct claim was submitted (Article 58).

20. These are the reasons why the Constitutional Court, in Resolution U-I-107/96, considered a temporary suspension of the denationalisation of farmland and forests to be "an interference with the entitlements originating in the constitutionally guaranteed right to property from Article 33 of the Constitution." (point 15 of the reasons). With the submission of an officially correct claim - and not with the finality of a denationalisation ruling - the persons entitled to the denationalised property under the LD received the entitlements protected under Article 33 of the Constitution, as well as Article 1 of the Protocol. The Constitutional Court did not alter its opinion with Resolution U-I-23/93 that the representatives of the referendum proposers are referring to.

The position taken in that resolution (this mainly concerns points 33 and 35) does not apply to situations where the LD has already determined that property is to be returned and the denationalisation procedures are underway which are also the subject of this case. The position taken in Resolution U-I-23/96 applies to the cases where the LD did not grant the right to denationalisation to certain persons. The reference to Resolution U-I-23/96 by the representatives of the referendum proposer is thus unsubstantiated. The representatives of the referendum proposers, by referring to legal arrangements used by other European countries which severely restricted the restitution of property nationalised during the socialist era with laws, is also unsubstantiated. These countries restricted the return of nationalised property at the very beginning and thus the entitled persons acquired the rights only to the extent prescribed by law. Therefore the Constitutional Court did not account for the cited reasons which, in the opinion of the representatives of the referendum proposers, were material and justifiable reasons for changing the law.

21. The position of the Constitutional Court embraced in Resolutions U-I-107/96 and U-I-23/93 has been corroborated by the practice of the bodies making decisions on the basis of the European Commission for Human Rights. The Commission on 4 March 1996 considered inadmissible a complaint in which the plaintiff alleged a violation of Article 1 of the Protocol, claiming that according to the agreements on the reunification of Germany he should have been given a option to have his property returned or to receive compensation for the property confiscated between 1945 and 1949. The Commission in its decision referred to the permanent practice of the Court. Under Article 1 of the Protocol, property is considered to be the existing property, the property value or a claim which the claimant can prove has at least a reasonable chance of being fulfilled. In the case of Pine Valley Development Ltd and others versus Ireland, the European Court ruled that the right from Article 1 of the Protocol had been violated due to the existence of a legitimate expectation (l'esperance legitime) (ruling of 29 November 1991, Publications of the European Court of Human Rights, Series A, Vol. 222, point 51); in the case of Pressos Campania Naviera S.A. and others versus Belgium, it considered the compensation claim to be an asset and possession was therefore protected under Article 1 of the Protocol (ruling of 20 November 1995, point 31).

22. The above reasons are why the Constitutional Court, in the assessment of the constitutionality of point 2 of the referendum question, must take into account the fact that a legal change restricting the return of farmland and forests would interfere with the constitutionally protected entitlements of all those persons entitled to denationalised property who satisfy the conditions for the return of property, and such a change in the law would only be possible if the conditions and circumstances of the strictest constitutional court review, cited in the introduction of these reasons, had been satisfied. The proposer of the request to assess the constitutionality maintains that these circumstances and conditions do not exist.

23. In compliance with the cited text, the representatives of the referendum proposers should first have proved that the reasons, motives and objectives of the proposed changes were materially justifiable and that the proposed changes were dictated by urgent public need. According to their statements the objective of the proposed changes is to return farmland and forests to as wide a circle of entitled persons as possible. The representatives of the referendum proposers build on the presumption that a sizeable increase in the claims to farmland and forests would mean that the state would not have enough land to satisfy all claims to denationalised property, which would put the persons entitled to denationalised property claiming only small areas at a disadvantage. They justify the need for a restriction on the return of farmland and forests with the principle of a welfare state.

24. The Constitutional Court, in assessing these reasons, accounted for the latest data cited in the draft of the 12th Report on the Implementation of the LD of 30 April 1997 by the Ministry of Justice, the data provided by the Ministry of Agriculture, Forestry and Food of 16 May 1997, and the data provided by the Farmland and Forests Fund of 13 May 1997. It also took into account the data in the Supplement to the Reasons for the Proposal of the LD, published in Reporter No. 21 on 25 July 1991.

25. The report shows that the size of claimed farmland and forests in comparison with the overall amount assessed in 1991 has increased. At the time the LD was adopted, it was anticipated that 70,000 hectares of farmland and 132,300 hectares of forests would be claimed back in denationalisation.

It needs to be stressed here that the supplement to the reasons for the proposal of the LD makes it clear that the estimates did not include land and forests confiscated from German estate owners. As a result, of the total of 92,000 hectares of nationalised land and 166,000 hectares of nationalised forests, 22,000 hectares of land and 33,600 hectares of forests were deducted. These numbers explain the increase in the size of the currently claimed forests and partially also the increase in the size of claimed farmland, since claims for the land and forests of these German estates have been submitted and these surfaces are included in the data on the size of the claims for farmland and forests in the 12th Report on the Implementation of the LD.

26. Table 7 in the 12th Report shows that by accounting for the proportion of granted and rejected denationalisation claims made on the grounds of already issued rulings, it was planned that by the time the denationalisation was completed, 120,295 hectares, or 130,816 hectares of farmland at most, and 156,290 hectares or 169,959 hectares of forests at most, would have been returned, under the condition that the ratio between the granted and rejected claims remained unchanged. Therefore all the data indicated that when the denationalisation was over, 50,295 hectares (60,816 hectares at most) of farmland and 23,990 hectares (36,659 hectares at most) of forest (more than was planned at the time the LD was adopted) would have been returned.

27. The Report of the Farmland and Forests Fund shows that according to the land register data as of 31 December 1993 the state owned 190,000 hectares of farmland and 360,000 hectares of forests, and that the percentage of the areas returned after 10 October 1996 and at least 100,000 hectares which became municipal property under the Law on the Re-establishment of Agrarian Communities and the Return of Their Property and Rights (Official Gazette of the Republic of Slovenia, Nos. 5/94, 38/94, 69/95, and 22/94), must be deducted from the total, as must be the land returned under Article 145 of the Law on the Execution of Penal Sanctions (Official Gazette of the Republic of Slovenia, Nos. 17/78, 23/82, 41/87, 8/90, 12/92, 58/93 and 71/94), on the size of which there is no data available. In the Report the Fund explains that the proposer's claim that the return of large areas of land and forests to individuals would be detrimental to many who are entitled to denationalised property and are claiming small plots of farmland or forests "is true only to a very limited extent and only in those cases where the same immovable property was nationalised twice to two different beneficiaries, because in the first case it is returned in kind and in the second, compensation is paid." The Fund warns that the data is unreliable chiefly because of a discrepancy between the land register data and the real situation.

28. Tables 13 and 14 in the 12th Report show that in past denationalisation procedures most of the farmland and forests were returned in kind. 19,103 hectares, or 72 per cent, were returned to ownership and possession, the property rights to 2,391 hectares or 9.01 per cent of farmland were re-established, and joint ownership was established for 1,395 hectares or 5.26 per cent of farmland. Compensation was paid in the form of bonds for 147 hectares or 0.55 per cent, in certificates for 14 hectares or 0.05 per cent, and in cash for 22 hectares or 0.08 per cent. With forests, the proportion of restored ownership and possession is even higher. The ownership and possession was restored for around 66,093 hectares or 89.65 per cent of forests. Compensation in bonds and certificates was paid out for 27 hectares or 0.041 per cent of forests.

29. The 12th report shows that at least 20,000 hectares of farmland and at least 66,000 hectares of forests have been returned. This means that around 100,000 hectares (110,000 hectares at most) of farmland and 90,000 hectares (104,000 hectares at most) of forests still remain to be returned according to the plans, under the condition that the ratio between the approved and rejected claims remains the same. It must be added that this number includes all farmland and forests for which denationalisation claims have already been lodged, including the estates which point 1 of the referendum question proposes to be excluded from being subject to denationalisation with the changes to the LD. If the requested legal change does take place, then the amount of the returned farmland and forests in particular will be smaller.

30. Based on the cited information the Constitutional Court concluded that the proposer's reasons, which supposedly justify a restriction on the return of farmland and forest to persons entitled to denationalised property, have no materially justifiable grounds. The data available at present does not indicate that the return of sizeable farmland and forests violates the principle of a welfare state (Article 2) by depriving those who request small plots of land. In its report the Fund explains the cases where the property cannot be returned in kind, and these are very rare.

31. The Constitutional Court has emphasised a number of times in its decisions that the purpose of the denationalisation is also to privatise the part of socially owned property that was created by the unjust nationalisation of private property. The representatives of the referendum proposers are not demonstrating any urgent public need for the nationalised farmland and forests to remain state property. In the opinion of the Constitutional Court the public need for increasing the amount of publicly owned forests could exist. But such a need was not demonstrated as an urgent need justifying an interference with the constitutionally protected status of persons entitled to denationalised property. The Constitutional Court, in point 27 of the reasons of Resolution U-I-107/96, cited the reasons which preclude the enforcement of general interest in the preservation of forests as national economy at the expense of the persons entitled to denationalised property, but can be enforced by applying other measures and methods. The Law on Forests (Official Gazette of the Republic of Slovenia, No. 30/93) guarantees the preservation and natural development of all forests and their functions of public interest, irrespective of the ownership of the forests and regardless of the size of a forest property. The legislator always has all the opportunities to adopt additional measures if practice shows that current legislation does not guarantee the preservation of forests as a national treasure.

32. The Constitutional Court was unable to accept as materially justified the claims made by the representatives of the referendum proposers, according to which this extraordinary increase in claims to farmland and forests increased the value of the entire property from the anticipated DM 3.5 billion to DM 7 billion. An analysis of the data in the 12th report indicates that the increase in the overall value of the property was caused by the fact that in 1991 no assessment was made of the value of the nationalised building land (built-on or not) or of moveable property, whose total value in claims amounted to DM 1,740,466,000, which is the main reason for the increase in the value of all claims. Also, the Supplement to the Explanation of the Proposal of the LD shows that it allowed for a greater value of the nationalised property - up to DM 4 billion (which does not exceed the 10-per-cent value of the socially owned property assessed at the time).

33. The representatives of the referendum proposers do not state any reasons that would confirm that an unrestricted return of farmland and forests would increase the financial commitments of the state. In the view of the Constitutional Court, the return of farmland and forests cannot present any significant increase in the financial obligations of the state as long there is enough farmland and forests to go round and the property is returned in kind. If, in cases where the property cannot be given back in kind, compensation has to be paid, this cannot present any large burden for the national economy. These cases cannot form materially justified reasons for interfering with the constitutionally protected entitlements of persons entitled to denationalised property. Given that many of the entitled persons have already been returned property in excess of the proposed limit, the proposed restriction would be a violation of the principle of equality before the law (Article 14 of the Constitution). The Constitutional Court points out the possibility of giving replacement property, which should be used more and which needs to be better regulated by the LD.

34. The proposers of the referendum also failed to demonstrate that the envisaged restrictions would increase the amount of farmland and forest owned by the state. The information provided by the Ministry of Agriculture, Forestry and Food reveals that 59 persons entitled to the denationalised property (everyone is included - even those for whom the changes to the LD may mean that they are claiming land of feudal origin, religious communities and other legal entities) are claiming more than 100 hectares of land, of whom 20 are claiming over 800 hectares of forests and 55 are claiming over 100 hectares of land. Since authorised bodies did not collect any comparable information on the size of land claimed, but only on farmland and forests, it cannot be assessed whether the proposed measures were in compliance with the principle of proportionality, and were appropriate and unavoidably necessary in order to meet the objectives of the proposed changes.

35. Since the reasons for the change of the LD proposed in point 2 of the referendum question were not proven to be materially justifiable and unavoidably necessary reasons dictated by urgent public need, the Constitutional Court ruled that the cited point is not in compliance with the Constitution.

Assessment of the constitutionality of the referendum question under point 3:

36. The proposers of the request to assess the constitutionality of the referendum request have no special arguments as to why point 3 of the question, in the part that refers to point 1 of the question, is contrary to the Constitution. Insofar as this part of the question applies to cases where the bodies entitled to the denationalised property are churches and other religious communities, their institutions and orders, the question of excluding compensation becomes superfluous. Since the church and other religious communities, their institutions and orders, with regard to the constitutionality of point 1 of the referendum question, cannot be excluded from the ranks of those entitled to denationalised property, they will implement their rights to the return of the nationalised property in compliance with the valid LD. Insofar as it concerns the property of feudal origin of other former owners, the exclusion from compensation is not contrary to the Constitution for the reasons cited in the assessment of point 1 of the referendum question.

37. After it is established that a restriction on the return of land and forests is not in compliance with the Constitution, the question of excluding compensation from point 2 of the referendum question becomes redundant. Since the LD remains the legal foundation, the rules that have already been determined will have to be used in the restitution of property in kind or in compensation. A consequence of the unconstitutionality of point 2 of the question is that point 3 cannot be asked at the referendum in the part concerning point 2 of the question. The constitutional court, on the basis of the second paragraph of Article 40 of the LCC in point 6 of the disposition, therefore determined that this change had to be accounted for when asking the referendum question and therefore "and 2" must be removed from the text of point 2 of the referendum question.

38. In the assessment of the constitutionality of point 3 of the referendum question, the question of the contents of the second section which reads "and that forests remain public property" arises. This part of the question can be interpreted in two ways: as a continuation of the first part of the question, or as an independent section of the referendum question. If we see it as a continuation of the first part of the question under point 3, then it is redundant from the legal aspect. The fact that forests will remain public property is a logical consequence of the questions under points 1 and 2, which aim at ensuring that certain forests are not returned and thus the current situation is preserved. If we see it as an independent part of the referendum question, then it is a ban on alienating publicly owned forests. If it is understood in this way, then from the system aspect it does not belong to the LD, to which this particular referendum question applies. The regulation of this issue is not even envisaged by the proposed changes and additions to the LD (Reporter, No. 40/96, page 13 and following). If the second part of point 3 is seen as a separate part of the referendum question, then it is not even clear why it follows a part of the question that concerns the non- recognition of compensation and why it is not formulated as an independent question. The issue of compensation is not related to the ban on alienating forests. An average voter would find it hard to decipher its special contents. The doubts as to the meaning of this part of the question are not dispelled, even by the explanation of the referendum decision. The representatives of the referendum proposers in the explanation briefly state: "In addition to all this, we are certain that all forests that are to be exempt from denationalisation need to be protected from further privatisation by envisaging in a law that they mandatorily become public property - i.e. owned by the state or municipalities - depending on the actual interests and decisions."

39. If the second part of the question under point 3 is interpreted as a mere continuation of the first part of the question, then it is redundant. If we see it as an independent part of the question, then it is contrary to the provision of Article 14 of the LRPI. According to this provision a referendum question must be clearly formulated. The provision also means that a referendum question must form a whole. In comparative law (in the US this rule is known as the single-subject rule, in Italy as univocita) the right of the voter to cast his vote for or against a referendum question is to be a correct reflection of his free will in this case. The National Assembly did not start the procedure under Article 15 of the LRPI in this part of the question. Nevertheless, the Constitutional Court at the same time had to assess the constitutionality of the entire referendum question in order to assess the constitutionality of this part as unclear (or an unclear part of the question) as contrary to the principle of the rule of law (Article 2 of the Constitution), as well as to the very essence of a referendum as a form of direct decision-making by the citizens who, as voters, must be precisely informed of the contents of the question on which they are voting. An unclear question is thus also contrary to Article 90 of the Constitution.

40. On the basis of the second paragraph of Article 40, the Constitutional Court, under point 6 of the disposition, ruled that the part reading and that forests remain public property be removed from point 3 of the referendum question.

Assessment of the constitutionality of the referendum question under point 4:

41. The proposer s reservation, regarding the clarity of point 4 of the referendum question (that it allegedly does not specify who is to demonstrate the probability that the law has been violated, and in what manner) is groundless. The limitation according to which a revision is only to be introduced when probability has been demonstrated that a law has been violated and social property damaged, is just superficial. The question in fact proposes an introduction of a general review of the denationalisation rulings. All binding legal decisions in favour of the persons entitled to the denationalised property are to be subjected to a later review of their correctness and legality.

42. A subsequent introduction of a legal remedy against binding legal decisions is an interference with the principle of trust in the law and the principle of legal certainty, which are guaranteed with the constitutional provisions according to which Slovenia is a state governed by the rule of law (Article 2). The Constitution does allow the removal, annulment or change of binding legal decisions if the cases and procedures for such interventions have been identified in a law (Article 158).

However, in connection with the provision of Article 155 (ban on retroactive effect of legal enactments) and Article 2 of the Constitution, Article 158 must be interpreted in such a way that an interference with binding legal decisions is only permissible when these interventions have been envisaged by a law, even before this legal binding decision has been adopted. A law that envisages such interference with binding legal decisions does not have a retroactive effect as such, which is why the Constitution does not prescribe such strict criteria for its constitutionality as it does in Article 155 of the Constitution for retroactive laws. But because such an arrangement would have effects akin to retroactivity/interference in the accrued rights (Resolution No. U-I-266/95 of 20 November 1995 - CCRes IV, 116), it is only permitted exceptionally and under specially justified reasons. When assessing the provisions of the Law on the Labour and Social Courts (Official Gazette of the Republic of Slovenia, No. 19/94) which introduced the subsequent review of some labour disputes, the Constitutional Court cited as being reasons: discriminatory decision-making, incorrect application or an abuse of the law that results in worse conditions for an individual s existence or social security (Resolution No. U-I- 153/94 of 5 October 1995 - CCRes IV, 92).

43. Deriving from the above, the argument, according to which the legislator envisaged mandatory reviews of the cases of significantly reduced liabilities for the state under the LCCW, is unjustified. The original text of the LCCW envisaged review, and therefore only the general conditions from Article 158 of the Constitution apply to it.

44. The proposed review is not comparable with the review prescribed by the LOTC-B. It is true to say that the Constitutional Court did establish that a review under the LOTC was not contrary to the Constitution (Resolution No. U-I-133/93 of 31 March 1994 - CCRes III, 28). However, the representatives of the referendum proposers are wrong when citing as the main reason the fact that it was a transitional law. The position of the Constitutional Court can be discerned both from the reasons and from a brief summary, according to which the contested provisions only made the principles of managing socially owned funds and the principle of business ethics, which have been identified previously, operational. The previous case, unlike the review proposed by the referendum request, is not a review of final court or administrative decisions, but a review of legal acts and company actions carried out before or during the ownership transformation of companies.

45. An essential difference between all types of described reviews and the review envisaged by the referendum request is that the review proposed by the referendum call is an interference with a binding legal decision establishing the property right or other entitlements of a property nature. Such an interference is only permissible if all the conditions cited in point 7 of the reasons have been satisfied.

46. The purpose pursued by point 4 of the referendum question - the removal of irregularities and illegalities in the denationalisation procedures allegedly committed to the disadvantage of social property - is constitutionally legitimate. The reasons given for the introduction of a review do not outweigh the reasons against - therefore, under the first criteria of the strictest review (constitutional legitimacy of the review purpose and material justification of the reasons for it), an assessment of the constitutional permissibility of this question cannot be affirmative. In view of this there was no need to go into an assessment under the second and third criteria as well (urgent public need, proportionality).

47. The claim made by the representatives of the referendum proposers, that the LD in cases concerning the return of social, i.e. public, property did not envisage the subject who would act on the side of the holder of the property, is incorrect. Even the LD, and not just the Law on the General Administrative Procedure (Official Gazette of the SFRY, No. 47/86 - hereinafter: the LAP), give the status of client in a denationalisation procedure to both the entitled persons or the holder and any other legal entity or individual who has the right to take part in the procedure in order to protect his rights or legal rights (first paragraph of Article 60). The LD, as well as the LAP, provided for the redress of violations during the ascertaining of the actual state of facts and in the application of material or process law. Under the LAP, each party is entitled to appeal (Article 223). An appeal may be lodged against incorrectly or incompletely established actual states of fact, as well as against a violation of material law (the argument from the first paragraph of Article 240 of the LAP). Some cases of incorrectly established actual situations (for example, points 1, 2, 3, and 5 of Article 249 of the LAP) and a violation of the most basic procedural demand to have an opportunity to be involved in the procedure (point 9 of Article 249 of the LAP) warrant a review of the procedure. Furthermore, an individual or legal entity who believes that an administrative act violates any of his rights or a direct personal benefit based in law is entitled to request a review of the legality of the administrative act in an administrative dispute. An administrative dispute may also be initiated by the state attorney if an administrative act violates law to the disadvantage of the bodies he represents by law (first and second paragraphs of Article 2 of the Law on Administrative Disputes, Official Gazette of the SFRY, No. 4/77).

48. All subjects affected by the denationalisation rulings may use legal remedies and an administrative dispute suit to establish violations perpetrated when the actual situation was being established, as well as the violations of material law.

The fact that they did not use these options (on time) does not justify the call for a subsequent introduction of a new legal remedy.

49. In the assessment of the permissibility of the subsequent introduction of a legal remedy the time aspect plays an important role. Taking into account the deadlines stipulated in the LD (and listed in point 19 of the reasons) all the denationalisation rulings should have been issued within three years of the passing of the Law at the latest. The referendum call proposes an introduction of a general review after five years of the enforcement of the law and two years from the moment when it should have been concluded.

50. The same probability was used by the representatives of the referendum proposers to prove that violations to the disadvantage of social property took place and to prove violations against the persons entitled to the denationalised property, especially those who are implementing their rights in the procedures of company ownership transformation. An introduction of a new legal remedy only in cases when social property has allegedly been damaged would be contrary to the constitutional guarantee of the equal protection of rights (Article 22).

51. In view of this, the Constitutional Court established that the referendum question under point 4 was contrary to the Constitution.

52. Since the call for a referendum proposes the introduction of a general review of all denationalisation rulings, the Constitutional Court in this Resolution did not have to assess whether the introduction of a review restricted to certain cases of property restitution may exceptionally be considered permissible.

C.

53. The Constitutional Court passed this Resolution on the basis of Article 16 of the LRPI and the second paragraph of Article 40 of the Law on the Constitutional Court, at a session composed as follows: chairman Dr Lovro Šturm and judges Dr Peter Jambrek, Dr Tone Jerovšek, Matevž Krivic M.Law, Janez Snoj M.Law, Dr Janez Šinkovec, Franc Testen, Dr Lojze Ude and Dr Boštjan M. Zupančič. The first, third, fifth and sixth points of the disposition were adopted by five votes to four (judges Krivic, Šinkovec, Ude and Zupančič voted against); the fourth point of the disposition was adopted by seven votes to two (judges Šinkovec and Zupančič voted against). Judges Jerovšek, Krivic, Šinkovec, Šturm, Testen, Ude and Zupančič pledged to submit separate concurring or dissenting opinions.


Chairman
Dr Lovro Šturm
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
other acts
Applicant:
The National Assembly of the Republic of Slovenia
Date of application:
30.04.1997
Date of decision:
23.05.1997
Type of decision adopted:
decision
Outcome of proceedings:
establishment – it is not inconsistent with the Constitution/statute
Document:
AN01259