U-I-283/94

Reference no.:
U-I-283/94
Objavljeno:
Official Gazette of RS, no. 20/98 and OdlUS VII, 26 | 12.02.1998
ECLI:
ECLI:SI:USRS:1998:U.I.283.94
Act:
Elections to the National Assembly Act (Official Gazette RS, no. 44/92) (ZVDZ)
Local Elections Act (Official Gazette RS, no. 72/93, 7/94, 33/94 and 70/95) (ZLV)
Records of Voting Rights Act (Official Gazette RS, no. 46/92) (ZEVP), article 22
Statute of the Urban Municipality of Koper (Official Publications Koper/Capodistria, no. 9/95), para. 4 of article 53, article 134, para. 2 of article 140.
Delegates Act (Official Gazette RS, no. 48/92) (ZPos)
Standing Orders of the National Assembly (Official Gazette RS, no. 40/93, 28/96 and 26/97)
Operative provisions:
It is not inconsistent with the Constitution that the National Assembly Elections Act (Official Gazette RS, No. 44/95) gives members of the Italian and Hungarian self-governing national communities the right to cast two votes in the election of the deputies to the National Assembly.
 
It is not inconsistent with the Constitution that the Local Elections Act (Official Gazette RS, Nos. 72/93, 7/94, 33/94, and 70/95) gives members of the Italian and Hungarian self-governing national communities the right to cast two votes in the municipal council elections.
 
Article 22 of the Voting Rights Register Act (Official Gazette RS, No. 46/92) is not inconsistent with the Constitution.
 
It is inconsistent with the Constitution that the Voting Rights Register Act (Official Gazette RS, No. 46/92) does not determine the criteria to be applied by the commissions of the Italian and Hungarian self-governing national communities when deciding on the registration of citizens who are members of the autochthonous Italian and Hungarian national communities in a special electoral register. The National Assembly must remedy this inconsistency with the Constitution prior to calling the next regular elections to the National Assembly.
 
The fourth paragraph of Article 53, Article 134, and the second paragraph of Article 140 of the Charter of the Koper Municipality are not inconsistent with the Constitution and laws.
 
The petition has been dismissed in the part that refers to the Deputies Act (Official Gazette RS, No. 48/92) and the Rules of Procedure of the National Assembly (Official Gazette RS, Nos. 40/93, 28/96, and 26/97).
Abstract:
It is not in conflict with the Constitution that members of the autochthonous Italian and Hungarian national communities have the constitutionally guaranteed right that in elections of delegates to the National Assembly and at elections of members of a municipal council they cast two votes - one for the election of the representative of the autochthonous national community and the second for election of other delegates or members of the municipal council. The Constitution guarantees members of these communities general and special voting rights.

It is in conflict with constitutional provisions of a state ruled by law, the division of authority, the legality of the workings of the administration and public authorities that measures are not determined by law according to which the commissions of the self-governing national communities decide on inscription of electors in a special electoral roll of citizens, members of the autochthonous Italian and Hungarian national communities.

A citizen does not show legal interest in impugning the standing orders or statutory arrangement of the extent of the mandate of delegates to the National Assembly only in that he has voting rights.

The provisions of a municipal statute according to which the deputy mayor must be a member of the Italian national community if the mayor is Slovene, is not in conflict with constitutional provisions on equality before the law since the distinction among candidates is founded on the protection of the autochthonous Italian or Hungarian national communities.

It is not in conflict with the Constitution and with law if a municipal statute determines that the autochthonous Italian national community is directly represented on the council of a local community.

It is not in conflict with the Constitution if a municipal statute gives local communities legal subjectivity.
Password:
The principle of a state ruled by law and a social state.
Protection of the rights of the autochthonous Italian and Hungarian National Communities.
Principle of equality before the law.
Declaring national affiliation.
Special rights of the Italian and Hungarian national communities in Slovenia.
Delegates, immunity.
Legal interest as a procedural condition for commencing a proceeding before the Constitutional Court on the basis of an initiative.
Nationality, education, bilingual education.
Principle of legality.
Administrative organs, tasks, public authority.
Public authorities.
National Assembly, representatives of national communities, delegates.
Elections, National Assembly.
Municipality, mayor.
National community, representation at the local level.
Local community, legal person.
Dissenting opinion of a constitutional judge.
Concurring opinion of a constitutional judge.
Legal basis:
Constitution 1974, articles 252 and 338
Constitution, articles 2, 5, 14, 16, 61, 64, 80, 120 and 121.
Elections to the Assembly Act, articles 10 and 37
Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia (UZITUL) para. 2 of point 3.
Constitutional Amendments of 1989, articles 163 and 250.
Constitutional Court Act (ZUstS), articles 21, 25 and 48.
Note:
In the reasoning of its decision, the Constitutional Court refers to its case no. U-I-274/95 (OdlUS V, 119).

By resolution of the Constitutional Court of 4.4.1996, case no. U-I-139/45 was joined to the case being tried because of common treatment and decision.
Document in PDF:
The full text:
U-I-283/94
12 February 1998
 
 
DECISION
 
 
At a session held on 12 February 1998 in proceedings for the review of constitutionality and legality initiated upon the petition of Danijel Starman, Koper, and others, the Constitutional Court
 
 
decided as follows:
 
1. It is not inconsistent with the Constitution that the National Assembly Elections Act (Official Gazette RS, No. 44/95) gives members of the Italian and Hungarian self-governing national communities the right to cast two votes in the election of the deputies to the National Assembly.
 
2. It is not inconsistent with the Constitution that the Local Elections Act (Official Gazette RS, Nos. 72/93, 7/94, 33/94, and 70/95) gives members of the Italian and Hungarian self-governing national communities the right to cast two votes in the municipal council elections.
 
3. Article 22 of the Voting Rights Register Act (Official Gazette RS, No. 46/92) is not inconsistent with the Constitution.
 
4. It is inconsistent with the Constitution that the Voting Rights Register Act (Official Gazette RS, No. 46/92) does not determine the criteria to be applied by the commissions of the Italian and Hungarian self-governing national communities when deciding on the registration of citizens who are members of the autochthonous Italian and Hungarian national communities in a special electoral register. The National Assembly must remedy this inconsistency with the Constitution prior to calling the next regular elections to the National Assembly.
 
5. The fourth paragraph of Article 53, Article 134, and the second paragraph of Article 140 of the Charter of the Koper Municipality are not inconsistent with the Constitution and laws.
 
6. The petition has been dismissed in the part that refers to the Deputies Act (Official Gazette RS, No. 48/92) and the Rules of Procedure of the National Assembly (Official Gazette RS, Nos. 40/93, 28/96, and 26/97).
 
Reasoning
 
A
 
1. By the Order dated 6 June 1996, the Constitutional Court partially accepted, partially dismissed, and partially rejected the petition of Danijel Starman and others (hereinafter referred to as the petitioners) by which they challenged the provisions of the following regulations:
 
  • the Voting Rights Register Act (Official Gazette RS, No. 46/92 – hereinafter referred to as the VRRA);
 
  • the National Assembly Elections Act (Official Gazette RS, No. 44/92 – hereinafter referred to as the NAEA);
 
  • the Self-Governing National Communities Act (Official Gazette RS, No. 65/94 – hereinafter referred to as the SNCA);
 
  • the Local Elections Act (Official Gazette RS, Nos. 72/93, 7/94, 33/94 and 70/95 – hereinafter referred to as the LEA); and
 
  • the Charter of the Koper Municipality (Official Publications Koper/Capodistria, No. 9/95 – hereinafter referred to as the Charter)
 
2. The petition was accepted in the part referring to:
 
  • the alleged unconstitutionality of the right of the members of the Italian and Hungarian national communities (hereinafter referred to as the national communities) to cast two votes in the elections to the National Assembly and in the elections to municipal councils – one vote to elect the representative of the national community to the National Assembly or municipal council, and the other vote to elect other deputies or members to the municipal council; they are granted those rights by the NAEA and the LEA,
 
  • Article 22 of the VRRA,
 
  • the fourth paragraph of Article 53, Article 134, and the second paragraph of Article 140 of the Charter.
 
3. The petitioners believe that this double voting right, which is how they refer to the right of the members of the national communities to cast two votes in elections to the National Assembly and municipal councils, is inconsistent with the constitutional principle of equality before the law. In their opinion, the double voting right is an inadmissible form of discrimination and in no way contributes to the protection of the national communities.
 
4. In their initial petition, the petitioners took the position that the Rules of Procedure of the National Assembly (Official Gazette RS, Nos. 40/93, 28/96, and 26/97 – hereinafter referred to as the Rules of Procedure) should limit the rights stemming from the office of the representatives of the national communities. In their opinion, it is unconstitutional for the representatives of the national communities to participate in the decision-making process on any matter that falls under the jurisdiction of the National Assembly.
 
5. In the opinion of the petitioners, the provision of Article 22 of the VRRA, which also allows members of the Italian and Hungarian nationalities who do not have permanent residence in nationally mixed settlements to be registered at their request in the electoral register, is unconstitutional as it entails an extension of rights to non-autochthonous members of the national communities and thus exceeds the constitutional protection of nationalities.
 
6. In the petitioners’ opinion, the following provisions of the Charter are also inconsistent with the Constitution:
 
  • the provision of Article 134, which affords localities the status of legal entities (the petitioners believe that by establishing legal entities of public law the Charter interferes with the powers of the legislature);
 
  • the provision of the second paragraph of Article 140, as it provides that the national communities must be directly represented in the councils of localities (the petitioners believe that special provisions on the rights of national communities do not apply to localities as they are not self-governing local communities); and
 
  • the provision of the fourth paragraph of Article 53, which determines that a deputy mayor must be of Italian nationality if the mayor is not (the petitioners believe that this discriminates against the passive right to vote of persons who are not of Italian nationality).
 
7. On 14 November 1996, the petitioners submitted “a motion for the temporary suspension of the NAEA, insofar as it grants members of the national communities a double voting right, the temporary suspension of the provisions of the Rules of Procedure, insofar as these do not limit the rights stemming from the office of the representatives of the national communities (especially the second paragraph of Article 119 and the second paragraph of Article 128), and the temporary suspension of the Deputies Act (Official Gazette RS, No. 48/92 – hereinafter referred to as the DepA) in its entirety with regard to the representatives of the national communities.” In their motion they reiterate their view that it is unconstitutional that the deputies who are the representatives of the national communities participate in the decision-making process on any matter in the National Assembly, for example, also in electing the president of the government and appointing the ministers. The Constitutional Court considered that, by this motion, the petitioners had also extended the petition to include the Rules of Procedure and the DepA. The Constitutional Court held a public hearing regarding the motion for the temporary suspension before rejecting the motion by way of an order.
 
8. The Secretariat of the National Assembly for Legislation and Legal Affairs (hereinafter referred to as the Secretariat) replied to the entire petition (before it was partially accepted). In its opinion the petition is unfounded, as “the laws that the petitioners claim violate the Constitution merely implement constitutional provisions on the special rights of the autochthonous national communities.” In the opinion of the Secretariat, the special protection of the national communities entails the implementation of the principle of equality in a form that takes into account the special position of these two communities and the conditions in which they live. Even if the laws had determined other or more extensive rights than are determined by the Constitution, such would, in the Secretariat’s opinion, not be contrary to the Constitution.
 
9. In the Secretariat’s opinion, the double voting right derives from the third paragraph of Article 64 of the Constitution and, with regard to the composition of the National Assembly and the position of its deputies, also from the third paragraph of Article 80 and the first paragraph of Article 82 of the Constitution. Regarding the rights of members of national communities who live outside nationally mixed areas, the Secretariat draws attention to the provision of the fourth paragraph of Article 64 of the Constitution, according to which the legislature must determine the rights exercised by the members of the national communities outside the areas in which these communities live. In the Secretariat’s opinion, determining the status of the members of national communities by law is “highly questionable because of the constitutional provisions that guarantee human rights and freedoms, including the provision of Article 61 of the Constitution.” The Secretariat also deems that the petitioners failed to demonstrate legal interest for lodging the petition under consideration.
 
10. After the Order on the partial acceptance of the petition was issued and the public hearing was held, the Secretariat once again replied (exhaustively) to the accepted part of the petition. In its reply, it states that the so-called double voting right is required by constitutional provisions; the double voting right entails the implementation of the special constitutional right referred to in the third paragraph of Article 64 of the Constitution in addition to the general right to vote. The Secretariat emphasises that the Constitution is committed to protecting the rights of the national communities and proceeds from the so-called positive concept of regulating the position of these communities. The Constitution guarantees special rights to the national communities, which manifest themselves in the form of “positive discrimination”. The Secretariat emphasises the protection of minorities as an important criterion by which to assess whether an ethnically pluralistic society is democratic. It draws attention to Article 4 of the Framework Convention of the Council of Europe for the Protection of National Minorities, which was also signed by Slovenia; this article determines that measures adopted as a consequence of the specific conditions of persons belonging to national minorities shall not be deemed an act of discrimination of the persons belonging to the national majority.
 
11. The Secretariat states that the regulation of the position of the national communities in the Constitution entails continuity in this field, as the positive concept of the protection of minorities was already introduced in Slovenia by the Constitution of 1974 and subsequent constitutional amendments. It also refers to the provisions of the Declaration of Independence and the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia (Official Gazette RS, No. 1/91-I – hereinafter referred to as the BCC), which determine that the Italian and Hungarian national communities in the Republic of Slovenia and their members are guaranteed all rights from the then applicable Constitution and treaties. It also refers to the provision of Article 338 of the Constitution from 1974 (the amendment from 1989), according to which the national communities shall each have at least one deputy in each of the assemblies of the then Assembly of the Socialist Republic of Slovenia. It notes that the national communities had special voting rights under these provisions and that deprivation of this right would entail a violation of the principle of trust in the law.
 
12. The Secretariat draws attention to Slovenia’s obligations under international law arising from the Agreement on Friendship and Cooperation between the Republic of Slovenia and the Republic of Hungary, the Agreement on Ensuring the Special Rights of the Slovene National Minority in the Republic of Hungary and of the Hungarian National Community in the Republic of Slovenia (Official Gazette RS, MP, No. 6/93), and the Treaty of Osimo from 1975. It also emphasises that the Framework Convention of the Council of Europe for the Protection of National Minorities requires the signatories, which include Slovenia, to adopt, where necessary, adequate measures in order to promote, in all areas of economic, social, political, and cultural life, full and effective equality between persons belonging to a national minority and those belonging to the majority. The Secretariat states that the requirement for minorities to participate in public affairs, and especially in affairs concerning minorities, follows from the cited convention.
 
13. Regarding Article 22 of the VRRA, the Secretariat states that, in accordance with the Constitution, the special voting right of the members of the national communities is not territorially limited and that the rights of the members of the national communities are guaranteed by the Constitution, irrespective of their number and distribution. The Secretariat also refers to the provision of the fourth paragraph of Article 64 of the Constitution, according to which the position of the Italian and Hungarian national communities and the manner in which their rights are exercised in the geographic areas where they live, the obligations of the self-governing local communities for the exercise of these rights, and those rights which the members of these national communities exercise also outside these areas, shall all be regulated by law.
 
14. Regarding the petitioners’ statements that the Rules of Procedure and the DepA should limit the rights of deputies, who are the representatives of the national communities, the Secretariat states that all the provisions of the Constitution regarding deputies determine that they are all equal irrespective of their electoral base or any other circumstances. In the opinion of the Secretariat, such applies to all the rights of the deputies of the national communities in accordance with Article 19 of the DepA, as well as to the rights that arise from the Rules of Procedure (e.g. the right to form a special deputy group and the right to select the working bodies in which they participate). The Secretariat further believes that the procedural requirements for a review of the constitutionality of the Rules of Procedure and the DepA have not been met. The petitioners allegedly failed to demonstrate legal interest, as the Rules of Procedure and the DepA regulate relations that concern deputies and the rules of their work in the National Assembly. The Secretariat further draws attention to the fact that, at the public hearing, the representative of the petitioners took the position that the DepA does not apply to the elected representatives of the national communities. In this regard, the Secretariat deems that this part of the petition must be dismissed as allegedly the petitioners themselves had already withdrawn the petition.
 
15. The Municipal Council of the Koper Municipality (hereinafter referred to as the Council) replied to the part of the petition referring to the Charter. Regarding the representation of the Italian community in the councils of individual localities, the Council states that it “respected mutatis mutandis the provisions regulating the number of the members of the Italian national community in the municipal council.” In the opinion of the Council, Article 39 of the LSA [i. e. the Local Self-Government Act] serves as the basis for the provision that a deputy mayor must be of Italian nationality if the mayor is not.
 
16. The Italian and Hungarian self-governing national communities also communicated their position on the petition. Both believe that the challenged provisions are not inconsistent with the Constitution, but that they in fact entail the implementation of the constitutional requirements regarding the protection of the autochthonous Italian and Hungarian national communities.
 
 
B – I
 
17. The petition raises constitutional law issues that concern the protection of the autochthonous Italian and Hungarian national communities. The level of respect or protection afforded to ethnic, religious, linguistic, and other minorities is an important indicator of a democratic society. Democratic states devote special attention to the protection of minorities. The protection of minorities is guaranteed in two forms: through the prohibition of discrimination on the basis of nationality, language, religion, or race and through special rights that appertain only to the minority or its members. The latter form of protection is referred to as the positive protection of minorities. Positive protection results in co-called positive discrimination as members of minorities are guaranteed rights that are not available to members of the majority. Measures of this kind entail a high level of protection of national minorities, afforded by the majority group of the population, and are therefore indicative of a democratic society.
 
18. The rights of national minorities in international law are regulated by multilateral conventions and bilateral agreements between states. The position of the Italian minority, i.e. the Italian national community, in Slovenia, after the Second World War was regulated by the Special Statute of the Free Territory of Trieste, which was annexed to the London Memorandum of Understanding between the FLRY [the Federal People’s Republic of Yugoslavia], the Italian Republic, and Great Britain. The Special Statute ceased to apply when the Agreement between the SFRY [the Socialist Federal Republic of Yugoslavia] and the Italian Republic concluded in Osimo (Official Gazette SFRY, MP, No. 1/77; hereinafter referred to as the Treaty of Osimo) entered into force. In the preamble to the Treaty of Osimo, both states confirmed “their loyalty to the principle of the broadest protection of citizens belonging to ethnic groups (minorities) which derives from their Constitutions and their domestic law and which each Party applies independently and drawing also  upon the principles of the Charter of the United Nations, the Universal Declaration of Human Rights, the International Convention on the Elimination of All Forms of Racial Discrimination and the International Covenants on Human Rights.” Article 8 of the Treaty of Osimo provides: “Each Party declares that, when the Special Statute annexed to the Memorandum of Understanding signed in London on 5 October 1954 ceases to have effect, it shall maintain in force the internal measures already taken in application of the aforesaid Statute and shall ensure under its domestic law that the level of protection stipulated for members of the respective ethnic groups (of the respective minorities) in the expired Special Statute is maintained.” The Special Statute ceased to be in force on the day the Treaty of Osimo entered into force, but continued to be applied as a criterion for ensuring the rights of national minorities in Slovenia’s neighbouring states. The Treaty contains no provision that would guarantee members of the minorities the right to direct representation in representative bodies.
 
19. The position of the Hungarian national community in Slovenia is governed by the Agreement on Ensuring the Special Rights of the Slovene National Minority in the Republic of Hungary and of the Hungarian National Community in the Republic of Slovenia, signed on 6 November 1992 and ratified by law on 26 March 1993 (Official Gazette RS, MP, No. 6/93). Article 8 of this Agreement provides that the signatories shall guarantee, in accordance with domestic legislation, the adequate participation of the minorities in decision-making at the local, regional, and state levels on matters concerning the rights and position of the minorities and their members.
 
20. One of the measures for the protection of minorities also includes ensuring their participation in decision-making on public affairs. However, international law as it is currently in force does not guarantee the representation of minorities in representative bodies (Ohlinger/Pernthaler, Projekt eines Volksgruppenmandats im Kaernter Landtag, p. 8; the authors also refer to the work of Oeter, Minderheiten im institutionellen Staatsaufbau. See also Turk, Mednarodnopravni vidiki sedanjega položaja slovenske narodnoste skupnosti v Italiji [International Law Aspects of the Current Position of the Slovene National Community in Italy], p. 6; the author states that exceptions can be found in only very few treaties, e.g. the Treaty of Sèvres and the Cyprus Memorandum). Even the Framework Convention of the Council of Europe for the Protection of National Minorities, which Slovenia has also signed but not yet ratified (the Convention has not yet entered into force), does not explicitly require that the signatories ensure the representation of minorities in representative bodies. It merely provides that the Parties undertake to adopt, where necessary, adequate measures in order to promote, in all areas of economic, social, political, and cultural life, full and effective equality between persons belonging to a national minority and those belonging to the majority. The measures adopted in accordance with this commitment shall not be considered an act of discrimination (the third paragraph of Article 4).
 
21. Although such is not required by international law, the constitutions and laws of some states guarantee the participation of minorities in decision-making on general matters in representative bodies. The following models for guaranteeing this right (which may also be combined with each other) are particularly well-known[1]:
 
a) the determination of constituencies is adapted to the territorial distribution of minorities (this measure has been enacted, inter alia,  by the following states: Hungary, Croatia, Finland, Belgium, Italy, and Switzerland),
 
b) the omission of the electoral threshold with regard to national minority parties (this measure has been enacted, inter alia, by the following states: Hungary, Germany, Poland, and Romania), and
 
c) minorities are guaranteed a seat in representative bodies (this right has been enacted, inter alia, by the following states: Croatia, Romania, Hungary, Denmark, and Finland).
 
22. The Slovene Constitution of 1974 did not include provisions on the mandatory representation of the national communities in municipal assemblies and the Assembly of the Republic. Article 252 provided that members of [other] nationalities may establish self-governing communities for education and culture purposes in the municipalities in which they live. Together with specific councils of the municipal assembly or with corresponding self-managing interest communities, these communities co-decided on specific educational and cultural matters. The representation of the members of the national communities in the councils of the assemblies was only ensured through the internal nomination rules of the then Socialist League of Working People, which had monopolised the candidate selection process.
 
23. With the Constitutional Amendments of 1989 (Official Gazette SRS [Socialist Republic of Slovenia], No. 32/89), the provisions on the protection of the nationalities were amended. Article 250 defined the two nationalities as being autochthonous. A provision was added after Article 163 that provided that the Italian and Hungarian nationalities must be adequately represented in the assemblies of municipalities in which members of these two nationalities live together with the members of the Slovene nationality. The third paragraph of Article 338 of the Constitution provided that the Italian and Hungarian nationalities shall each have at least one delegate in each of the councils of the Assembly of the Socialist Republic of Slovenia. In accordance with this constitutional provision, the Elections to the Assemblies Act (Official Gazette SRS, Nos. 42/89 and 5/90, Official Gazette RS, Nos. 10/90 and 45/90) provided that special constituencies shall be formed for the election of the delegates of the members of the Italian or Hungarian nationalities to the councils of the Assembly of the Socialist Republic of Slovenia in nationally mixed areas, and that special constituencies could also be formed for the election of delegates of the members of the Italian or Hungarian nationalities to the councils of municipal assemblies (Article 37). Article 10 of the Act provided that voters in special constituencies and other members of the Italian or Hungarian nationalities in municipalities with areas in which members of those nationalities also live autochthonously with Slovenes (i.e. nationally mixed areas) have the active right to vote in the election of the delegates of the Italian or Hungarian nationalities to the councils of the Assembly of the Socialist Republic of Slovenia; in the election of the delegates to the councils of municipal assemblies such right shall only be granted to the voters in special constituencies, while other members of the nationalities in a municipality that includes nationally mixed areas only enjoy such right if it is determined by the Charter of the municipality. The law only granted the passive right to vote [i.e. the right to stand for election] to the members of the Italian and Hungarian nationalities.
 
24. The second paragraph of the third point of the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia (Official Gazette RS, No. 1/91-I) provided that “the Italian and Hungarian national communities in the Republic of Slovenia, and their members, are guaranteed all the rights in accordance by the Constitution of the Republic of Slovenia and valid treaties.” Here, the term Constitution of the Republic of Slovenia refers to the Constitution in force at the time, i.e. the Constitution of 1974, as amended.
 
25. The first paragraph of Article 5 of the Constitution currently in force provides that the state shall protect and guarantee the rights of the autochthonous Italian and Hungarian national communities in its own territory. The special rights of the autochthonous Italian and Hungarian national communities in Slovenia are regulated by Article 64 of the Constitution and the third paragraph of Article 83 of the Constitution, which provides that one deputy of the Italian and one deputy of the Hungarian national communities shall always be elected to the National Assembly.
 
26. Article 64 of the Constitution is entitled “Special Rights of the Autochthonous Italian and Hungarian National Communities in Slovenia.” The fourth paragraph of Article 64 provides that the two national communities shall be directly represented in representative bodies of local self-government and in the National Assembly. The sixth paragraph of this Article provides that laws, regulations, and other general acts that concern the exercise of the constitutionally provided rights and the position of the national communities exclusively, may not be adopted without the consent of the representatives of these national communities.
 
27. The Constitution guarantees two inextricably linked rights to the members of the national communities: the right to direct representation in representative bodies of local communities and the National Assembly, and the right to one deputy each in the National Assembly. The latter is a logical extension of the right to direct representation in the National Assembly. The mentioned rights are special rights afforded to the national communities that guarantee these communities the opportunity to participate in the decision-making process of the National Assembly and representative bodies of local communities, regardless of the number of their members or the electoral system.
 
28. In matters that relate solely to the constitutional rights and position of the national communities, the representatives of the national communities in the National Assembly and municipal councils have the right of a “minority veto” (the sixth paragraph of Article 64 of the Constitution). In such manner it is ensured that the representatives of the national majority cannot outvote the representatives of the two national communities on matters that relate solely to the constitutional rights or position of the national communities.
 
 
B – II
 
29. The petitioners believe that the Rules of Procedure and the DepA or a special statute should limit the rights of the deputies, who are the representatives of the national communities, to deciding on those issues that relate solely to the national communities themselves. In the initial petition, this position was referred to briefly; however, in the motion for temporary suspension, the petitioners also extended the petition to the above-mentioned acts. When deciding on the motion for temporary suspension, the Constitutional Court had not yet reviewed the existence of the procedural requirements for initiating proceedings to review the constitutionality of the DepA and the Rules of Procedure. When deciding on the accepted part of the petition, it assessed separately whether the procedural requirements to initiate those proceedings had been met. It found that the statutory regulation of the scope of the rights of deputies did not interfere directly with the rights, legal interests, or legal position of the petitioners. It therefore dismissed the petition in this part.
 
 
B – III
 
30. The NAEA provides that:
 
  • every citizen of the Republic of Slovenia who has reached the age of 18 and has not been deprived of his or her legal capacity by election day shall have the right to vote and to stand for election as a deputy (the first paragraph of Article 7),
 
  • every member of the Italian or Hungarian national communities who has the right to vote shall have the right to vote and to stand for election as a deputy of the national communities (Article 8).
 
None of the provisions of the Act provide that the exercise of the special voting right (the right to vote and to stand for election as a deputy of the Italian or Hungarian national community) excludes the exercise of the general right to vote.
 
31. The NAEA determines a special procedure for the election of the deputies of the national communities. The deputy of a national community is elected in a constituency that shall be established in those areas in which the members of the communities live (the sixth paragraph of Article 20).
 
32. The VRRA regulates the voting rights register in such manner that the register of citizens who have the right to vote and to stand for election as a deputy of the Italian or Hungarian national communities are kept separately. The special electoral register for each election is compiled by the commission of the self-governing national community. The electoral registers have to be published and they are confirmed by the competent administrative authority (an administrative unit).
 
33. Members of the national communities who are registered in the general and special electoral registers may cast two votes in the elections to the National Assembly – one for the election of the deputy of the national community and the second for the election of other deputies. These persons therefore have a double voting right – general and special.
 
34. The special voting right entails a departure from the principle of equal suffrage. The principle of equal suffrage requires that each voter must have the same number of votes and that these votes have the same value. Voters who have a special voting right in addition to a general right to vote have two votes; their will is taken into account twice: firstly, when electing the deputy of the national community and, secondly, when electing other deputies. The right of the members of the national communities to elect their own deputy, irrespective of their number, already entails a departure from the principle of equal suffrage. Furthermore, double voting entails an additional departure from this principle.
 
35. The special voting right of the members of the national communities is an expression of the constitutionally guaranteed protection of these communities and their members. Although it entails a departure from the principle of equal suffrage, such “positive discrimination” is not constitutionally inadmissible; on the contrary, the Constitution requires that the legislature implement such measures into the legislation. As the Constitution itself provides for or, in fact, requires a departure from the principle of equal suffrage (“positive discrimination”), the Constitutional Court did not have to assess the gravity of the interference with equal suffrage and the importance of the constitutional value achieved by such interference.
 
36. The Constitutional Court reviewed the question of whether the legislature could have implemented the constitutional provisions on the direct representation of the national communities and the election of one deputy for the Italian and Hungarian national communities to the National Assembly in a different manner, i.e. in a way that would not have given a double voting right to the members of the national communities. If the law gave only one vote to the members of the national communities and provided them with the option to exercise either their general right to vote or their special voting right (i.e. to choose between voting in elections for a deputy of the national community and voting in elections for other deputies), these persons would have been deprived of one of these two constitutional rights. As the Constitution does not limit the general right to vote of the members of the national communities and that, at the same time, it gives them the right to elect a deputy of the national community, the enactment of the right to only one vote with the possibility to choose (option) would result in the members of the national communities being forced to choose between two constitutional rights: the general right to vote and the right to direct representation. By opting for one of these two rights, they would automatically renounce the other. Such regulation would be inconsistent with the Constitution, as the members of the national communities would be deprived of one or the other right – depending on their choice.
 
37. The right of the members of both autochthonous national communities to vote in elections of the deputy of the national community and in elections of other deputies derives from the Constitution itself, and thus the legislature acted in accordance with the Constitution when it incorporated this right into the electoral system. It is true that the high level of protection of autochthonous national communities guaranteed by the Constitution entails a dual departure from the principle of equal suffrage, however this departure is provided for and required by the Constitution itself as a form of so-called positive discrimination.
 
 
B – IV
 
38. The third paragraph of Article 64 of the Constitution provides that the national communities shall also be directly represented in the representative bodies of the local self-government. As is the case with the analogous regulation in accordance with the NAEA, the right of the members of the national communities to cast two votes in the elections of municipal council members is also not inconsistent with the Constitution. The grounds on which this finding is based are the same as those regarding the regulation in accordance with the NAEA – only this statutory mechanism enables the implementation of the constitutional precept that the national communities shall be directly represented in the representative bodies of local communities.
 
 
B – V
 
39. The special voting right of the members of the national communities is registered in a special electoral register that is compiled by the self-governing national community and confirmed by the competent authority (the fourth paragraph of Article 2 of the VRRA). The electoral register of citizens who are members of the national communities in the areas in which these communities live is compiled by a commission of the respective self-governing national community. A special electoral register is prepared for each polling station (Article 19). The electoral register is then confirmed by the competent authority (an administrative unit). The challenged Article 22 determines that citizens who are members of the Italian or Hungarian national communities and have no permanent residence in the areas in which these communities live are to be entered in this special electoral register based on their request in writing submitted to the respective self-governing national community.
 
40. Special constitutional rights (including the special voting right) are guaranteed only to the members of the autochthonous Italian and Hungarian national communities. Neither the Constitution nor the law define the concept “autochthonous” in more detail. More detailed criteria for establishing which voters have a special voting right cannot be found in the VRRA or in any other law. In practice, in the elections of the deputies to the National Assembly in 1992 and 1996, the commissions of the self-governing national communities carried out the registration process in the special electoral registers without any statutory criteria.
 
41. The second paragraph of Article 121 of the Constitution provides that self-governing communities may be vested by law with the public authority to perform certain duties of the state administration. The second paragraph of Article 64 of the Constitution provides specifically that the state may authorise self-governing national communities to perform certain functions under national jurisdiction.
 
42. The principles of a state governed by the rule of law (Article 2 of the Constitution), the principle of the separation of powers (the second paragraph of Article 3 of the Constitution), and the principle of the legality of the administration’s operations (second paragraph of Article 120 of the Constitution) establish the requirement that, when exercising these powers, bearers of public authority must, in terms of the principle of equality, be put on an equal footing with state administration authorities. When exercising public authority in specific cases, they must have a legal basis in the law. Such also applies to self-governing national communities when they perform functions pursuant to the public authority vested in them – especially if they decide on the rights of individuals.
 
43. As the special voting right is recorded by entry in the special electoral registers of the members of the autochthonous Italian and Hungarian national communities, and as, at polling stations before the vote, this voting right is demonstrated by such entry in the electoral register, the criteria to be applied by the commissions of the self-governing national communities when compiling these electoral registers or deciding on the registration of individual voters in these electoral registers should have been defined. Affiliation with the autochthonous Italian or Hungarian national communities is a status to which the Constitution (and in accordance with it the law) ascribes specific rights (particularly the special voting right). Therefore, the criteria determining whether a citizen belongs to the autochthonous Italian or Hungarian national community should have been determined by statute. By determining these criteria, the law would not interfere with the constitutional right referred to in Article 61, according to which everyone has the right to freely express affiliation with their nation or national community. Each person has the right to freely express their affiliation with any nation or national community. As regards the decision as to who should enjoy these special rights, which the Constitution only grants to the members of the autochthonous Italian and Hungarian national communities, not only the will of the individual is decisive, but  statutory criteria must be determined for such decision.
 
44. The Constitution recognises the Italian and Hungarian national communities as autochthonous. All the special rights through which the Constitution protects the national communities refer only to the members of the autochthonous Italian and Hungarian national communities, and not to all persons who define themselves as Italians or Hungarians. In this regard, it is therefore not sufficient for a person to define him- or herself as Italian or Hungarian in order to be able to exercise the special rights (particularly the special voting right). A regulation requiring the commission of a self-governing national community to enter in the special electoral register any citizen who has reached the age of majority, has the legal capacity and has declared that he considers himself a member of the autochthonous Italian or Hungarian national community would be constitutionally inadmissible. Actual affiliation with the autochthonous Italian or Hungarian national communities is not in fact simply dependent on the individual's will, but is also a matter for the national community, which in accordance with the statutory criteria also considers such an individual to be its member and enters him or her in the special electoral register. A regulation guaranteeing anyone who defined themselves as a member of the autochthonous Italian or Hungarian national communities the right to be entered in the special electoral register would not expand the protection of the national community, but would instead enable unrestricted abuse, either solely for election purposes or with the intention of distorting the true will of the national community regarding its operations, elections to its own bodies, etc. Such regulation would negate the special rights of the members of the autochthonous Italian and Hungarian national communities.
 
45. The legislature should have determined the criteria for establishing affiliation with the autochthonous Italian and Hungarian national communities. The absence of such criteria allows for completely arbitrary decision-making, which is contrary to the principles of a state governed by the rule of law, the principle of the separation of powers, and the principle of the legality of the administration’s operations. The Constitutional Court established that this legal gap exists in the regulation of entries in the special electoral register pursuant to the VRRA. It required the legislature to fill this unconstitutional legal gap prior to calling the next elections to the National Assembly. The Constitutional Court set a relatively long time limit due to the complexity of the subject matter from academic and political perspectives and its sensitivity; more specifically, the legislature must take special care to ensure that it fills this legal gap so as not to jeopardise the constitutional rights of the national communities and other constitutional rights or freedoms.
 
46. In its assessment as to whether it is consistent with the Constitution that the special voting right can also be exercised by persons who have permanent residence outside the areas in which the autochthonous Italian and Hungarian national communities live, the Constitutional Court was required to interpret the concept “autochthonous”. It considered that it is not constitutionally inadmissible for a person who lives outside the nationally mixed areas to be considered a member of the autochthonous Italian or Hungarian national communities. In this respect, it took particular note of the provision of the fourth paragraph of Article 64 of the Constitution, according to which “the rights that the members of these national communities exercise also outside the areas where these national communities live shall be regulated by law.” It did not, however, decide on the question of whether it would be unconstitutional if, when filling the established unconstitutional legal gap (i.e. when defining the criteria for affiliation with the autochthonous Italian or Hungarian national communities), the legislature were also to include the criterion of permanent residence in an area in which the autochthonous national communities live.
 
 
B – VI
 
47. The petitioners challenge the provisions of Article 134 of the Charter, according to which local communities are granted the status of legal entities. By Decision No. U-I-274/95 (OdlUS V, 119), the Constitutional Court held that the mandatory interpretation of Article 19 of the LSA in force at the time enabled municipalities to grant legal personality to their constituent parts was not inconsistent with the Constitution. However, it established an unconstitutional legal gap in the LSA and required the legislature to regulate the fundamental characteristics of the legal status of the constituent parts of municipalities that have legal personality. The National Assembly adopted the Act amending the Local Self-Government Act (Official Gazette RS, No. 70/97) on 30 October 1997. The first paragraph of Article 19 of the amended LSA provides that the constituent parts of a municipality may have the status of legal entities. The provision of the Charter that grants local communities the status of legal entities is thus not inconsistent with the Constitution and the laws.
 
48. The challenged provision of the second paragraph of Article 140 of the Charter determines the direct representation of the national communities in the localities’ councils. The petitioners believe that the special provisions on the rights of national communities should not apply to a locality as it is not a self-governing local community. It is true that a locality is not a self-governing local community; nevertheless, part of the decision-making on public affairs can take place therein if a municipality transfers by Charter the implementation of specific tasks to the locality. These are matters that refer to the most basic public amenities linked to the local area – i.e. local roads, premises for cultural activities, public services in the local area, local events, maintaining the appearance of the local area, etc. The Constitution demands the direct representation of the autochthonous Italian and Hungarian communities in the National Assembly and representative bodies of local communities (municipalities), however, it does not prohibit their direct representation in the representative bodies of constituent parts of a municipality. As the Constitution demands so-called positive discrimination in the form of a special voting right in the elections to the National Assembly and to municipal councils, a regulation in the Charter that also guarantees such special right to the members of the autochthonous Italian national community in elections to the localities’ councils is not inconsistent with the Constitution and the laws, although it entails a departure from the principle of the equal suffrage.
 
49. The fourth paragraph of Article 53 of the Charter provides that a deputy mayor must be of Italian nationality if the mayor is not. The petitioners believe that such entails a discriminatory restriction of the passive right to vote. The deputy mayor is not elected in direct elections but is appointed by the municipal council. The challenged provision therefore cannot entail an interference with the equal suffrage. However, it could entail an interference with equality before the law (the second paragraph of Article 14) – discrimination against persons who are not of Italian nationality but wish to stand as a candidate for deputy mayor. The principle of equality before the law prohibits the legislature or representative bodies of local communities from determining different legal consequences for  factual situation that share the same essential elements without an objective justification. The restriction on who may be elected to the office of deputy mayor, which puts those persons who are not of Italian nationality at a disadvantage, is objectively justified and thus not constitutionally inadmissible. It is justified on the basis of the above-described aims of the so-called positive discrimination and the special protection of the national communities. The challenged provision of the Charter, which gives specific priority to members of the autochthonous Italian national community, was also adopted by the municipal council by the required two-thirds majority. Such entails that this right of the members of this national community has been recognised by the national majority through its representatives in the municipal council; for this reason, too, it is not possible to deem it inadmissible discrimination.
 
 
C
 
50. The Constitutional Court adopted this Decision on the basis of Articles 21, 25, and 48 of the Constitutional Court Act (Official Gazette RS, No. 15/94), composed of: Dr Lovro Šturm, President, and Judges Dr Miroslava Geč-Korošec, Dr Peter Jambrek, Dr Tone Jerovšek, Mag. Matevž Krivic, Mag. Janez Snoj, Franc Testen, and Dr Lojze Ude. Points 1, 2, 3, and 5 of the operative provisions were adopted unanimously. Points 4 and 6 of the operative provisions were adopted by seven votes to one. Judge Ude voted against. Judge Ude submitted a dissenting opinion, and Judges Jerovšek and Krivic submitted concurring opinions.
 
 
President:
Dr Lovro Šturm
 
 
Notes:
[1] A more detailed overview of the regulation in different legal systems:
  • In the Danish parliament (Folketing), two minorities (from the Faroe Islands and Greenland) are each guaranteed two seats.
  • Germany: at the federal level and in some federal states (Schleswig-Holstein, Saxony), the electoral threshold does not apply to political parties of national minorities. By voting for national parties, members of minorities may achieve representation for the minority in parliament. When voting, they are required to choose whether to vote for a minority party or for one of the parties from the traditional political spectrum.
  • Finland: The inhabitants of the Åland Islands are guaranteed a seat in the parliament as the islands constitute an independent constituency in which one member of parliament is elected. This deputy has the same rights and duties as all other deputies. This deputy normally joins the deputy group of the Swedish People’s Party, although he is not a member of this party.
  • Croatia: The Constitutional Act on Human Rights and the Rights of Ethnic and National Communities or Minorities in the Republic of Croatia (Narodne novine [Official Gazette], No. 34/92 – consolidated text) provides that the members of minorities that represent more than 8% of the total population – i.e. the Serbian minority – have the right to elect five representatives to the house of representatives of the Sabor [Parliament] and the members of all the other minorities have the right to elect five representatives in total. The third paragraph of Article 18 provides that the deputies of these minorities (representing less than 8% of the total population) are “the representatives of all the ethnic and national communities or minorities who have elected them and must protect their interests.”
The Electoral Act from 1992 (Zakon o izborima zastupnika u Sabor RH, Narodne novine, No.  22/92) contains identical provisions regarding the election of the representatives of the minorities. Four of the five representatives of the minorities “representing less than 8%” are elected in four special constituencies according to the majority system. They are elected by the members of the minorities. The nationality of the voters is entered in the electoral register (Zakon o popisima birača [the Electoral Register Act], Narodne novine, No. 19/92). The nationality of the candidates is also indicated in the nomination procedure (Article 15 of the Electoral Act).
The initial wording of the Act provided that the number of members of parliament is to be increased if the guaranteed representation of the minorities is not achieved in the elections; candidates on the national lists (according to this Act 60 deputies were elected in proportional elections on the basis of national lists) who had not been elected were to be deemed elected, provided they were of the appropriate nationality and depending on the share of votes in favour of a specific national list. If the required number of deputies of appropriate nationalities could not be ensured through this method, supplementary elections were to be carried out. According to the Act, an electoral threshold (3%) applied to all national lists, but the Constitutional Court (U-VII-233/92, Narodne novine, No. 50/92) decided that this threshold shall not be applied to national minority parties.
The amended Electoral Act (Narodne novine, No. 68/93) brought changes to the electoral system. A total of 80 deputies are elected according to the proportional system and 32 according to the majority system. Of these 32, a total of 28 are elected in “ordinary” constituencies on the basis of the principle that one deputy is elected for approximately the same number of inhabitants. 12 deputies are elected by the diaspora (Croatian citizens throughout the world) from special lists. Three deputies are elected by the citizens of Serbian nationality according to the majority system in a single constituency at the state level. Four deputies (as according to the previous regulation) are elected by the members of minorities in four special constituencies (Italians elect a deputy in the first constituency, Hungarians in the second constituency, Czechs and Slovaks in the third constituency, and Russians, Ukrainians, Germans, and Austrians in the fourth constituency).
In elections in small constituencies where seats are distributed according to the majority system, the members of the minorities have the option to cast a vote. The Mandatory Instructions of the National Electoral Commission (Obavezne upute broj XII, Narodne novine, No. 82/95) state that the right of the minorities to elect their own representatives is only a right and not an obligation. It is stipulated that the members of the minorities may not vote twice for a candidate in constituencies in which one or three deputies are elected, respectively. Those members of minorities who wish to vote for a “general” deputy must first obtain an attestation from the polling station that they have not voted in the special elections for the representative of the minorities. On the basis of this attestation, they may cast a vote for a candidate in the “ordinary” single-member constituency.
The term of office of “minority” deputies is not restricted (see the Rules of Procedure of the Sabor of the Republic of Croatia, Narodne novine, Nos. 59/92 and 89/92). The concept of minority consent (or veto) is not integrated into Croatian law.
  • Romania: the second paragraph of Article 59 of the Romanian Constitution determines that minority organisations have a guaranteed seat in the representative body even if they do not obtain the sufficient number of votes. A minority may only be represented by one organisation. Article 4 of the Electoral Act provides that all minority organisations of a single minority together have the right to one representative if, at the state level, they obtain at least 5% of the average number of votes required for the election of one deputy. The number of members of the representative body is increased accordingly because of the direct representation of minorities.
  • Hungary: the representation of minorities in parliament is guaranteed by a reduction of the number of votes required for the election of the deputy representing a minority (Articles 49 and 50 of the Electoral Act).
  • Italy: in South Tyrol (the Region of Trentino – Alto Adige), the Laden language group is guaranteed a representative in the regional council. If no member of the Laden language group is elected from the lists in the constituencies (the region is divided into two constituencies – Bolzano and South Tyrol – and elections are held according to the proportional system with the possibility to cast a preferential vote) in accordance with the general rules, the candidate who has obtained the largest number of preferential votes is elected. The representative of the minority elected in such manner replaces the last of the candidates from his or her list who was elected according to the general rules (depending on the number of preferential votes).
 
Dissenting opinion of Judge Dr Ude
regarding points 4 and 6 of the operative provisions
 
1. I voted for points 1, 2, 3, and 5 of the operative provisions of the Decision, in which it was essentially decided that the regulation set out in the National Assembly Elections Act, the Local Elections Act, the Voting Rights Register Act, and the Charter of the Koper Municipality, according to which members of the Italian and Hungarian self-governing national communities have the right to cast two votes in the elections of deputies to the National Assembly, is consistent with the Constitution of the Republic of Slovenia.
 
2. I do not agree, however, with point 4 of the operative provisions, according to which it is inconsistent with the Constitution that the Voting Rights Register Act does not determine the criteria applied by the commissions of the Italian and Hungarian self-governing national communities when deciding on the entry of voters in the special electoral register of the citizens who are members of the autochthonous Italian and Hungarian national communities, and the National Assembly must remedy this inconsistency with the Constitution prior to calling the next regular elections to the National Assembly.
 
The concept of an autochthonous national community is not sufficiently defined from a legal, political, and academic perspective. Already in the discussions held during the adoption of the Constitution, some legal theorists, especially those who study the legal position of minorities or ethnic communities in the context of international law, expressed the opinion that the Constitution should not use this concept and associate it with an extremely high level of rights. Even after the Constitution was adopted, the concept of an autochthonous national community was never sufficiently clarified and no elements have yet been determined that are decisive for the establishment of whether or not a specific national community is autochthonous. For this reason, I doubt that the legislature could satisfactorily fulfil the obligation to define by law the criteria for entering voters in the special electoral register of the members of the autochthonous Italian and Hungarian national communities. The Constitutional Court has set a relatively long time limit for the National Assembly, since new elections to the National Assembly will be held in less than three years. Nevertheless, I believe that the legislature will not have sufficient time to study this issue or, more importantly, to prepare reasoned positions of sufficient quality.
 
In addition, such discussion may raise further questions that are crucial for Slovene society, such as, for example, the question of whether it is right that the two autochthonous national communities are granted an extremely high level of rights, especially political rights, while some other national communities, which have more members, are not even guaranteed a much lower level of rights in the spheres of culture and the economy. It is to be expected that some other countries and the international community will exert pressure on Slovenia in relation to these issues. It is therefore, in my opinion, unwise to further exacerbate these issues through positions of the Constitutional Court that could be used as an argument in discussions on the regulation of the rights of national communities in our country.
 
It is true that the definition of the criteria that are decisive for registering voters in the special electoral register of citizens who are members of the autochthonous Italian and Hungarian national communities is not identical to a definition of the content of the concept of an “autochthonous national community”. However, by defining the criteria that are decisive for the affiliation with an autochthonous national community, the content of the concept of autochthony is also defined. These two issues simply cannot be separated. In my opinion it is necessary to refrain from defining the content of the concept of an autochthonous national community by law until it becomes clear from an academic perspective as to what this concept entails and what consequences a definition of this concept would have for the protection of the rights of the national communities (autochthonous and non-autochthonous). In my opinion, it is too early, and at this time even legally and politically irrational, to impose on the legislature the obligation to define this concept by law.
 
3. I also do not agree with point 6 of the operative provisions, by which the Constitutional Court dismissed the petition in the part that refers to the Deputies Act and the Rules of Procedure of the National Assembly. As a result, the Constitutional Court refused to decide whether the provision that the two deputies – who are representatives of the Italian and Hungarian national communities – have the same rights as the rest of the deputies in the National Assembly, and that they may therefore vote on all matters, is consistent with the Constitution.
 
The allegation that the petitioners do not have legal interest to challenge the regulation of the scope of rights of the deputies as such regulation does not directly interfere with their rights is extremely unpersuasive. The Constitutional Court recognised that the same petitioners have legal interest to challenge the regulation of the “double” voting right of the members of the Italian and Hungarian national communities in the elections to the National Assembly and municipality councils. The Constitutional Court, however, failed to state the reasons for its position that these petitioners do not have legal interest to challenge the regulation of the scope of rights of the two deputies to the National Assembly, and only held, in very abstract and general terms, that the regulation did not directly interfere with the petitioners’ rights, legal interests, or legal position. It is understandable that the Constitutional Court was unable to find reasons for such a position, as this differentiation between the regulation of elections and the regulation of the scope of rights of the deputies is entirely unconvincing.
 
The Constitutional Court therefore should have substantively considered the scope of rights of the two deputies of the autochthonous national communities. With its formal decision on dismissal, the Constitutional Court avoided substantive consideration and thus providing an answer, even though the answer to this question is very straightforward from a constitutional perspective. In accordance with the first paragraph of Article 80 of the Constitution, the National Assembly is composed of deputies of the citizens of Slovenia, and comprises 90 deputies in total. In accordance with the third paragraph of the same Article of the Constitution, one deputy of the Italian and one deputy of the Hungarian national communities shall always be elected to the National Assembly. These two deputies therefore number among the ninety deputies, each of whom, in principle, have the same rights.
 
The same conclusion is inevitably reached on the basis of an interpretation of the fifth paragraph of Article 64 of the Constitution, which provides that laws, regulations, and other general acts that concern the exercise of the constitutionally provided rights and the position of the national communities exclusively may not be adopted without the consent of the representatives of these national communities. The deputies of the national communities to the National Assembly therefore hold a constitutionally defined special position regarding the adoption of laws that concern the rights and position of the national communities, while otherwise their rights are identical in terms of content to those of other deputies.
 
The reasoning of the petitioners could therefore be relevant only in the procedure for amending the Constitution, and not in proceedings to review the constitutionality of laws or other general acts implementing the current constitutional order.
 
Dr Lojze Ude
 
 
Concurring opinion of Judge Dr Jerovšek
 
 
I voted for all the points of the operative provisions and for the entire Decision; nevertheless, I was of the opinion that the decision reached in point 4 of the operative provisions, according to which the Voting Rights Register Act is unconstitutional merely because it does not determine the criteria according to which the commissions of the Italian and Hungarian self-governing national communities to decide on the entry of the voters in the special electoral register of citizens who are members of the autochthonous Italian and Hungarian national communities, was too narrow. More specifically, I believe that, apart from the finding that the mentioned act does not entail sufficient regulation, the Constitutional Court should have held that it is unconstitutional to provide that the national community itself may decide on the entry of voters in the special electoral register. Such would need to be entrusted to the authorities responsible for registering voters in the electoral registers. By such authorisation as is currently provided by the law, the national community (even though to a somewhat lesser extent after the criteria will be defined) has the possibility to generate the number of persons who are entitled to vote, thereby creating certain special relationships to the remaining electorate with regard to the elections to the National Assembly. Even registration in the general electoral registers is not entrusted to special commissions of the electorate but to the competent state authorities who perform such in the manner and in the procedure determined by law. As a result, the current regulation results in an unequal position with regard to the manner in which electoral registers are prepared, which are in addition prepared without the appropriate control of the competent state authorities. In such situation, it is even more reasonable to expect that the required criteria will at least additionally provide for an adequate control mechanism for these registrations and determine appropriate legal remedies in the event of irregularities in the decision-making process regarding the registration of voters on the electoral register.
 
Dr Tone Jerovšek
 
Concurring Opinion of Judge Krivic
 
 
I
 
I agree with all the points of the operative provisions as well as with the entire reasoning, except for one or two formulations in Section B–V; nevertheless, in this concurring opinion, I wish to further elaborate upon the reasoning in Section B–V and, at the same time, also state my position on the differing views on the issues at hand that are also partially evident from some separate opinions.
 
II
 
I would like to draw attention to the importance of the constitutional premise referred to at the beginning of Paragraph 40 of the reasoning in Section B–V, which is formulated as follows: “Special constitutional rights (including the special voting right) are guaranteed only to members of the autochthonous Italian and Hungarian national communities.” Members of other “nations or national communities” (wording of Article 61 of the Constitution)[1], i.e. including the members of any other autochthonous national communities, are guaranteed other constitutional rights, especially those determined by Articles 61 and 62 of the Constitution: the right to express their national affiliation and the right to express their culture and use their language and script.
 
I believe the concerns that point 4 of the operative provisions and its reasoning in Section B–V could prompt needless discussion on the content of the concept of autochthony and on a possible extension of the special constitutional rights of the Italian and Hungarian autochthonous national communities to others to be without foundation. On the one hand, it is neither possible nor necessary to prevent or fear such discussions because the gradual increase in sensitivity towards these issues on a global level is also inevitably reflected here, in Slovenia; on the other hand, in accordance with Articles 61 and 62 of the Constitution, the members of all the national communities in Slovenia are guaranteed such a high level of constitutional protection (which either does not exist or is not achieved in many traditional democratic states) that it is entirely an internal matter of Slovenia and its constitutional order for what reasons – constitutional, traditional, historical, cultural, and political – it provided the Italian and Hungarian national communities with an even higher level of protection or additional special rights in the Constitution. It is also entirely an internal matter of Slovenia as to whether it will deem it necessary to provide any other national community, apart from these two, with an equally high level of protection and rights in the future, given that the regulation of the rights of the members of all the national communities is more than satisfactory when compared to international law and other legal systems. It is my personal view that there is a probability that this issue will arise – albeit not immediately – only in relation to the Roma community, which in principle already enjoys a special position and special rights in accordance with Article 65 of the Constitution, but not to the same extent as the Italian and Hungarian national communities.
 
Above all, it is clear that this point of the operative provisions and its reasoning do not require a statutory definition of an autochthonous national community, but merely a statutory definition of the “criteria to be applied by the commissions of the Italian and Hungarian self-governing national communities when deciding on the registration of citizens in a special electoral register”. These are, however, two related but nevertheless independent and different issues. I will explain hereinafter why this is the case.
 
The issue at hand does not concern an individual not being allowed to express his or her affiliation with one of the two national communities (i.e. to subjectively define him- or herself as its member), as this is his or her constitutional right in accordance with Article 61 of the Constitution. However, it is not possible to impose on this national community, which is organised as a special self-governing community in accordance with Article 64 of the Constitution, the obligation to accept as its member anyone who has declared him- or herself as its member or to enter him or her in the special electoral register, especially not when a person (or even a larger organised group of people) seeks to abuse, either solely for election purposes or with the intention of distorting the true will of the national community regarding its operations, the elections to its own bodies, etc.
 
This idea has already been expressed in Paragraph 44 of the reasoning and I would merely like to further support it with additional arguments. In my opinion, emphasis should not be devoted to the concept of autochthony, but instead solely to the necessary statutory definition of the criteria for the preparation of the special electoral register in order to protect the Italian and Hungarian national communities from any electoral and other abuses. The purpose of these criteria is therefore to protect the two national communities from potential abuses, but not from the possibility that another Italian or Hungarian, who immigrated subsequently, would “pretend” to be one of the “autochthonous” Italians and Hungarians (who have been living here for a long time).
 
Paragraph 46 of the reasoning also partially addresses this issue, but, in my opinion, not in an entirely adequate manner. In my opinion, the question of whether Italians and Hungarians who live, for example, in Ljubljana or Maribor may also obtain a special voting right does not interfere with the “interpretation of the concept of the autochthony” as is stated in Paragraph 46. The Italian and Hungarian national communities are undoubtedly autochthonous in Slovenia and it is known where they traditionally live, and the issue as to whether or not they deem specific compatriots who live or originate from elsewhere to also be their members is entirely a matter for them to decide. Even if such compatriot has moved to Slovenia from the south of Italy or from eastern Hungary and has actually started to participate in the cultural and other life of the Italian or Hungarian minorities, or wishes to do so, I see no reason why this minority should refuse to accept him or her into its ranks – of course, however, only if it so wishes and not under any duress. In this sense, both minorities could thus attempt to draft a proposal for the statutory criteria required by point 4 of the operative provisions; however, a simple negative criterion might suffice: anyone who so wishes can be entered in the special electoral register, and registration may only be denied to those for whom it is not possible to ascertain that they are truly connected with the national community based either on their origin, name, language proficiency, and similar objective criteria, or on their previous subjective expression of affiliation with the minority and active involvement in the community, or if specific circumstances point to an attempt to abuse the special voting right for purposes that are foreign to this national community or even contrary thereto.
 
It is clear from the above statements as to what my answer would be to the unanswered question, which is indicated at the end of Paragraph 46: if the law also included permanent residence in the “autochthonous” area as one of the above-mentioned criteria, this would not be unconstitutional, if such was the will of the Italian and Hungarian national communities (i.e. if they proposed such statutory regulation); moreover it would not be unconstitutional if the law did not determine such criterion, and would thus be much broader and more liberal in this regard. It should be a matter for these two national communities to decide on which compatriots they include as their members through registration in the special electoral register; the statutory criteria for such must be determined exclusively for the protection of the minority against potential abuses or, more specifically, in order to ensure that when the competent commissions started to deny such registrations in the electoral register due to attempts “of hostile takeover of the minority deputy mandates by the groups foreign to the minority”, these commissions, and subsequently, in the event of disputes, also the courts, would have statutory criteria on which they could base their decision. Until no such organised attempts are made, registration will probably not be denied and there will thus be no disputes in this regard.
 
III
 
Regarding the petitioners’ legal interest (point 6 of the operative provisions and Paragraph 29 of the reasoning), the fundamental criterion for recognising legal interest (in accordance with Article 24 of the CCA) is that the challenged provisions directly legally affect the petitioner. It is of course true that the legal regulation of the voting right of the “minorities” and the legal regulation of the scope of rights of the minority deputies are issues that are inextricably linked; however, it is also true that the double voting right of the members of the minorities directly interferes with equal suffrage in regard to all the other voters (even though this interference is, as has been established by this Decision, constitutionally admissible and even required), whereas the different scope of rights of minority deputies interferes, at most, indirectly with the rights of the voters who have voted for other deputies. Quod erat demonstrandum. This was (the only) point to be proved. Once this was demonstrated (that, pursuant to the law, the petitioner cannot be deemed to have legal interest), the petition had to be dismissed, regardless of what we may think of the content of the petition and regardless of the fact that, in my opinion, also the answer to this substantive question would probably not be questionable or uncertain.
 
Matevž Krivic
 
Note:
[1] It is not entirely clear from the wording of Article 61 of the Constitution, which refers to the affiliation with “his or her nation or national community”, what the difference between a “nation” and a “national community” is supposed to be, as it is likely that members of every nation also form some kind of “national community” (referred to, of course, in sociological terms as an unorganised group of people that does not have any authorities and legal norms, but that is held together by different ties). With regard to its origins, this wording could probably be attributed to the term “nations and nationalities of the SFRY” that was used in the previous regime; the term “nations” designated the constitutive nations of Yugoslavia (i.e. the nations that founded Yugoslavia), whereas the disputable term “nationalities”, which is problematic from various perspectives, referred to what is clearly and simply known throughout the world as national minorities. I therefore assume that today’s wording “nations and national communities” is some kind of (transformed) remnant of the previous syntagm “nations and nationalities”. In this context, Article 61 of the Constitution should be interpreted in the sense that it guarantees everyone the right to freely express affiliation with any nationality living outside Slovenia, or indeed with any nationality whose members have already lived in Slovenia for a long time and enjoy the status of “national community” or minority. Or, to be more specific, this distinction actually makes it possible for persons who deem themselves to be Italian to freely define themselves either as members of the Italian minority in Slovenia (“national community”) or simply as members of the Italian nation as a whole. However, it is likely that this nuanced distinction lacks any significant practical importance. If an Italian person also has a sense of belonging to the Italian minority in Slovenia, he will probably display this in practical terms (e.g. by participating in the life and activities of the Italian minority or by registering on the special electoral register) and not by some abstract declaration.
 
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute
Applicant:
Danijel Starman, Koper and others
Date of application:
11.10.1994
Date of decision:
12.02.1998
Type of decision adopted:
decision
Outcome of proceedings:
establishment – it is not inconsistent with the Constitution/statute
Document:
AN01448