Up-331/98

Reference no.:
Up-331/98
Objavljeno:
Official Gazette RS, no. 17/99 and OdlUS VIII, 120 | 04.03.1999
ECLI:
ECLI:SI:USRS:1999:Up.331.98
Act:
Constitutional appeal against point 2 of the judgement proper of decision of the Constitutional Court no. U-I-12/97 of 8.10.1998 (Official Gazette RS, no. 82/98)
Operative provisions:
The constitutional appeal against point 2 of the judgement proper of decision of the Constitutional Court no. U-I-12/97 of 8.10.1998 is rejected.
Abstract:
The Constitutional Court rejected the constitutional appeal because a constitutional appeal against a decision of the Constitutional Court on the basis of the eleventh indent of the first paragraph of article 160 of the Constitution and article 21 of the Constitutional Court Act is not permissible.
Password:
New decision of the Constitutional Court on the same matter (renewed Yproceeding before the Constitutional Court).
Separating a case from an existing case and its independent treatment.
A decision of the Constitutional Court cannot be the subject of constitutional appeal.
Referendum
Concurring opinion of a constitutional judge.
Legal basis:
Constitution, para. 1 of article 160
Referendums and Popular Initiatives Act (ZRLI), article 24 Constitutional Court Act (ZUstS), articles 21 and 55
Note:
In the reasoning of its decision, the Constitutional Court refers to its case no. Up-271/98 of 28.10.1998
Document in PDF:
The full text:
Up-331/98
4.3.1999


RESOLUTION

At a session held on 3 March 1999, in a proceeding for investigating the constitutional appeal of Dr. M.M. of L. and others, the Constitutional Court

resolved:

The constitutional appeal against point 2 of the judgement proper of decision of the Constitutional Court no. U-I-12/97 of 8.10.1998 (Official Gazette RS, no. 82/98) is rejected.

Reasoning

A.

1. In a constitutional appeal of 8.12.1998, Dr. M.M. and 33 co- signatories impugned point 2 of the judgement proper of decision of the Constitutional Court no. U-I-12/97 of 8.10.1998 on the grounds of violation of voting rights in a referendum under the third paragraph of article 90 in connection with the right of participation in the administration of public affairs under article 44 of the Constitution. The right of voting at a referendum is claimed to be violated not only if someone is prevented from voting but also if the vote is devalued such that votes are counted and the result established in an illegal manner. In the opinion of the appellants, the impugned point 2 of the judgement proper of decision of the Constitutional Court no. U-I-12/97 replaces the decision of the Republican Electoral Commission and thus formally and materially represents the individual act against which legal remedy must be allowed (fourth paragraph of article 15 of the Constitution). Since there is claimed not to be guaranteed legal remedy under the Referendums and Popular Initiatives Act (Official Gazette RS, no. 15/94, 13/95 - odl. US, 38/96 and 43/96 - odl. US - hereinafter: ZRLI) against the illegal finding of the result of a referendum, even through the mutatis mutandis use of the provisions of election legislation, the appellants lodged an appeal on the basis of the first paragraph of article 157 of the Constitution with the Administrative Court of the Republic of Slovenia. They believe, too, that a legal path direct to the Constitutional Court should be available. For this reason, they are simultaneously lodging a constitutional appeal. The appellants consider the appeal to the Administrative Court to be ineffective legal remedy since the Administrative Court is bound in reaching a decision to point 1 of the judgement proper of the same decision. That a constitutional appeal to the Constitutional Court against the impugned point of the judgement proper of the decision is permitted, in the opinion of the appellants, derives from the provisions of the fourth paragraph of article 15, the fourth paragraph of article 153 and article 158 of the Constitution, which are also binding on the Constitutional Court.

2. On the basis of article 58 of the Constitutional Court Act (Official Gazette RS, no. 15/94 - hereinafter: ZUstS), the appellants propose that the Constitutional Court restrain implementation of the impugned individual act and, as necessary, also implementation of both laws on the basis of which the impugned act was adopted: the Method of Voting and Establishing the Result of a Referendum on the Electoral System Act (Official Gazette RS, no. 57/96) and ZRLI. They believe that the implementation of the impugned individual act could have consequences that would be difficult to repair, that is to say the adoption of election legislation which was in conflict with the real will of delegates and thus with article 82 of the Constitution. If an election act were not to be passed with the prescribed two-thirds majority of all delegates, all the political and constitutional complications which would be created in the state could similarly be considered "consequences difficult to repair".

3. Since legal remedy against an illegal finding of the result of a referendum is claimed not to have been provided in ZRLI, the appellants also put forward an initiative for assessing the constitutionality of sub-section 5 of section III of this law.

For the same reasons, they propose that the Constitutional Court commence a proceeding for assessing article 24 ZRLI, which is claimed not to envisage any kind of effective legal remedy in a subsequent referendum.

B.

4. The Constitutional Court issued point 2 of the judgement proper of decision no. U-I-12/97 of 8.10.1998, against which the appellants lodged a constitutional appeal, in a proceeding for assessing the constitutionality of regulations (IV. chapter ZUstS). On the basis of the Report of the Republican Electoral Commission on the result of voting at a referendum on the electoral system which was held on 8.12.1996, and in conformity with the finding under point 1 of the judgement proper of this decision, the Constitutional Court found in the impugned point that the proposal contained in the referendum question set at the demand of 43,710 voters was passed. The impugned decision was adopted on the basis of the second paragraph of article 40 ZUstS.

5. On the basis of the eleventh indent of the first paragraph of article 160 of the Constitution, jurisdiction for deciding on specific matters may only be imposed on the Constitutional Court by the Constitution or Law. ZUstS, which determines the competencies of the Constitutional Court in article 21 more exactly than in article 160 of the Constitution, does not determine that an appeal may be lodged against a decision of the Constitutional Court issued in a proceeding of assessing the constitutionality and legality of regulations or issued in a proceeding of constitutional appeal.

6. A constitutional appeal is not a legal remedy by which it would be possible to impugn a decision of the Constitutional Court, irrespective of whether it has the character of a general or individual act which it would be possible to impugn by constitutional appeal (see resolution no. Up 271/98 of 28.10.1998). Even if the decision of the Constitutional Court were to have the nature of an individual act, as the appellants assert, a constitutional appeal is not allowed. A constitutional appeal is a special legal remedy which is allowable against individual acts of other state organs, organs of local communities and holders of public authority, whenever (such an act) encroaches on human rights or fundamental freedoms. In the third paragraph of article 55, ZUstS even determines that no appeal may be made against a decision of the senate adopted in a proceeding of investigating a constitutional appeal, that is against a decision of rejection, the acceptance or non- acceptance of a constitutional appeal.

7. The Constitutional Court rejected the constitutional appeal against the decision of the Constitutional Court cited in the judgement proper of this resolution because, for reasons given in this reasonin, it is not allowable.

8. On the basis of article 58 ZUstS, the Constitutional Court may restrain implementation of an individual act which is impugned by constitutional appeal if the constitutional appeal is accepted for hearing. Since the Constitutional Court did not accept the constitutional appeal for hearing, the conditions were not given for deciding on the proposed temporary restraint.

9. The senate of the Constitutional Court separated the initiative for assessing the constitutionality of sub-section 5 of section III and article 24 ZRLI, which the appellants lodged simultaneously with the constitutional appeal, and it will be dealt with as a separate case.

C.

10. The Constitutional Court adopted this decision on the basis of articles 21 and 55 of ZUstS, composed of: president Franc Testen and judges Dr. Janez Čebulj, Dr. Zvonko Fišer, Dr. Miroslava Geč-Korošec, Lojze Janko, Milojka Modrijan, Dr. Mirjam Škrk, Dr Lojze Ude and Dr. Dragica Wedam-Lukić. The resolution was adopted unanimously. Judges Fišer, Modrijan, Testen, Ude and Wedam-Lukić gave a concurring opinion.


P r e s i d e n t:
Franc Testen
Type of procedure:
constitutional complaint
Type of act:
other acts
Date of application:
08.12.1998
Date of decision:
04.03.1999
Type of decision adopted:
ruling
Outcome of proceedings:
rejection
Document:
AN01804