U-I-87/99

Reference no.:
U-I-87/99
Objavljeno:
Official Gazette RS, No. 60/99 and OdlUS VIII, 180 | 08.07.1999
ECLI:
ECLI:SI:USRS:1999:U.I.87.99
Act:
Order of the Government No. 803-05/98-1, dated 11 October 1998
Operative provisions:
The petitions of Ervin Dokič and the Christian Social Union - Christian Socialists political party to commence proceedings for the review of the constitutionality and legality of Government Order No. 803-05/98-1, dated 11 October 1998, are rejected.
Abstract:
A political party has standing to file a petition for the review of the constitutionality and legality of a regulation only when such a regulation directly interferes with its rights, legal interests or legal position as a legal entity. The interests of a party's program and policies, the (legal) interests of its individual members or even a general interest in respect for the democratic system, constitutionality and legality do not vest in a political party the right to file a petition for the review of constitutionality or legality. Similarly, the legal interest of the individual must be direct and concrete. A general and abstract legal interest, which anyone could demonstrate, does not suffice. The petitioner should have demonstrated that the challenged regulation had directly interfered with his own rights, legal interests or legal position, and that, if granted, his petition would entail a change in his legal position.

The Constitutional Court has jurisdiction to review the constitutionality and legality of regulations adopted by Slovenian State bodies. It lacks jurisdiction to review the constitutionality of decisions reached by foreign States or international organizations. Neither does it have jurisdiction to review the consistency of their decisions with treaties.

Such review falls under the jurisdiction of international bodies and tribunals.

The decision that the air-space of the Republic of Slovenia was allowed to be used by military aircrafts participating in the NATO air-operations above the territory of the FRY does not directly interfere with the right of citizens of the Republic of Slovenia to a healthy living environment. This right is guaranteed by statute. The challenged Order imposes on the competent Ministries the obligation to take any measure necessary to implement it. In adopting these measures, the Ministries are to respect the environmental protection regulations, i.e. the limitation that the allowed overflights by military aircrafts must not exceed the permitted burden to the environment regarding noise and other modifications.

The challenged Order results from a political decision by the Government as the competent State body for carrying out the foreign and defense policy of the State. Such a decision in itself can not be the subject of review before the Constitutional Court. However this decision, besides just being a response to NATO, would require suitable legislation. On the basis of the effective legislation it is possible to grant a permit for flying over the State territory to foreign military aircrafts as well. But the legislation as a rule regulates the issuing of permits for individual overflights, prohibiting in particular overflights by armed aircrafts. In the case of the NATO aircrafts' overflights, the issue concerned precisely the mentioned type of overflight. Such cases are not regulated by the effective legislation. Therefore, the Government should have suggested a suitable amendment to the effective legislation, or the adoption of a special statute, or entry into a treaty subsequently ratified by the National Assembly. The action by the Government, which only notified the National Assembly of its decision, and the action by the National Assembly, which only accepted this notification although it was related to a decision the National Assembly is to make, do not change the state of affairs. Furthermore, the National Assembly has not only the right but also the duty to decide on matters which fall under its competence.

In view of its contents, the challenged Order is, according to the Constitutional Court, an act which should have been adopted as a regulation. For on the one hand it interferes with the question of State sovereignty, and, on the other hand, concerning the area which has already been regulated by statutes, it should have been adopted by the National Assembly in statute form. No body other than the National Assembly may change and amend an effective statute, insofar as it appears that the effective regulation does not lead to a lawful decision in a particular factual situation (i.e. in some new factual situation that the original statute had not envisaged). The Government Order can not fill in the gap of the statutory basis needed to grant a general permit for the flights of armed military aircraft over the territory of the Republic of Slovenia.

However, the challenged Order was applied and had actual effects; it thus had the effects of a regulation. The Constitutional Court established that the challenged Order should have been adopted in the form of a regulation, i.e. in the form of a statute adopted by the National Assembly, from which it follows that the Constitutional Court would have had jurisdiction to review it. However, regardless of the above mentioned characteristics of the challenged Order, the petitioner can not be granted standing to file a petition. The character of the act is not such as to give grounds to the belief that any of the petitioner's rights was violated in the procedure of its adoption. The consequences of the act, i.e. the partial transfer of sovereignty over the State air-space, are truly such as might affect the interest of any Slovenian citizen, but such an interest of the individual is not legally protected. On the other hand, such a position could exist if the challenged act creates a situation regulated under Art. 92 of the Constitution. However, the petitioner does not assert this situation existed and the Constitutional Court itself did not find any facts to which the mentioned constitutional provision could apply. Accordingly, the Constitutional Court rejected the petition for lack of standing.
Password:
Demonstrated standing as a procedural requirement to commence proceedings before the Constitutional Court on the basis of a petition.
Constitutional Court, jurisdiction to resolve a jurisdictional dispute.
Constitutional Court, the order of precedence when reviewing procedural requirements according to the Constitutional Court Act.
Slovenia is a territorially unified and indivisible State.
Healthy living environment.
Defense of the State.
Conformity of legal acts.
Concurring opinion of a Constitutional Court judge.
Legal basis:
Constitution, Arts. 4, 72, 124, 153
Chicago Convention on International Civil Air Traffic, Art. 3 Constitutional Statute for the Implementation of the Basic Constitutional Charter on the Sovereignty and Independence of the Republic of Slovenia (UZITUL), Arts. 2, 4, 9, 22, 23
Foreign Affairs Act (ZZZ), Art. 63
Government of the Republic of Slovenia Act (ZVRS), Art. 21
Rules of Procedure of the Government of the Republic of Slovenia, Arts. 51, 52
Environmental Protection Act (ZVO), Arts. 1, 15, 27 Constitutional Court Act (ZUstS), Arts. 21, 24, 25
Note:
In the reasoning of its decision the Constitutional Court refers to its cases No. U-I-29/94, dated 12 May 1994 (DecCC III,48) and No. U-I-155/94, dated 9 Nov. 1994 (DecCC III,121).
Document in PDF:
The full text:
U-I-87/99
8 July 1999


R U L I N G

At a session held on 8 July 1999 in proceedings to examine the petitions of Ervin Dokič from Piran and the Christian Social Union - Christian Socialists political party, the Constitutional Court

d e c i d e d:

The petitions of Ervin Dokič and the Christian Social Union - Christian Socialists political party to commence proceedings for the review of the constitutionality and legality of Government Order No. 803-05/98-1, dated 11 October 1998, are rejected.

R e a s o n i n g

A.

1. In his petition, filed on 7 April 1999 (with subsequent supplements), petitioner Ervin Dokič requested the commencement of proceedings for the review of the constitutionality and legality of an unpublished act of the Government, by which it had allowed NATO military aircrafts to use the air-space of the Republic of Slovenia. He asserted that the Constitution in Art. 72 guarantees him the right to a healthy living environment.

This allegedly includes the right to an environment free from excessive noise, which is detrimental to mental health and to the health of people in general. Furthermore, his right to peace and a life free from excessive noise is guaranteed by the Environmental Protection Act (Official Gazette RS, Nos. 32/93 and 1/96 - hereinafter: ZVO) and the executive regulations based on it. The noise caused by the NATO supersonic aircrafts flying over Slovenia allegedly interfered with that right.

2. According to the petitioner, the Government is not empowered to decide on the use of the Slovenian air-space needed for military aircrafts to attack a sovereign and independent country. Under Art. 124 of the Constitution, the inviolability and integrity of the State territory is regulated by a statute which must be adopted by a two-thirds majority. Thus, the Government allegedly has no authority to make decisions which interfere with the inviolability and integrity of the State territory.

3. The act of the Government was allegedly contrary to Art. 8 of the Constitution, because it did not conform with the generally applicable principles of international law and with treaties.

In this regard the petitioner referred to the Charter of the United Nations, which allegedly encompasses principles banning the use of force against the integrity and political independence of any sovereign State, on the peaceful settlement of disputes, on the prohibition of intervention in the internal affairs of a sovereign State, and the principle of the sovereign equality of States, territorial integrity, and other principles. By the challenged act the Government allegedly directly supported actions which violated the basic principles of the United Nations, which allegedly entailed a direct violation of these principles on the part of Slovenia. According to the petitioner, the attack on the Federal Republic of Yugoslavia (hereinafter: the FRY) was not a peaceful operation, since there was no resolution of the Security Council calling for such an operation. Moreover, NATO turned out to be an offensive, not defensive, international alliance.

4. The challenged act was not published, as is required for such regulations by Art. 154 of the Constitution. Thus, in the petitioner's opinion, it can not apply. It was signed by the Government's Secretary General and not by the Prime Minister.

Therefore, it is allegedly contrary to the Government Act (Official Gazette RS, Nos. 4/93, 71/94 - DecCC, 23/96 and 47/97 - ZVRS) as well.

5. Responding to the petition, the Government asserted that following a NATO request it allowed the use of Slovenian air- space for carrying out air-operations above the territory of the FRY. To this effect it issued Order No. 803-05/98-1, dated 11 October 1998. The permission for such operations was requested in view of the possible use of force against the FRY concerning solving a critical situation arisen in Kosovo, which the UN Security Council had established posed a threat to peace and security in the region, and due to which a human catastrophe was a possible consequence (Security Council Resolutions No. 1199, dated 23 September 1998, and No. 1203, dated 24 October 1998).

One of the fundamental goals of the State that the National Assembly has established is incorporation into NATO (Resolution on the Guidelines to the National Security Project, Official Gazette RS, Nos. 71/93 and 2/94). Furthermore, it has determined that in the process of incorporation into European and other international organizations the Republic of Slovenia assumes the rights and obligations required by these organizations in the area of defense. The adopted decision of the Government, which is empowered to carry out State policy, was allegedly consistent with the policy determined by the National Assembly in the area of defense and international affairs, and allegedly signified an action pursuant to the treaties entered into by NATO and the Republic of Slovenia, in the framework of the Partnership for Peace.

6. In accordance with the Government's assertions, the intention of the limited use of force by NATO against the FRY was not to interfere with the territorial integrity of that State, or its political independence, but to encourage a political dialogue and stabilize the situation which threatens peace and stability in the region and broader area. Under international law the use of force is allowed when approved by the Security Council, if it proceeds according to authority granted in the Charter of the United Nations. The use of force against the FRY was not explicitly approved by the Security Council, however in the period between March and October 1998 the Council had adopted several resolutions on Kosovo (Nos. 1160, 1199 and 1203), pursuant to Chapter VII. of the Charter. According to the Government, weighty reasons existed for permission to be granted to use air-space for the needs of the NATO air-operations above the territory of the FRY. In spite of the fact that these operations were not explicitly approved by the Security Council, the Council had nevertheless previously indirectly, i.e. by the adopted acts, indicated that the use of force was possible.

7. Furthermore, the Government asserted that the NATO aircrafts were, flying above the territory of the Republic of Slovenia, following precisely determined directions, at a height between 6,000 and 14,000 meters, and always at subsonic speed. The jettison of armament above Slovenia is not permitted, and the competent authorities constantly followŠedĆ the overflights of these aircrafts. The breaking of the sonic barrier above Slovenia is prohibited as well. In the opinion of the Government, the noise of the military aircrafts flying at subsonic speed does not exceed the noise of passenger planes.

Thus, this issue does not concern an excessive burden imposed on the environment and damage caused to the health of the people.

8. On 29 Apr. 1999, the Christian-Social Union (Christian Socialists), a political party, joined the petitions of Ervin Dokič. The Union claimed to have standing by means of its program, which strives for a consistent democratic system to be established in the State of Slovenia. In their opinion, the permission of the Government for the military aircrafts' flights over Slovenia was allegedly contrary to Art. 124 of the Constitution. Pursuant to this provision, the organizational plan of the defense of the inviolability and integrity of the State territory (including the air-space, which was allowed to be used by the NATO aircrafts) must be adopted by the National Assembly by a two-thirds majority of those Deputies present.

However, concerning this issue, the National Assembly has not adopted any statute or resolution, neither has there been any voting on this matter. In a supplement, dated 5 May 1999, the political party declared its petition to be an independent petition.

9. The National Assembly did not reply to the petition.

B.

10. The Constitutional Court commences proceedings for the review of the constitutionality and legality of regulations or general acts issued by statutory authorities if the procedural requirements determined by statute are met. There are no rules prescribed by statute nor precedents concerning which of the procedural requirements is to be examined first. The order of precedence depends on the factual and legal circumstances of each particular case. Furthermore, it is necessary to consider that, first of all, sometimes the bases for establishing different procedural requirements are very much intertwined with each other and, secondly, that often the bases for establishing procedural requirements become intertwined with the bases establishing the merits of the petition. Thus, frequently it is impossible to consider individual procedural requirements according to an order of precedence, even if randomly ordered, and separately. But it is necessary to do it in a parallel way and often in a manner not isolated from the elements which already represent a basis for a decision on the merits of the case, which could not be reached later if a certain procedural requirement is not met. In the case at issue, it is particularly the existence of the two already mentioned procedural requirements that could be disputed, but not necessarily according to the following order of precedence: a) the petitioner's standing (Art. 24 of the Constitutional Court Act, Official Gazette RS, No. 15/94 - hereinafter: ZUstS) and b) the legal character of the challenged act (whether a regulation is concerned) and thereby the jurisdiction of the Constitutional Court to review it (Art. 21 of ZUstS).

11. When we discuss the intertwining of the bases for the existence of the two mentioned procedural requirements and, consequently, the fact that sometimes when we try to establish the existence of these requirements it is impossible to avoid a partial review of the challenged act's merits, it is necessary to consider that the character of the challenged act may affect standing. However, it is hard to imagine the contrary: that the character of an act would depend on whether the particular person has standing. Therefore, it is always possible to establish whether the challenged act is a regulation or general act issued by statutory authorities, without at the same time raising the question of the existence of standing. On the contrary, it is often impossible to reliably establish whether standing exists, if the Constitutional Court does not simultaneously examine the legal character of the act and the contents of relationships regulated therein. Thus, it may occur that the Constitutional Court will examine whether it has jurisdiction and establish that it does, or that it would have, and will only later examine if there is standing. In deciding on the latter, it will not be able to entirely abandon or neglect those rulings it made when examining the procedural requirement of jurisdiction or the character of the challenged legal act. As the following paragraphs of this decision will show, the case at issue is exactly such an example.

12. The Constitutional Court has more than once decided and reasoned that a political party has standing to file a petition for the review of the constitutionality and legality of a regulation only when such a regulation directly interferes with its rights, legal interests or legal position as a legal entity. The interests of a party's program and policies, the (legal) interests of its individual members or even a general interest in respect for the democratic system, constitutionality and legality do not vest in a political party the right to file a petition for the review of constitutionality or legality.

13. Moreover, the challenged Order does not directly interfere with the rights, legal interests or legal position of the petitioner Ervin Dokić. Pursuant to Art. 24 of ZUstS, any person may file a written petition to initiate proceedings provided that they demonstrate standing. According to Para. 2 of this article, standing is demonstrated if the regulation whose review the petitioner has requested directly interferes with their rights, legal interests or legal position. In accordance with the established case-law of the Constitutional Court, standing must be direct and concrete. A general and abstract legal interest, which anyone could demonstrate, does not suffice. The petitioner should have demonstrated that the challenged regulation had directly interfered with his own rights, legal interests or legal position, and that, if granted, his petition would entail a change in his legal position (as, for example, in Ruling No. U-I-29/94, dated 12 May 1994 - DecCC III, 48 and Ruling No. U-I-155/94, dated 9 November 1994 - DecCC III, 121).

14. The decision that the air-space of the Republic of Slovenia was allowed to be used by military aircrafts participating in the NATO air-operations above the territory of the FRY does not directly interfere with the right of citizens of the Republic of Slovenia to a healthy living environment (Art. 72 of the Constitution). This right is guaranteed by statute. In ZVO people's health, their general feeling and the quality of their lives as well as the survival, health and condition of living organisms (Art. 1.4 of ZVO) are stated as the measure of all actions and regulations on environmental protection. Not every modification of the environment is disallowed. It is permitted to burden the environment, if the particular modification does not exceed the prescribed standards or frameworks allowing modifications (Art. 5.6.1, the maximum extent of modifications under Art. 27 of ZVO, prescribed by the Government). ZVO in Art. 15 introduces the principle of protecting these rights, which imposes on everyone who intends to make a modification to the environment the duty to do everything necessary to safeguard the implementation of the right of others to a healthy living environment. Moreover, this article provides legal protection to insure the implementation of this right. The challenged Order imposes on the competent Ministries the obligation to take any measure necessary to implement it. In adopting these measures, the Ministries are to respect the environmental protection regulations, i.e. the limitation that the allowed overflights by military aircrafts must not exceed the permitted burden to the environment regarding noise and other modifications.

15. Besides the violation of the right to a healthy living environment, the petitioner asserts that the challenged act is unconstitutional and unlawful, since the Government allegedly did not have the required authority to adopt it. By the challenged act, the Government allegedly derogated the inviolability and integrity of the State territory, which could only be regulated by statute adopted by a two-thirds majority.

Furthermore, he asserts that this act, which had the character of a regulation, was not promulgated and thus it should not have been applied. This Court has more than once dealt with a similar question of whether the existence of the petitioner's standing could depend on the reasons they assert when challenging a regulation. A cursory review would seem to support the idea that the existence of standing according to Art. 24 of ZUstS can not depend on why (for what reasons, by which arguments and from which motives) the petitioner has challenged the regulation, but only on how the contents of this regulation interfere with their rights, legal benefits and legal position. However, in some cases it depends on the (asserted) reasons that unconstitutionality exists whether the particular subject has standing, or not.

16. With regard to the reasons that the petitioner asserted when claiming the unconstitutionality of the challenged act (adoption by a non-competent body, interference with the inviolability and integrity of the State territory by an act which has not been published and therefore which could not take effect), the Constitutional Court had to review the main characteristics of the act before it could finally establish whether the petitioner had standing to challenge this act, or not.

17. By means of a verbal note,1 dated 10 October 1998, NATO requested that the Government of the Republic of Slovenia allow it uninterrupted access to the air-space of the Republic of Slovenia, to carry out air-operations above the territory of the FRY. The note was sent through the Mission of the Republic of Slovenia to the NATO headquarters, i.e., through diplomatic channels. Employing a verbal note as well, on 11 October 1998, the Government replied to NATO to notify it of the contents of the challenged Order. The Government decision allowing the flights by the NATO military aircrafts over Slovenia does not stricto sensu impose any international obligations on the State of Slovenia. In the case at issue no contractual relationship was established between Slovenia and NATO, according to Art. 13 of the Viennese Convention on Making Treaties Between States and International Organizations or Between International Organizations.2 By unilaterally assenting to such interventions in the State air-space for an indefinite time, or until the NATO air-operations against the FRY cease, the Government agreed to tolerate such interferences with its sovereignty during the time for which the permission was granted. In this regard such an assent could be ascribed the character of a legal, not merely political, action. However, such an assent could not result in establishing a unilateral international-law obligation3 of Slovenia to NATO, which would practically have equal international-law consequences as those the State assumes when it enters into a treaty. A unilateral revocation on the part of Slovenia of the assent or permission allowing the overflights of the NATO military aircrafts to carry out air-operations above the FRY would not violate an international-law obligation, nor result in international-law consequences ensuing thereof. But a revocation of the permission granted to the NATO flights over Slovenia could entail consequences in the area of foreign affairs.

18. The Constitutional Court has jurisdiction to review the constitutionality and legality of regulations adopted by Slovenian State bodies. It lacks jurisdiction to review the constitutionality of decisions reached by foreign States or international organizations. Neither does it have jurisdiction to review the consistency of their decisions with treaties.

Such review falls under the jurisdiction of international bodies and tribunals. The decision on air-strikes against the FRY was made by the NATO alliance or their individual members - foreign countries. Thus, the Constitutional Court lacks jurisdiction to review their decisions.

19. The question of whether the Government decision conforms with State policy in the area of foreign affairs and defense is, in the first place, a question concerning the relations between the National Assembly and the Government. The question of harmonizing the action and participation of the State in these areas falls under the competence of the legislative and executive branch. As a rule the Constitutional Court may interfere with these relations only in two type of cases: first, when any of the two branches of the Government would assert that another branch has interfered with its authority or even has assumed such, i.e. if a jurisdictional dispute arises. And, secondly, when the matter concerns the review of the constitutionality and legality of regulations adopted by the National Assembly or the Government.

20. The petitioner's assertions on the Government not being competent to adopt the challenged Order can not be considered to be a petition to resolve a jurisdictional dispute between the Government and the National Assembly. According to Art. 61 of ZUstS, a request for a decision in such a (positive) jurisdictional dispute may only be filed by the National Assembly or the Government if either of these two opine that the other has interfered with its competence, or has even assumed it. No one else is entitled to file a request or petition for a decision in a jurisdictional dispute between these two bodies.

21. In Art. 21 ZVRS provides that the Government adopt a decision in the form of an order when it does not issue any other act. Thus, the form of the challenged Order demonstrates that it is not a regulation. This notion is also supported by the fact that the Order was signed by the Government's Secretary General and not by the Prime Minister, which the petitioner views as an additional illegality. The Government of the Republic of Slovenia Rules of Procedure (Official Gazette RS, No. 13/93: Government Rules of Procedure) in Arts. 51 and 52 determine the rules for signing Government decisions. Orders which are not published in the Official Gazette, therefore also orders and acts which do not have the character of regulations, are signed by the Government's Secretary General.

22. Pursuant to Art. 4 of the Constitution, Slovenia is a territorially unified and indivisible State. In addition, this constitutional provision inter alia presupposes sovereignty over its territory, including its air-space.

23. The Chicago Convention on International Civil Air Transport (Official Gazette FPRY, No. 3/54 and following, which Slovenia adopted by the Act on the Notification of Succession, Official Gazette RS, No. 24/92, Point A.2), recognizes to the State the complete and exclusive sovereignty over its air-space. What is regulated therein are the overflights of civil aircrafts (especially for commercial purposes), however the overflights of military, customs and police aircrafts (i.e. State aircrafts) are prohibited. According to Art. 3 of the Chicago Convention, State aircrafts may overfly or land in another State only on the basis of an explicit permission or a special agreement.

24. In Slovenian air-space, air traffic is still regulated by a regulation of the former SFRY from 1986 (The Air Traffic Act, Official Gazette SFRY, Nos. 45/86, 24/88, 80/89 and 29/90 and Official Gazette RS, Nos. 10/91, 17/91-I, 13/93, 58/93 and 66/93 - hereinafter: ZZP, which continues to be applied as a regulation of the Republic of Slovenia, on the basis of Art. 4 of the Constitutional Statute on the Implementation of the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia, Official Gazette RS, No. 1/91-I: UZITUL), which provides that:

- Slovenian air-space is inviolable; a foreign aircraft violates it if it flies over or within it without a permit issued by the competent body (Art. 2);

- a foreign State aircraft is defined as a military, police or customs aircraft Šof a foreign countryĆ (Art. 9.22); - a foreign aircraft may fly in Slovenian air-space only with a permit to fly in Slovenian air-space if a treaty binding on Slovenia does not determine otherwise (Art. 22.2); - a flying permit for foreign aircrafts is issued by the foreign affairs administrative body with the consent of the Ministry of Defense administrative body (Art. 22.2);

- special regulations apply to foreign military aircraft which obtain a permit; a foreign military aircraft which is not used for military purposes and has been granted a flying permit, is considered to be a civil aircraft (Art. 23);

- a foreign aircraft is prohibited from carrying loaded firearms, rockets or bombs and active equipment for recording on film (Art. 25).

The Rules on the Manner of Issuing Permits for the Flights of Aircrafts (Official Gazette RS, No. 58/92), adopted by the Director of the Republic of Slovenia Administration for Air Traffic, regulates the issuing of individual flying permits for foreign aircrafts.

25. When the matter has not concerned the issuing of permits only for individual overflights, Slovenia has entered into special agreements with foreign countries or international organizations. Thus, for example, with Hungary it entered into the International Agreement on Military Cooperation in the Area of Aviation and Air-Defense (Official Gazette RS, No. 22/98, Treaties, No. 5/98). The Agreement was ratified by the National Assembly. It was reached for the purpose of preventing air- space violations and ensuring the safe completion of military flights. It explicitly provides that aircrafts equipped with rockets, bombs, loaded guns or other firearms, and aircrafts carrying radio-electronic, radar and optical equipment which are able to reconnoiter, are prohibited from flying across the State boundary of the Republic of Slovenia, except in cases allowed by treaties which both States are party to (Art. 3.3 of the Agreement).

26. As the basis for adopting the challenged Order, the Government claims the Agreement Between the Party States to the North Atlantic Treaty and Other Countries Which Participate in the Partnership for Peace, concerning the status of their troops (Official Gazette RS, No. 77/95, Treaties No. 16/95). In general the Agreement envisages that, according to this agreement, the troops of one party State may be sent to the territory of another State, but it further provides that decisions on sending and accepting the troops will continue to be reached by separate agreements between the respective States. Thus, a special agreement on the transit of the peace-keeping troops which have participated or are still participating in the operations on the territory of Bosnia and Herzegovina was entered into between the Government of the Republic of Slovenia and NATO (Official Gazette RS, No. 44/96, Treaties, No. 11/96), which was ratified by the National Assembly. A similar agreement needs, it is claimed, to be reached for the transit of the peace-keeping troops which will be participating in the ground-operations on the territory of Kosovo. From the National Assembly's documentation it follows that an initiative on reaching such an agreement has already been discussed by two National Assembly committees: the International Relations Committee and the Defense Committee.

27. In response to the petition, the Government does not assert that it based the grounds for allowing the disputed overflights on the already signed treaties. It only asserts that its decision conforms with the principled policy of the State to join NATO, in which, in addition to certain rights, Slovenia will allegedly be expected to also assume the obligations ensuing from this alliance. Even if the issue concerned only an international act signed to implement the already reached treaty, the effective RS legislation would require its ratification by a Government decree, according to Art. 63.3 of ZZZ.

28. The challenged Order results from a political decision by the Government as the competent State body for carrying out the foreign and defense policy of the State. Such a decision in itself can not be the subject of review before the Constitutional Court. However this decision, besides just being a response to NATO, would require suitable legislation. On the basis of the effective legislation it is possible to grant a permit for flying over the State territory to foreign military aircrafts as well. But the legislation as a rule regulates the issuing of permits for individual overflights, prohibiting in particular overflights by armed aircrafts. In the case of the NATO aircrafts' overflights, the issue concerned precisely the mentioned type of overflight. Such cases are not regulated by the effective legislation. Therefore, the Government should have suggested a suitable amendment to the effective legislation, or the adoption of a special statute, or entry into a treaty subsequently ratified by the National Assembly (Art. 63.2 of ZZZ). The action by the Government, which only notified the National Assembly of its decision, and the action by the National Assembly, which only accepted this notification although it was related to a decision the National Assembly is to make, do not change the state of affairs. Furthermore, the National Assembly has not only the right but also the duty to decide on matters which fall under its competence.

29. In Para. 2 the challenged Order imposes on the competent Ministries the obligation to do everything necessary to implement Government decisions. Individual acts and acts of State bodies must be based on statute or on a regulation based on statute (Art. 153.4 of the Constitution). In the case under consideration, this means that the competent Ministries would, on the basis of ZZP and the Rules, issue only individual permits for overflights or confirm the plan of a flight; but would not issue permits for armed aircrafts.

30. Art. 124 of the Constitution is predominantly a jurisdictional provision: The National Assembly decides by statute on the type, extent and organization of the defense of the inviolability and integrity of the State territory. The challenged Order does not contain a decision which would directly refer to the defense of the State territory, however it concerns a decision on questions of defense. Among such questions belong, for example, the ensuring of peace and stability in the broader region and decisions on the defensive alliances of the State and obligations ensuing thereof. The overflights of armed aircrafts are considered to interfere with the inviolability and sovereignty of the State territory as well as, at least, to interfere with civil air traffic above Slovenia. Both necessarily require the activation of military and civil means for ensuring the safety of people and property and for ensuring the security of the State. The National Assembly is the body empowered to take every possible measure to insure the effective security, defense and protection of the whole State territory, waters and air-space (It. V.2 of the Resolution on the Guidelines to the Scheme of the National Security of the Republic of Slovenia). From the principles of a State governed by the rule of law it follows that concerning international activities in which the Republic of Slovenia begins to participate, and whose international-law character is not clear or is only being established by new practices by the States, the highest legal standards apply in order for them to be incorporated into the domestic legal system. Therefore, in this case, the National Assembly should have regulated by statute the cases, conditions and procedure for adopting such decisions as the challenged one.

31. In view of its contents, the challenged Order is, according to the Constitutional Court, an act which should have been adopted as a regulation. For on the one hand it interferes with the question of State sovereignty, and, on the other hand, concerning the area which has already been regulated by statutes, it should have been adopted by the National Assembly in statute form. No body other than the National Assembly may change and amend an effective statute, insofar as it appears that the effective regulation does not lead to a lawful decision in a particular factual situation (i.e. in some new factual situation that the original statute had not envisaged). The Government Order can not fill in the gap of the statutory basis needed to grant a general permit for the flights of armed military aircraft over the territory of the Republic of Slovenia.

32. However, the challenged Order was applied and had actual effects; it thus had the effects of a regulation. The Constitutional Court established that the challenged Order should have been adopted in the form of a regulation, i.e. in the form of a statute adopted by the National Assembly, from which it follows that the Constitutional Court would have had jurisdiction to review it. However, regardless of the above mentioned characteristics of the challenged Order, the petitioner can not be granted standing to file a petition. The character of the act is not such as to give grounds to the belief that any of the petitioner's rights was violated in the procedure of its adoption. The consequences of the act, i.e. the partial transfer of sovereignty over the State air-space, are truly such as might affect the interest of any Slovenian citizen, but such an interest of the individual is not legally protected. On the other hand, such a position could exist if the challenged act creates a situation regulated under Art. 92 of the Constitution. However, the petitioner does not assert this situation existed and the Constitutional Court itself did not find any facts to which the mentioned constitutional provision could apply. Accordingly, the Constitutional Court rejected the petition for lack of standing.

C.

33. The Constitutional Court reached this Ruling on the basis of Art. 25, in conjunction with Art. 21, of ZUstS, composed of:
Franc Testen, President, and Judges: Dr. Janez Čebulj, Dr. Zvonko Fišer, dr. Miroslava Geč Korošec, Lojze Janko, Milojka Modrijan, Dr. Lojze Ude, Dr. Mirjam Škrk and Dr. Dragica Wedam Lukić. The Ruling was reached unanimously. Judge Ude concurred.


P r e s i d e n t:
Franc Testen


Footnone:
1A diplomatic note is a form of international communication which has an official and in some cases also legally binding meaning. Usually facts that refer to mutual relations (in the case under consideration, to relations between Slovenia and NATO as an international organization) are reported by it. A verbal note is a written, however, not signed, document.
2Signed in Vienna on 21 March 1986. Slovenia is not a party to it, however the provision could be considered to be a part of international customary law, for it is identical with the same provision of the Vienna Convention on Treaty Law, dated 1969 (Art. 13: Entering into Treaties by Exchanging Instruments Which Establish a Treaty).
3Concerning the views of an international-law doctrine and case- law, the permission of a State to interfere with its sovereignty (e.g., a permission for the overflight of military aircrafts) can not be classified as an example of a State unilateral legal action (unilateral acts of States) in the narrowest sense, being a unilateral assumption of international-law obligations which have consequences ensuing thereof, such as, e.g., notification, promise, assent, recognition, protest, waiver. The practice of States with regard to unilateral legal actions (save in the above-cited cases) is rather non-uniform, the doctrine and case- law are scant, and the UN Commission for International Law is only in the initial phase of the codification of this question.
J. Andrassy, Međunarodno pravo, Školska knjiga Zagreb, 1976, pp. 314-318; N.Q. Dinh, P. Daillier, A. Pellet, Droit international public, 4e edition, Librarie generale, de droit et de jurisprudence, Paris 1992, Les acts unilateraux, pp. 349-355; Report of the International Law Commission on the Work of Its Fiftieth Session, 20 April-12 June 1998, 27 July-14 August 1998, General Assembly, Official Records, Fifty-third session, Supplement No. 10 (A/53/10), UN, New York, 1998, Chapter VI, Unilateral Acts of States, pp. 85-107; Nuclear Tests (Australia v. France), Judgment of 20 December 1974, ICJ Reports 1974, pp. 253, Paras. 34-51; Nuclear Tests (New Zealand v. France), Judgment of 20 December 1974, ICJ Reports, 1974, p. 457, Paras. 35-53
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
executive regulation
Applicant:
Ervin Dokič, Piran
Date of application:
08.04.1999
Date of decision:
08.07.1999
Type of decision adopted:
ruling
Outcome of proceedings:
rejection
Document:
AN01805