Reference no.: |
U-I-245/00 |
Objavljeno: |
Official Gazette RS, No. 91/2001 and OdlUS X, 179 | 18.10.2001 |
ECLI: |
ECLI:SI:USRS:2001:U.I.245.00 |
Act: |
Act Amending the Violations Act (Official Gazette RS, No. 31/00) (ZP), Art. 22 |
Operative provisions: |
Article 22 of the Act Amending the Violations Act (Official Gazette RS, No. 31/00) is not inconsistent with Articles 2 and 8 of the Constitution. |
Abstract: |
With the challenged Article 22 of the Act Amending the Violations Act (hereinafter ZP-L) the legislature introduced a new extraordinary legal remedy, with which it enabled a State prosecutor of the Republic of Slovenia to lodge a request for the protection of legality against the decisions cited in the challenged Article. The provision of Article 22 of ZP-L embraced final decisions on administrative sentencing issued by a competent administrative authority or decisions on violations issued by an authority for violations, competent for the territory of the Republic of Slovenia or for the territory of any of the Republics of the former Yugoslavia, which became final before 25 June 1991, provided that a sentenced person is or has ever been a Slovenian citizen, and was unjustly and inconsistently with the principles and rules of a State governed by the rule of law sentenced to any form of the deprivation of liberty for class, political or ideological reasons. As regards the substance, the provision of Article 22 of ZP-L represents the possibility of judicial rehabilitation, which was not possible until the present time in cases determined in Article 216 of the Violations Act (hereinafter ZP). A decision, against which decisions the new extraordinary legal remedy should be allowed - only against those issued against the Slovenian citizens in the territory of the Republic of Slovenia, or also against those issued in the territory of the other Republics of the former common State, falls within the field of discretion of the legislature. Thus, the Constitutional Court finds that with the challenged regulation the legislature solved an additional issue regarding the abolition of the consequences which occurred on the basis of the regulations of the postwar Yugoslav communist rule in the field of punitive law. Thereby, the legislature entirely ensured the implementation of the principle of a State governed by the rule of law determined in Article 2 of the Constitution, requiring from the legislature to provide for the revision of proceedings in which human rights have been violated (Paragraphs 5 and 6 of the reasoning of this decision). The discussed case does not concern the issue of the delegation of competencies, but the enforcement of competencies to decide on the new extraordinary legal remedy not foreseen in the former system. Therefore, the assertion of the petitioner that Article 22 of ZP-L is inconsistent with the Constitutional Act Implementing the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia (hereinafter UZITUL), as it delegated competencies from the authorities in the other Republics to the authorities of the Republic of Slovenia, is not substantiated. The authorities for violations were part of the unified system of the authorities of the SFRY, therefore, their decisions issued and implemented before the Republic of Slovenia declared independence did not acquire a character of foreign decisions after the declared independence, and still have effect in the territory of the Republic of Slovenia as the decisions issued by the authorities of the Republic of Slovenia. The referring of the petitioner to the violation of Article 8 of the Constitution is unfounded. The cited Article namely regulates a relation between international law and the legal order of the Republic of Slovenia, which is not the subject of review in the discussed case. With Article 22 of ZP-L the legislature introduced the new extraordinary legal remedy that secures to the particular eligible persons the possibility of judicial rehabilitation as a constitutional right deriving from Article 30 of the Constitution. As the legislature regulated the possibility of lodging a request for the protection of legality against the decisions which do not have a position of foreign decisions in the Republic of Slovenia, it could not have interfered with the sovereignty of another State. |
Password: |
Violations, New extraordinary legal remedy. Sentencing for violations before the authorities outside the RS. Request for the protection of legality. Decision on violations or a decision on administrative sentencing. Deprivation of liberty, proceedings on violation. Redress of wrongs, Judicial rehabilitation. Constitutional principle, State governed by the rule of law. Principle of conformity of legislation with the principles of international law and treaties. Constitutional rights and freedoms, Right to rehabilitation and indemnity. Constitutional Court, jurisdiction, procedure, Lack of jurisdiction to review the adequacy of a statutory regulation (self-restraint). Continuity of a legal order. Concurring opinion of a Constitutional Court judge. |
Legal basis: |
Constitution, Arts. 2, 8 Constitutional Act Implementing the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia (UZITUL), Art. 4 Constitutional Court Act (ZUstS), Art. 21 |
Document in PDF: |
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The full text: |
U-I-245/00-14 18 October 2001 DECISION The Constitutional Court in proceedings to review the constitutionality, commenced on the request of the Supreme Court, at the session held on 18 October 2001 decided as follows: Article 22 of the Act Amending the Violations Act (Official Gazette RS, No. 31/00) is not inconsistent with Articles 2 and 8 of the Constitution. Reasoning A. 1. The petitioner in its petition requested the review of the conformity of Article 22 of the Act Amending the Violations Act (hereinafter ZP-L) with Articles 2 and 8 of the Constitution. He asserted that the Supreme State prosecutor, on the basis of this provision, on 22 June 2000, lodged a request for the protection of legality against the final decision issued on 8 June 1949 by the Commission for Violations of the Peoples Committee of IV. District of Belgrade. It proposed the alteration of the final decision on violation. In deciding this request the Supreme Court opined that the provision of Article 22 of ZP-L was inconsistent with Articles 2 and 8 of the Constitution. Therefore, pursuant to Article 156 of the Constitution, it stayed the proceedings (Supreme Court Order No. IV Ips 83/2000, dated 6 September 2000) until the final decision of the Constitutional Court. The Supreme Court asserted that according to the challenged provision it should review the legality of the final decisions of the administrative or judicial authorities of the other Republics of the former Yugoslavia, which are now independent States, and amend the challenged final decision in the case of a justified request for the protection of legality. Pursuant to the legal order in force before 25 June 1991, on the basis of a request for the protection of legality the Supreme Court could not amend final decisions issued by the authorities of the other Republics of the former Yugoslavia. According to Article 4.2 of the Constitutional Act Implementing the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia (Official Gazette RS, No. 1/91-I et seq. - hereinafter UZITUL), the authorities of the Republic of Slovenia should be transferred only the competencies which, pursuant to the regulations at that time, the authorities of the SFRY had, thus the federal authorities, and not the competencies which the authorities in the other Republics had. Therefore, the provision of Article 22 of ZP-L was allegedly manifestly inconsistent with UZITUL. The petitioner also alleged that the referring of the proposer of ZP-L to the similar solution in the Code of Criminal Procedure (Official Gazette RS, No. 63/94 et seq. - hereinafter ZKP) was not substantiated. In the opinion of the Supreme Court it is allowed to lodge a request for the protection of legality only against final decisions of the military courts as the federal authorities, and not also against final decisions issued by the courts of general jurisdiction in the other Republics of the former Yugoslavia. In ZKP it was taken into consideration that the final decisions of one State the courts in another State may amend only if determined by a treaty. The Supreme Court alleged that every one-sided amending of final decisions (judicial, administrative) represents an impermissible interference with the sovereignty of another State, which is contrary to the principle of a State governed by the rule of law and with the generally applicable principles of international law. Thus, the petitioner suggested that the Constitutional Court establish that the provision of Article 22 of ZP-L, insofar as it enables the lodging of a request for the protection of legality also against final decisions on violations issued by the authorities in the other Republics of the former Yugoslavia, is inconsistent with Articles 2 and 8 of the Constitution, and abolish the text "or for the territory of any of the Republics of the former Yugoslavia". 2. The National Assembly as the opposing party did not reply to the request. The Government and the Ministry of Justice gave their opinion. The Government in its opinion, sent to the President of the National Assembly and the Constitutional Court, asserted that the Supreme Court in its request derives from the erroneous understanding of a State governed by the rule of law or the generally applicable principles of international law. The principle of a State governed by the rule of law requires that a State remedies injustices conducted by its authorities through deciding in proceedings. In the sense of the principle of a State governed by the rule of law, which requires a respect for human rights and fundamental freedoms, the Government stated that a similar provision was adopted in Article 560 of ZKP, however, not the same as the provision of ZP-L, which is the subject of the request. The Government alleged that the authorities or courts competent for proceedings on violations constituted a part of the unified judicial or administrative system of the former SFRY, thus, there is no interference with the sovereignty of another State. With the disintegration of the SFRY the authorities of the Republic of Slovenia, which had formerly constituted a part of the judicial or administrative system of the former SFRY, succeeded to the responsibilities for these "administrative- criminal" matters. With the challenged Article 22 of ZP-L a State prosecutor of the Republic of Slovenia was given the possibility to lodge a request for the protection of legality with the Supreme Court against a final decision on administrative sentencing issued by the competent administrative authority, or against a decision on violation issued by an authority for violations competent for the territory of the Republic of Slovenia, or for the territory of any of the Republics of the former SFRY, which became final before 25 June 1991, provided that a sentenced person was a Slovenian citizen and was unjustly and inconsistent with the principles and rules of a State governed by the rule of law sentenced to any kind of the deprivation of liberty for class, political or ideological reasons. The Government alleged that with the rise of an independent and sovereign Republic of Slovenia the judicial or administrative authorities of the former common State lost the status of the national State authorities and are now considered the authorities of a foreign State. The citizens of the Republic of Slovenia as foreign citizens would now have only limited possibilities to lodge legal remedies in the States of the former SFRY. The principles of a State governed by the rule of law, particularly the principle of the protection of trust in the law, require that wrongs be redressed which represents a basic condition for a free and democratic legal order. Thus, the Government opined that Article 22 of ZP-L was in compliance with the Constitution. B. 3. Article 22 of ZP-L reads as follows "Against a final decision on administrative sentencing issued with the competent administrative authority, or against a decision on violation issued by the authority for violations competent for the territory of the Republic of Slovenia or for the territory of any other Republics of the former Yugoslavia, which became final before 25 June 1991, a State prosecutor of the Republic of Slovenia may lodge a request for the protection of legality before the Supreme Court of the Republic of Slovenia, provided that a sentenced person is or has ever been a Slovenian citizen, and was unjustly and inconsistently with the principles and rules of a State governed by the rule of law sentenced to any kind of the deprivation of liberty for class, political or ideological reasons." 4. In a case, in which the Constitutional Court reviewed the Decree on Military Courts (Decision No. U-I-6/93, dated 1 April 1994, Official Gazette RS, No. 23/94 and DecCC III, 33), it primary established that some of the provisions of the Decree were inconsistent with the general legal principles recognized by civilized nations. Furthermore, it established that the regulation of the criminal procedure in force was inconsistent with the Constitution, as it did not allow to abolish all the unjust decisions, in the procedural as well as the substantive sense, rendered on the basis of the regulations issued by the revolutionary authorities between the Wars and after the War, and to remedy the consequences of these decisions. In that decision the Constitutional Court held, inter alia, that the concept of a State governed by the rule of law "also embraces the regulations which either directly eliminate from the legal system the consequences of the former regulation or enable the remedying of legal consequences stemming from the application of the regulations of the former undemocratic social order". 5. The same scope of rights must also be guaranteed in the cases of unjust deprivation of liberty in proceedings on violations as well as in the cases of unjust deprivation of liberty in criminal proceedings (the Constitutional Court in Decision No. U-I-33/95, dated 11 July 1996, Official Gazette RS, No. 39/96 and DecCC V, 116). The Constitutional Court in the cited decision, in which it reviewed the conformity of the provisions of ZKP and the Violations Act (Official Gazette SRS, No. 25/83 et seq. - hereinafter ZP) with the right to rehabilitation and compensation, inter alia, held that the provision of Article 30 of the Constitution secures the restoration of the condition which would result to the injured party if the false conviction or the unjust deprivation of liberty did not occur.[1] Even more so, it is crucial to require an equal treatment in cases when it was interfered with the liberty and dignity of a person with administrative sentencing or with a decision on violation. The position of persons who were sentenced to imprisonment in proceedings for violations or in proceedings for administrative sentencing does not substantively differ from the position of persons who were sentenced to imprisonment in criminal proceedings. Moreover, if the persons sentenced in criminal proceedings were secured judicial proceedings, which was as such only by its name, the persons sentenced in proceedings for violations or in proceedings for administrative sentencing until the enforcement of Article 22 of ZP-L did not have the possibility for the court to decide the accusations against them. 6. Until the coming into force of Article 22 of ZP-L[2] neither ZKP nor ZP enabled nor secured a legal remedy (a judicial protection) against the decisions issued by the authorities of the other Republics or federal authorities; the only exception was provided in ZKP for the judgments of military courts provided that the convicted person is or was (pursuant to the regulations in force until 25 June 1991) a Slovenian citizen (Article 560 of ZKP). According to the provisions of the Redress of Wrongs Act (Official Gazette RS, No. 59/96 et seq. - hereinafter ZPKri), it was possible to acquire the status of a political prisoner and furthermore, pursuant to the provisions of this Act claim indemnity, however, not judicial rehabilitation. Pursuant to the provision of Article 37 of ZPKri, an order recognizing the status of a former political prisoner or a person executed after the War, is not a legal (statutory) basis for the removing of a conviction from the criminal records nor for exercising other rights which ZKP secures to unjustly convicted persons. According to the provision of Article 22 of ZPKri, the possibility of requesting a revision was also limited to judgments (thus, the decisions rendered in criminal proceedings) issued in the time period from 15 May 1945 until 2 July 1990 in the territory of the present Republic of Slovenia. 7. With the challenged Article 22 of ZP-L the legislature introduced a new extraordinary legal remedy, with which it enabled a State prosecutor of the Republic of Slovenia request the protection of legality against the decisions cited in the challenged Article. The provision of Article 22 of ZP-L embraced the final decisions on administrative sentencing issued by the competent administrative authority or the decisions on violations issued by the authority for violations, competent for the territory of the Republic of Slovenia or for the territory of any of the Republics of the former Yugoslavia, which became final before 25 June 1991, provided that a sentenced person is or has ever been a Slovenian citizen, and was unjustly and inconsistent by the principles and rules of a State governed by the rule of law sentenced to any kind of the deprivation of liberty for class, political or ideological reasons. As regards the substance, Article 22 of ZP-L represents the possibility of judicial rehabilitation which was not possible until the present time in the cases determined in Article 216 of ZP. A decision against which decisions the new extraordinary legal remedy should be allowed, whether only against those issued against Slovenian citizens in the territory of the Republic of Slovenia, or also against those issued in the territory of the other Republics of the former common State, falls within the field of discretion of the legislature. Regarding the above-stated, the Constitutional Court established that with the challenged regulation the legislature solved an additional issue concerning the remedying of the consequences which occurred on the basis of the regulations of the postwar Yugoslav communist authorities in the field of punitive law. Thereby, the legislature entirely ensured the implementation of the principle of a State governed by the rule of law determined in Article 2 of the Constitution, requiring from the legislature to provide for the revision of proceedings in which human rights have been violated (Paragraphs 5 and 6 of the reasoning of this decision). 8. The petitioner also erroneously understands the nature of Article 4.2 of UZITUL on the transfer of competencies. Pursuant to the first paragraph of this Article, these competencies were transferred in accordance with the statute from the authorities and organizations of the SFRY to the authorities and organizations of the Republic of Slovenia. This provision namely refers to general legal acts and to assuming the competencies for the issuing of individual legal acts. The provision must be interpreted in conjunction with the first and the second Paragraph of Section I of the Basic Constitutional Charter on the Sovereignty and Independence of the Republic of Slovenia (hereinafter - TUL), and with Article 4.1 of UZITUL. In Section I of TUL it is determined that for the Republic of Slovenia as an independent and sovereign State the Constitution of the SFRY ceases to be in force. However, the Republic of Slovenia assumes all the rights and duties which under the Constitution of the Republic of Slovenia and the Constitution of the SFRY were transferred to the authorities of the SFRY. In order to function as a State governed by the rule of law in accordance with the principles on assuming the sovereignty from the federal authorities from the moment of becoming an independent and sovereign State, Article 4.1 of UZITUL determined, until the issuing of adequate regulations in the Republic of Slovenia, the reasonable application of the federal regulations which were in force in the Republic of Slovenia at the time of the enforcement of UZITUL, provided that they were not inconsistent with the legal order of the State and that UZITUL did not provide otherwise. As a consequence Article 4.2 of UZITUL regulated the transfer of competencies, cited in Article 4.2 of UZITUL, from the authorities and organizations of the SFRY to the authorities and organizations of the Republic of Slovenia. The last sentence of Article 4.2 of UZITUL contains the authority to the Government of the Republic of Slovenia to determine, in case there is no competent authority or organization for the exercise of the above-mentioned authorities in the Republic, the other competent authority or organization in the Republic. On the contrary, Article 8.1 of UZITUL determines the principle of continuity in all judicial and administrative proceedings which were commenced before the authorities of the SFRY. However, the discussed case it is not an issue of the transfer of competencies, but the establishing of competencies for deciding on the extraordinary legal remedy not provided in the former regulation. Therefore, the assertions of the petitioner that Article 22 of ZP-L was inconsistent with UZITUL, as it transferred competencies from the authorities in the other Republics to the authorities of the Republic of Slovenia, is unfounded. 9. UZITUL, as a constitutional-rank regulation, in the numerous provisions of the transitory kind did not interfere with the legal relations established on the basis of the individual legal acts issued and implemented in the former common State. Article 8 merely provides the conditions under which the individual legal acts issued by the authorities of the SFRY or the authorities in the other Republics of the SFRY, however, not yet implemented, have effect in the Republic of Slovenia. These acts are executable in the territory of the Republic of Slovenia according to the principle of factual reciprocity, provided that they are not inconsistent with the legal order of the Republic of Slovenia (Article 8.2 of UZITUL). According to Article 8.3 of UZITUL, foreign decisions are only decisions of the authorities of the other Republics, or the federal authorities issued after the enforcement of UZITUL. It is provided that they are in force in the Republic of Slovenia in cases, in a manner and under the conditions that apply for the individual legal acts of a foreign State. Thus, regarding the decisions issued after the Republic of Slovenia gained its independence and autonomy the position is undisputable.[3] All the decisions issued in the Republics of the former Yugoslavia after the independence of the Republic of Slovenia are foreign decisions for Slovenia. 10. The position of the decisions issued and implemented before the declaration of independence and autonomy of the Republic of Slovenia is completely different. According to the regulation in force at that time, based on the unity of the legal (constitutional) system, these decisions were in force in the entire territory of the former Yugoslavia, and already had legal effects in the Republic of Slovenia.[4] According to Article 250 of the Constitution of the SFRY (1974) the administrative and judicial decisions had the same effect in all of the Republics, irrespective of the fact whether they were issued by the federal authorities or by the authorities in the Republics. Furthermore, the authorities for violations were part of the unified system of the authorities of the SFRY, therefore, their decisions issued and implemented before the independence of the Republic of Slovenia also after the independence did not acquire a character of foreign decisions, and still have effect in the territory of the Republic of Slovenia, as the decisions issued by the authorities of the Republic of Slovenia. 11. As for this fact the referring of the petitioner to the violation of Article 8 of the Constitutional is unfounded. The cited Article regulates relations between international law and the legal order of the Republic of Slovenia, which is not the subject of review in the discussed case. With Article 22 of ZP-L the legislature introduced a new extraordinary legal remedy, which assures certain entitled persons the possibility of judicial rehabilitation as the constitutional right deriving from Article 30 of the Constitution. As it regulated by statute the possibility of lodging a request for the protection of legality against the decisions which in the Republic of Slovenia do not have a position of foreign decisions, it could not have interfered with the sovereignty of another State. Provided the Supreme Court established that such a request is substantiated, it would not interfere with a decision issued by another State, with the possible amendment of a final decision or its overturning. Moreover, in the discussed case the petitioner asserted only in general that with the challenged decision the legislature interfered with "the general principles of international law", without specifying it in the request. 12. In view of the above-stated reasons, the Constitutional Court decided that the challenged provision of Article 22 of ZP-L is not inconsistent with Articles 2 and 8 of the Constitution. C. 13. The Constitutional Court reached this decision on the basis of Article 21 of the Constitutional Court Act (Official Gazette RS, No. 15/94), composed of: Franc Testen, President, and Judges: dr. Janez Čebulj, dr. Zvonko Fišer, Lojze Janko, Milojka Modrijan, dr. Mirjam Škrk, dr. Lojze Ude and dr. Dragica Wedam-Lukić. The decision was reached unanimously. Judge Fišer and Škrk gave concurring opinions. President Franc Testen Opombe: [1] Following the review of the Constitutional Court there is no doubt that the human right determined in Article 30 of the Constitution is secured in both cases. A criminal conduct which is, according to the legislation in force, defined as a violation, however, a sentence of imprisonment is possible to be pronounced in this regard- thus, the deprivation of a person"s liberty - is by all means such criminal conduct that would be embraced in the term criminal offence determined in Article 30 of the Constitution also in case the Constitution would not particularly determine that this right is secured in every unjust deprivation of liberty. Human rights and fundamental freedoms are to be interpreted extensively. [2] The proposer of this Act stated in the Bulletin of the National Assembly of the Republic of Slovenia, No. 8, dated 9 February 2000, in the reasoning of this Article stated that the proposed provision secured an equal position to the persons sentenced for the violations by the authorities outside the Republic of Slovenia, who were e.g. serving their administrative sentence on the Goli Island, with the other sentenced persons. The solution is similar to the provisions of ZKP and represents judicial rehabilitation, which was according to Article 216 of ZP not possible at that time, considering the fact that the decisions in these cases were issued by the authorities outside the territory of the Republic of Slovenia. [3] Dragica Wedam-Lukić, Priznanje in izvršitev sodnih in arbitražnih odločb, Pravna praksa, No. 242, p. 4. See also Verica Trstenjak, Status sodnih odločb drugih republik bivše SFRJ v Republiki Sloveniji po osamosvojitvi, Pravna praksa, No. 238, pp. 2-4. [4] In the former federal State, the administrative and judicial decisions of any of the Republics had the same effect in all of the Republics. Article 250 of the Constitution of the SFRY (1974) provided the following: "Decisions, documents and other individual acts issued by the State authorities and the authorized organizations have the same effect in the entire territory of the SFRY." The Concurring Opinion of Judge Dr. Škrk 1. In the discussed case I voted in favor of the decision and I fully agree with its findings. In Paragraph 11 of the reasoning, the Constitutional Court correctly concluded that the referring of the petitioner to Article 8 of the Constitution (the relation between national and international law), is unfounded. The Constitutional Court namely established that with the challenged provision of Article 22 of the Act Amending the Violations Act (hereinafter - ZP- L) a new extraordinary legal remedy is given to particular entitled persons, which secures them the possibility of judicial rehabilitation against the decisions which do not at all have a character of foreign decisions. Owing to this fact, the legislature did not interfere with the sovereignty of another State and thereby did not violate "the general principles of international law". Thereby, the Constitutional Court did not want to consider the issue of what, according to international law, the interference with the sovereignty of a foreign State means and whether the Constitutional Court has jurisdiction to decide thereof. Therefore, I give the following standpoint to the grounds cited in Paragraph 11 of the reasoning 2. I opine that even if the legislature in a specific case interfered with the sovereignty of another State, it is not at all necessary that for such interference the violation of international law would occur. The States in contemporary international relations often interfere with the field of the national law of other States, particularly in the field of regulating the statutory issues of individuals (natural and legal persons) with the international element, or in the prosecution of criminal offences, regarding which the States adopted the universal principle. 3. Furthermore, I opine that the Constitutional Court is not competent in the review of constitutionality and legality to protect the sovereignty of another State or a foreign legal order. The Constitutional Court in decision No. Up-13/99, dated 8 March 2001 (Official Gazette RS, No. 28/01), confirmed the constitutionality of the judgments of the regular courts which declined legal protection to the complainant against the foreign State on the basis of the judicial immunity of a foreign State before Slovenian courts. However, the legal basis for such a decision was a national legal rule, i.e. Article 26 of the Civil Procedure Act (Official Gazette SFRY, No. 4/77 et seq. - ZPP-77), according to which the rules of international law apply to the adjudication of foreign States in the Republic of Slovenia. Within international law the Slovenian courts did not find support for waiving the judicial immunity of a foreign State on the basis of the de iure imperii conduct. Thus, it was a completely different legal situation as the Supreme Court alleged for the challenged regulation in the discussed case. Thus, in case No. Up-13/99 a regulation of national law instructed the courts to directly apply the rules of international law. In the same case the Constitutional Court did not establish the violation of Article 23 of the Constitution (the right to judicial protection) as, inter alia, the national general principle of actor sequitur forum rei jurisdiction, which in my opinion is a general legal rule recognized by civilized nations (Paragraph c) of Article 38.1 of the Charter of the International Court of Justice), instructs the complainant at the possibility to find legal protection in a State against which they claim damages, where the argument of the judicial immunity of a State is not given. The fact that the Constitutional Court is competent to protect constitutionality and legality, as in the proceedings of the ratification of the European Agreement (ESP) it gave an opinion of its constitutionality on the request of the Government, the Constitutional Court established in case Rm- 1/97, dated 5 June 1997 (Official Gazette RS, No. 40/97 and DecCC VI, 86). The Constitutional Court in Paragraph 15 namely wrote that it may review a treaty form the viewpoint of its conformity with the Constitution, however, not from the viewpoint of international law. Thus, the Constitutional Court, based on the power to protect constitutionality and legality, is not competent to protect the sovereignty of a foreign State, which the Supreme Court alleged as the violation of international law in the discussed case. 4. Such violation of international law cannot be given particularly in the case of a conflict of personal and territorial sovereignty of two legal orders in the event of the protection of human rights. In the discussed case it is an issue of the protection of the constitutional rights of Slovenian citizens. The Republic of Slovenia and its authorities have, on the basis of personal sovereignty, the right and duty that its citizens, based on the equal protection of rights, exercise the protection of their constitutional rights, including the right to rehabilitation (Article 30 of the Constitution). As regards the legislation in force they are entitled to this constitutional right, provided that they were in the former State, and thus within the national jurisdiction, unjustly and inconsistent by the principles and rules of a State governed by the rule of law sentenced to any kind of the deprivation of liberty for class, political or ideological reasons. Dr. Mirjam Škrk The Concurring Opinion of Judge Dr. Fišer I voted for the decision with which the Constitutional Court established that Article 22 of the Act Amending Violations Act (hereinafter ZP-L) is not inconsistent with Articles 2 and 8 of the Constitution. Furthermore, I agree with the principle arguments on which this decision leans. There is no doubt that the challenged amended Violations Act (hereinafter ZP) had a good intention to remedy the position of Slovenian citizens who were, before 25 June 1991 outside the territory of the Republic of Slovenia, inexcusably (probably more correct: unjustly) and inconsistently with the principles and rules of a State governed by the rule of law sentenced for the violations to any kind of the deprivation of liberty for class, political or ideological reasons. Additionally, there is no doubt that in cases which hide behind such label, it was a horrible agony and tragic fate of people, which no rehabilitation could remedy, let alone abolish. Notwithstanding, I must briefly draw the attention to some doubts, which occurred to me while working on this case. Firstly, I must emphasize that in the discussed decision of the legislature it is its right (and not a duty) to open the possibility of a renewed adjudication of some cases for the sentencing for violations in the past, through a (new) legal remedy. Irrespective of that I opine that it was a very failing choice with which the legislature, indeed a very specific case which it wished to settle, tried to unravel with the use of one of the classic legal remedies generally known in our proceedings, that is with a request for the protection of legality. Thereby, it has (again: up until present it did this most erroneously in criminal procedure, as it allowed the discussed legal remedy to two antagonistic procedural subjects whose roles in proceedings are different - about this only incidentally) broken through the usual frames of this (also otherwise highly disputable) extraordinary legal remedy, and created an appearance that it is some kind of an intervening remedy with which it is possible to interfere with very different finally adjudicated situations as one whishes, which certainly is not true. I am convinced that it would be much more correct, and the result for the injured parties completely the same, if not better (a party with their own legal remedy certainly protects their interests the best), if a special legal remedy would be foreseen for the discussed case, for which it would be completely evident that it applies only to the discussed situation, and would be created accordingly. Consequently, the legislature created a dangerous precedent from which it could be inferred that it is possible to settle in the same manner also other, more or less similar cases (and such certainly exist in the field of sentencing for violations). With a little imagination it is possible to expand it to many related situations from the field of classical criminal law. Provided that the challenged provision could not be directly applied with the latter, the legislature thus encouraged the deliberation as though why not also include these cases in a similar manner. Thereby, it is important to emphasize once more that in the discussed case the interference is substantially broader as presently allowed in the Code of Criminal Procedure (hereinafter ZKP) (see esp. Articles 556, 559 and 560). Utterly failing is also the choice according to which the legislature, otherwise following the regulation of a request for the protection of legality in force in ZP, has foreseen that the State prosecutor must lodge the request. If I ignore a less important error that the legislature has foreseen the competence of someone that does not exist ("a State prosecutor of the Republic of Slovenia" does not exist), and that this could be settled with a friendly interpretation (why should I nag, ZKP is no better, see Article 421), it is naturally erroneous that the legislature did not provide the legal remedy directly for the one who needs legal protection, but it occupied a State prosecutor. The critique of such solution which encroaches on some essential issues of the proceedings, particularly in the field of punitive law (the role and the position of a State prosecutor in general, and particularly in the proceedings with legal remedies, the regulation of the legal remedies, particularly extraordinary legal remedies, and the like), exceeds the purpose and needs of this concurring opinion. However, for the discussed case it obviously indicates how very erroneously our legislature understands the role and the position of an independent State authority. Dr. Zvonko Fišer |
Type of procedure: |
review of constitutionality and legality of regulations and other general acts |
Type of act: |
statute |
Applicant: |
The Supreme Court |
Date of application: |
22.09.2000 |
Date of decision: |
18.10.2001 |
Type of decision adopted: |
decision |
Outcome of proceedings: |
establishment – it is not inconsistent with the Constitution/statute |
Document: |
AN02501 |
