U-I-28/16

Reference no.:
U-I-28/16
ECLI:
ECLI:SI:USRS:2016:U.I.28.16
Abstract:
Policing Powers of the Slovene Armed Forces
 
In Decision No. U-I-28/16, dated 12 May 2016 (Official Gazette RS, No. 42/16), in proceedings initiated upon the request of the Ombudsman for Human Rights, the Constitutional Court reviewed the constitutionality of the first, second, and third paragraphs of Article 37a of the Defence Act, which granted members of the Slovene Armed Forces special (policing) powers in critical security situations, particularly for managing the migrant and refugee crisis. In the request the applicant explicitly emphasised that it does not oppose the (greater) engagement of the Slovene Armed Forces, and an increase in their operative capabilities and efficiency, particularly if the migrant and refugee crisis issue were to deteriorate. The applicant thus does not believe that the granting of special powers to soldiers is constitutionally disputable as such. The challenged provisions are allegedly constitutionally disputable because they are so general and loose that they violate the principle of the clarity and precision of regulations as one of the principles of a state governed by the rule of law (Article 2 of the Constitution). This principle requires that interferences with human rights be regulated in a precise and unequivocal manner. Already in Decision No. U-I-25/95, dated 27 November 1997, the Constitutional Court highlighted that the more important the subject of its protection is, the more accentuated the requirement that a law be precise becomes. As the powers of repressive authorities may entail a significant interference with individuals’ human rights, they must be based on a particularly precise regulation, consisting of clear and detailed rules. The statutory regulation must be such so as to exclude the possibility of arbitrary state action. In addition to being predictable, the statutory regulation must especially also ensure effective legal supervision and appropriate and effective measures for preventing abuses. The requirement of the clarity and precision of regulations does not entail that rules should be such that they require no interpretation. The application of regulations namely always entails the interpretation thereof. As is true of all regulations, laws also require interpretation. A statutory norm fulfils the requirement of the clarity and precision of regulations if its content may be construed through established methods of interpretation and thus the conduct of the authorities who have to implement it is determinable and predictable.
 
The challenged first, second, and third paragraphs of Article 37a of the Defence Act determined that, if such is required by the security situation and upon a proposal of the Government, the National Assembly may decide by a two-thirds majority vote of the deputies present that members of the Slovene Armed Forces may together with the police, and in accordance with the plans and prior approval of the Government as determined by the fourth paragraph of the preceding Article, exceptionally also exercise the following powers: 1. to issue warnings; 2. to direct persons; 3. to temporarily restrict the freedom of movement of persons; and 4. to participate in managing groups and crowds. These powers are exercised subject to the conditions determined for members of the police, and soldiers must immediately inform the police of any such exercise of power.
 
The Constitutional Court began the review by establishing the meaning of the words “to direct”. Considering its meaning construed on the basis of grammatical and teleological interpretation, the content of the power to direct must be understood as meaning that, subject to the conditions and in accordance with the manner determined by the Police Tasks and Powers Act, members of the Slovene Armed Forces may indicate to persons the mandatory way or direction that they must move and to this end they may give them instructions and require certain actions or omissions by such persons in order to fulfil their task of assisting the police in the protection of the state border in the broader sense.
 
The Constitutional Court proceeded with a review of the content of the power “to temporarily restrict the freedom of movement of persons.” Such is a general police power determined by the Police Tasks and Powers Act which is clear, as the purpose of the power (i.e. the exercise of another police power or other official act) and its duration (i.e. the restriction may only last for the time that is absolutely necessary and the restriction of a person’s movement who is being processed by the police or in police custody may not exceed 6 hours) are determined. Members of the Armed Forces exercise the power to temporarily restrict the freedom of movement of persons subject to the conditions determined for the police. However, teleological interpretation must be applied when interpreting this power, as it was granted to members of the Armed Forces only for the purpose of assisting the police in the protection of the state border in the broader sense. Therefore, also the content of this power has to be interpreted as meaning that soldiers may only exercise those tasks that pursue the purpose (objective) of the protection of the state border in the broader sense and that entail assisting the police regarding that task. In light of such, the Constitutional Court held that also the content of the power to temporarily restrict the freedom of movement of persons is not inconsistent with the principle of clarity and precision determined by Article 2 of the Constitution.
 
Furthermore, the Constitutional Court established the content of the power “to participate in managing groups and crowds”. Such entails a power related to police powers involving the use of force to restore public order in instances of serious and massive violations of such and that can be applied against both individuals and a crowd (i.e. use of handcuffs, ties, physical force, tear gas, police batons, service dogs, mounted police, water jets, special vehicles, and other statutorily determined means). The cooperation of the Armed Forces and the police in the protection of the state border in the broader sense is not an “original” task that derives from the defence function, but entails the exercise of powers for ensuring internal state security that primarily fall within the competence of the police. Consequently, the powers of the Slovene Armed Forces are exercised subject to the conditions determined for members of the police by the Police Tasks and Powers Act. Soldiers may not exercise these powers independently, but only together with the police, and they have to immediately inform the police of the powers exercised. In addition, the members of the Armed Forces only exercise these powers in exceptional circumstances, i.e. if required by the security situation and subject to a decision of the National Assembly upon a proposal of the Government by a two-thirds majority vote of the deputies present. The exercise of these powers is further limited, as it may only last for the period of time that is absolutely necessary and may not exceed three months; this period can be prolonged subject to the same conditions. The Constitutional Court held that also the content of the power “to participate in managing groups and crowds” can be construed on the basis of grammatical and teleological interpretation and therefore there exists no inconsistency with the principle of clarity and precision determined by Article 2 of the Constitution.
 
The Constitutional Court also held that the open-textured terms “persons, groups, crowds”, “security situation”, and “the protection of the state border in the broader sense” are not inconsistent with the principle of the clarity and precision of regulations. As regards the persons against whom the powers determined by the first paragraph of Article 37a of the Defence Act may be exercised, the Constitutional Court found that, although the current migrant and refugee crisis was the reason underlying the challenged regulation, the powers do not refer only to refuges and migrants, but individual policing powers may be exercised against all persons. As regards the term “security situation”, the Court held that it concerns a technical question that depends on the specific circumstances and their assessment in concrete cases lies in the competence of the Government and the National Assembly. As regards the term “the protection of the state border in the broader sense”, the Constitutional Court held that its content can be construed through interpretation, although the term is not explicitly defined by any regulation. In accordance with the State Border Control Act, the protection of the state border that is carried out by the police is exercised directly at the border as well as more broadly, i.e. throughout the state territory. It has to be borne in mind that, when participating in the protection of the state border in the broader sense, members of the Armed Forces do not have the power to perform border controls and exercise other police powers, but only the powers determined by the first paragraph of Article 37a of the Defence Act.
 
The protection of the state border in the broader sense is an open-textured term and its content has to be determined with regard to every individual activation of the first paragraph of Article 37a of the Defence Act. The content of the task of the protection of the state border in the broader sense and the territory upon which it is exercised thus predominantly depend on the specific security situation that requires the assistance of the Slovene Armed Forces in the protection of the state border. Such entails that the specific security situation determines the range of powers of the Armed Forces as well as the territory on which they operate. With regard to the activation of the Slovene Armed Forces due to the refugee and migrant crisis, the above entails that the members of the Armed Forces may exercise powers at and near the border where persons suspected of having illegally crossed the state border are caught, and within the state territory where activities in relation to illegal border crossings by refugees and migrants are carried out (reception and accommodation centres, centres for foreigners, migration routes, and the transportation of refugees and migrants).
Document in PDF:
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute
Applicant:
Ombudsperson for Human Rights
Date of application:
03.02.2016
Date of decision:
12.05.2016
Type of decision adopted:
decision
Outcome of proceedings:
establishment – it is not inconsistent with the Constitution/statute
Document:
AN03891