U-I-263/18, Up-540/18

Reference no.:
U-I-263/18, Up-540/18
ECLI:
ECLI:SI:USRS:2018:U.I.263.18
Note:
¤
Document in PDF:
The full text:
[Publisher's Note: The full text of this Decision/Order is available only in Slovene. The text published below is a summary prepared for the annual report.]
 
Referendum Campaign and the Day of Voting
 
By Order No. U-I-263/18, Up-540/18, dated 9 April 2018 (Official Gazette RS, No. 27/18), the Constitutional Court decided on the petition of a petitioner who challenged Article 33 of the Referendum and Popular Initiative Act (the RPIA), which determines that no less than thirty days and no more than one year may pass between the day when a referendum is called and the day of voting. Articles 30 and 31 of the RPIA determine that the act calling a referendum must contain the date of calling the referendum and that the time limits for the performance of tasks necessary to carry out the referendum begin to run as of that date. The time limits for carrying out a referendum are determined by Article 33 of the RPIA and are connected to the date when the referendum is called. The Constitutional Court established that the purpose of these time limits is to ensure an appropriate period of time for technical preparations (composing the electoral roll, appointing electoral authorities) and for the voters to learn of the subject to be decided on in the referendum. All these activities, which are called referendum activities, must be carried out within certain time limits, which must be determined clearly, so that there is no doubt how the addressees must act. This is important in order for the referendum procedure to be carried out fast and to ensure that individual phases or activities follow one another continuously. The same as for an election, also with regard to a referendum, after a certain period of time provided for referendum activities, voting must follow, wherein voters decide on the subject of the referendum. The Constitutional Court decided that the allegation of the petitioner that Article 33 of the RPIA is unconstitutional is manifestly unfounded, due to which it dismissed the petition to initiate proceedings to review constitutionality.
 
In the constitutional complaint, the petitioner also challenged the Order of the National Electoral Commission (the NEC) determining the date of repeated voting in the legislative referendum on the Act Regulating the Construction, Operation, and Management of the Second Track of the Divača–Koper Railway Line. He opined that this order, which determines the day of voting in a referendum such that one week of the referendum campaign takes place during the May Day holidays and school holidays (i.e. from 27 April to 2 May) – and this would be the second week of the referendum campaign, entails an interference with the right to vote in a referendum, as the amount of information provided to voters and their knowledge of the content of the law and of the arguments for and against the law would be limited. The petitioner also alleged that in order to ensure effective exercise of the right to vote in a referendum as a positive right, the NEC should select, from among the multiple possible dates, the one that will probably have the highest participation.
 
As the starting point of its assessment, the Constitutional Court stressed that campaigning is important in order to effectively exercise the right to vote in a referendum (Article 44 of the Constitution). The first paragraph of Article 2, in conjunction with the fourth paragraph of Article 1 of the Elections and Referendum Campaign Act, determines that a referendum campaign may not begin sooner than 30 days prior to the day of voting and must, at the latest, end twenty-four hours prior to the day of the voting. Hence, it clearly follows from the Act that the period of a referendum campaign can last 29 calendar days at most, while on the last day prior to the day of voting a “campaign silence” applies. In the challenged Order, the NEC determined that repeated voting in the referendum would be carried out on Sunday, 13 May 2018. In view of the described statutory regulation, the referendum campaign started on 13 April 2018 and lasted until 11 May 2018, i.e. also during school and May Day holidays (from 27 April to 2 May 2018).
 
The petitioner argued that for this reason the possibility of an effective referendum campaign and, consequently, effective exercise of the right to vote in a referendum would be affected. However, according to the Constitutional Court, the performance of a campaign during shorter holidays does not in itself entail that the campaign is in its entirety rendered impossible, ineffective, or substantially difficult. Six days of the campaign would fall on school holidays, while only three days would be state holidays. But it is also not possible to state in a generalised manner that school or state holidays necessarily affect the effectiveness of a campaign. As regards voters who during holidays have more time to become informed, it is not unreasonable to expect that, in view of the accessibility of electronic media and social networks, they would obtain information relating to the campaign. In view of these circumstances, the possibility of an effective referendum campaign and, consequently, the possibility of effective exercise of the right to vote in a referendum is not affected. Therefore, the Constitutional Court decided that the challenged Order does not interfere with the right to vote in a referendum. Also the petitioner’s reference to Decision of the Constitutional Court No. U-I-76/14 was unfounded. Namely, the circumstances of the case at issue are significantly different from the circumstances that entailed the basis for that decision, as in that instance it was the voting and not the campaign that fell in the holiday period.
 
As regards the petitioner’s allegation that the challenged Order interferes with the right to vote in a referendum also due to the fact that it does not determine the date of the repeated voting in the referendum on the same date when elections to the National Assembly would be carried out, the Constitutional Court repeated its position that from the fourth paragraph of Article 90 of the Constitution it does not follow that, in order to ensure the highest possible participation in the referendum, the National Assembly must determine the day of voting in a referendum to be the same date as the date of such elections. This requirement also does not follow from the right to vote in a referendum (Article 44 of the Constitution). The determination of the day of voting in itself entails the manner of exercise of that human right. The legislature (and also the NEC in the case at issue) must act within the framework of the statutory possibilities as it determines the day of voting by an implementing regulation (i.e. a decree or an order). In doing so, it must ensure effective exercise of the right to vote in a referendum as a positive right, the nature of the right to vote in a referendum itself coupled with the simultaneous constitutional requirement of a quorum for rejecting a law in a referendum, and the requirement of fair implementation of the referendum procedure in each individual legislative referendum, all of which are constitutional starting points. As long as the National Assembly proceeds within these constitutional limits, it has a wide margin of appreciation in scheduling the day of voting in a referendum. The same applies, mutatis mutandis, to the NEC when scheduling the date of repeated voting. The Constitutional Court therefore decided that the argument of the petitioner that in order to ensure the highest possible participation in the referendum the NEC should have determined the day of voting on the referendum on the same date as the date of the elections is unfounded.
 
Type of procedure:
review of constitutionality and legality of regulations and other general acts constitutional complaint
Type of act:
statute individual act
Applicant:
Vili Kovačič, Ljubljana
Date of application:
04.04.2018
Date of decision:
09.04.2018
Type of decision adopted:
ruling
Outcome of proceedings:
dismissal dismissal non-acceptance of a constitutional complaint
Document:
AN03918