Up-277/96

Reference no.:
Up-277/96
ECLI:
ECLI:SI:USRS:1996:Up.277.96
Act:
Constitutional complaint of O.J. against the infringing of the constitutional right to due process of law.
Operative provisions:
1. The constitutional complaint of O.J. against the infringing of the constitutional right to due process of law is accepted for consideration. 2. In the administrative lawsuit commenced by action instituted by O.J on 4 March 1996 before the Supreme Court, the right of the complainant to have her case decided by court without undue delay as granted in Article 23 of the Constitution was violated. 3. The Supreme Court shall upon the receipt of this decision decide the action by the complainant referred to in Paragraph 2 hereof by taking into consideration the provisions concerning the procedure prescribed in Articles 68 to 76 of the Administrative Lawsuit Act.
Abstract:
1. The constitutional provision of Subpara. 6 of Paragraph 1 of Article 160, which provides that the Constitutional Court shall be empowered to decide upon matters relating to constitutional complaints of breaches of the Constitution involving individual acts infringing human rights and fundamental freedoms, should in the context of other constitutional provisions, in particular of provisions of Paragraph 4 of Article 15, Articles 22 and 23 and Paragraph 2 of Article 157, be interpreted in the sense that, in specific cases of alleged infringements of constitutional rights by actions in reference with which the only legal remedy against such infringements is due process of law, constitutional complaint should be allowed also by reason of excessive slowness of court proceeding, that is, for failure to issue individual (personal) act in the proceeding relating to judicial protection against such infringement.

2. For protection of the right to due process of law without undue delay, in our system only judicial protection under Paragraph 2 of Article 157 of the Constitution is currently available. Thus, constitutional complaint is as a rule allowed only after the said legal remedy has been exhausted (Paragraph 1 of Article 51 of Constitutional Court Act).

3. Judicial protection of constitutional rights in the framework of Article 67 of the ZUS forms just a portion of protection by due process of law as guaranteed on the basis of Paragraph 2 of Article 157 of the Constitution. For constitutional protection is not limited just to cases involving action on the part of an official of an administrative authority or of a person in charge but extends to all actions, regardless of the nature of the person by whom these are done, and is guaranteed also if such action has ceased to be performed.

4. Provisions of the ZUS on special proceeding concerning the cases referred to in Article 67 of the ZUS are still in force, only, the court which should decide such cases has not been determined by a law on organizational matters. This is why the deciding of the said cases by administrative lawsuit has been transferred, in accordance with Paragraph 2 of Article 157 of the Constitution, to competent court (currently the Supreme Court), which must in this connection apply also the provisions of Articles 68 to 76 of the ZUS.
Password:
Exercising and restricting of rights.
Equality in the protection of rights.
Due process of law.
Administrative lawsuit.
Principle of legality in administration.
Principle of equality before the law.
Right to human dignity and security.
Protection of the right to privacy and of personal rights.
Freedom of work.
Concurring opinion of a judge of the Constitutional Court.
Legal basis:
Constitution, Articles 160, 15, 22, 23, 157, 120, 14, 34, 35, 49.

European Convention for the Protection of Human Rights and Fundamental Freedoms (EKČP), Article 6.

Enabling Statute for the Implementation of the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia (UZITUL), Article 4.

Administrative Lawsuit Act (ZUS), Articles 66, 67, 68 to 76. Courts Act (ZS), Articles 134, 71.

Constitutional Court Act (ZUstS), Paragraph 2 of Article 51, Paragraph 4 of Article 26, Article 49, Paragraph 1 of Article 59, Paragraphs 1 and 2 of Article 60.
Document in PDF:
The full text:
Up-277/96
7 November 1996
 
D E C I S I O N
 
In the process of deciding the constitutional complaint of O.J., represented by J.H., lawyer in L., the Constitutional Court at its session of 7 November 1996
 
d e c i d e d:
 
1. The constitutional complaint of O.J. against the infringing of the constitutional right to due process of law is accepted for consideration.
 
2. In the administrative lawsuit commenced by action instituted by O.J. on 4 March 1996 before the Supreme Court, the right of the complainant to have her case decided by court without undue delay as granted in Article 23 of the Constitution was violated. 3. The Supreme Court shall upon the receipt of this decision decide the action by the complainant referred to in Paragraph 2 hereof by taking into consideration the provisions concerning the procedure prescribed in Articles 68 to 76 of the Administrative Lawsuit Act (Official Gazette of the SFRY, No. 4/77).
 
R e a s o n i n g:
 
A.
 
1. The complainant in her complaint asserts that, in accordance with Paragraph 2 of Article 157 of the Constitution and with Administrative Lawsuit Act (hereinafter: "the ZUS"), she on 5 March 1996 in the Supreme Court instituted an action against actions by the head of the Administrative Unit of Radovljica which interfere, in violation of statute, with her constitutional rights. As not less than seven months went by from then and the date of lodging the constitutional complaint, and since she did not receive any letter or information on procedural acts from the Supreme Court, the complainant claims that the Supreme Court has been delaying the deciding of the action. She points out that in her action she made specific reference to the application, on mutatis mutandis basis, of provisions concerning the procedure determined in Articles 68 to 76 of the Administrative Lawsuit Act. In a letter of 8 May 1996, she through her representative again draw the attention of the Supreme Court to the fact that her mental condition and status continue to deteriorate as the result of continuing actions on the part of a holder of public office in continuing violation of her right to personal dignity and security, freedom of work and of prohibition of discrimination, and proposes that the court respond promptly and ensure effective protection of her rights and benefits on the basis of special provisions of the ZUS.
 
2. The complainant proposes to the Constitutional Court to determine, within a reasonable period of time, that her right to due process of law was infringed. The right to due process of law also includes the right to have one's cases decided without undue delay. She considers that her administrative lawsuit is neither in actual fact nor legally so complicated as to justify the hitherto length of the legal proceeding. To make it possible for the Constitutional Court to assess whether the conduct of the Supreme Court was in her case justified or not, she attached to her constitutional complaint her action and documentary evidence which she had submitted to the Supreme Court.
 
3. The complainant proposes that the Constitutional Court accept her constitutional complaint, determine, within a reasonable period of time, that her right to due process of law was infringed and request from the Supreme Court to decide her case without delay. She considers that all procedural requirements for acceptance of constitutional complaint have been satisfied.
 
She does not have at her disposal any ordinary or extraordinary remedy for protecting her right to due process of law, which fulfils the procedural requirement that legal remedies be exhausted. The constitutional complaint has also been lodged in time, for her right to due process of law continues to be infringed.
 
B.- I.
 
4. The constitutional provisions of Subpara. 6 of Paragraph 1 of Article 160 provide that the Constitutional Court shall be empowered to decide upon matters relating to constitutional complaints of breaches of the Constitution involving individual acts infringing human right and fundamental freedoms. This constitutional provisions should in the context of other constitutional provisions, in particular of provisions of Paragraph 4 of Article 15, Articles 22 and 23 and Paragraph 2 of Article 157, be interpreted in the sense that, in specific cases of alleged infringements of constitutional rights by actions in reference with which the only legal remedy against such infringements is due process of law (as applicable legislation does not contain any provision that would specify, concerning adjudication in special proceeding under Articles 67-76 of the ZUS, the court competent for such cases, due process of law is in accordance with Paragraph 2 of Article 157 of the Constitution at the moment ensured in competent court on the basis of administrative lawsuit), constitutional complaint should be allowed also by reason of excessive slowness of court proceeding, that is, for failure to issue individual (personal) act in the proceeding relating to judicial protection against such infringement. For, in the opposite case, such infringements of this specific right (to trial without undue delay and within a reasonable period of time) granted in the Constitution and a Convention would not be able to be protected before the Constitutional Court on the basis of constitutional complaint, which would be contrary to the above mentioned principles and rights as set in Articles 15, 22, 23 and 157 of the Constitution. These principles and rights, and among these in particular the principle of equality in the protection of rights of each person in any proceeding before a court (Article 22 of the Constitution) and the principle according to which all constitutional rights shall be guaranteed judicial protection (Article 15), should in the case of a conflict between them, having regard to the wording of Subpara. 6 of Paragraph 1 of Article 160 of the Constitution (that is, the part of the Constitution "referring to organization"), which specifically guarantees protection before the Constitutional Court based on constitutional complaint only in the case of infringement through individual acts while not also by actions, be given priority to make possible the protection before the Constitutional Court based on constitutional complaint also against such infringements.
 
5. The right to due process of law under Article 23 of the Constitution means the right of each person to be entitled to have all issues relating to his rights and obligations and to have any criminal charges laid against him decided without undue delay by an independent, impartial court constituted according to statute. A similar right is guaranteed also in Paragraph 1 of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette of the RS, International Treaties, No. 7/94 - hereinafter: "the EKČP", only in the latter the right to trial in "a reasonable period of time" is guaranteed just for adjudication on "civil rights and obligations or on any criminal charges". Article 120 of the Constitution in Paragraph 3 specifically guarantees the right to judicial review of the acts and decisions of all administrative bodies and statutory authorities which affect the rights and legal entitlements of individuals or organizations. For protection of the right to due process of law without undue delay, in our system only judicial protection through administrative lawsuit instituted against actions or omissions under Paragraph 2 of Article 157 of the Constitution is currently available. Thus, constitutional complaint would as a rule be allowed only after the said legal remedy has been exhausted (Paragraph 1 of Article 51 of the Constitutional Court Act, Official Gazette of the RS, No. 15/94 - hereinafter: "the ZUstS"). Before the said remedy has been exhausted, the Constitutional Court may decide a constitutional complaint only if the alleged infringement is obvious and if the execution of the individual act would lead to irreparable consequences for the complainant (or if irreparable consequences for the complainant would result by the fact that individual act has not been issued).
 
6. As the Constitutional Court considers that the complainant's right to due process of law without undue delay was obviously infringed, and since irreparable consequences for the complainant undoubtedly continue to arise because of the failure of the court to decide the case, the Constitutional Court accepted and decided to consider the constitutional complaint on the basis of Paragraph 2 of Article 51 of the ZUstS. The complainant states that the scope of damage suffered by her in the filed of moral, status, related, labour, professional and existential interests continues to increase, for she has been forced over the period of more than one year to spend in her office the entire working time deprived of all possibility for work and in isolation. The continuation of this situation of the complainant, which has been in existence for more than a year has already started to produce irreparable damages for the complainant. The reasons which dictated that the constitutional complaint be accepted, for what is involved is obvious infringement of the complainant's constitutional right to due process of law, are explained in paragraphs of section B. - II hereof which follow.
 
7. The Constitutional Court on the basis of mutatis mutandis application of Paragraph 4 of Article 26 in connection with Article 49 of the ZUstS accepted the complaint and then immediately proceeded to the consideration and adjudication of the same. The Supreme Court was given the possibility to pronounce concerning the constitutional complaint submitted. In the procedure of examining the constitutional complaint, the same was sent to the Supreme Court, which was asked, in reference with the complaint, to provide some explanations on administrative lawsuit having been commenced by the complainant. In its reply, the Supreme Court explains that lawsuits instituted on the basis of Paragraph 2 of Article 157 of the Constitution against an unlawful action are adjudicated in proceedings relating to administrative lawsuits and not in special proceeding prescribed in provisions of Articles 68 to 76 of the ZUS. This means that such cases are not defined as priority cases in applicable statute itself but are considered as priority cases by the Supreme Court in the framework of criteria determined by the staffing council. In its reply, the Supreme Court also explains that the instant case will be considered as priority case, but only in the framework of consideration of priority cases from the year 1996, and these have not been started to be considered yet by the court, for the latter is still engaged in the consideration of cases from 1995.
 
8. Dr. P. J., judge of the Constitutional Court, was excluded from adjudication of this case upon his own request.
 
B. - II.
 
9. The complainant filed the complaint on the basis of Paragraph 2 of Article 157 of the Constitution and by the same requested that the Supreme Court decide concerning the legality of actions which interfered with her constitutional rights under Articles 14, 18, 34, 35 and 49 of the Constitution. In her lawsuit she specifically points out that, "having in mind possible incompleteness of applicable legislation and law on administration of justice concerning the administrative lawsuit instituted on the basis of Paragraph 2 of Article 157 of the Constitution", all the provisions of the ZUS, including those on procedure as regulated in Articles 68 to 76, should be applied on mutatis mutandis basis.
 
10. Paragraph 2 of Article 157 of the Constitution provides: "If no other legal redress is provided, courts of competent jurisdiction shall also be empowered to decide upon the legal validity of individual activities and acts which infringe the constitutional rights of the individual."
 
11. Prior to the enacting of the Constitution, legal regulation of protection of the constitutionally guaranteed rights and freedoms, if infringed by an individual act or action and with no other judicial protection available, was provided in a special section of the ZUS (VI - Special provisions, Articles 66 to 76). In accordance with Paragraph 1 of Article 4 of the Enabling Statute for the Implementation of the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia (Official Gazette of the RS, NO. 1/91- I), the ZUS is applied on mutatis mutandis basis as a piece of national legislation and shall be applied until the passing of a new statute on administrative lawsuit to be harmonized with the Constitution.
 
12. The ZUS in Article 67 regulates the case when a constitutional right has been infringed by an action of an official of an administrative authority or of a person in charge "of an organization of associated labour or other self- management organization of association", by which such right or freedom of a person, organization or association is denied or restricted, in disagreement with statute, and which provides that protection shall be guaranteed through the procedure prescribed in Articles 68 to 76. Until 1 January 1995, when provisions on organization and jurisdiction of lower and higher courts under the Civil and Criminal Courts Act (Article 134 of the Courts Act) ceased to be in force, the deciding of proposals fell within the jurisdiction of lower courts. The provisions which regulate the procedure of the said judicial protection are adapted to the nature of infringement to be considered by such procedure. Among other specific characteristics, thus, Article 71 provides that competent court shall act promptly and in such a way as ensures, in addition to the protection of the basic principles of the procedure, effective protection of rights and benefits of citizens, organizations and the community. Judicial protection of constitutional rights in the framework of Article 67 of the ZUS, however, is more narrow and forms just a portion of protection by due process of law as guaranteed on the basis of Paragraph 2 of Article 157 of the Constitution. The Constitution has provided a wider judicial protection of constitutional rights if the latter are encroached upon by unlawful actions. Such protection is not limited just to cases involving action on the part of an official of an administrative authority or of a person in charge. It extends to all actions, regardless of the nature of the person by whom these are done, and is guaranteed also if such action has ceased to be performed.
 
13. But by the fact that the scope of judicial protection guaranteed under Paragraph 2 of Article 157 of the Constitution has been increased, provisions of the ZUS have not ceased to apply. Within a more narrow scope - in the case of unlawful action on the part of an official of an administrative authority or of a person in charge, and if the action persisted - these provisions guarantee "other judicial protection", and in such cases the administrative lawsuit under Paragraph 2 of Article 157 of the Constitution dealing with the protection of constitutional rights interfered with by unlawful actions could not be used. Such protection was provided until 1 January 1995 by lower courts through special proceeding specified in articles 68 to 76 of the ZUS.
 
14. On 1 January 1995, with the reorganization of courts of justice, lower courts ceased with their work. The Courts Act, which determines the jurisdiction of new courts failed to define the jurisdiction within which the conducting of the proceeding based on Articles 68 to 76 of the ZUS fell. In accordance with the provision of Paragraph 2 of Article 157 of the Constitution, adjudication concerning legality of actions interfering with constitutional right of a person has come within the competence of the Supreme Court (as the only court in the country which is competent to decide administrative lawsuits). In the situation where the legislator failed to determine the jurisdiction under which came the conducting of the said special proceeding, then, this special judicial protection is no longer guaranteed, which is why Paragraph 2 of Article 157 of the Constitution should be applied, which is intended precisely for the purpose of resolving such situations. The transfer of judicial protection of constitutional rights interfered with by unlawful actions in the scope determined in Article 67 of the ZUS to the Supreme Court, which is empowered to decide administrative lawsuits, raises the question of whether in reference with such cases the Supreme Court must apply the special provisions of the proceeding defined in Articles 68 to 76 of the ZUS. As is evident from explanations given by the Supreme Court, it adopted the position that all cases under Paragraph 2 of Article 157 of the Constitution should be considered in ordinary administrative lawsuit, and that, consequently, in reference with the cases which fulfil the conditions set in Article 67 of the ZUS, the special provisions on the proceeding contained in Articles 68 to 76 of the ZUS should not be applied.
 
15. Consideration of cases under Article 67 of the ZUS in administrative lawsuit without the application of provisions of Articles 68 to 76 of the Administrative Lawsuit Act itself (special provisions intended exclusively for the purpose of deciding the cases under Article 67 of the ZUS) would mean serious deterioration of the protection of constitutional rights in such cases, or would become ineffective. The procedure determined in Articles 68 to 76 of the ZUS guarantees that the court shall act immediately. Article 71 provides: "Competent court shall on the basis of request act promptly and in such a way as ensures, in addition to the protection of the basic principles of the procedure, effective protection of rights and benefits of citizens, organizations and the community." As provisions of the ZUS on special procedure concerning the cases referred to in Article 67 of the ZUS are still in force, only, the court which should decide such cases has not been determined by a law on organizational matters, which is why the case was in accordance with Paragraph 2 of Article 157 of the Constitution transferred for adjudication in the framework of administrative lawsuit and was passed into the hands of "the court competent for administrative lawsuits", there is no reason why such court itself (at the present the Supreme Court) should in deciding such specific cases not be allowed to apply special provisions of the same statute, which it otherwise applies in deciding administrative lawsuits, for these special provisions are intended precisely for resolving specific cases under Article 67 of the ZUS. To ensure effective judicial protection of constitutional rights also in such specific cases, the competent court must, and will have to apply the said special provisions until these questions will be regulated in a new way by a new ZUS even in such cases as may not be comprised in Article 67 of the ZUS but are comprised in the provisions of Paragraph 2 of Article 157 of the Constitution whose content is broader.
 
16. In the case under consideration, then, we are dealing with a case in reference with which it is necessary to assess the compliance with statute of actions by an official of an administrative authority claimed by the complainant to be continuing over the period of more than one year already, and, where, due to a gap in the law caused by the legislator the complainant has not got any other means of protection at her disposal but protection in the framework of administrative lawsuit before the Supreme Court. The right to due process of law without undue delay under Article 23 of the Constitution unambiguously dictates that the Supreme Court, in spite of being overburdened with cases, should in administrative lawsuits in reference with cases under Paragraph 2 of Article 157 of the Constitution act promptly and apply special provisions of the ZUS. Because of different interpreting of the legal situation which occurred in reference with the application of provisions of the ZUS in proceedings based on Paragraph 2 of Article 157 of the Constitution, in the instant case the right to due process of law without undue delay under Article 23 of the Constitution was obviously infringed, which in specific cases involving judicial protection against infringements by actions requires that the case be considered promptly and on priority basis. This is specifically provided in provisions of Articles 68 to 76 of the ZUS, which must also be applied in the proceeding concerning the specific administrative lawsuit based on Paragraph 2 of Article 157 of the Constitution, that is, the administrative lawsuit instituted not because of infringement of a constitutional right by individual act under public law (these are comprised already in Paragraph 1 of Article 157 of the Constitution) but primarily by actions - and possibly also by acts falling under private law (in so far as protection of constitutional rights extends also to infringements by such acts).
 
17. In all instances of administrative lawsuits for infringement of constitutional rights by actions or acts falling under private law (when no other form of judicial protection is provided), the competent court shall have to ensure judicial protection without delay, that is, the consideration of such cases on priority basis, be it in the case of alleged infringements involving actions by officials or holders of state offices, as in the instant case, of alleged infringements involving acts under private law or material actions on the part of self-employed persons, or of alleged infringements involving the delaying of court proceedings in civil or criminal cases etc.
 
18. The case under consideration, however, is specific because the injured party in it initially claimed (in administrative lawsuit) that some of her rights (to work etc.) were infringed by an action of an official, and this was followed by yet another claim (in constitutional complaint) that her right to judicial protection of the former right without undue delay was infringed - that is, she claims that another infringement due to an action (omission), and not to an act, was committed. Here, the question arises of whether, also in the case of the alleged infringement due to an action (omission), the injured party should initially seek ordinary judicial protection based on administrative lawsuit and whether such party would be allowed (except under Paragraph 2 of Article 51 of the ZUstS) to file a constitutional complaint only after this legal remedy has been exhausted. As a rule, judicial protection against alleged delaying of a second court proceeding should initially be sought through administrative lawsuit - but concerning alleged delaying of court proceeding within the framework of the administrative lawsuit itself, of course the question arises of effectiveness and reasonableness of seeking judicial protection against some alleged infringements before the same court which supposedly committed the said infringements (even though such second administrative lawsuit would have to be decided by a senate in different composition), in particular in this specific case, where the alleged "undue delay" did not occur because of particular conduct of the court in this particular case but because of fundamental views of the court relating to the application of law, which should probably be observed also by the senate of the same court in any other composition. This is why in the future the Constitutional Court will in each particular case separately have to assess whether the conditions have been fulfilled for exceptional deciding of a constitutional complaint before the exhausting of extraordinary legal remedies.
 
19. For the foregoing reasons, the Constitutional Court established that in the administrative lawsuit commenced on the basis of Paragraph 2 of Article 157 of the Constitution, which comprises all the elements of a case under Article 67 of the ZUS, the complainant's right to due process of law of Article 23 of the Constitution was infringed. This is a case which the Supreme Court should have considered on priority basis in accordance with the applicable law and the Constitution, and not on the basis of criteria adopted by the staffing council. The Supreme Court should have applied the provisions of the special proceeding under Articles 68 to 76 of the ZUS, which are still applied as a piece of national legislation on mutatis mutandis basis in accordance with Paragraph 1 of Article 4 of the Enabling Statute for the Implementation of the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia. Until the passing of a new ZUS, which will be harmonized with the Constitution, precisely these provisions should guarantee effective judicial protection of constitutional rights infringed by unlawful and persisting actions on the part of official of state bodies and persons in charge. As these provisions undoubtedly contribute to the rectification of the legal system and to more effective protection of constitutional rights of each person, their application in administrative lawsuit, which in this transitional period comes within the exclusive competence of the Supreme Court, is mandatory.
 
20. The Constitutional Court decided this case on the basis of Paragraph 1 of Article 60 of the ZUstS, according to which the Constitutional Court may also decide on a contested right or freedom if such procedure is necessary in order to eliminate the consequences that have already occurred on the basis of retroactively abrogated personal act, or if such is the nature of the constitutional right or freedom, and if a decision can be reached on the basis of information in the record. The urgent need for a decision to be reached concerning the right itself for the purpose of eliminating the consequences which have already resulted for failure of the Supreme Court to reach a decision on the basis of provisions of Articles 68 to 76 of the ZUS is justified already by the circumstances on the basis of which the Constitutional Court accepted the constitutional complaint and decided to consider it before legal remedies have been exhausted and which are given in Section 6 hereof. The Constitutional Court also had at its disposal enough information for such decision in the file. The decision in Paragraph 3 of the adjudication hereof was reached by the Constitutional Court on the basis of mutatis mutandis application of Paragraphs 1 and 2 of Article 60 of the ZUstS.
 
C.
 
21. This decision was made on the basis of Paragraph 2 of Article 51, Paragraph 4 of Article 26 in connection with Article 49, Paragraph 1 of Article 59 and Paragraphs 1 and 2 of Article 60 of the ZUstS by the Constitutional Court in the following composition: Dr. Tone Jerovšek, President, and mag. Matevž Krivic, mag. Janez Snoj, Dr. Janez Šinkovec, Dr. Lovro Šturm, Franc Testen, Dr. Lojze Ude and Dr. Boštjan M. Zupančič, the Judges. The decision was reached unanimously.
 
 
President of the Constitutional Court:
Dr. Tone Jerovšek
Type of procedure:
constitutional complaint
Type of act:
other acts
Date of application:
07.10.1996
Date of decision:
07.11.1996
Type of decision adopted:
decision
Outcome of proceedings:
establishment of a human right violation
Document:
AN01200