U-I-168/97

Reference no.:
U-I-168/97
Objavljeno:
OdlUS VI, 103 | 03.07.1997
ECLI:
ECLI:SI:USRS:1997:U.I.168.97
Act:
Criminal Procedure Act (Official Gazette, No. 63/94), Art. 201, Para. 2, Item 3; Art. 201, Para. 2, Items 1 and 2; Art. 201, Para. 3
Operative provisions:
The petition for review of the constitutionality of Art. 201, Para. 2, Item 3 of the Criminal Procedure Act (ZKP), and ZKP provisions which regulate the order, extension, and cancellation of detention, is dismissed. The petition for review of the constitutionality of Art. 201, Para. 2, Items 1 and 2, and Art. 201, Para. 3, of ZKP is rejected.
Abstract:
The Constitutional Court established Art. 201, Para. 2, Item 3 of the Criminal Procedure Act (ZKP) (the danger of reiteration as a necessary condition to be fulfilled that the court may order detention), and ZKP provisions which regulate the order, extension, and cancellation of detention, to be unconstitutional. In this regard the Court issued a decision under Art. 48 of the Constitutional Court Act. The challenged statutory provisions did not cease to apply only because the time limit expired, in the span of which the Constitutional Court determined for the National Assembly to remove the established unconstitutionalities.

Article 48 of the Constitutional Court Act is based on the principles of a state governed by the rule of law (Art. 2) and protection of human rights (the Preamble to the Constitution).

This article authorizes the Constitutional Court to make a declaratory decision on the unconstitutionality of a statute with the Constitution. The Court may issue such a decision: (1) where it is impossible to abrogate a statute (gap in the law), (2) where a statutory provision contains unconstitutional parts because of its nomotechnical form and cannot be thus abrogated as a whole, (3) or where the abrogation would adversely interfere with the constitutionally protected rights of others or other constitutional goods (a statute regulates certain question in a manner that prevents its abrogation).

The Constitutional Court has already decided on the consistency of the challenged provisions with the Constitution. However, the expiration of the time limit for the removal of unconstitutionality cannot influence by itself the Constitutional Court decision. All the reasons because of which the provision could not be abrogated still exist, thus the Constitutional Court dismissed as unfounded the petition for the review of unconstitutionality.

The National Assembly violates the principles of a state governed by the rule of law and principle of the separation of powers, if it does not remove the established unconstitutionality by the expiration of the time limit determined in the Constitutional Court decision.
Password:
Declaratory decision under Art. 48 of the Constitutional Court Act (ZUstS).
Challenge of the provisions that were already found to be unconstitutional, renewal of proceedings before the Constitutional Court.
Expiration of the time limit prescribed for the legislature to remove unconstitutionalities established by a Constitutional Court decision.
Principle of a state governed by the rule of law.
Principle of separation of powers.
Principle of proportionality.
Protection of human rights and fundamental freedoms, general (preamble to the Constitution).
Right to personal freedom.
Order of detention.
Realization and limitation of rights.
Detention, danger of reiteration.
Right to life.
Order to the legislature to discharge its statutory obligation under Art. 48 of ZUstS.
Lack of jurisdiction of the Constitutional Court to decide on a concrete case (Art. 39 of ZUstS).
Dissenting opinion of a Constitutional Court justice.
Legal basis:
Constitution, Arts. 2, 3, 15, 161
Convention on the Protection of Human Rights and Fundamental Freedoms (EKČP), Art. 2
Constitutional Court Act, Art. 25; Art. 26, Para. 3; Arts. 39, 43, 44, 48
Document in PDF:
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute
Applicant:
Asmir Palamar, Ljubljana
Date of application:
14.05.1997
Date of decision:
03.07.1997
Type of decision adopted:
ruling
Outcome of proceedings:
dismissal
Document:
AN01402