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Case number:
U-I-92/01
ECLI:
ECLI:SI:USRS:2002:U.I.92.01
Challenged act:
Act on the Census of the Population, Households, and Housing in the Republic of Slovenia in the Year 2001 (Official Gazette RS, No. 66/2000 and 26/01) (ZPPGO), Arts. 5, 6.14, 10, 11, 12, 13, 15, 23, 24, 25, 28, and 29
Operative provisions:
The fourteenth indent of Article 6 of the Population, Household, and Housing Census in the Republic of Slovenia 2001 Act (Official Gazette RS, Nos. 66/2000 and 26/01) is not inconsistent with the Constitution.
 
Articles 10, 11, 12, 13, 15, 24, 25, 28, and 29 of the Population, Household and Housing Census in the Republic of Slovenia 2001 Act are not inconsistent with the Constitution.
 
Articles 5 and 23 of the Population, Household and Housing Census in the Republic of Slovenia 2001 Act are abrogated, except for the part of the first paragraph of Article 23, which reads as follows: "Data collected by census may only be used for statistical purposes".
 
The abrogation referred to in the previous point shall take effect on the next day following the publication of this Decision in the Official Gazette of the Republic of Slovenia.
Abstract:
Collecting data on the religious beliefs of citizens by the state is not inconsistent with the principle of the separation of religious communities and the state (Art. 7 of the Constitution). The principle of the separation of religious communities and the state in particular concerns the autonomy of the religious communities (in their field), the secularization of public life and the impartiality of the state toward religious communities.

The Act on the Census of the Population, Households, and Housing in the Republic of Slovenia in the Year 2001 (hereinafter ZPPGO1) ensures that the persons counted freely declare their religion, or decide whether at all to answer such question. The Act precisely determines which data may be collected and processed, and for which purpose it may be used. Furthermore, the supervision of their collection, processing, and use, and the protection of the confidentiality of the collected personal data, is foreseen. Interference with the right to freedom of conscience is admissible as it is in compliance with the principle of proportionality. Thus, the challenged provisions of the Act (Art. 6.14) which refer to posing questions on a person's religion, are not inconsistent with the right to freedom of conscience (Art. 41 of the Constitution).

Arts. 11 to 13, 15, 24, 25, 28, and 29 of ZPPGO1 are not inconsistent with the Constitution. Considering other provisions of ZPPGP1 and the National Statistics Act, and particularly the provisions of the Personal Data Protection Act, the protection of personal data collected by census is appropriately ensured.

Art. 23 of ZPPGO1, which allow the application of data collected by census also for other purposes and not only for the statistical purposes for which it is collected, and Art. 5 of ZPPGO1, do not ensure the protection of the right to information privacy and are thus inconsistent with Art. 38 of the Constitution.
Thesaurus:
5.3.17 - Temeljne pravice - Državljanske in politične pravice - Svoboda vesti (41).
5.3.30.1 - Temeljne pravice - Državljanske in politične pravice - Pravica do zasebnega življenja (35, 36, 37) - Varstvo osebnih podatkov (38).
5.3.30 - Temeljne pravice - Državljanske in politične pravice - Pravica do zasebnega življenja (35, 36, 37).
5.3.41.51 - Temeljne pravice - Državljanske in politične pravice - Pravice otrok (56) - Pravica in dolžnost staršev vzdrževati, izobraževati in vzgajati svoje otroke (54/1).
3.16 - Splošna načela - Sorazmernost.
1.5.5.1 - Ustavno sodstvo - Odločbe - Ločena mnenja članov - Pritrdilna mnenja.
1.5.5.2 - Ustavno sodstvo - Odločbe - Ločena mnenja članov - Odklonilna mnenja.
3.7 - Splošna načela - Razmerja med državo in organi verske ali ideološke narave.
Legal basis:
Articles 7, 34, 35, 38, 41, Constitution [URS]
Articles 21, 43, Law on the Constitutional Court [ZustS]
Cases joined:
The discussed case was joined with case No. U-I-254/01 for joint adjudication and deciding by the order of the Constitutional Court dated 6 December 2001.
Full text:
 
 
U-I-92/01
28 February 2002
 
 
DECISION
 
 
At a session held on 28 February 2002 in proceedings to review constitutionality initiated upon the petition of Edvard Krajnc, Vojnik, and Mag. Matevž Krivic, Medvode, following a public hearing held on 17 January 2002, the Constitutional Court
 
decided as follows:
 
 
Reasoning
 
A
 
1.         The petitioner, Edvard Krajnc (hereinafter referred to as the first petitioner), challenges the third paragraph of Article 5 of the Act amending the Population, Household, and Housing Census in the Republic of Slovenia 2001 Act (Official Gazette RS, No. 26/01 – hereinafter referred to as the PHHC1A-A),[1] as it is inconsistent with Article 7, and the first and second paragraphs of Article 41 of the Constitution.
The first petitioner claims that, in view of the constitutional definition of the separation of the state and religious communities, and the constitutionally guaranteed freedom of professing religious or other beliefs, the challenged provision of the Act, which provides that religious and personal data is collected, is unconstitutional. He claims that the state is prohibited from asking individuals about these beliefs or from collecting data on these beliefs on the basis of the second paragraph of Article 41 of the Constitution, which guarantees that no one shall be obliged to declare his religious or other beliefs, in conjunction with the first paragraph of Article 7 of the Constitution.
 
2.         The first petitioner believes that there is a serious risk that religious communities could interpret the challenged provision of the Act to mean that the Constitution does not provide for a separation between religious communities and the state, and that they could interpret the obtained data to suit their current needs.
 
3.         The petitioner, Mag. Matevž Krivic (hereinafter referred to as the second petitioner), challenges the same provision of the Act. He questions whether inquiring about religious belief is at all reasonable since the respondents are not obliged to respond to such a question. Therefore, in his opinion, data obtained in such a manner is not of interest or relevance for the statistical purposes of the state. Furthermore, he believes that people in general, especially the average person, consider the census to be obligatory and decreed by the government, and so it is not possible to entirely eliminate the intentional or unintentional “pressure” on those being questioned, although the Act provides that individuals must be informed that they have the right to not answer. He also alleges that, since the question focuses on religious beliefs despite only enquiries on (legal) affiliation with a religious community being permitted, it is incorrectly formulated.
 
4.         The second petitioner initially also alleged that the question on national (ethnic) origin (thirteenth indent of Article 6 of the PHHC1A) is constitutionally disputable. At the public hearing, he declared that his petition was not to be understood as a challenge to the constitutionality of the thirteenth indent of Article 6 of the PHHC1A. In the subsequent written submission, he explicitly stated that he did not challenge its constitutionality.
 
5.         Moreover, in his petition, the second petitioner also referred to Articles 3, 5, 6, 7, 8, 9, 11, 12, 13, 15, 23, 24, 25, 28, and 29 of the PHHC1A as being constitutionally disputable. At the public hearing, he stated that he does not challenge Articles 3, 6, 7, 8 or 9. However, he alleged that Article 10 was constitutionally disputable. He states that the challenged provisions (particularly those of Articles 11, 12, 13, 15, 24, 25, 28, and 29) are vague, incomplete, that they enable personal data from various databases to be integrated, and that they do not provide for the appropriate protection of personal data. In his opinion, Articles 5 and 23 enable the collection of data to be used for other databases or other purposes (to establish a building and housing register and a household register), thereby allowing personal data to be abused or used for undetermined purposes, and rendering its protection impossible. Therefore, the constitutional right to protection of personal data (Article 38 of the Constitution) is, in his opinion, violated.
 
6.         The National Assembly replied to both petitions; it believes that they are unfounded. It is argued that the PHHC1A fully respects the provisions of the first and second paragraphs of Article 41 of the Constitution (regarding the question about religion) and Article 61 of the Constitution (regarding the question about national ethnic origin). In reference thereto, the National Assembly cites Articles 10 and 35 of the PHHC1A in particular. Furthermore, it argues that the provisions of Article 3 of the Personal Data Protection Act (Official Gazette RS, Nos. 59/99 etc. – hereinafter referred to as the PDPA) regarding the protection of the particularly sensitive data were also taken into account. Moreover, the National Assembly believes that the provisions of the PHHC1A, which allow the Statistical Office of the Republic of Slovenia (hereinafter referred to as the Office) to use data from other official and administrative databases for the purposes of the census, are consistent with Article 38 of the Constitution. In reviewing such, the PDPA must also be taken into account, since it regulates in detail the processing of personal data, and the conditions under which the collected data may be used for other purposes. The National Assembly consequently believes that it is entirely constitutional for the census to be used not only for the collection of statistical data but also data for other purposes, as provided by law.
 
7.         In its opinion, the Government states that the petitions are unfounded. As for the disputed questions, it states that data regarding religious beliefs and national origin is relevant and necessary for state statistical purposes. It states that statistical research is carried out not only in the interests of the state, but also as an internationally recommended state activity and part of the obligations that arose upon the process of accession to the European Union. The view of the Government is that the results of the state's statistics analysis and censuses are useful not only for the state, public sector, and international community, but also for the private sector and for individuals and their associations (for civil society institutions). In the Government’s opinion, the integration of public records is a tradition in Slovenia; through this integration process the principle of efficiency and economy in the processing of data is implemented. As a result, specific data is not collected separately for each purpose – the data that has already been collected is used for various purposes. At the public hearing, the Government’s representative submitted a draft form for carrying out the census.
 
B. - I.
 
8.         The Constitutional Court accepted the petitions for consideration. As the conditions provided in the fourth paragraph of Article 26 of the Constitutional Court Act (Official Gazette RS, No. 15/94 – hereinafter referred to as the CCA) were met, it proceeded to decide on the merits of the case.
 
9.         Regarding the initial allegations of the second petitioner, the Constitutional Court also discussed the constitutionality of the thirteenth indent of Article 6 of the PHHC1A at the public hearing. Since the petitioner had explicitly stated that he did not challenge this provision, and the Constitutional Court had determined that the conditions provided in Article 30 of the CCA were not met, it did not review the constitutionality of the thirteenth indent of Article 6 of the PHHC1A.
 
B. – II.
 
10.      The first petitioner states that the fourteenth indent of Article 6 of the PHHC1A, which was introduced by the third paragraph of Article 5 of the PHHC1A-A, is inconsistent with Article 7 of the Constitution (the principle of separation of the state and religious communities). The petitioner does not provide reasoning as to why the challenged provision is inconsistent with the first paragraph of Article 7 of the Constitution. He simply alleges that religious communities may manipulate the challenged provisions of the Act to serve the benefit of their immediate interests and needs, which could endanger the actual meaning of the provision of the first paragraph of Article 7 of the Constitution.
 
11.      The first paragraph of Article 7 of the Constitution provides that the state and religious communities are separate. This provision of the Constitution includes only a general principle of separation of the state and religious communities (see Decision of the Constitutional Court No. U-I-68/98, dated 22 November 2001, Official Gazette RS, No. 101/01).  Scholars consider in particular that the key elements of the separation of the state and religious communities are the autonomy of religious communities (in their own areas), the secularisation of public life, and state neutrality towards religious communities.[2] A religiously and ideologically neutral state is therefore impartial, neither supporting nor hindering religion and other ideologies.[3] However, it does not follow from the principle of the separation of the state and religious communities that the state should have no interest in data on the religious beliefs of its inhabitants. In view of the legislature's intention[4] regarding the collection of such data – for statistical purposes – and considering the provisions on processing and protection of such data, the conclusion could be drawn that the challenged provision does not violate the principle of the separation of the state and religious communities.
 
12.      The challenged provision of the PHHC1A does not regulate the relationship between the state and religious communities, does not interfere with their relationships, and does not refer directly thereto. If the petitioner was concerned about the possible subsequent interpretation of census data by religious communities, it is the view of the Constitutional Court that such interpretation of data, which is entirely private in terms of separation of the state and religious communities, does not in itself interfere with the first paragraph of Article 7 of the Constitution. The data will eventually be made public. It is clear that the same data may be interpreted differently and this is an everyday occurrence for practically all data. The mere possibility of the collected data being interpreted differently does not mean that the Act, which regulates the collection of such data, is unconstitutional.  The issue of unconstitutionality regarding the manner and purpose of the collection of specific data refers to the review of constitutionality in terms of Article 41 of the Constitution, and does not refer to consistency with Article 7 of the Constitution. The challenged provision of the PHHC1A is therefore not inconsistent with Article 7 of the Constitution.
 
B. – III.
 
13.      The petitioners challenge the aforementioned provision of the Act on the grounds that it interferes with the constitutional right to freedom of conscience referred to in the first and second paragraphs of Article 41 of the Constitution. The petitioners infer from this constitutionally guaranteed right that individuals are not obliged to declare their religious beliefs, and that the state may not inquire about their religious beliefs or even whether they wish to declare the same. The unconstitutionality of the challenged provision of the Act, in their opinion, lies in the fact that it even provides for the possibility of posing such question. In the opinion of the petitioners, posing a question on religious beliefs is, in itself, unconstitutional (and inconsistent with the second paragraph of Article 41 of the Constitution), as it interferes with freedom of conscience. It is argued that the second paragraph of Article 41 of the Constitution prohibits the state from posing such questions and collecting such data.
 
14.      The first and second paragraphs of Article 41 of the Constitution read as follows: “Religious and other beliefs may be freely professed in private and public life.
 
No one shall be obliged to declare his religious or other beliefs.”
 
15.      Article 41 of the Constitution (freedom of conscience) protects the freedom to declare religious and other beliefs. It is a fundamental human right and freedom that is also related to other constitutional rights, such as the right to personal dignity and safety (Article 34 of the Constitution), the protection of the right to privacy and personality rights (Article 35 of the Constitution), the protection of personal data (Article 38 of the Constitution), freedom of expression (Article 39 of the Constitution), the right of assembly and association (Article 42 of the Constitution), and the rights and duties of parents (Article 54 of the Constitution).
 
16.      The United Nations Universal Declaration of Human Rights from 1948 (hereinafter referred to as the UN Universal Declaration)[5] guarantees everyone the right to freedom of thought, conscience and religion (Article 18). In accordance with the UN Universal Declaration, this right includes freedom to have or accept a religion or belief of their own choosing, and the freedom, either alone or in community with others and in public or private, to manifest one's religion or belief through worship, observance, practice and teaching. Following the model of the UN Universal Declaration, the right to freedom of thought, conscience and religion is also guaranteed by Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette RS, No. 33/94, MP, No. 7/94 – hereinafter referred to as the ECHR) and Article 18 of the International Covenant on Civil and Political Rights (Official Gazette SFRY [Socialist Federal Republic of Yugoslavia], No. 7/71, and Official Gazette RS, No. 35/92, MP, No. 9/92 – hereinafter referred to as the Covenant).
 
17.      From freedom of religion (first paragraph of Article 41 of the Constitution and Article 9 of ECHR)[6] and the aforementioned provisions of the Constitution and binding instruments of international law (Article 8 of the Constitution), three distinct entitlements also arise for individuals: the right to profess any religion; the right to change one's religion; and the right not to have a religion[7] (Decision No. U-I-68/98). Freedom of religion guarantees that individuals, either alone or in community with others, in public or private, freely manifest their religion or belief in teaching, observance, worship and practice[8], which is defined in a foreign legal theory as positive freedom of religion.[9] On the other hand, freedom of religion guarantees individuals the right not to profess their religion, or whether they follow one at all, which foreign legal theory defines as negative freedom of religion.[10] Freedom of religion as a forum internum includes the right to religious affiliation or non-affiliation, the right to change religion and the right to choose religion freely.
 
18.      The state may not interfere with freedom of conscience.[11] This above all means that it may not require anyone, either directly or indirectly, to accept a certain religious or other belief, and it may not use coercive measures or offer privileges for affiliation or non-affiliation with a specific religious or other belief. If the state did so, such conduct would constitute an interference with freedom of conscience and religion.
 
19.      The second paragraph of Article 41 of the Constitution explicitly provides that no one shall be obliged to declare his religious or other beliefs. If there is no obligation to declare religious or other beliefs, this means that it is not permissible to force one to do so. Furthermore, Article 18 of the Covenant explicitly determines that no one may be coerced into having their freedom restricted in terms of having or adopting a religion or belief. The use of coercion to change a person’s religious beliefs or force a person into revealing their religious beliefs would interfere with freedom of conscience.[12]
 
A statute which determines that individuals are obliged to declare their religious beliefs would violate freedom of conscience and would therefore be unconstitutional (i.e. inconsistent with the second paragraph of Article 41 of the Constitution).[13]
 
20.      According to the aforementioned criteria, it is necessary to review whether the challenged provision of the PHHC1A interferes with freedom of conscience, particularly the negative aspect of this freedom, i.e. that no one is obliged to declare their religious beliefs.
 
21.      It follows from the challenged provision that data on the religion of the respondents is also collected by census; however, other provisions of the Act must also be taken into account. In accordance with the first paragraph of Article 10, data is generally collected directly from individuals (first paragraph of Article 10). Data concerning absent household members may also be provided by the household member who is the most familiar with such data, whereas for children aged 15 years or younger, such data may be provided by one of the parents, adoptive parents or guardians (first sentence of the second paragraph of Article 10). All of the data, except for the data on religion, may be collected from the parents, adoptive parents or guardians, or other household members. Such data must be provided in person by persons aged 14 years or older, or may be provided by other persons, but only with the written approval of the person absent during the census (second sentence of the second paragraph of Article 10). The provision of Article 10 of the PHHC1A guarantees that data on religion is collected only with the written approval of persons aged 14 years or older.
 
The written approval of a person absent during the census must be accompanied by the absent person’s written declaration of his religion. If there is no written declaration regarding his religion and no written approval for providing such data, the persons collecting data may not require such data from other adult household members or collect it even if adult household members wish to provide such. Persons who might be absent at the time the census is conducted can avoid any possible abuse and pressure by family members, which the second petitioner alleges could pose a risk, if they inform the person collecting data that they themselves will answer the census questions and provide the required data. Article 35 provides that data on religious affiliation that is collected contrary to the second and third paragraphs of Article 10 of the PHHC1A is a minor offence punishable by a fine. This ensures that the respondents will be free to decide whether to freely declare their religious beliefs or even to answer this question at all. 
 
22.      The second petitioner claims that this provision, in so far as it refers to minors, violates the right to freedom of conscience. This question could only arise in relation to minors younger than 14 years of age, as the parents, adoptive parents or guardians may only provide data on behalf of these minors. This provision is not constitutionally disputable. The Constitution itself provides that children enjoy human rights and fundamental freedoms, including the right to freedom of conscience, consistent with their age and maturity (Article 56 of the Constitution). Furthermore, it imposes on parents the right and duty to maintain, educate and raise their children (first paragraph of Article 54). These issues are regulated similarly in terms of content in the Convention on the Rights of the Child, particularly Articles 5 and 14 thereof (Official Gazette SFRY, MP, No. 15/90, and Official Gazette RS, No. 35/92, MP, No. 9/92). The third paragraph of Article 41 of the Constitution specifically emphasises that parents have the right to provide their children with religious and moral upbringing in accordance with their beliefs; this upbringing must be consistent with their age and maturity.
 
Parents may influence their children’s religious beliefs before the child has reached 14 years of age, which is certainly not set too high. However, this provision does not mean that parents, adoptive parents or guardians may not leave their children to decide on these issues or that they may not discuss these issues with them before answering the question.
 
A regulation which prevents parents from raising their children as they see fit could also represent an interference with family relations. Mature parents do not require inference from the state in order to raise their children to think independently. The same also applies to religious upbringing. Therefore, the reasoning which a priori considers the question regarding religion as the reason for family disagreements is a reflection of an intolerant attitude towards this question. Moreover, the second petitioner did not substantiate why the determined age limit was set too high.
 
23.      The challenged statutory provision does not force individuals (either directly or indirectly) to declare their religious beliefs or to disclose their religious beliefs if they do not wish to do so. However, the question arises as to whether an interference with the right determined in the second paragraph of Article 41 of the Constitution occurs when the state uses a census to ask individuals about their religious beliefs, even though they are not obliged to answer such a question. 
 
24.      The provisions which protect human dignity, personality rights, a person's privacy, and safety, and which prohibit interference with the above-listed rights, hold a special position among human rights and fundamental freedoms. In accordance with the principle that everything which is not explicitly permitted is prohibited in this area, the Constitution prohibits interferences with the above-listed rights, except for those which are explicitly permitted. Individuals may be deprived of the right to privacy only when and where this right collides with the statutorily demonstrated stronger interest of others (Decision No. U-I-25/95, dated 27 November 1997, Official Gazette RS, No. 5/98, and OdlUS VI, 158). One of the aspects of a person's privacy is also religious or other beliefs, which enjoy special protection pursuant to Article 41 of the Constitution.
 
25.      For the purpose of protecting the right to privacy, the Constitution explicitly guarantees the protection of personal data (first paragraph of Article 38). Information technology substantially facilitates the processing of data and information; however, through its expansion into all areas of life, it increases the risk of individuals no longer having the opportunity to decide for themselves when, how, and the extent to which their personal information will be provided to others. In order to prevent such risk, the Constitution (1) prohibits the use of personal data contrary to the purpose for which it was collected, (2) subjects the collection, processing, designated use, supervision, and protection of the confidentiality of personal data to statutory regulation, and (3) grants everyone the right to access the collected personal data that relates to them, and the right to judicial protection in the event of any misuse of such data. According to the settled Constitutional Court caselaw, interferences are permitted provided that they are consistent with the principle of proportionality. This means that the limitation must be required and necessary in order to reach the pursued, constitutionally legitimate aim, and must be in proportion to the importance of such aim (third paragraph of Article 15 of the Constitution).
 
26.      The Convention on the Protection of Individuals Regarding the Automatic Processing of Data (Official Gazette RS, No. 11/94, MP, No. 3/94 – hereinafter referred to as the CDP) determines similar requirements. In addition to the requirement that personal data must be collected and processed fairly and lawfully, the CDP also requires the adoption of measures which guarantee that personal data be stored for definitive and lawful purposes, and that only such data be processed which is appropriate, suitable and not exaggerated in view of the purpose of its collection (Article 5 in conjunction with Article 4). The CDP determines even stricter conditions for personal data which refer to racial origin, political, religious or other beliefs, medical condition, sexual preference, and criminal judgments (including convictions). According to Article 6 of CDP, such data may not be processed automatically if national legislation does not determine appropriate protection thereof.
 
27.      It follows from the aforementioned provisions of the Constitution and CDP that each instance of the collection and processing of personal data represents an interference with the constitutional right to protection of privacy and with the right of individuals to keep their personal data private if they do not wish others to have access to such (information privacy). However, the right to information privacy is not unlimited or absolute. Therefore, individuals must accept restrictions of or allow interferences with their information privacy in the overriding general interest, provided that the constitutionally determined conditions have been fulfilled. Interference is permitted if a statute precisely defines which data may be collected and processed, the purpose for which it may be used, and prescribes control over the collection, processing, and use, as well as protection of the confidentiality of the collected personal data. According to the settled case-law of the Constitutional Court, interference is allowed provided that it is in compliance with the principle of proportionality. This means that the limitation must be required and necessary in order to reach the pursued, constitutionally legitimate aim, and must be in proportion to the importance of such aim (third paragraph of Article 15 of the Constitution).
 
28.      The census shall be conducted in a manner such that respondents must correctly and fully answer specific questions contained in the census questionnaire without being obliged to answer the question on religion (first paragraph of Article 10 of the PHHC1A). A specimen census questionnaire, which was submitted at the public hearing by the Government’s representative, has shown that respondents may choose the answer: "I do not wish to answer this question". Although they are not obliged to answer the question about religion, individuals are nevertheless, by the question alone, put in a position where they must decide whether or not to answer it, and their answer or the fact that they did not wish to answer the question will be noted on the census questionnaire. This means that census data will also be collected on the proportion of respondents who did not wish to answer the question about religion. This fact was also confirmed at the public hearing by the Government’s representative, who stated that the fact that the specific number of individuals who choose not to answer the question also represents data. Each respondent will be required to at least provide information as to whether they are willing to answer the question about religion. Therefore, the very fact that the individual is asked about religion in a census must be considered an interference with the right referred to in the second paragraph of Article 41 of the Constitution. However, a review must be conducted on whether such interference was admissible in the present case.
 
29.      On the basis of the second paragraph of Article 38 of the Constitution, the collection, processing, designated use, supervision, and protection of the confidentiality of personal data shall be provided by law. Article 23 of the PHHC1A provides that data determined by statute, except for the data required for establishing the buildings and housing registers,[14] shall be collected and used only for statistical purposes.
 
30.      According to the provisions of the National Statistics Act (Official Gazette RS, No. 45/95 etc. – hereinafter referred to as the NSA, third paragraph of Article 33), the purpose of statistics is to provide and demonstrate aggregate data on mass phenomena. The purpose of the collection and use of data determined by the PHHC1A is not constitutionally disputable.
 
However, the question arises in this regard as to whether a purpose determined in such manner is imprecise, generalised or undefined since it does not guarantee that the data is linked to a specific and predetermined purpose. The answer to the aforementioned question must be based on the role and meaning of statistics for national policy.[15] Ensuring social, economic, and cultural development is a fundamental and permanent task of the state. Comprehensive and continuous information which is as precise and up to date as possible is required in order to carry out these tasks. Censuses (Article 26 of the NSA lists them as an example of comprehensive periodic statistical research) represent a milestone in the history of every state, since a comparison of the results of consecutive censuses creates an image of the development of the population over the decades and centuries. It is at the heart of statistics that data, following statistical processing, is used for various purposes and tasks which are not specifically predetermined. Data collected by census is a fundamental aid to the state in decision-making in numerous areas and when predicting future development. This data is therefore used to plan the number and location of various institutions (kindergartens, schools, hospitals, homes for the elderly) and to evaluate future public transport requirements; it is also used for housing construction, employment programs and numerous other areas. The collected data also serves as a basis for numerous other research projects and studies. Therefore, with regard to data collection for statistical purposes, it is not possible to require the data to be narrowly and specifically linked to a specific purpose. Consequently, specific data is collected, processed, and stored for possible subsequent usage.
 
The requirement for the purpose to be described specifically (precisely) and the strict prohibition of the collection of personal data for possible subsequent usage, may only apply to the collection of data for non-statistical purposes (in case of which the purpose of such collection and use are precisely determined in advance), and may not apply to the collection of data by census that creates a database for further statistical research as well as a database for policy planning based on reliable findings on the number and social structure of the population.[16]
 
31.      Owing to the nature of the collection of data for statistical purposes, it is not possible to predetermine all the ways in which the collected data will be used and integrated. When reviewing whether specific data is appropriate, account must be taken of the specific purpose for which it may be used. The collection of data on religion is appropriate and necessary in order to reach a statutorily determined purpose, i.e. to provide aggregate data on mass phenomena within the society. As the census is conducted for statistical purposes and this purpose cannot be interpreted strictly, and furthermore as data is collected, processed, and stored for possible subsequent usage not only for the needs of the state authorities or organisations of public importance, but also for the needs of the economy and the general public, the assessment as to whether the collection of the aforementioned data is necessary also cannot be narrow. It is appropriate that the census collects data which is not only important for further economic development and planning, but also data on the structure of the population from a cultural, historical, and sociological perspective. A census is usually conducted every ten years, meaning that such data also becomes important for historical and other socially useful and necessary studies. In the present review, the Constitutional Court cannot ignore the fact that this period is also the first decade of Slovenia’s independence as a sovereign state. From a historical perspective, this period almost entirely coincides with the period in which democratic social order was introduced in Slovenia. These circumstances give the data obtained by this census a particularly significant meaning. More specifically, it presents not only an opportunity to preserve periodic verifications of data of the same kind as that which was collected in the previous census in 1991, but also an opportunity for the state to store the obtained data as part of its national heritage for future verifications and studies.
 
32.      The Constitutional Court is not required to review whether it would be more appropriate if the question referred to "affiliation with a religious community", as alleged by the second petitioner, who substantiates his viewpoint with the fact that it is only permitted to inquire about facts and not (personal) beliefs. It is possible to confirm the petitioner's viewpoint in so far as it refers to the questions which respondents are obliged to answer, and that if they refuse to do so they can even be criminally sanctioned. However, as has been stressed several times before, respondents are not obliged to answer the question about religion.[17] Furthermore, it cannot be deemed crucial for the present review whether or not data on religion is collected by censuses in other countries. Owing to the nature of the collection of data for statistical purposes, the Constitutional Court also cannot review the extent to which the collected data is reliable, or the extent to which, or for what statistical purposes, it will be appropriate to process such.
 
33.      However, the question arises as to whether it would be possible to collect data on religion in a different manner which would represent less of an interference with the constitutional rights of the persons affected. A similar question regarding interference with information privacy may arise in relation to all the data collected by census. Since the constitutionality of the collection of other data is not the subject of review in the present case, the Constitutional Court was not required to provide an answer to this question. However, when reviewing the question regarding religion and taking, as a starting-point, that it is clear that the collection of data by census cannot in itself be inconsistent with the Constitution, the Constitutional Court also had to consider the fact that much of the other data included in the PHHC1A can also be collected by other methods. Without doubt, there are other methods of statistical research or data collection which are conducted anonymously and on the basis of samples. The Government also acknowledged this fact in its opinion. However, these methods cannot replace a census as a complete database, and are predisposed to containing errors. A census includes the entire population and not just a selected sample. The way in which the data obtained from the collected sample is extrapolated to the entire population is a particular problem. Such extrapolation can be subjected to substantially greater manipulation than the interpretation of data collected from the entire population. There is no perfect alternative to a census. This is also acknowledged by the positions of the Economic and Social Council of the United Nations, dated 19 July 1995, which recommended that the member states of the UN carry out a census of the population and housing, and thereby respect international and regional recommendations.[18] A census is usually conducted every ten years, which also gives the collected data historical significance. Furthermore, data on phenomena that are not widespread among the population cannot be obtained by research conducted on a selected sample. Therefore, the collection of data by other methods is not yet an appropriate alternative to collecting data by census.
 
34.      Collecting data on religion by census also does not represent a disproportionate interference with the protection of information privacy in the narrower sense. The right of individuals to refuse to answer such a question, and the duty of the persons collecting data to inform individuals of this right, are guaranteed. Furthermore, it is guaranteed that data regarding the religion of persons older than 14 years of age who are not present at the time the census is carried out may be collected only on the basis of their written consent (Article 10 of the PHHC1A). This ensures that individuals decide themselves whether or not to allow the interference with their privacy, i.e. whether to provide such data or not (see Paragraph 21 of the present reasoning). It is of course clear that the census must be conducted in a manner such that individuals are free to decide whether or not they will answer these questions. It must be ensured that the personal data collected by census be used exclusively for statistical purposes and that it is stored in anonymous form. This applies to all data collected by census. Provided that the census is conducted in this manner, individuals are in a position similar to that of interviewees who take part in a study as part of a sample.
 
The PHHC1A guarantees such position.[19] In the present case, while reviewing whether the question about religion interferes to a disproportionately severe extent with the right to protection of information privacy, the Constitutional Court was also required to take into consideration the fact that some religious communities, as forms of association for expressing religion or ideology with others, also wanted data regarding religion to be collected by census, and that none of the religious communities were opposed to this. Such preference represents an element of the positive aspect of freedom of religion for religious communities. It is true that this cannot represent a constitutional basis and that it would therefore be constitutionally necessary to also establish such data by census; however, it is an important factor in assessing whether the Constitutional Court can abrogate the provision which envisages collecting such data after the legislature had already decided that the state shall collect such. The positive aspect of freedom of religion is inter alia expressed in the requirement that the state, and thereby the Constitutional Court, when deciding on a matter, must guarantee tolerance between the followers of different beliefs.
 
B. – IV.
 
35.      Since the nature of the collection of data for statistical purposes is such that it is not possible to define in advance all the possibilities for the use and integration of the collected data, it must be ensured that individuals do not become a casualty of such data in its collection and processing. It must primarily be ensured that the collected data and its integration with data from other databases cannot be used to piece together the personality of an individual. In order to ensure the right to information privacy, special measures for carrying out and organizing the collection and processing of data are also required due to the fact that there is a risk that the data could be ascribed to individuals during collection, and partly also during storage.
 
At the same time, a regulation is required that will ensure deletion of the data required to aid the census process (i.e. identifiers) and which could easily enable de anonymisation (e.g. name, address and identification number) and deletion of the list of persons who carry out the census. In order to protect the right to information privacy, it is necessary to protect the data obtained for statistical purposes as a secret for as long as the data is or can be linked to a specific person. Furthermore, it must be ensured that data collected for statistical purposes be used only for these purposes, which means above all that such data may not be provided to other users in a form which could enable the identification of the persons to whom it refers. It is equally crucial to re-establish data anonymity as soon as it is possible to do so, and to implement measures which prevent the re-personalisation of data.
 
36.      The second petitioner believes that the provisions of the PHHC1A do not guarantee such. It is alleged that Articles 10 to 13 are unconstitutional as they allow the collection of personal data not only from the census respondent but also from other persons (from other household members), and from all the existing official and administrative databases of the public and private sectors. Furthermore, he claims that the provisions of Articles 24, 25, 28, and 29 do not suffice for the effective protection and security of the collected personal data, as they ensure protection only in a declaratory fashion.
 
37.      The PDPA, the application of which is also explicitly provided by the PHHC1A, provides that personal data is, as a general rule, collected directly from individuals (first paragraph of Article 8). A statute may determine in specific cases that personal data also be collected from other persons, or obtained from existing databases of personal data, in the event of which also the person or database, the type of personal data, and the manner in which the data is to be collected must be determined by such statute; furthermore, the purpose for which the data was collected must also be taken into account (second paragraph of Article 8). Particularly sensitive data, which also includes data regarding religion, may be collected from other persons or obtained or integrated from the existing databases only with the written consent of the individual to whom such data refers. Written consent is not required if the data is intended for use for statistical or scientific research purposes in a manner that does not allow for individuals to be identified (third paragraph of Article 8).
 
38.      Articles 11, 12, 13, and 28 of the PHHC1A regulate the collection and integration of personal data from various databases that contain personal data. It is alleged that the aforementioned articles are unconstitutional because the Act does not provide effective measures to ensure the effective protection and security of the collected data. As stated in Paragraph 37 of the present reasoning, these provisions originate from the provisions of Article 8 of the PDPA. The obligation of the Office to apply the provisions of the PDPA is also imposed by the second paragraph of Article 32 of the NSA.[20] The PHHC1A therefore determines the type of personal data and the databases from which data may be collected. It follows from Article 11 that only data which is necessary in order to conduct the census may be collected.
 
Such data is determined by Article 6 of the PHHC1A, which determines which data may be collected by census. Data controllers of personal data databases are obliged to supply such data to the Office; however they are not obliged to provide all the data that they keep in their databases – only data which is necessary for conducting the census.
 
39.      It is only possible to collect data by census that is determined by the PHHC1A and for the purpose determined by the PHHC1A, and can be collected either directly from individuals, or from other persons (close members of the household), or from other databases that contain personal data. By integrating data collected in such a manner, the Office creates a post-census database (collection) (Article 28 of the PHHC1A). The PHHC1A determines that the protection and security of personal data collected in this manner is ensured in accordance with the statute which regulates the protection of personal data (Articles 24 and 25). The provision, which is the same in terms of content, can also be found in the NSA, which applies to all statistical research carried out by the Office (first paragraph of Articles 41 and 42).
 
40.      First, Article 9 of the PDPA, which provides that personal data may be processed only for the purposes determined by the statute, must be taken into account. The PHHC1A determines that data collected by census be used for statistical purposes. The third paragraph of Article 33 of the NSA determines that the statistical purpose is the provision and production of aggregate data on mass phenomena. Data collected by census may therefore not be used for other purposes. From this, it can be inferred that there is a prohibition on the publication of personal data (Article 29 of the PHHC1A) and a prohibition on providing data from statistical registers to users (also from a database created according to Article 28 of the PHHC1A) in a form and in such a manner to enable the identification of the persons to whom the data refers (second paragraph of Article 33 of the NSA).
 
Data collected by the census may therefore be published and provided to other users only in aggregate form (Article 30 of the PHHC1A), i.e. in a form and manner which precludes the identification of the persons to whom the data refers (fifth paragraph of Article 34 of the NSA).
 
41.      The provisions according to which all data collected by census is an official secret and according to which it is the duty of all persons who take part in conducting the census to protect all data as an official secret (Articles 26 and 27 of the PHHC1A), as well as the criminal provisions for violations in relation to official secrets, are also important for personal data protection.
 Article 43 of the NSA provides the same mutatis mutandis. Article 48 of the NSA, which determines that administrative and other state authorities, local community authorities, providers of public services, and bearers of public authority may not use statistical data to determine the rights and obligations of the persons to whom such data refers, is also important for the protection of individuals.
 
42.      The PHHC1A obligates the Office and all persons conducting the census to determine, in accordance with the PDPA, appropriate measures for the protection of personal data and ensure that such measures be respected (Article 24). Pursuant to the provisions of Article 13 of the PDPA, these are mainly organisational and logical technical procedures and measures, which protect personal data, prevent data from being destroyed, accidentally or intentionally and without authorisation, altered or lost and processed without authorisation, in the following manner: by securing the premises, equipment and system software; by protecting the applied software through which personal data is processed; by preventing unauthorised access to personal data during its transmission; and by enabling a subsequent determination of when particular data was used or entered into the database of personal data, and by whom. Procedures and measures for the protection of personal data are prescribed by the Office (Article 15 of the PHHC1A).
 
43.      The provision of the first paragraph of Article 10 of the PDPA, which provides that personal data may be stored for only as long as required to achieve the purpose for which it was processed, is important in order to ensure the protection of personal data or the right to information privacy. The PHHC1A does not contain any explicit provisions in relation to the duration of storing the collected personal data. It only determines the purpose for which the data is collected and the timeframe within which it must be processed and made accessible to the public, naturally only in an aggregate form.
 
Therefore, Article 31 determines that the Office is obliged to publish full and detailed results of the census within two years of the completion thereof. Upon the expiration of this time limit, the purpose of the census is achieved. The second paragraph of Article 10 of the PDPA provides that, after fulfilling the purpose for which the personal data is processed, it must be deleted from the database or access to it must be blocked, unless otherwise provided by law for a specific type of personal data, and must therefore be taken into account in order to answer the question as to how long personal data may be stored. Point 9.1 of the Recommendation similarly provides that, in every research project, it must be determined as precisely as possible whether data will be deleted upon completion of the project and, if so, which data will be deleted, which data will be stored in anonymous form, and which data will be stored in the form it was collected, and under what conditions. The PHHC1A does not determine whether personal data is deleted or access to it blocked, or which personal data is deleted, blocked or stored in the form in which it was collected. This therefore represents a legal gap which may be filled by interpretation. The purpose of processing personal data collected by census is achieved when this data is published in aggregate form after its processing (Articles 30 and 31 of the PHHC1A). Pursuant to the first paragraph of Article 10 of the PDPA, personal data may be stored only as long as this is necessary to achieve such purpose. When the purpose is achieved it is deleted from the database of personal data or access to it blocked (second paragraph of Article 10 of the PDPA), unless otherwise provided by statute. A statute which might provide otherwise is the PHHC1A. More specifically, the PHHC1A could have explicitly determined the duration and manner in which personal data is stored. As it did not provide such, Article 10 of the PDPA must be applied. It follows from Article 31 of the PHHC1A that the Office must complete the processing of the collected personal data within two years after the completed census. By publishing the census results, the purpose of processing data collected by the census is achieved. The Office must therefore comply with the second paragraph of Article 10 of the PDPA upon the expiration of the two year time-limit determined in Article 31 of the PHHC1A.
 
44.      Given the aforementioned, the challenged provisions of Articles 11 to 13, 15, 24, 25, 28, and 29 are not inconsistent with the Constitution. The protection of personal data collected by census is ensured to an appropriate degree if the other provisions of the PHHC1A and NSA, and particularly the provisions of the PDPA, are respected.
 
B. – V.
 
45.      The second petitioner challenges Article 5 and the part of Article 23 of the PHHC1A which refers to the definition of a special (additional) purpose for the collection of census data, i.e. for the purpose of establishing the building and housing register and the household register. Article 5 determines that buildings are given identification numbers for the purpose of establishing the building and housing register; Article 23 specifies the data which will be used for establishing the building and housing register and the household register. In the petitioner’s opinion, it is inadmissible to use the collected data for other purposes, especially for carrying out administrative tasks.
 
46.      Article 23 of the PHHC1A provides that census data which is collected for statistical purposes and which is precisely specified in the second paragraph of Article 23 may also be used for the purpose of establishing the aforementioned administrative databases. The establishment of the building and housing register and the household register does not fall within the competence of the Office. This is evident from the fourth paragraph of Article 23 of the PHHC1A. The housing register is regulated by the Housing Act (Official Gazette RS, No. 18/91 etc. – hereinafter referred to as the HA), whereas the household register is regulated by the Residence Registration Act (Official Gazette RS, No. 9/01 – hereinafter referred to as RRA).
 The aforementioned acts include provisions regarding the data which is collected in the registers, and provisions regarding the database controllers. This refers to the databases required by administrative bodies for carrying out their administrative tasks.
 
47.      Pursuant to the third paragraph of Article 19 of the RRA, the household register is kept in the framework of the permanent residence register. This register contains certain data which is anyway kept in the permanent residence register. The provisions of Article 18 of the RRA regulate the function of the database controller of the permanent residence register, the purpose and the method of data collection and processing, storage, designated use, and provision of data to other users. Under the conditions determined in the RRA and taking into account the provisions of the PDPA, the seventh paragraph of Article 18 of the RRA permits extensive access to personal data which is kept in the permanent residence register and other registers (e.g. the household register) to those using such data for the purpose of carrying out administrative and other tasks.
 
48.      Pursuant to Article 10 of the HA, the housing register is kept for the municipality area. The register is kept and maintained by the municipality (Article 97 of HA).
 
The state keeps a central housing register, maintains a complete information system in relation to housing and ensures its development (Article 75 of the HA). Furthermore, Article 10 of the HA determines which data is collected and in what manner, and regulates the access of users to such data.
 
49.      The question is whether it is allowed to provide other users with personal data that can be ascribed to individual, which was obtained for statistical purposes in order for them to carry out administrative and other tasks, and whether the provision of such data entails an interference with the right to information privacy.
 
50.      The aforementioned is clearly contrary to the principles and purpose of national statistics, as determined by the NSA. The purpose of national statistics is to provide various users (first paragraph of Article 1 of the NSA) with data in aggregate form on mass phenomena in different areas of life. The purpose of national statistics is not to provide data to state authorities, local community authorities or bearers of public authorities for the performance of their administrative or other tasks.
 
Therefore, in several places, particularly the second paragraph of Article 33, the NSA determines that the Office may not provide data from statistical registers to users in a form and manner which allows the individuals to whom the data refers to be identified (also provided by the fifth paragraph of Article 34). Furthermore, the NSA determines that data from statistical registers may only be used for statistical purposes. Thereby, trust in the objectivity, impartiality, and independence of national statistics is ensured (first paragraph of Article 2 of the NSA). In this way, it is possible for national statistics to have access to all sources of data in order to provide for aggregate (de-individualised) data, and individuals are guaranteed protection of their right to information privacy. It is evident from the legislative materials of the NSA adoption procedure that the legislature wanted to enact the principle of the separation of statistics from the performance of administrative tasks. In these legislative materials, explicit reference is made to the fact that national statistics collects data and uses such data exclusively for statistical purposes. However, for the purpose of performance of administrative tasks the state must collect data itself.[21]
 
51.      The regulation in the PHHC1A which allows for data collected by census for statistical purposes to also be used for other purposes is inconsistent with the Constitution (second paragraph of Article 38). The collection, processing, designated use, supervision, and protection of the confidentiality of personal data is regulated by law. The fundamental requirement, which follows from the principles of a state governed by the rule of law, is that the law must be clear and comprehensible to every citizen. The simultaneous collection of data, together or in parallel, for various purposes with different requirements, conditions and with different possibilities how the collected data may be integrated and used, may result in vagueness and doubts over the purposes for which the data will be used. The collection and use of data for statistical purposes is entirely different from the collection of data for the purpose of carrying out administrative tasks. Therefore it does matter whether data which is collected for statistical purposes and should only be used for statistical purposes is also used for the purpose of carrying out administrative tasks.
 
The purpose of data collection and use should be clearly and specifically determined when collecting data in order to carry out administrative tasks. Thus, it should be clear from the law as to what the specific purpose for using the data is, and who will be able to use it. The purpose may not be specified in general but so as to be clear for which administrative and other tasks the data will be used. Such requirement also follows from Article 48 of the NSA, which determines that statistical data may not be used to determine the rights and obligations of individuals to which such data refers (similarly to point 4.1 of the Recommendation). Furthermore, it is not sufficiently clear from the provisions of the PHHC1A as to what the connection is with the statute regulating this area, which should constitute the legal basis for establishing the aforementioned registers and should regulate all the issues that are defined in the second paragraph of Article 38 of the Constitution. Therefore, the provision that data collected by census may be used for no more than two years after the census (fourth paragraph of Article 23 of the PHHC1A) also indicates that the legislature wanted to enable the use of the collected data in order to establish the aforementioned registers if need be and if the competent ministries so decided. This method of collecting and using personal data collected for statistical purposes does not guarantee the protection of information privacy, as it does not meet the requirements determined in Paragraph 35 of the present reasoning. Furthermore, it is evident from the draft PHHC1A-A, which argued for the collection of specific data in order to establish the building and housing register, that such data is envisaged to be collected for possible subsequent usage. It reads as follows: “There is an ongoing discussion among the competent institutions regarding the concept of creating a building and housing register and the activities that are required before such register is established. These entail the physical identification of housing units or other partial units in multi-housing buildings, meaning that every apartment is affixed with a plate with a serial identifier which is connected to a superior code (a house number and the connection to the centroid). Such identification would enable everyone who collects any data regarding apartments, their maintenance or inhabitants, to "hang" such data or bind them to physically permanently maintained identifiers. The result is the model of the core of identifiers of buildings and housing registers which will enable the periodic receipt of data from the various operating databases related to the apartments. In order to do this, it is necessary for the Government to adopt a decree specifying the manner in which the identifiers of buildings and housing, and the connection between identifiers used for different databases, are to be determined."
 
52.      The provisions of Article 23 of the PHHC1A which also permit the use of data collected by census for other purposes and not only for the statistical purposes for which it is collected, and the provision of Article 5 of the PHHC1A, do not guarantee protection of the right to information privacy and are therefore inconsistent with Article 38 of the Constitution. Consequently, the Constitutional Court abrogated that part of these provisions.
 
C.
 
53.      The Constitutional Court adopted this Decision on the basis of Articles 21 and 43 of the CCA and the sixth indent of Article 52 of the Rules of Procedure of the Constitutional Court of the Republic of Slovenia (Official Gazette RS, No. 49/98), composed of Dr Dragica Wedam-Lukić, President, and Judges Dr Janez Čebulj, Dr Zvonko Fišer, Lojze Janko, Dr Ciril Ribičič, Dr Mirjam Škrk, Franc Testen, and Dr Lojze Ude. Point 1 of the dispositive provisions was adopted by five votes to three. Judges Fišer, Ribičič, and Ude voted against and submitted dissenting opinions, and Judge Wedam-Lukić submitted a concurring opinion. Point 2 of the operative provisions was adopted by seven votes to one. Judge Ude voted against and submitted a dissenting opinion. Point 3 of the operative provisions was adopted by six votes to two. Judges Čebulj and Testen voted against. Judge Čebulj submitted a dissenting opinion.
 
 
Dr Dragica Wedam-Lukić
President
 
 
 
Notes:
[1] This refers to Article 6 of the Act on the Population, Household, and Housing Census in the Republic of Slovenia 2001 (Official Gazette RS, No. 66/2000). By the challenged provision of the PHHC1A-A, the collection of data regarding religion was also introduced in Article 6 of the Act on the Population, Household, and Housing Census in the Republic of Slovenia of 2001 (Official Gazette RS, No. 66/2000 and 26/01 – hereinafter referred to as the PHHC1A, indent 14). For reference purposes, the numbering of the articles determined in the PHHC1A is used below.
[2] J. Šinkovec: Pravice in svoboščine [Rights and Freedoms], Official Gazette RS, Ljubljana 1997, p. 226.
The neutrality of the state towards religious communities means, in terms of the constitutional interpretation of the US Supreme Court, that the state is prohibited from giving preference to any religion over another, or in general giving preference to any religion over any other belief. J. M. Shaman, Constitutional Interpretation, Illusion and Reality, London 2001, p. 155. 
[3] M. Orehar, Svoboda religije proti ločitvi države in religije [Freedom of Religion Versus Separation of State and Religion], Zbornik Cerkev in država, edited by L. Šturm, Nova revija 2000, p. 27.
[4] It cannot be overlooked that the US Supreme Court, which otherwise in principle does not consider the legislature's intention when reviewing the constitutionality of statutes, considers such intention when reviewing the constitutionality of the principles of the separation of the state and religious communities. J. M. Shaman, op. cit., p. 155.
[5] Človekove pravice [Human Rights], Zbirka mednarodnih dokumentov, Part I, Univerzalni dokumenti, Društvo za ZN za Republiko Slovenijo, Ljubljana, 1995, pp. 1–7.
[6] Article 9 of the ECHR (Freedom of Thought, Conscience and Religion) reads as follows: (1) Everyone has the right to freedom of thought, conscience and religion. This right includes the freedom to change one’s religion or belief, and the freedom, either alone or in community with others and in public or in private, to manifest one’s religion or belief through worship, teaching, practice and observance.
(2) Freedom to manifest one's religion or beliefs shall be subject only to such limitations that are prescribed by law and necessary in a democratic society for the interests of public safety, to protect public order, health and morals, or to protect the rights and freedoms of others.”
[7] R. St. J. Macdonald et al., The European System for the Protection of Human Rights, 1993, p. 452.
[8] See the first paragraph of Article 9 of the ECHR and Article 18 of the Universal Declaration of Human Rights.
[9] Müller – Volbeler J., Positive und negative Religionsfreiheit, JZ 20/1995, p. 998.
[10] Ibidem.
[11] The third paragraph of Article 18 of the Covenant provides that the freedom to manifest one's religion or beliefs may be subject only to such limitations that are prescribed by law and necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others. The second paragraph of Article 9 of the ECHR also contains similar admissibility of limitations. See Note 6 above.
[12] MacDonald et al., 1993, p. 453.
[13] See Decision of the Constitutional Court No. U-I-68/98.
[14] The Constitutional Court has separately evaluated the admissibility of the use of the data collected for this purpose (see chapter B. – V. of the present reasoning).
[15] The second paragraph of Article 1 of the NSA determines that, through national statistics, the bodies and public administration organisations, the private sector, and the public are provided with data on conditions and trends in the areas of the economy, demographics, society, the environment, and natural resources.
[16] A similar conclusion was also reached by the Constitutional Court of Germany regarding census, BVerfGE 65, 1; see the reasoning of the decision, Para. II, 2b.
[17] The Constitutional Court of Germany also decided similarly. It found that the duty to provide accurate data on "legal affiliation or non-affiliation with a religious community" does not interfere with the right to expression as it concerns the provision of facts, which has nothing to do with forming an opinion (see Para. B. I. of the reasoning of the decision of the Constitutional Court of Germany).
[18] Priporočila za popise prebivalstva in stanovanj okoli leta 2000 v državah članicah Ekonomske komisije Združenih narodov za Evropo, Statistični urad Republike Slovenije, 1999 [The Recommendations for the Censuses of Population and Housing conducted in around the year 2000 in the Member States of the United Nations Economic Commission for Europe, Statistical Office of the Republic of Slovenia, 1999] (Metodološko gradivo [Methodology Papers], No. 7). The recommendation classifies the census into core and non-core topics. The core topics should be collected by all states, whereas the collection of non-core topics (which include data on national origin, language and religion) is left to the decision of each individual state (p. 12). Regarding the question of religion, the report states that those states which collect such data usually inquire about formal membership of a church or religious community, participation in the life of the church or religious community, and religious beliefs. The recommendation states that if only one question is posed, the question should be about formal membership of a church or a religious community, but that the answer "none” should also be permitted (p. 26). 
[19] See Chapter B. – VI. of the reasoning of the present decision. 
[20] The second paragraph of Article 32 of the NSA reads as follows: “The conditions for the collection, use and integration of personal data from various collections thereof are determined by the statute which regulates personal data protection or information privacy protection."
[21] Gazette of the National Assembly of the Republic of Slovenia, No. 32/93, pp. 69 and 70.
 
 
Dissenting Opinion of Judge Dr Čebulj Joined by Judge Testen
 
 
In the present case, I voted against Point 3 of the operative provisions (and consequently against Point 4), by which the Constitutional Court abrogated Articles 5 and 23 of the Population, Household and Housing Census in the Republic of Slovenia 2001 Act (hereinafter referred to as the Act).
 
Article 5 determined that buildings are given an identification number for the purpose of establishing the building and housing register, and Article 23 determined the data to be used for the purpose of establishing the building and housing register and the household register. In this way, the Act allowed for the data collected for the census to be used for an additional purpose. This purpose was not only to obtain the census results, but also to establish both of the aforementioned registers. The majority of the Constitutional Court judges took the view that this was inconsistent with Article 38 of the Constitution (Paras. 45 to 52 of the Decision’s reasoning). I do not agree with this conclusion and its reasoning.
 
The Constitutional Court simply notes that the establishment of both registers does not fall within the competence of the Statistical Office. It also notes that the Housing Act and the Residence Registration Act serve, respectively, as the statutory basis for establishing the registers. The aforementioned acts provide which data is kept in registers, the designated use of data, and provisions regarding the database controllers (Paras. 46 and 47 of the reasoning). It is, of course, a fact that such data is used for administrative purposes. However, the challenged Article 23 did not determine that such data be used for administrative purposes.
 
In the present review, the question was raised before the Constitutional Court as to whether it is allowed to provide other users with personal data that can be ascribed to individuals, which was obtained for statistical purposes in order to carry out administrative tasks, and whether the provision of such data represents an interference with the right to privacy (Para. 49 of the reasoning).
 
The Constitutional Court stated that the regulation in the Act which enables data collected by census for statistical purposes to also be used for other purposes is inconsistent with the second paragraph of Article 38 of the Constitution. However, in the continuation of the same part of the reasoning, at the beginning of which the aforementioned statement was written (Para. 51 of the reasoning), the Constitutional Court wrote: "The collection and use of data for statistical purposes is entirely different from the collection of data for the purpose of carrying out administrative tasks. Therefore it does matter whether data which is collected for statistical purposes and should only be used for statistical purposes is also used for the purpose of carrying out administrative tasks. In such case the purpose of the collection and use of data should be clearly and specifically determined. It should therefore be clear from the law as to what the specific purpose for using the data is, and who will be able to use such. The purpose may not be specified in general but so as to be clear for which administrative and other tasks the data will be used for.”
 
It follows from the above-cited quote that the Constitutional Court does not state that the use of data collected for statistical purposes for other purposes is inconsistent with the second paragraph of Article 38 of the Constitution. It is therefore not a matter of inconsistency with the part of the first paragraph of Article 38 which prohibits the use of personal data for a purpose that is different to that for which it was collected. This is not corroborated by the statement (Para. 50 of the reasoning) that this is contrary to the principles and purpose of statistics. In my opinion, the purposes are incompatible if the (subsequent) purpose of use is such to (be able to) change the contents or the meaning of data. However, this is not the case here.
 
It is alleged that an inconsistency exists only in the fact that it is not evident from the statute for which specific purposes the data will be used, and who will be allowed to use data.
 
Article 23 of the Act determined in detail the purpose for which the collected data may be used. It would be used for the purpose of establishing both registers. It also determined who could use them: the bodies in charge of establishing the registers. Lastly, it determined how long these bodies would be allowed to use such data: up to two years after the completed census. With regard to the second paragraph of Article 38 of the Constitution, this suffices. This provision does not require that all the elements be determined and regulated in one single statute (in this case, the elements include: the purpose of using the data once it is contained in the registers; the users of the data that will be contained in the registers; and ensuring data protection). Furthermore, the Constitutional Court did not require such (see Para. 35 to 44 of the reasoning). Whether these issues, which are regulated in the Housing Act or in the Residence Registration Act, are regulated in accordance with the requirements of Article 38 of the Constitution could be the subject of a separate constitutional review which does not influence the constitutionality of Article 23 of the Act.
 
Dr Janez Čebulj
 
Franc Testen
 
 
Concurring Opinion of Judge Dr Wedam-Lukić
 
 
I voted for all the points of the operative provisions of the Decision and I also entirely agree with its supporting reasons. In this concurring opinion, I merely wish to explain some further reasons which influenced my decision.
 
Whilst I had no doubts regarding Points 2 and 3 of the operative provisions, I initially, however, had some difficulties in deciding whether the fact that religion is inquired about during the census (fourteenth paragraph of Article 6 of the Population, Households and Housing Census in the Republic of Slovenia 2001 Act) is consistent with the Constitution (Point 1 of the operative provisions).
 
During the discussion, I stressed on several occasions that the key question was which data may be collected by census: either data which the state needs in order to carry out its tasks, especially for planning future development, or data which also forms the basis for other research and studies. The question arose as to whether, with regard to Article 7 of the Constitution, data on religion could be of any importance for carrying out state tasks (in this sense, data on religious affiliation would perhaps be even more problematic). The aforementioned thesis was not supported during the discussion. The joint position was adopted that the collection of data on religion by census is not inconsistent with Article 7 of the Constitution, and that it does not represent data in which the state should have no interest and about which it should not inquire, under the condition that everyone is guaranteed the right not to answer such question. In reviewing whether this is a violation of the second paragraph of Article 41 of the Constitution (freedom of conscience) or Article 38 of the Constitution (protection of personal data), the only difference between the present majority decision and the decision defended by the minority was the fact that, in the opinion of the minority, such interference did not pass the test of proportionality in the narrower sense, since the same aim could be achieved through less stringent means: through surveys in which anonymity would be ensured during the data collection phase, or through sample research in which more appropriate answers could be obtained by posing additional questions. I did not find such reasoning convincing. The difference between a census and a survey lies in the fact that an individual must take part in a census (even if they are not required to answer specific questions), whereas participation in a survey is not obligatory. This is also the reason why the Constitutional Court deemed that inquiring about religion by way of a census is an interference with the right of an individual to information privacy, even if answering this question is not obligatory. As stated in the reasoning of the majority decision, an important difference is also the fact that the census includes the entire population and so it is possible to detect phenomena which would be difficult or even impossible to detect through sample based research. Therefore, a census can only be likened to research conducted on the entire population and, in such case, I do not see convincing reasons to support the position that this research would entail a lesser interference with the right of the individual to information privacy. As the Constitutional Court declared in Point 2 of the operative provisions, which was upheld by all the judges but one, the Act ensures appropriate protection of data collected by census. Naturally, if the Constitutional Court had decided differently in this Point of the operative provisions, the question would have arisen as to whether the collection of other data, which the respondent is obliged to provide, also entails a disproportionate interference with the right of the individual to information privacy.
 
In deciding as to whether the collection of any personal data by census is admissible, I believe it is crucial that the collected data be used solely for statistical purposes and that the use of specific data regarding a specific person be rendered impossible. Therefore, I also consider the decision in Point 3 of the operative provisions to be essential, by which the Constitutional Court abrogated the provisions which allowed for some data collected by census to be used for establishing the building and housing registers. In my opinion, a census, as the most comprehensive method of data collection, passes constitutional review only under the condition that it remains within the limits determined by the fundamental purpose for which it is conducted. More specifically, any "mixing" of censuses and the collection of data for other purposes could endanger the standards which must apply to the collection of data by census in order for such to remain consistent with the Constitution.
 
Lastly, I would like to stress that I am aware of the fact that the question about religion (and national origin, which the Constitutional Court did not review) had already been politicised before the census was carried out, and that this fact may have influenced the reliability of the data collected. Nevertheless, I believe that experts should resolve this issue and take this into account in the interpretation of the collected data; however, this cannot be of relevance to the decision of the Constitutional Court.
 
 
 Dr Dragica Wedam-Lukić
 
 
 
Dissenting Opinion of Judge Dr Ude,
Joined by Judge Dr Ribičič, Except for Paragraph 5 of this Dissenting Opinion
 
 
I voted against Points 1 and 2 of the operative provisions of the Decision; at the same time, I argued in favour of the Constitutional Court reviewing the constitutionality of the question about national origin determined in the thirteenth indent of Article 6 of the PHHC1A. I provide below the reasons for my position:
 
1.         The Constitutional Court should also review the constitutionality of the question about national origin determined in the thirteenth indent of Article 6 of the PHHC1A. After accepting the petition for consideration, the Constitutional Court held a public hearing, where it discussed in an adversarial manner the question about national origin. It is true that the petitioner, M. Krivic, explicitly stated that he did not challenge the aforementioned provision (as regards this question, his petition was unclear); however I believe this not to be a sufficient reason to take this position, which was explained in Paragraph 9 of the reasoning and according to which the Constitutional Court will not review the constitutionality of the question about national origin. Furthermore, the conditions for reviewing the question about national origin sua sponte on the basis of correlation, as determined in Article 30 of the Constitutional Court Act, are met. This Article provides that, according to the rule of correlation, the Constitutional Court may also review the constitutionality of other provisions of the same regulation sua sponte if the challenged provisions, and such other provisions the Constitutional Court itself decides to review by applying the rule of correlation, are mutually related and should this be required to resolve the case. In my opinion, the questions on religious belief and national origin are mutually related, not only because they are included in the same census but also because they are substantively related, as they refer to the personal beliefs of an individual. Often these questions even overlap. Different religions, such as Catholicism, Eastern Orthodoxy, Protestantism, and Islam, were characteristic of the former Yugoslav nations and nationalities. Although one of the petitioners (M. Krivic) believes that the constitutional regulations which refer to the right to profess religious beliefs and the right to declare national origin differ in terms of substance, I am of a different opinion. Regarding the right to freedom of conscience (Article 41 of the Constitution), it is true that the second paragraph of Article 41 of the Constitution explicitly provides that no one shall be obliged to declare his religious or other beliefs. Article 61 does not include any such explicit provision; however, it clearly follows from this constitutional provision, which reads that everyone has the right to freely express affiliation with his nation or nationality, that individuals are also not obliged to express such affiliation. It is clear that the right to "free expression of one's affiliation with his nation or national community" also includes the right not to express such affiliation in a census. This is also how this right is treated in point 29 of the census questionnaire. Moreover, there is also no consensus in the public  regarding the question whether asking individuals about their national origin in a census is constitutionally admissible. To avoid this question when reviewing the constitutional admissibility of a census, which is generally conducted every ten years, leads to this discussion becoming merely academic.
 
2.         In my opinion (as also established by the majority decision), every instance of the collection and processing of personal data is an interference with the constitutional right to the protection of privacy and personality rights referred to in Article 35 of the Constitution, whereas questions about religious belief and national origin also represent an interference with the constitutional right to freedom of conscience referred to in Article 41 of the Constitution and the constitutional right to expression of national affiliation referred to in Article 61 of the Constitution. However, the majority took the view that an individual must accept limitations to privacy of information and must allow interferences therewith if this is in the overriding general interest or if constitutionally determined conditions have been met. The majority decision established that interference is admissible since the (statistical) purpose of the collection, providing “aggregate” data on mass phenomena, is not disputed, and that the interference is required and necessary because this data could not otherwise be obtained (Paragraph 33 of the reasoning). In the opinion of the majority, the interference is also not disproportionate as an individual may decline to answer the question about religious belief (here I note that the constitutional decision refers only to the question about religious belief and not also to the question about national origin, which was because the majority avoided a review of the constitutionality of this question).
 
Owing to the fact that the questions, both of which are problematic in my opinion, concern data on an individual's personal beliefs, which could not be collected in an appropriate statistical manner, I do not find the majority’s reasoning to be convincing. If an individual chooses not to answer the question about religious beliefs and the question about national origin, the statistical data will not be able to precisely represent these two phenomena. The statistical purpose of including both questions in the census questionnaire is therefore not achieved, and consequently such question is neither necessary nor required. The assertion that data could not otherwise be obtained (through sampling) is not true.
 
The statement (Paragraph 33 of the reasoning) that data on phenomena that are not widespread among the population cannot be obtained through research conducted on a selected sample is, in this case, also entirely without basis. Data on the religious beliefs and national origin of the inhabitants of the Republic of Slovenia is certainly not the kind of data which would refer to small groups. Data on religious beliefs could therefore be collected in a different manner and anonymously, within the meaning of point 2.2 of Recommendation No. R (83) 10 of the Committee of Ministers of the Council of Europe on the Protection of Personal Data Used for the Purposes of Research and Statistics. Lastly, it is worth noting that only a few other countries have included a question on religious belief in their statistical censuses.
 
3.         In the process of preparing the questionnaire and the subsequent discussion of its contents, it became clear that both items of data were not being collected primarily for statistical purposes. The data were to be used by certain political groups and institutions to meet various objectives and to prove that their specific requests were reasonable (e.g. regarding religious education in schools, affording special rights to the members of individual nations and nationalities); furthermore, the collection of such data could also serve as a basis for exerting pressure on individual groups to declare their affiliation to a certain nation, etc. Previous debates held among the Slovene public on the constitutionality of these two questions have proven these intentions. It is clear that a statistical census is not intended for a public declaration of religion and national origin; however, regarding these two questions, this is the fate of this census in terms of its content and scope. If both questions were excluded, this would by no means entail an interference with the right to freely express one's religion in public life or to freely express affiliation with one's nation or national community. This constitutional dispute concerns the negative, and not the positive, aspects of both rights.
 
In my view, it is particularly important to draw attention to the fact that these two questions might be very sensitive for married persons who have different national affiliations (and thereby, usually, also different religious affiliations). In particular, pressure could be felt by their children.  It is true that Article 10 of the PHHC1A contains the provision that data on religious beliefs and national origin may be provided on behalf of members of a household who are absent during the census and are 14 years old on the day the census is conducted, only if their written consent is submitted that such data be provided for the purposes of this census, along with a written statement on their nationality and religion. It is sociologically and psychologically naive to expect parents, in each case, to respect the right of a minor in their charge to free expression of his religious belief and national origin. We can only imagine the traumas that this would cause in some families. Therefore, it is difficult to discuss the proportionality of the interference, particularly since it is clear that the statistical purpose of both questions will not be achieved.
 
4.         I would also like to draw attention to some other issues. The counting of the members of the Slovenian minority in Carinthia in Austria has always resulted in assimilation and a partial denationalisation of the Slovenian minority. After the Austrian Constitutional Court had issued a decision on the setting up of local road signs, the Governor of Carinthia, J. Haider, immediately ordered that the number of members of the Slovenian minority be counted. It is clear that this cannot be said to be the case for the situation in Slovenia. In Slovenia, the census may even serve the interests of nations and nationalities which are not in the majority. Nevertheless, it is clear that the results of such a census serve political rather than statistical interests.
 
5.         The Constitutional Court decided on the constitutionality of Articles 10, 11, 12, 13, 15, 24, 25, 28, and 29 without having first conducted an exhaustive analysis and examination, thus deciding completely superficially by invoking the formal consistency of these provisions with the Constitution and other statutes, particularly the Personal Data Protection Act (hereinafter referred to as the PDPA). I therefore cannot agree with a dismissal of the constitutional petition regarding these Articles, even though I have been unable to conduct an exhaustive analysis myself. The majority decision established that the legislature had respected the requirements of Article 38 of the Constitution, which: prohibits personal data from being used for a purpose contrary to that for which it is collected; states that the collection, processing, designated use, supervision, and protection of the confidentiality of personal data shall be provided by law; and provides that everyone has the right to access collected personal data that relates to them and the right to judicial protection in the event of any abuse of such data, not only regarding the provisions on the collection and integration of data from various collections (Articles 11, 12, 13, and 28 of the PHHC1A) but also regarding the determination of the period of storage (Article 10 of the PHHC1A) and regarding the provisions on the processing, storage, and provision of data (Articles 24 to 27 of the PHHC1A). The provisions which refer to the processing, storage, and provision of data (Articles 24 to 27 of the PHHC1A) only paraphrase constitutional requirements. They refer to the PDPA, specifically Article 9, which again only generally determines that personal data may only be processed for purposes determined by law. Furthermore, Article 13 of the PDPA does not include specific measures for the protection of personal data, but only refers to them as examples, and authorises all persons providing such protection to determine those measures in accordance with the PDPA. The entire statutory regulation is therefore general in nature, and does not include clearly determined obligations for the database controllers, leaving the regulation of this area to implementing regulations.
 
At the very least, the regulation in Articles 24 to 27 could be criticised for not fulfilling the constitutional obligation referred to in Article 38 that the collection, processing, designated use, supervision, and protection of the confidentiality of personal data shall be provided by law. Moreover, if we also consider that the automatic processing of all data is increasingly gaining ground, and that proceedings regarding the petition for the review of the constitutionality of the Central Population Register Act (which contains challenged provisions on the personal identification number of citizens (EMŠO) and that this identification number is also indicated on the census questionnaire) has been pending before the Constitutional Court for three years, it is then possible to draw the conclusion that the issues arising from the collection, processing, supervision, and protection of the confidentiality of personal data have certainly not been studied to a sufficient extent for the Constitutional Court to take a clear and precise position on all the aforementioned issues. However, it is true that the petition was also not sufficiently reasoned in this regard.
 
Dr Lojze Ude
 
I join the Dissenting Opinion of Judge Dr Lojze Ude, except for the Paragraph 5 herein.
 
Dr Ciril Ribičič
 
 
 
Dissenting Opinion of Judge Dr Fišer
 
I voted against Point 1 of the operative provisions in the present case, and hereby submit a Dissenting Opinion with regard to this part of the decision of the Constitutional Court.
 
1.         First, I must explain that I argued in favour of the Constitutional Court reaching a decision, either way, on the constitutionality of the thirteenth (in addition to the fourteenth) indent of Article 6 of the PHHC1A regarding the question about national (ethnic) origin, notwithstanding the fact that it could be unclear whether the petition for the review of the constitutionality of the challenged statute was expressly lodged in this sense and, if so, whether it might have been subsequently withdrawn. 
 
Two fundamental arguments point in this direction: first, a public hearing on the census question about national origin, as well as several other questions, was held before the Constitutional Court. Although proceedings before the Constitutional Court indeed have many particularities, certain fundamental procedural rules cannot be ignored. The question of what precisely is being challenged in this case should be clearly determined and resolved promptly and in its entirety by the order, by which the petition is accepted in accordance with the third paragraph of Article 26 of the CCA.  As soon as the proceedings are at the stage where adversarial discussion of the matter at issue may commence, it is necessary to decide on the issue that is being challenged in the proceedings. At this point, the petitioner may no longer, in principle, withdraw or amend his petition; I say “in principle”, because there are, of course, cases where such a position cannot be defended (e.g. in cases where the factual situation has fundamentally changed, and particularly in cases where the challenged regulation is brought into line with a statute or the Constitution).
 
Notwithstanding the aforementioned, the conditions for reviewing the question on national (ethnic) origin sua sponte were nevertheless fulfilled on the basis of the correlation referred to in Article 30 of the CCA, since the provisions are mutually related.  In both cases, with regard to religion (in conjunction with Articles 7 and 41 of the Constitution) and national origin (naturally, in conjunction with Article 61 of the Constitution), it is a matter of dealing with particularly sensitive data.   This clearly indicates the need for both of the problematic categories to be treated equally and decided upon in the same way (not necessarily equal in terms of content, although I am of a different opinion, as explained below).
 
2.         In terms of content, I believe that the question posed during the census about religion (and the question about national origin, with some differences which are, in my opinion, irrelevant for the final decision) represents an inadmissible interference with the Constitution, primarily Article 35 therein and namely the provision which protects a person's privacy. 
 
The rights contained in Articles 7, 41, and 61 of the Constitution have no direct or indirect connection with the census. In other words, there can be nothing added to rights and they cannot be deprived of anything by the census; the existence and exercise of these rights are in no way connected to the census or the results thereof. Moreover, it is necessary to strictly separate the aforementioned rights, individual or group rights, their positive or negative aspects, on the one hand, from the census and its results on the other. A different standpoint would entail the abuse of the census as an institution, which would be by its nature constitutionally inadmissible.
 
A census is clearly a compulsory activity that is carried out by the state for some of its needs (which are not defined clearly enough, however this may be a surmountable issue in so far as it does not concern questions about personal beliefs) and which requires a high degree of cooperation of the respondents. The respondent does not gain anything therewith, neither legally nor factually. On the contrary, some violations of the duty to cooperate are even sanctioned as minor offences. In this context I will not discuss the question whether such sanctioning is truly necessary; however, I did not overlook the fact that the respondents are not prosecuted for a minor offence in relation to both discussed questions. Nevertheless, the circumstances under which the census is carried out are undoubtedly such that respondents are placed almost entirely in the position of a subject of some proceedings, which is clearly not in their interests. It is clear that this represents interference with the person’s right to privacy.
It is a question of whether, viewed from this perspective, the census would even pass a review of its constitutionality; it could if it were based on different premises; however, the legislature did not make any efforts whatsoever in this regard, and such premises are not even provided by the general legislation governing the national statistics. On the contrary, in the census act, the legislature made some serious errors which led to the abrogation of a part of the PHHC1A, which is referred to in Point 3 of the operative part of Decision of the Constitutional Court; however, many doubts were raised despite the fact that the remaining challenged provisions had passed the constitutional review (see Point 2 of the operative part of  Decision). The fact is that the remaining census questions referred to in Article 6 of the PHHC1A were not challenged, and the conditions under which they could have been reviewed on the basis of correlation were not fulfilled.
 
3. When compared to the other questions referred to in Article 6 of the PHHC1A, the questions about religion and national (ethnic) origin are not questions about facts (the opening sentence of this provision uses the term “data”), but questions about the personal (subjective and intimate) beliefs of individuals. Such beliefs may represent a very difficult and delicate issue for some, for others they may be entirely straightforward, and it can be traumatic in some communities. The views held and decisions made by an individual may be completely different from the prevailing positions or expectations of their surroundings, not to mention possible interests which are not in any way connected with the beliefs of the individual. The risk of manipulation is evident; however, I agree with the position that this cannot serve as an argument against conducting a census.
 
In any event, this entails a clear and serious interference with the privacy of the respondents, regardless of what they declare to be their belief, and even if they choose not to answer. The difference between both groups of questions (facts, on the one hand, and personal beliefs on the other) is substantial and very important – even crucial – for the review. First and foremost, the state should not inquire into the personal beliefs of its citizens during a census.
 
The state should be particularly reserved in this regard, and any interference with privacy should pass the strict test of proportionality without a shadow of a doubt (notwithstanding my general principled reservations towards such a test, which often proves to be an unreliable and unimportant aid, as in the case in question).
 
The Constitutional Court carried out a review on possible violations of Articles 7 and 41 of the Constitution, but only regarding the constitutionality of the question about religion. After it had established that the question entailed an interference with the right determined in the second paragraph of Article 41 of the Constitution (and I agree that it does), it attempted to carry out a test of proportionality, but modified it to a certain extent. The Constitutional Court did not review the necessity to interfere with the constitutional right, which is the first part of the test, but was satisfied with the finding that the census data had been properly collected (which is undoubtedly true). However, the difference between the necessity and appropriateness of the interference is sufficiently clear to not require separate demonstration. It makes no difference if the review of the remaining two parts yielded positive results, as such results cannot compensate for the deficiency in the first part. As a result, my conclusion differs from the majority decision: the test of proportionality was not passed in this review; therefore, to pose a question about religion is inconsistent with the Constitution.
4.         I would be willing to consider whether the test would be passed if the census were to be designed and carried out in a manner that better protects the privacy of the respondents from the very outset. This could be achieved if the same level of anonymity is applied to the census as for other methods of data collection for statistical research. In this manner the obligatory nature of the census could, in my opinion, be substantially reduced. However, the opposing party should first endeavour to present any stronger existing arguments (at present, they are not evident) in support of posing these two disputable census questions on the subjective beliefs of the respondents.
 
5.         Owing to the fact that the question represents, in my opinion, an inadmissible interference with the first paragraph of Article 41 of the Constitution, even if posed in a narrower sense, it becomes even clearer that it is contrary to Article 35 of the Constitution to have two questions which fall into the category of particularly sensitive data, further increasing the disputability of the interference which resulted therefrom.
 
 
Dr Zvonko Fišer
 
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute
Applicant:
Edvard Krajnc, Vojnik and Matevž Krivic, LLM., Medvode
Date of application:
19. 4. 2001
Date of Decision:
28. 2. 2002
Type of decision adopted:
decision
Outcome of proceedings:
annulment or annulment ab initio
Published:
Official Gazette RS, No. 22/2002 and OdlUS XI, 25
Document:
AN02768

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