Constitutional court case law

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Case number:
U-II-2/15
ECLI:
ECLI:SI:USRS:2015:U.II.2.15
Challenged act:
Order of the National Assembly Rejecting a Request to Call a Legislative Referendum on the Act Amending the Defence Act (EPA 822-VII), dated 4 November 2015 (Official Gazette RS, No. 83/15)
Operative provisions:
The Order of the National Assembly Rejecting a Request to Call a Legislative Referendum on the Act Amending the Defence Act (EPA 822-VII), dated 4 November 2015 (Official Gazette RS, No. 83/15), is not inconsistent with the Constitution
Abstract:
The statutory regulation that entails the basis for the implementation of urgent measures for ensuring security that could not be carried out without a law corresponds to the notion of a law on urgent measures referred to in the first indent of the second paragraph of Article 90 of the Constitution. In the case at issue, the urgency of the Act dictates the urgency of the measures that entail the possibility to implement the Act in a shorter time frame.
 
The authority competent to assess the urgency of measures to ensure security due to which a law has to be adopted is the National Assembly. The Constitutional Court may only assess whether the National Assembly demonstrated reasonable grounds for the assessment that it adopted.
Thesaurus:
1.5.51.1.13.1 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In abstract review proceedings - Finding that a regulation is in conformity - With the Constitution.
4.9.2 - Institutions - Elections and instruments of direct democracy - Referenda and other instruments of direct democracy.
Legal basis:
Art. 90, Constitution [CRS]
The second paragraph of Section II of the Constitutional Act amending Articles 90, 97, and 99 of the Constitution of the Republic of Slovenia
Art. 21.1, Referendum and Popular Initiative Act [RPIA]
Cases joined:
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Full text:
U-II-2/15
3 December 2015                                                                          
 
DECISION
 
At a session held on 3 December 2015 in proceedings to decide on a dispute on the admissibility of a referendum initiated upon the request of Martina Dervarič, Puconci, the Constitutional Court
 
decided as follows:
 
The Order of the National Assembly Rejecting a Request to Call a Legislative Referendum on the Act Amending the Defence Act (EPA 822-VII), dated 4 November 2015 (Official Gazette RS, No. 83/15), is not inconsistent with the Constitution.
 
REASONING
 
 
A
 
1. On 21 October 2015, the National Assembly adopted the Act Amending the Defence Act (EPA 822-VII, hereinafter referred to as the DA-E). On 28 October 2015, Marina Dervarič filed a petition to call a subsequent referendum on the entry into force of the DA-E. The President of the National Assembly determined 2 November 2015 as the first day of the time period for collecting voters’ signatures in favour of the request to call the referendum and 6 December 2015 as the last (the thirty-fifth) day of this time period. On 4 November 2015, the National Assembly adopted the Order Rejecting the Scheduling of a Legislative Referendum on the Act Amending the Defence Act (hereinafter referred to as the Order), by which it established that the petition to call the legislative referendum on the DA-E referred to a law with regard to which, in accordance with the first indent of the second paragraph of Article 90 of the Constitution, a referendum is not admissible. It concurrently decided that, on the basis of mutatis mutandis application of the fourth paragraph of Article 21 of the Referendum and Popular Initiative Act (Official Gazette RS, No. 26/07 – official consolidated text – hereinafter referred to as the RPIA), as of the day of the adoption of the mentioned Order, the collecting of voters’ signatures in favour of the request to call the referendum would be discontinued. The Order was served on Martina Dervarič, together with a notification of the National Assembly in which it was explained to her that within seven days of the service of the Order, on the basis of mutatis mutandis application of the first paragraph of Article 21 in conjunction with Article 22 of the RPIA, the petitioner of the referendum could initiate proceedings before the Constitutional Court. On 11 November 2015, the petitioner of the request to call the referendum (hereinafter referred to as the petitioner of the referendum) initiated proceedings before the Constitutional Court regarding the admissibility of the referendum on the entry into force of the DA-E.[1]
 
2. The petitioner of the referendum alleges that the DA-E granted the members of the Slovene Armed Forces new, exceptional powers when ensuring the broader protection of the state border that are repressive against civilians. She opines that due to the possible misuse of the armed forces to interfere with the human rights and fundamental freedoms of individuals, the role of armed defence forces is so important and delicate that the statutory regulation thereof in a democratic state governed by the rule of law must be defined in a particularly strict and constitutionally envisaged manner. She alleges that the fourth paragraph of Article 37 of the Defence Act (Official Gazette RS, No. 103/04 – official consolidated text – hereinafter referred to as the DA) is in itself inconsistent with the constitutionally determined function of armed forces, as it determines the possibility that the armed forces may cooperate with the Police when ensuring the broader protection of the state border on the [entire] territory of Slovenia, with regard to which the members of the Slovene Armed Forces do not have police powers. She draws attention to the fact that, in accordance with Article 124 of the Constitution, the constitutional function of the Slovene Armed Forces is to defend the inviolability and integrity of the national territory, which undoubtedly entails the defence of the national territory from an external attacker. In the opinion of the petitioner of the referendum, Article 124 of the Constitution does not encompass the protection of the state border from the unlawful passage of civilians (either individuals or crowds) who are refugees or other migrants. This falls within the competences of the Police, not the armed forces.
 
3. The petitioner of the referendum believes that from the reports of the National Security Council and the competent services it does not follow that the number of criminal offences committed on the territory of the Republic of Slovenia has increased as a result of the fact that refugees are crossing the state border, except for the unlawful crossing of the “green border”, which is what refugees are allegedly forced to do. This allegedly confirms the [thesis] that the situation that the state is facing on its southern border is not a security crisis, but first and foremost a humanitarian crisis, which requires an appropriate organisational and logistical response. The petitioner of the referendum alleges that the competent state authorities of the Republic of Slovenia and of EU Member States have reached an agreement on settling the situation and on handling refugees, on the basis of which they started to cooperate with and inform each other. Also the members of the Government and its representatives allegedly stress that the situation is under control. The petitioner of the referendum alleges that [the adoption of] the DA-E as a measure addressing a humanitarian crisis entails a disproportionate response to the state of the facts and is inconsistent with Article 124 of the Constitution. She proposes that the Constitutional Court abrogate the challenged Order of the National Assembly.
 
4. In its reply, the National Assembly alleges that since 17 October 2015 the work of the Police has been dictated by the changed security situation, namely the mass influx of refugees and migrants into [the territory of] the Republic of Slovenia. The exceptional character of the situation resulting from the sheer quantity and diversity of the persons entering the Republic of Slovenia requires that the security of both displaced persons and the inhabitants of the Republic of Slovenia be ensured. For this reason, it is imperative that the Police ensure that migrants enter the state in a manner as directed and controlled as possible, which also applies to their further movement, which is to be coordinated with the security authorities of the neighbouring states. All security procedures necessary therefor require [sufficient] personnel and material capacities. The National Assembly has adduced data with regard to specific days as to the number of refugees, i.e. migrants, and the number of police officers on site controlling their movement. The National Assembly explains that the Government filed the DA-E Draft Act as an urgent measure, which was intended to enable, provided that the further conditions were fulfilled, security to be ensured immediately and effectively on the entire territory of the Republic of Slovenia. In its Opinion (dated 18 November 2015), the Government reaffirmed its position that the Order is justified.
 
5. As regards ensuring security on the territory of the Republic of Slovenia, the National Assembly refers to the Resolution on the Strategy of the National Security of the Republic of Slovenia (Official Gazette RS, No. 27/10 – hereinafter referred to as the Resolution), which represents the substantive basis for the normative actions of the National Assembly. It alleges that, among the national security goals, the Resolution determines a high level of security “based on appropriate preventive measures, organisation, competence, and the readiness of all capacities necessary for the effective and timely detection of and response to modern sources of threats and security risks.” It follows from the above that the measures adopted to ensure security may also include measures that do not address a state of national security that is already threatened, but also a state that could lead thereto. Therefore, the National Assembly opposes the allegations of the petitioner of the referendum that its reference to the security and security situation, at the time of the adoption of the DA-E and of the Order, was unjustified. It draws attention to the findings of the Resolution that the Republic of Slovenia is additionally sensitive from the security point of view due to the transit character of its territory. The Resolution states that also irregular migrations and their connection to organised crime and terrorism operations, as well as the possibility that contagious diseases may be introduced and spread, are a source of risk to the national security. The National Assembly assesses that the facts indicate that the migration pressure on the southern border of the Republic of Slovenia is enormous, due to which also the risks and threats to (national) security are increasing. It stresses that the adoption of the DA-E and the possible application of Article 37a of this Act do not entail a violation of the third paragraph of Article 124 of the Constitution, as the petitioner of the referendum alleges, but entails the implementation of principles that are contained in this constitutional provision. The participation of the Slovene Armed Forces in ensuring the objectives pursued by this Act also has the function of pursuing a policy of peace and a culture of peace and non-violence, as the armed forces are only deployed for humanitarian and security purposes.
 
6. In the opinion of the National Assembly, the DA-E, an urgent measure, is also proportionate, as it does not have direct effect, but only determines the statutory basis on the basis of which the National Assembly can grant the Slovene Armed Forces exceptional powers. The proportionality of the measure is ensured by a subjective limitation, namely by the provision that a decision granting exceptional powers to the Slovene Armed Forces may only be adopted upon a proposal of the Government, which is then decided on by the National Assembly. The National Assembly may only adopt such a decision by a two-thirds majority vote of deputies present, which prevents the possibility that such powers would be used in an unjustified manner and which guarantees the legitimacy of the decision. Furthermore, the statutory measure is substantively limited, namely, the powers by which it is possible to pursue the objective of the statutory measure are very limited. The Slovene Armed Forces can exercise such powers only exceptionally and together with the Police, provided that the security situation requires so, and in conformity with the plans and a previous decision of the Government (the first paragraph of Article 37a of the DA-E), which is an additional safety mechanism. The substantive limitation is also determined by the obligation to report to the Police any exceptional powers exercised (the third paragraph of Article 37a of the DA-E). The statutory measure is limited in time and may only last while it is urgently necessary (the fourth paragraph of Article 37a of the DA-E).
 
7. The National Assembly alleges that the objective of the necessary measure is to control mass migrations. This is connected to the urgent need to ensure security in the state and also to provide services during mass migrations. The purpose of the measure is thus of a security and humanitarian nature. The National Assembly opines that the statutory measure is an appropriate measure, as it enables the objective pursued by the Act to be attained. In the assessment of the National Assembly, the means that may be used are not excessive, which ensures proportionality in the narrower sense. Hence, in its opinion, the measure is consistent with the principles of a state governed by the rule of law (Article 2 of the Constitution). The National Assembly concludes that the application of the petitioner of the referendum is not substantiated, as the DA-E entails an urgent measure in the field of security, regarding which, in accordance with the first indent of the second paragraph of Article 90 of the Constitution, a referendum may not be called.
 
8. The Constitutional Court sent the reply of the National Assembly to the petitioner of the referendum, who did not submit a statement thereon.
 
 
B
 
9. In accordance with the first sentence of the second paragraph of Article 3 of the Constitution, in Slovenia power is vested in the people. In accordance with the second sentence of the second paragraph of this Article, the people exercise this power directly and through elections, consistent with the principle of the separation of powers. The people exercise power directly or directly participate in its exercise in the recognised forms of so-called direct democracy, among which the referendum also falls. This is a form of voters’ direct decision-making on the Constitution, a law, some other legal act, or any other issue that is important for the social community. It entails the right of all citizens who have the right to vote and to cast a vote to decide, by a general vote, on an individual act of (as a general rule) the representative body. From the viewpoint of the functioning of the power of the state, [a referendum] entails a manner of participation of the people in adopting the most important legal and political decisions that otherwise falls within the competence of the representative body.[2] In this case, also the people feature alongside the representative body as the legislator.
 
10. The legislative referendum as a form of direct democracy is regulated by Article 90 of the Constitution.[3] The first paragraph of this Article determines that the National Assembly shall call a referendum on the entry into force of a law if so required by at least forty thousand voters. The second paragraph of Article 90 of the Constitution determines the instances wherein a referendum is inadmissible. In accordance with the third paragraph of Article 90 of the Constitution, the right to vote in a referendum is held by all citizens who are eligible to vote in elections. In order for a decision on the rejection of a law in a referendum to be valid, the amendment to the Constitution introduced conditions that the previous constitutional regulation did not contain. Namely, on the basis of the fourth paragraph of Article 90 of the Constitution, a law is rejected in a referendum if a majority of voters who have cast valid votes vote against the law, provided at least one fifth of all qualified voters have voted against the law (the rejection quorum). The fifth paragraph of Article 90 of the Constitution leaves the regulation of the manner of exercise of the legislative referendum to statutory regulation.[4] Until the RPIA is harmonised with the new constitutional regulation, in accordance with the second paragraph of Section II of UZ90, 97, 99, Article 21 of the RPIA applies mutatis mutandis, such that the Constitutional Court decides on any dispute between the proposer of a referendum and the National Assembly if the latter rejects a request to call a legislative referendum.
 
11. The second paragraph of Article 90 of the Constitution determines the instances wherein a referendum is inadmissible. Namely, a referendum may not be called:
– on laws on urgent measures to ensure the defence of the state, security, or the elimination of the consequences of natural disasters;
– on laws on taxes, customs duties, and other compulsory charges, and on the law adopted for the implementation of the state budget;
– on laws on the ratification of treaties;
– on laws eliminating an unconstitutionality in the field of human rights and fundamental freedoms or any other unconstitutionality.
 
12. By the challenged Order, the National Assembly rejected a request to call a referendum on the entry into force of the DA-E, as allegedly the Act is a law on urgent measures to ensure security within the meaning of the first indent of the second paragraph of Article 90 of the Constitution. In the Order (and in the reply), the National Assembly states data on the migration flow and submits an assessment of the security situation in the state. In accordance with the allegations of the National Assembly, the DA-E proceeds from the needs defined by the current refugee and migrant crisis. Since 17 October 2015, the work of the Police has been dictated by the changed security situation, namely the mass influx of refugees and migrants into [the territory of] the Republic of Slovenia. The sheer quantity and variety of persons entering the territory of the state as refugees and migrants have allegedly resulted in exceptional circumstances. Thus far, the greatest number of these persons crossed the national border on 21 October 2015, namely 12,616, and 1,139 police officers were deployed on site that day. The National Assembly stresses that a more or less equal number of overwhelmed police officers are facing the situation, and they have to ensure the security of residents and refugees by directing and controlling the influx and further movement thereof to the highest possible degree, in coordination with the security authorities of the neighbouring states. All security procedures necessary therefor require appropriate personnel and material capacities. Due to the limited capacities of the Police and the potential security risks related therewith, the Republic of Slovenia also receives the assistance of foreign police officers. According to the National Assembly, the DA-E therefore entails an urgent measure that will enable security on the entire territory of the Republic of Slovenia to be ensured immediately and effectively. Allegedly, the urgent nature of this measure is also indicated by the determination that the powers of the members of the Slovene Armed Forces are exceptional, by the fact that the measure is limited in time, and by the activation of the exceptional authorisations only upon the proposal of the Government, which has to be upheld by at least two thirds of the deputies present.
 
13. In accordance with the first indent of the second paragraph of Article 90 of the Constitution, a referendum may not be called on laws on urgent measures to ensure the defence of the state, security, or the elimination of the consequences of natural disasters. From the reasoning of the Proposal for the Initiation of the Procedure for Amending the Constitution of the Republic of Slovenia with the Draft Constitutional Act Amending the Constitution of the Republic of Slovenia (EPA 620-VI), dated 13 September 2012, it follows that the urgency and unavoidability of the adoption and entry into force of laws with such content were the two reasons why a referendum is inadmissible. The possibility that such laws are assessed in a referendum could have deferred their entry into force and thus would have caused harmful consequences, and in the event of a rejection thereof in the referendum it would even prevent the necessary actions. From the materials for the preparation of UZ90, 97, 99 it also follows that this constitutional limitation does not entail that a legislative referendum may not be called on all laws regulating these fields, but only with regard to laws adopting urgent measures in these fields.[5]
 
14. Article 1 of the DA-E determines that a new Article 37a shall be added to the DA that determines exceptional powers of the armed forces and reads as follows:
“(1) If so required by the security situation, the National Assembly may decide, upon the proposal of the Government, by a two-thirds majority of the deputies present, that in ensuring the broader protection of the state border together with the Police, in accordance with the plans of and following the prior decision of the Government referred to in the fourth paragraph of the preceding Article, the members of the Slovene Armed forces shall exceptionally also have the following powers:
1. to issue warnings;
2. to direct people;
3. to temporarily limit the movement of persons;
4. to participate in controlling groups of people and crowds.
(2) The powers referred to in the preceding paragraph shall be exercised under the conditions prescribed for police officers.
(3) Once the powers referred to in the first paragraph of this Article have been used, they shall immediately notify the Police thereof.
(4) By the act referred to in the first paragraph of this Article, the National Assembly shall determine the time period during which the members of the Slovene Armed Forces may exercise the powers referred to in the first paragraph of this Article and which may only last for the period that it is necessary to exercise such, but for no longer than three months. Under the same conditions, the time period referred to in the preceding paragraph may be prolonged once again.”
Article 2 of the DA-E determines that this Act shall enter into force on the day following its publication in the Official Gazette of the Republic of Slovenia.
 
15. The DA-E creates a statutory basis for the adoption of measures with regard to which the National Assembly assesses that, with respect to the existing circumstances as to controlling the state border, they are likely to become urgent very soon. The National Assembly assessed that in order to adopt such measures it was necessary to create a statutory basis. The statutory regulation that entails the basis for the implementation of urgent measures for ensuring security corresponds with the notion of a law on urgent measures referred to in the first indent of the second paragraph of Article 90 of the Constitution. In the case at issue, the urgency of the Act dictates the urgency of the measures that entail the possibility of implementing the Act in an appropriate time frame. The Constitutional Court stresses that the authority competent to assess the risks and threats to (national) security, and the connected elements of the urgency of measures, is the National Assembly. The Constitutional Court may merely assess whether the National Assembly's findings and substantiation of the urgency of the measures are reasonable. If they are, it is demonstrated that the measures in the field of security are necessary, due to which it may be urgently necessary to adopt a statutory regulation that shall serve as the basis for their exercise.
 
16. The Constitutional Court first assessed whether the DA-E is a law concerning the field of security. The powers that the members of the Slovene Armed Forces may exceptionally exercise together with the Police when ensuring the broader protection of the state border are the following: issuing warnings, directing people, and temporarily limiting the movement of persons, and participating in controlling groups of people and crowds. Substantively, these powers are essentially similar to police powers.[6] The tasks of the Police encompass the provision of the security of individuals and the community, respect for human rights and fundamental freedoms, and strengthening a state governed by the rule of law (the second paragraph of Article 1 of the PTPA). The Police shall perform their tasks and exercise their powers for the purpose of preventing and eliminating risks that threaten these values (the third paragraph of Article 1 of the PTPA). Hence, the tasks and powers of the Police form a part of the system ensuring the security of individuals and the community on the territory of the Republic of Slovenia (the system of internal security). Therefore, granting powers to the members of the Slovene Armed Forces in ensuring the broader protection of the state border that are essentially similar to police powers also forms a part of this system. Such finding is also confirmed by the fact that the members of the Slovene Armed Forces must exercise the powers granted together with the Police and under the conditions prescribed for police officers, and notify the Police of the powers that they have exercised. Consequently, this Act is manifestly a law concerning the field of security.
 
17. In view of the above, the Constitutional Court also had to establish whether the DA-E is a law on urgent measures to ensure security. According to the National Assembly (see Paragraph 15 of the reasoning), the adoption of the DA-E entails a necessary legal basis for introducing urgent measures, i.e. granting exceptional powers to the members of the Slovene Armed Forces in order to ensure security in the state. In order to demonstrate the urgency of the measures, the National Assembly relies on the data on the number of persons entering the Republic of Slovenia daily and on the duration of such situation (see Paragraph 12 of the reasoning). In the assessment of the National Assembly, in order to carry out the necessary administrative tasks related to the procedures required to protect the Schengen border, controlling such a vast number of refugees and migrants and guiding their further movement in a controlled manner across the Slovenian territory to the point where they leave the state requires efforts exceeding the normal capacities of the authorities that are to direct persons so entering the state. In the assessment of the National Assembly, the sheer number and variety of groups of refugees and migrants entering and crossing the state territory, coupled with the insufficient number of Slovene police officers tasked with providing security in these exceptional circumstances, necessitate that urgent measures be taken in order to ensure security.
 
18. In view of the mentioned circumstances, the Constitutional Court does not doubt the reasonableness of the assessment of the National Assembly, in accordance with which the application of the measures enabled by the DA-E may well prove to be urgently necessary very soon in order to ensure security. The petitioner of the referendum failed to rebut such assessment by her generalised allegations to the contrary.[7] Without an appropriate statutory basis, it would not be possible to carry out these urgent measures. Therefore, the DA-E is a law on urgent measures to ensure security. In accordance with the first indent of the second paragraph of Article 90 of the Constitution, a referendum on the entry into force of such a law may not be called. Therefore, the Constitutional Court established that the challenged Order of the National Assembly is not inconsistent with the Constitution.
 
 
C
 
19. The Constitutional Court adopted this Decision on the basis of the second sentence of the second paragraph of Section II of the UZ90, 97, 99, the first paragraph of Article 21 of the RPIA, and the third indent of the second paragraph of Article 46 of the Rules of Procedure of the Constitutional Court (Official Gazette RS, Nos. 86/07, 54/10, and 56/11), composed of: Mag. Miroslav Mozetič, President, and Judges Dr Mitja Deisinger, Dr Dunja Jadek Pensa, Mag. Marta Klampfer, Dr Etelka Korpič – Horvat, Dr Ernest Petrič, Jasna Pogačar, Dr Jadranka Sovdat, and Jan Zobec. The decision was reached unanimously.
 
 
 
Mag. Miroslav Mozetič
President
 
 

[1] By Decision No. U-II-1/15, dated 28 September 2015 (Official Gazette RS, No. 80/15), the Constitutional Court adopted the position that, taking into consideration also the second paragraph of Article 21 of the RPIA, in the new constitutional regulation the constitutional term “proposer of a referendum” must be understood in the sense that the National Assembly may decide to reject the calling of a referendum already in the phase of collecting signatures in favour of the request to call a referendum and that also the petitioner of the referendum may initiate proceedings before the Constitutional Court as regards such decision [of the National Assembly] (Paragraph 39 of the reasoning).
[2] Taken from I. Kavčič in: I. Kaučič (Ed.), Zakonodajni referendum [Legislative Referendum], Inštitut za primerjalno pravo, GV Založba, Ljubljana 2010, p. 21.
[3] The constitutional regulation of the legislative referendum was amended by the Constitutional Act amending Articles 90, 97, and 99 of the Constitution of the Republic of Slovenia (Official Gazette RS, No. 47/13 – hereinafter referred to as UZ90, 97, 99). The constitutional amendment requires that the RPIA be harmonised with it within one year (the first paragraph of Section II of UZ90, 97, 99).
[4] The fifth paragraph of Article 90 of the Constitution determines that referendums are regulated by a law passed in the National Assembly by a two-thirds majority vote of deputies present.
[5] See Report of the Constitutional Commission of the National Assembly on the Preparation of the Draft Constitutional Act Amending Articles 90, 97, and 99 of the Constitution of the Republic of Slovenia (EPA 620-VI), dated 29 March 2012 (the correct year is 2013).
[6] Issuing warnings and temporarily limiting the movement of persons are two general police powers determined by Article 33 of the Police Tasks and Powers Act (Official Gazette RS, Nos. 15/13 and 23/15 – corr. – hereinafter referred to as the PTPA). Directing people is a power that is substantively comparable to issuing orders to individuals (Article 39 of the PTPA). Lastly, participating in controlling groups of people and crowds is a power relating to police powers regarding the use of forcible measures against a crowd (Articles 90 through 97 of the PTPA).
[7] She cannot rebut such assessment by alleging that what is at issue is primarily a humanitarian crisis. Namely, also in such an event it is namely expected that the state authorities in charge of ensuring security carry out these tasks responsibly.
Type of procedure:
referendum
Type of act:
individual act
Applicant:
Martina Dervarič, Puconci
Date of application:
12. 11. 2015
Date of Decision:
3. 12. 2015
Type of decision adopted:
decision
Outcome of proceedings:
establishment – it is not inconsistent with the Constitution/statute
Published:
Official Gazette RS, No. 98/2015
Document:
AN03833

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