Constitutional court case law

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Case number:
U-I-157/16, Up-729/16, Up-55/17
ECLI:
ECLI:SI:USRS:2018:U.I.157.16
Challenged act:
Constitutional complaint of the Bank of Slovenia against Orders of the Ljubljana District Court No. IV Kpd 25686/2016, dated 30 June 2016, No. IV Kpd 25686/2016, dated 30 June 2016, No. IV Kpd 25686/2016, dated 6 July 2016, and No. III Kpd 29285/2016, dated 22 July 2016

Constitutional complaint of the European Central Bank against Order of the Ljubljana District Court No. I Ks 29285/2016, dated 17 November 2016

Criminal Procedure Act (Official Gazette RS, No. 32/12 – official consolidated text, 47/13, 87/14, and 66/17) (CrPA)
Operative provisions:
The constitutional complaint of the Bank of Slovenia against Orders of the Ljubljana District Court No. IV Kpd 25686/2016, dated 30 June 2016, No. IV Kpd 25686/2016, dated 30 June 2016, No. IV Kpd 25686/2016, dated 6 July 2016, and No. III Kpd 29285/2016, dated 22 July 2016 is rejected.
 
The constitutional complaint of the European Central Bank against Order of the Ljubljana District Court No. I Ks 29285/2016, dated 17 November 2016, is rejected.
 
The petition of the Bank of Slovenia for the initiation of proceedings for a review of the constitutionality of the Criminal Procedure Act (Official Gazette RS, No. 32/12 – official consolidated text, 47/13, 87/14, and 66/17) is rejected.
Abstract:
As a general rule, legal entities under public law cannot enjoy constitutional rights, as this is incompatible with the concept of human rights and fundamental freedoms. Legal entities under public law can only enjoy some constitutional rights when they function ex iure gestionis, i.e. in equal-rank relations of a civil law nature, with regard to which the Constitutional Court has thus far recognised legal entities under public law in such relations only fundamental constitutional procedural guarantees.
 
The Bank of Slovenia does not enjoy the right to privacy determined by Article 35, the first paragraph of Article 36, and the first paragraph of Article 37 of the Constitution. As the central bank of the Republic of Slovenia, the Bank of Slovenia was established in order to perform public tasks and exercise public authority, and is an integral part of the authoritative apparatus of the state; therefore, it cannot be deemed to entail a means to ensure the free development of individuals. On the contrary, the Bank of Slovenia is a means for the exercise of state power, which the right to privacy is above all intended to offer protection from.
 
In the circumstances of the case at issue, the Bank of Slovenia and the European Central Bank do not enjoy the rights determined by Articles 22, 23, and 25 of the Constitution as they allege violations of these rights in procedures in which they pursue protection of the performance of their authoritative tasks.
 
The question of entitlement to file a constitutional complaint as a special legal remedy before the Constitutional Court is a question of Slovene national law, and as such falls within the framework of the procedural autonomy of the Member States.⇒
Thesaurus:
1.2.51.4.4 - Constitutional Justice - Types of claim - Capacity to file a petition with the Constitutional Court - Concrete review of norms - Bank of Slovenia.
2.1.3.2.2 - Sources of Constitutional Law - Categories - Case-law - International case-law - Court of Justice of the European Communities.
2.1.1.4.14 - Sources of Constitutional Law - Categories - Written rules - International instruments - Charter of Fundamental Rights of the European Union
2.1.1.4.3 - Sources of Constitutional Law - Categories - Written rules - International instruments - European Convention on Human Rights of 1950.
1.5.51.2.1 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In constitutional-complaint proceedings - Rejection.
1.5.51.1.2.1 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In abstract review proceedings - Rejection of a petition - No legal interest.
1.4.52.3 - Constitutional Justice - Procedure - Procedural requirements in constitutional-complaint proceedings - Rightful claimant to file a constitutional complaint.
1.4.51.4 - Constitutional Justice - Procedure - Procedural requirements (in all proceedings except in constitutional-complaint proceedings) - Legal interest to file a petition.
5.3.13.2 - Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Access to courts.
5.3.13.18 - Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Equality of arms.
5.3.13.3 - Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Double degree of jurisdiction.
5.3.30 - Fundamental Rights - Civil and political rights - Right to private life.
5.3.13.14 - Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Impartiality.
Legal basis:
Arts. 22, 23, 25, 35, 36, 37, Constitution [CRS]
Arts. 55b.1.6, 25.3, Constitutional Court Act [CCA]
Cases joined:
¤
Full text:
U-I-157/16, Up-729/16
Up-55/17
19 April 2018
 
 
 
ORDER
 
At a session held on 19 April 2018 in proceedings for the review of a petition and for examining the constitutional complaint of the Bank of Slovenia, represented by Odvetniška družba Čeferin, o. p., d. o. o. (Čeferin and Partners Law Firm, Ltd.), Grosuplje and in proceedings for examining the constitutional complaint of European Central Bank, represented by Gregor Pajek, Bojan Šporar, and Robert Prelesnik, attorneys in Ljubljana, the Constitutional Court
 
decided as follows:
 
1. The constitutional complaint of the Bank of Slovenia against Orders of the Ljubljana District Court No. IV Kpd 25686/2016, dated 30 June 2016, No. IV Kpd 25686/2016, dated 30 June 2016, No. IV Kpd 25686/2016, dated 6 July 2016, and No. III Kpd 29285/2016, dated 22 July 2016, is rejected.
 
2. The constitutional complaint of the European Central Bank against Order of the Ljubljana District Court No. I Ks 29285/2016, dated 17 November 2016, is rejected.
 
3. The petition of the Bank of Slovenia for the initiation of proceedings for a review of the constitutionality of the Criminal Procedure Act (Official Gazette RS, No. 32/12 – official consolidated text, 47/13, 87/14, and 66/17) is rejected.
 
REASONING
 
 
A
 
1. On the basis of Articles 215, 219a, and 223a of the Criminal Procedure Act (hereinafter referred to as the CrPA), the Ljubljana District Court issued four orders by which it ordered: (a) a search of the premises of the Bank of Slovenia (hereinafter referred to as the first complainant or the BS) and the seizure of certain objects or documents,[1] (b) the seizure, preservation, and search of electronic data (files and emails) of certain users on the server of the first complainant,[2] and the search of multiple computers and electronic data carriers that were seized within the framework of the searches of premises of the first complainant that were performed.[3] The court issued the mentioned orders because allegedly urgent investigative actions had to be carried out in the police procedure against the suspects Boštjan Jazbec, Stanislava Zadravec Caprirolo, Janez Fabijan, and Tomaž Čemažar. Allegedly, there was a probability that the investigative actions would enable evidence and traces of the criminal offence of the abuse of office or official authority, or information important for a criminal procedure to be uncovered. The execution of the orders was left to police officers, criminal investigation officers, and professionally qualified personnel of the National Bureau of Investigation.
 
2. On 16 November 2016, with reference to the first paragraph of Article 221 of the CrPA, the European Central Bank (hereinafter referred to as the second complainant or the ECB) refused to allow the inspection of or to provide files and other documents that investigative authorities [had already] obtained on the basis of three orders of the Ljubljana District Court for the search of premises[4] and for the search of electronic data and data carriers.[5] It requested that the investigating judge revoke the mentioned orders issued by the court insofar as they indirectly or directly contain information and documents belonging to or in the possession of the ECB, and that thus form a part of the archives of the ECB, and that the investigating judge order the exclusion thereof from the investigation and their return to the ECB. By Order No. I Ks 29285/2016, dated 17 November 2016, on the basis of the first paragraph of Article 221 of the CrPA, a panel of the Ljubljana District Court rejected the request of the ECB as unfounded.
 
3. The first complainant filed three constitutional complaints by which it challenges the four orders of the Ljubljana District Court cited in Paragraph 1 of the reasoning of this Order. It also filed three petitions for the initiation of proceedings for a review of the constitutionality of the CrPA. In order to ensure that this Order has as high a level of transparency and clarity as possible, and considering the overlapping of the majority of the content of the mentioned constitutional complaints and petitions, the Constitutional Court consolidated the allegations of the first complainant and will not differentiate between them as regards in which (of the initially separately considered) constitutional complaints they are included.
 
4. The BS claims in its constitutional complaints that on the basis of the challenged Orders issued by the [Ljubljana District] Court its constitutional rights determined by Articles 22, 23, 25, 35, 36, and 37 of the Constitution were violated. It alleges that as a third party where an investigative action is carried out, it has no other legal remedy against the mentioned Orders except a constitutional complaint. It explains that it is a legal entity under public law and enjoys the constitutional rights that it claims were violated.
 
5. The first complainant alleges that the challenged Order interferes with its right to privacy determined by Articles 35–37 of the Constitution. In the opinion of the first complainant – due to its position in the legal order of the Republic of Slovenia and the European Union (hereinafter referred to as the EU) – it must be accorded an even higher degree of expectancy of spatial and communication privacy than other entities. In this respect, it describes its tasks and powers on the basis of the Bank of Slovenia Act (Official Gazette RS, Nos. 72/06 – official consolidated text, 59/11, and 55/17 – hereinafter referred to as the BSA-1) and other regulations. It alleges that in order to ensure the unhindered exercise of its tasks and powers, and to ensure the stability of the financial system, it is in the public interest that it [i.e. the first complainant] be recognised the constitutionally protected scope of the right to privacy, which includes (a) protection of the confidentiality of information that due to the realisation and exercise of the tasks of the complainant are classified by various legal acts,[6] and (b) protection of the confidentiality of other information that in fact are not expressly determined to be classified, but which do not entail public information (e.g. the professional and personal communication of employees). The first complainant stresses that also data containing the confidential information referred to in Article 14 of the BA-2 were seized, i.e. ECB data to which special rules on the protection of confidentiality apply, as well as other confidential information to which the Disclosure Decision refers, and among these data also data that are completely unrelated to the criminal offences at issue. The first complainant stresses that Protocol No. 7 and the Disclosure Decision also protect ECB data that are located elsewhere or are held by someone else, and proposes that the Constitutional Court – in the event its opinion differs – stay the proceedings and refer the question for a preliminary ruling to the Court of Justice of the European Union (hereinafter referred to as the CJEU).
 
6. The first complainant opines that the challenged Orders are unconstitutionally indeterminate, [excessively] broad, undefined, and do not satisfy the criterion of a reasoned judicial decision as follows from Article 22 of the Constitution, and the police officers allegedly even overstepped such orders when carrying them out in practice. It draws attention to the fact that the conditions determined by Article 166 of the CrPA for carrying out urgent investigative actions even prior to the initiation of the investigation were not fulfilled and that these conditions are not contained in the issued Orders. Allegedly, the Police could have obtained the seized information for the purposes of the police procedure by more lenient means.
 
7. In the petition for the initiation of proceedings for the review of constitutionality, the first complainant alleges that the CrPA is inconsistent with Articles 23, 25, 35, 36, and 37 of the Constitution. It opines that Articles 23 and 25 of the Constitution require that the person or entity against whom a house search, the seizure of objects, or a search of electronic devices is performed but who is not suspected of or charged with a criminal offence have at its disposal a legal remedy with at least some suspensive effects. Allegedly, the CrPA does not ensure such a legal remedy against a house search order and a search of electronic devices. It also alleges that the CrPA is contrary to Articles 35–37 of the Constitution, as it does not prescribe any special conditions or rules of conduct for instances when the state interferes with classified data of the ECB and other classified data by investigative actions. Allegedly, the CrPA does not contain a special regulation on obtaining classified information from the first complainant, which is a part of the European System of Central Banks (hereinafter referred to as the ESCB). Allegedly, the following are inconsistent with the Constitution: (1) the absence of a legal possibility for the BS to obtain a decision by a court on its objections due to unjustified interferences with the confidentiality of information (in particular of that confidential information that is not the subject of investigation) and thus to suspensively affect the course of an investigation until a final decision is adopted by the court (for instance, by sealing data carriers) and (2) the absence of provisions that would prevent the authorities for the detection and prosecution [of criminal offences] from obtaining and interfering with classified information which the BS possesses and which are protected by special EU rules (in particular the Disclosure Decision). With regard to the investigation of an electronic device and data carriers, the first complainant stresses that the powers of the investigators concerning the seizure, preservation, and search are so broad that they may inspect all data on the electronic device, including those protected by the BA-2 and EU law, as well as those unrelated to the criminal offence. Furthermore, no supervision is allegedly ensured over the exercise of these powers. Allegedly, in the phase of the inspection of data, neither the owner of the device nor his or her representative or an expert may be present.
 
8. The second complainant filed a constitutional complaint against the Order of the Ljubljana District Court cited in Paragraph 2 of the reasoning of this Order. It claims a violation of the rights determined by Articles 22 and 23 of the Constitution, Article 6 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 of Article 47 of the Charter of Fundamental Rights of the European Union (OJ C 202, 7 June 2016 – hereinafter referred to as the Charter). It proposes that the Constitutional Court refer to the CJEU a question for a preliminary ruling as to the interpretation of Protocol No. 7 concerning the question of accessing the archives of EU institutions, and then, in accordance with the first paragraph of Article 60 of the Constitutional Court Act (Official Gazette RS, Nos. 64/07 – official consolidated text, and 109/12 – hereinafter referred to as the CCA) decide by itself on the disputed rights. The second complainant alleges that by Order No. IV Kpd 25686/2016, dated 30 June 2016 and 6 July 2016 (the search of the premises of the BS), and by Order No. III Kpd 29285/2016, dated 22 July 2016 (the search of computers and data carriers that were seized during the searches of [the mentioned] premises), the Ljubljana District Court enabled interferences with the inviolability of the archives of the ECB. Allegedly, following the rejection of its request on the basis of the first paragraph of Article 221 of the CrPA, the second complainant has no legal remedy in the case. The second complainant alleges that it is a legal entity under public law, and as such is protected by the two constitutional rights that it refers to in the constitutional complaint.
 
9. In fact, the second complainant is unable to determine with full precision which documents and information the Police seized in the search of premises. However, it draws attention to the fact that there is no doubt that the seized data also included ECB data to which Protocol No. 7 guarantees inviolability (i.e. computer disks on which there are allegedly documents and information of the ECB, correspondence between the BS and the ECB regarding matters falling within the competence of the ECB, physical documents, and emails from the BS network, all of which allegedly pertain to the ECB archives). The second complainant explains why primary EU law was violated by these seizures (the TFEU and Protocols No. 4 and No. 7). Despite the fact that there is no CJEU case law concerning the interpretation of Article 2 of Protocol No. 7, it is allegedly possible – in conformity with the comparative case law in similar cases and the rules of interpretation of EU law – to accept the broad interpretation of the inviolability of archives, in accordance with which the data of the ECB are protected from Member States’ interferences wherever they are located, irrespective of the medium and whether they are owned by or are in the possession of the ECB. The protection of all information of the ECB, regardless of the location, is allegedly key to ensuring the appropriate and independent functioning of the Eurosystem. The second complainant deems that the ECB inherently always functions (also) outside of its premises, as national central banks (as national authorities) allegedly form an integral part of the Eurosystem and carry out the tasks conferred thereon by primary EU law. The information stored with the national central banks of the Eurosystem are allegedly deemed to be information of the ECB insofar as they are related to the tasks of the ECB or to the tasks of national central banks within the framework of the Eurosystem. The second complainant alleges that the term the inviolability of archives protects the archives of the ECB from all forms of unilateral interferences by EU Member States with the archives. Allegedly, Article 2 of Protocol No. 7 is directly applicable in the Republic of Slovenia.
 
10. The second complainant reproaches the court for acting contrary to the third paragraph of Article 267 of the TFEU by not taking into account its proposal to refer to the CJEU a question for a preliminary ruling regarding the interpretation of the term the inviolability of archives as referred to in Protocol No. 7, whereby the court allegedly also violated the rights of the ECB determined by the first paragraph of Article 23 of the Constitution and by the first paragraph of Article 6 of the ECHR. The second complainant explains in great detail why in the case at issue there were no circumstances in which the national court could have refrained from referring a question for a preliminary ruling, and why the District Court erroneously interpreted the inviolability of the archives of the ECB. The second complainant adds that in this respect the challenged Order could also be deemed to be unsubstantiated to a degree that there is a violation of Article 22 of the Constitution. Below, it presents a comparative overview of the case law of certain European constitutional courts with respect to violations that are a consequence of [courts] failing to refer a question to the CJEU for a preliminary ruling. Allegedly, the trend of imposing sanctions for arbitrary non-referrals of questions to the CJEU is emerging via the establishment of violations of the right to a lawful judge or the right to a fair trial and procedure.
 
11. The second complainant sees – in the fact that the challenged Order is based on facts and evidence that the second complainant was unable to make a statement on – a violation of the rights determined by Article 22 of the Constitution, Article 6 of the ECHR, and Article 47 of the Charter. In this respect, the ECB refers to the opinion of the district state prosecutor and the opinion of the Ministry of Justice (hereinafter referred to as the MJ), which were allegedly sent to the Ljubljana District Court, and the ECB was allegedly unable to make a statement thereon. Allegedly, when adopting the challenged Order, the District Court relied to a significant degree precisely on the opinion of the MJ. Allegedly, the second complainant was thus unable to make a statement on all procedural materials in the judicial file, which had the capacity to affect the decision of the court. This is allegedly contrary not only to the established constitutional case law, but also to the interpretation of the right to a fair trial determined by the first paragraph of Article 6 of the ECHR [as established] in the case law of the European Court of Human Rights (hereinafter referred to as the ECtHR). The second complainant alleges that the case at issue must also be reviewed from the viewpoint of Article 47 of the Charter, which guarantees the right to a fair trial, and that the Constitutional Court must not interfere with the standards of protection of fundamental rights as determined by EU law. Allegedly, the CJEU interprets Article 47 of the Charter in the sense of the equality of arms of the parties and the duty to send to the parties all written and oral “submissions” in the case.
 
 
B – I
 
Joining of Cases and Declaring Participation
 
12. The Constitutional Court joined cases No. U-I-3/17, Up-25/17 and No. U-I-159/16, Up-734/16 to case No. U-I-157/16, Up-729/16 for joint consideration and decision-making.
 
13. Tadej Kotnik, as “a person with a demonstrated legal interest”, sent the Constitutional Court two opinions as to the constitutional complaints of the BS and the ECB. He requests that the Constitutional Court grant him the status of a participant (i.e. the status of an entity under law that has the right to actively participate in the proceedings and to be informed of the procedural actions of the authority and other participants) in the constitutional complaint proceedings initiated by the first and second complainants. In this respect, he refers to the reasons stated in his request to consult the file of case No. Up-55/17, dated 9 February 2017, and note of the Secretary General of the Constitutional Court No. R-4/17, Up-55/17, dated 13 February 2017, by which he was informed that the President of the Constitutional Court allowed him to consult the file of the case. It follows from his request to consult the file that he considers himself to be the injured party regarding the criminal offence whose investigation led to the issuance of the Orders cited in Paragraph 1 of the reasoning of this Order. He alleges that he was the holder of the subordinated bonds whose write-off allegedly fulfilled the constituent elements of the investigated criminal offence. He alleges that a judgment of conviction will improve his legal situation, as the civil court is bound by the findings in the final judgment of conviction issued in the criminal proceedings as to the existence of the criminal offence and the criminal liability of the perpetrator.
 
14. It follows from the CCA that in constitutional complaint proceedings a participant can be: (1) the complainant, i.e. the subject whose right, obligation, or legal entitlement has been decided on by the challenged individual act (the first paragraph of Article 50 of the CCA), and (2) a person who participated in the proceedings in which the challenged individual act was issued by which [his or her] rights, obligations, or legal entitlements were decided (the second paragraph of Article 56 of the CCA). In constitutional complaint proceedings, a participant can in any event only be someone who is able to substantiate that his or her right, obligation, or legal entitlement has been (at least indirectly) decided on by the challenged individual act.
 
15. The fact that the President of the Constitutional Court allowed Tadej Kotnik to consult the file of the case does not entail that this decision granted him the status of a participant in the case at issue. Tadej Kotnik expressly requested to consult the file of case No. Up-55/17 on the basis of the first paragraph of Article 25 of the Rules of Procedure of the Constitutional Court (Official Gazette RS, Nos. 86/07, 54/10, 56/11, and 70/17 – hereinafter referred to as the Rules of Procedure), which determines that persons who are not participants in proceedings but who demonstrate legal interest may consult a case file if they obtain written permission from the President of the Constitutional Court. The statutory basis for such a regulation in the Rules of Procedure is the first paragraph of Article 4 of the CCA, which requires the authorisation of the President of the Constitutional Court in order to consult the case file only for persons who are not participants in proceedings. As to participants in proceedings before the Constitutional Court, this statutory provision confers on them the right to consult the case file.[7] Taking this into consideration, an authorisation to consult the file cannot in and of itself ensure obtainment of the right to be a participant in proceedings before the Constitutional Court.
 
16. Tadej Kotnik also substantiates his declaration of participation with the allegation that he was injured by the criminal offence that is the subject of the investigation. It follows from the case law of the Constitutional Court that criminal proceedings can also have a significant impact on the legal position of the injured party, i.e. the person whose personal or property right is violated or jeopardised by a criminal offence. Therefore, in criminal proceedings, injured parties must be ensured the fundamental procedural guarantees that enable property claims originating from the criminal offence to be invoked effectively, and, in view of the nature of the criminal offence in question, also respect for his or her personal dignity, since the person in question is the victim of the criminal offence.[8] The injured party may invoke the protection of fundamental procedural guarantees in criminal proceedings also by a constitutional complaint against the final judicial decision by which the criminal proceedings have been concluded.[9] However, the effect that the review of the Constitutional Court could possibly have on [Tadej Kotnik’s] legal position in the case at issue – in which constitutional complaints were filed against acts issued in the police procedure against persons who are not suspected of having committed the criminal offence – is so distant, indirect, and at this moment in time purely hypothetical that it does not suffice to conclude that the Constitutional Court must enable him to participate in the constitutional complaint proceedings.
 
 
B – II
 
Constitutional Complaint Proceedings
 
Persons Entitled to File a Constitutional Complaint
 
17. In conformity with the first paragraph of Article 50 and the sixth indent of the first paragraph of Article 55b of the CCA, a person who claims that his or her human right or fundamental freedom has been violated by the challenged act (by which his or her rights, obligations, or legal entitlements were decided on) is entitled to file a constitutional complaint. Furthermore, only a subject who can actually enjoy the human rights or fundamental freedoms that he or she alleges were violated is entitled to file a constitutional complaint.[10] Hence, if a constitutional complaint is filed by an entity that already due to its nature or status (i.e. circumstances arising from the legal personality thereof) cannot enjoy – either anytime or in the specific circumstances of the case at issue – the allegedly violated human rights or fundamental freedoms, the Constitutional Court rejects the constitutional complaint.
 
General Information about the Constitutional Rights of Legal Entities (under Public Law)
 
18. The legal-ethical foundation of modern states based on the concept of constitutional democracy, i.e. on the presumption that the authority of the state has to be limited by some fundamental rights and freedoms enjoyed by every person due to his or her own worth, is respect for human dignity. Human dignity and personal freedom are at the core of the constitutional order of the Republic of Slovenia and form the foundation of the value system enshrined in the Constitution.[11] The constitutional order is thus built on values that fundamentally belong to the individual – the free human being. Since also legal entities may play an important role in the exercise of the (human) rights of individuals, appropriate (constitutional) protection of legal entities is also necessary, namely in some (not necessarily all) areas where natural persons otherwise enjoy legal (constitutional) protection.[12] Therefore, some rights guaranteed by the Constitution to natural persons as human rights are also recognised by the Constitutional Court to legal entities as constitutionally protected rights (i.e. the constitutional rights of legal entities).[13]
 
19. However, the question of the extent and depth of the constitutional rights of legal entities cannot be resolved in the same manner for all legal entities. Namely, as regards legal entities under public law, the reasons for broadening the scope of constitutional rights are significantly weaker than as regards legal entities under private law. Historically, the concept of human rights has developed as a bastion to protect against the arbitrary exercise of state power. The state – as a legal entity under public law par excellence – is from this perspective seen as a threat to human (constitutional) rights and as the power that has to ensure the respect thereof, but not also as an entity protected by the said rights. The same applies to all other public law entities. Public law entities cannot be seen as a means for the free development of the concrete individuals who stand behind them. This realisation is clearly reflected in the constitutional case law, which demonstrates a more restrictive approach in broadening the protected sphere of constitutional rights to encompass public law entities.
 
20. The position adopted in the case law of the Constitutional Court is that legal entities under public law do not enjoy constitutional rights in instances when they operate as authorities in power (ex iure imperii), i.e. as entities that within the framework of their authoritative tasks act as public authorities, operate in the public interest, and pursue public goals. In accordance with this position, the Constitutional Court has already a number of times rejected constitutional complaints of legal entities under public law as they referred to constitutional rights in disputes concerning individual and concrete legal acts they themselves had adopted.[14] Functioning ex iure imperii, however, does not only entail decision-making on the rights and obligations of individuals. Also any other functioning of a public law entity within the framework of a public law relation (either between the authorities in power and an individual or between different structures of the authorities in power) entails acting from a position of power that is incompatible with the recognition of constitutional rights.
 
21. In accordance with the case law of the Constitutional Court, legal entities under public law can only exceptionally have constitutional rights, namely when they function ex iure gestionis (i.e. in equal-rank relations of a civil law nature), with regard to which the Constitutional Court has thus far only recognised legal entities under public law in such relations the fundamental constitutional procedural guarantees determined by Articles 22, 23, and 25 of the Constitution.[15] The ratio of recognising legal entities under public law constitutional rights in such cases was to ensure the fundamental procedural balance between two procedurally equal parties and to prevent a distortion in the functioning of the mechanism of judicial procedures due to protection of the principles of a state governed by the rule of law.[16]
 
The Legal Status of the BS and the ECB
 
22. The first complainant is the central bank of the Republic of Slovenia and is, in accordance with an express statutory provision, a legal entity under public law that independently manages its own property (the first and second paragraphs of Article 1 of the BSA-1). The BS is the exclusive property of the state, and has financial and management autonomy (the third paragraph of Article 1 of the BSA-1).
 
23. The second complainant is the central bank of the euro area monetary union (hereinafter referred to as the eurozone) and the sole EU institution that may authorise the issue of the euro (the third paragraph of Article 282 of the TFEU). Together with the national central banks of the Member States of the EU, it constitutes the European System of Central Banks (ESCB), and, together with the national central banks of the EU Member States whose currency is the euro, the Eurosystem, which conducts the monetary policy of the EU (the first paragraph of Article 282 of the TFEU). The third paragraph of Article 282 of the TFEU expressly grants the second complainant legal personality. Considering the institutional position of the ECB (and the ESCB), there is also no doubt that the ECB is a legal entity with strongly predominant public characteristics. Its purpose is not to entail a means for the free association of individuals in a sphere free from arbitrary interferences by public authorities.[17] From the manner of its establishment, activities, tasks and powers, the goal of its functioning, and its placement in the institutional structure of the EU, it clearly follows that the ECB forms a part of the supranational authority of the EU that performs functions that are distinctly public, and that it performs those public tasks without which no state or supranational political entity with its own currency can function. Hence, the institutional characteristics of the ECB indicate the pronounced presence of elements of public law that are incompatible with the essence of human rights and fundamental freedoms.
 
The Entitlement of the BS to File a Constitutional Complaint Due to Violations of Articles 35, 36, and 37 of the Constitution
 
24. From Decision of the Constitutional Court No. U-I-40/12 it follows that also legal entities enjoy constitutional protection of privacy to a certain extent (they have the constitutional rights determined by Article 35, the first paragraph of Article 36, and the first paragraph of Article 37 of the Constitution).[18] In the mentioned Decision, the Constitutional Court derived the right of legal entities to privacy from the constitutional right of natural persons to free economic initiative (the first paragraph of Article 74 of the Constitution) and their constitutionally guaranteed freedom of association (the second paragraph of Article 42 of the Constitution). It expressly stated that this assessment refers to legal entities established for the purpose of exercising an economic activity, i.e. legal entities under private law.[19]
 
25. The first complainant lacks the characteristics of legal entities under private law that in case No. U-I-40/12 were decisive for recognising the constitutional protection of privacy. The establishment and functioning of the BS are not derived from the human right to establish legal entities in order for natural persons to exercise their interests, but are a consequence of the requirement in the Constitution and the TFEU that there exist an institution that performs the monetary function of the state that is protected from political meddling. The first complainant lacks a personal substratum in the sense of a group of persons who freely associate and function due to personal interests; a part of its personnel structure are the office holders and employees tasked with performing official tasks. Hence, the BS cannot be deemed to entail a means for ensuring the free development of individuals (i.e. natural persons). On the contrary, the first complainant is a means for exercising state power, which the right to privacy is above all intended to offer protection from. For such reasons, the BS does not have the rights determined by Article 35, the first paragraph of Article 36, and the first paragraph of Article 37.
 
The Entitlement of the BS and the ECB to File a Constitutional Complaint Due to Violations of Articles 22, 23, and 25 of the Constitution, Article 6 of the ECHR, and Article 47 of the Charter
 
26. In Paragraph 21 of the reasoning of this Order it is explained that the constitutional procedural guarantees determined by Articles 22, 23, and 25 of the Constitution can apply to public law entities, but only when they function ex iure gestionis. However, the case at issue does not concern such a situation.
 
27. The first complainant alleges that, on the basis of the challenged Orders, the investigative authorities inadmissibly interfered with the undisturbed performance of the tasks it is obliged to perform in conformity with the BSA-1, and thereby indirectly with ensuring the stability of the financial system in the public interest. It refers to the confidentiality of information connected with the performance of its official tasks and to the inviolability of the archives of the ECB, which it possesses and which it accesses while performing its official tasks. Such entails that we are dealing with a public law dispute in which one state authority structure alleges that another state authority structure has inadmissibly interfered with the sphere of its authoritative functioning.
 
28. Similar holds true as regards the second complainant. The argument that substantiates that the ECB is an entity that in the case at issue does not function ex iure gestionis is the fact that the ECB initiated proceedings under Article 221 of the CrPA because it opined that the seizure and inspection of certain documents entailed an interference concerning its archives that was contrary to Article 2 of Protocol No. 7 and that, in such a manner, it was hindered in its authoritative functioning. By the request in accordance with the first paragraph of Article 221 of the CrPA, the ECB would like these documents, which allegedly relate to the performance of its authoritative tasks and not to relations of a private law character, to be excluded and returned.[20] The nature of the procedure determined by the first paragraph of Article 221 of the CrPA also confirms that in the case at issue the ECB does not function ex iure gestionis. The procedure determined by the first paragraph of Article 221 of the CrPA is a special procedure that is joined to the criminal (police) procedure, which in accordance with an express statutory provision only state authorities can initiate (and not also other natural persons or legal entities), and whose rationale is to ensure that investigative authorities do not learn of information whose publication could be detrimental to general interests.[21] Both the rationale of the procedure (the protection of general interests) and the circle of entitled applicants (which is limited to only state authorities) clearly indicate that the applicant in such procedure necessarily acts as a public authority. Essentially, the procedure determined by the first paragraph of Article 221 of the CrPA entails a procedure regulating a dispute between two state authorities, i.e. between investigative authorities and another state authority, regarding the question of whether investigative authorities may, for the purposes of a criminal procedure, inspect, and use in the procedure as evidence, documents referring to the authoritative field of another state authority. Hence, the mentioned procedure – despite being regulated in the CrPA – actually does not regulate questions of criminal prosecution in the narrower sense, but regulates disputes between two institutions regarding access to certain documents.
 
29. Since both complainants allege violations of constitutional procedural guarantees in procedures in which they pursue protection of the performance of their authoritative functioning, in the circumstances of the case at issue they do not have the constitutional rights determined by Articles 22, 23, and 25 of the Constitution.
 
30. The second complainant also alleges a violation of the right to a fair trial enshrined in Article 6 of the ECHR. Taking into consideration the fifth paragraph of Article 15 of the Constitution, which determines that no human right or fundamental freedom regulated by legal acts in force in the Republic of Slovenia may be restricted on the grounds that this Constitution does not recognise that right or freedom or recognises it to a lesser extent, the Constitutional Court also assessed whether the ECB can have the mentioned right. From the established interpretation of Article 34 of the ECHR,[22] which consists of decisions of the ECtHR and the European Commission for Human Rights, it follows that public law entities do not have the right determined by Article 6 of the ECHR (not only in the particular circumstances of the case at issue, but in general). The ECtHR considers legal entities that participate in the exercise of state powers or that provide public services under the supervision of the state to be “a government” or “governmental organisations”, and as such they do not enjoy protection under the Convention.[23] Already during the period of the functioning of the European Commission for Human Rights, the position was adopted that an entity under public law that performs official tasks in conformity with the constitution and laws (be it either a state or a local self-government unit, or some other unit exercising public power that performs public functions) cannot be deemed to be a non-governmental organisation referred to in Article 34 of the ECHR.[24] For these reasons, the ECB – as a part of the supranational authority of the EU that performs functions that are distinctly public – cannot enjoy the rights enshrined in the ECHR.
 
31. Likewise, the allegation of the second complainant that its right to effective judicial protection and an impartial court as enshrined in Article 47 of the Charter was allegedly violated does not affect the decision of the Constitutional Court. The question of entitlement to file a constitutional complaint as a special legal remedy before the Constitutional Court is a question of Slovene national law (the sixth indent of the first paragraph of Article 55b of the CCA), which falls within the framework of the procedural autonomy of Member States.[25] In fact, in ensuring respect for EU law, Member States are still bound by the principles of equal treatment and effectiveness,[26] i.e. the principle of effective judicial protection,[27] but even when taking into consideration these principles, EU law does not require that Member States in all instances ensure unlimited access to judicial protection ,[28] and even less does it interfere with the organisation of judicial protection[29] and require multi-instance judicial protection.[30] This holds true a fortiori for the interpretation of the procedural prerequisites for filing legal remedies before national constitutional courts. Without needing to decide whether (and if yes, in which instances) the ECB as an EU institution can have the rights determined by Article 47 of the Charter,[31] the Constitutional Court had to assess by itself whether the considered case concerns an alleged violation of a complainant’s constitutional right that in conformity with the internal legal order can justify the filing of a constitutional complaint by the complainant. The Constitutional Court carried out this assessment in the manner that follows from the previous paragraphs of the reasoning. It also notes that such a decision in no way entails treatment of the ECB that is less favourable than treatment in accordance with similar national legal remedies, i.e. the treatment of legal entities with similar characteristics, as also as regards the BS it adopted the position that in the circumstances of the case at issue it does not enjoy constitutional procedural guarantees.
 
32. It follows from the above that in the circumstances of the case at issue, the BS and the ECB do not enjoy the constitutional procedural guarantees determined by Articles 22, 23, and 25 of the Constitution, and the ECB also does not enjoy the rights enshrined in Article 6 of the ECHR. In the case at issue, the Constitutional Court did not need to adopt a position as to whether in the field of the implementation of EU law the ECB can enjoy the rights determined by Article 47 of the Charter. Understandably, such does not entail that in proceedings before courts that they are party to the complainants do not enjoy the procedural rights that procedural laws confer on parties to proceedings. The above-stated also does not entail that regular courts do not have to take into consideration primary and secondary EU law, or that in instances when a question of the interpretation of EU law is raised in a dispute, they do not have the obligation to refer to the CJEU a question for a preliminary ruling. It only entails that the complainants, if they do not enjoy the constitutional rights determined by Articles 22, 23, and 25 of the Constitution, and also the ECB if it does not enjoy the right enshrined in Article 6 of the ECHR, do not have active standing to file a constitutional complaint.
 
33. In view of the above, the Constitutional Court rejected the constitutional complaints, as they were filed by entities that are not entitled to file such (Points 1 and 2 of the operative provisions). Since it rejected the constitutional complaints for the mentioned reason, it did not address the question of whether they were substantiated on the merits, or the question of whether all other procedural prerequisites for consideration on the merits were fulfilled.
 
 
B – III
 
The Proceedings Concerning the Petition of the BS
 
34. The first complainant filed a petition for the initiation of proceedings for a review of the constitutionality of the CrPA. Anyone who demonstrates legal interest may lodge a petition for the initiation of a procedure for the review of constitutionality (the first paragraph of Article 24 of the CCA). In accordance with the second paragraph of the cited Article, legal interest is deemed to be demonstrated if a regulation or general act issued for the exercise of public authority whose review has been requested by the petitioner directly interferes with his rights, legal interests, or legal position.
 
35. The challenged provisions are not directly applicable. In accordance with the established constitutional case law, in a situation where the challenged regulation is not directly applicable, a petition may only be filed once legal remedies against the individual act issued on the basis of the challenged regulation have been exhausted, together with a constitutional complaint, under the conditions determined by Articles 50 through 60 of the CCA. This position is explained in more detail in Order No. U-I-275/07, dated 22 November 2007 (Official Gazette RS, No. 110/07, and OdlUS V, 82).
 
36. The legal interest of the BS was based on the filed constitutional complaint, which the Constitutional Court rejected. In view of this fact, even provided that the petition was granted, it could not affect the legal position thereof. Such entails that the BS does not demonstrate a legal interest for the initiation of proceedings for a review of the constitutionality of the CrPA. Consequently, the Constitutional Court rejected its petition (Point 3 of the operative provisions).
 
 
C
 
37. The Constitutional Court adopted this Order on the basis of the sixth indent of the first paragraph of Article 55b and the third paragraph of Article 25 of the CCA, composed of: Dr Jadranka Sovdat, President, and Judges Dr Matej Accetto, Dr.Dr. Klemen Jaklič, Dr Rajko Knez, Dr Etelka Korpič – Horvat, Dr Špelca Mežnar, Dr Marijan Pavčnik, and Marko Šorli. The Order was adopted unanimously.
 
 
Dr Jadranka Sovdat
President
 
 

[1] Orders of the Ljubljana District Court No. IV Kpd 25686/2016, dated 30 June 2016 and 6 July 2016.
[2] Order of the Ljubljana District Court No. IV Kpd 25686/2016, dated 30 June 2016.
[3] Order of the Ljubljana District Court No. III Kpd 29285/2016, dated 22 July 2016.
[4] Orders No. IV Kpd 25686/2016, dated 30 June 2016 and 6 July 2016.
[5] Order No. III Kpd 29285/2016, dated 22 July 2016.
[6] The first complainant refers to Article 47 of the BSA-1, Article 14 of the Banking Act (Official Gazette RS, Nos. 25/15 and 41/17 – hereinafter referred to as the BA-2), the Treaty on the Functioning of the European Union (consolidated version, OJ C 202, 7 June 2016 – hereinafter referred to as the TFEU), Protocol (No. 4) on the Statute of the European System of Central Banks (hereinafter referred to as Protocol No. 4), and Protocol (No. 7) on the privileges and immunities of the European Union (hereinafter referred to as Protocol No. 7), which are annexed to and integral parts of the TFEU and the Treaty on European Union (consolidated version, OJ C 202, 7 June 2016 – hereinafter referred to as the TEU), and to Decision (EU) 2016/1162 of the European Central Bank of 30 June 2016 on disclosure of confidential information in the context of criminal investigations (ECB/2016/19) (OJ L 192, 16 July 2016 – hereinafter referred to as the Disclosure Decision).
[7] Only the manner of implementation of this right is determined therefor in Article 24 of the Rules of Procedure thereof.
[8] See Para. 23 of the reasoning of Decision of the Constitutional Court No. Up-320/14, U-I-5/17, dated 14 September 2017 (Official Gazette RS, No. 59/17).
[9] Para. 12 of Order of the Constitutional Court No. U-I-95/14, Up-320/14, U-I-5/17, dated 12 January 2017.
[10] This does not only concern the general capacity to be a party to proceedings, i.e. the capacity to enjoy rights and have obligations in a procedural relation, but also the capacity to enjoy a certain human right or fundamental freedom.
[11] Cf. Paras. 6 and 7 of the reasoning in Decision of the Constitutional Court No. U‑I‑109/10, dated 26 September 2011 (Official Gazette RS, No. 78/11, and OdlUS V, 26).
[12] Cf. Decision of the Constitutional Court No. U-I-40/12, dated 11 April 2013 (Official Gazette RS, No. 39/13, and OdlUS XX, 5), Paras. 17 and 18 of the reasoning.
[13] From the hitherto constitutional case law, it follows that legal entities can enjoy constitutional procedural guarantees, [the right to] private property, free economic initiative, the general freedom to act, and freedom of expression (see Decision of the Constitutional Court No. U-I-40/12, Para. 18 of the reasoning). The Constitutional Court also recognised that legal entities – in fact not in the same scope as natural persons – enjoy the constitutional rights determined by Article 35, the first paragraph of Article 36, and the first paragraph of Article 37 of the Constitution as supporting elements of the constitutional protection of privacy (in this respect, see ibidem, Paras. 20–29 of the reasoning), and to a certain degree also the right to the protection of one’s reputation and goodwill referred to in Article 35 of the Constitution (Decision of the Constitutional Court No. Up-530/14, dated 2 March 2017, Official Gazette RS, No. 17/17, Paras. 11–12 of the reasoning). However, the Constitutional Court held that legal entities cannot obtain the legal protection referred to in Article 34 of the Constitution, which protects the right to personal dignity and, in such framework, the right to (subjective, internal) honour (ibidem, Paragraph 10 of the reasoning), and that also the privilege against self-incrimination referred to in the fourth indent of Article 29 of the Constitution does not apply to legal entities (Order of the Constitutional Court No. U-I-108/99, dated 20 March 2003, Official Gazette RS, No. 33/03, and OdlUS V, 22, Para. 9 of the reasoning).
[14] See Orders of the Constitutional Court No. Up-157/08, dated 4 November 2008 (Official Gazette RS, No. 108/08, and OdlUS XVII, 98); No. Up-1379/09, dated 28 September 2010; No. Up-17/17, dated 24 January 2017; and No. Up-987/16, dated 10 April 2017 (Official Gazette RS, No. 20/17).
[15] See Orders of the Constitutional Court No. Up-199/98, dated 25 March 1999, Para. 5 of the reasoning, and No. Up-387/03, dated 18 November 2004 (Official Gazette RS, No. 131/04, and OdlUS XIII, 90), Para. 4 of the reasoning; as well as Decisions of the Constitutional Court No. Up-373/97, dated 22 February 2001 (Official Gazette RS, No. 19/01, and OdlUS X, 108), Paras. 7 and 12 of the reasoning; No. Up-388/10, Up-539/10, Up-459/11, Up-477/11, Up-498/11, Up-499/11, Up-500/11, Up-501/11, Up-502/11, Up-503/11, Up-504/11, Up-505/11, dated 8 November 2012 (Official Gazette RS, No. 90/12), Para. 11 of the reasoning; No. Up-545/11, Up-544/11, dated 7 June 2012 (Official Gazette RS, No. 50/12), Paras. 7 and 8 of the reasoning; and No. Up-615/14, Up-707/14, dated 27 October 2016 (Official Gazette RS, No. 73/16), Paras. 6 and 7 of the reasoning.
[16] See F. Testen in L. Šturm (Ed.), Komentar Ustave Republike Slovenije [Commentary on the Constitution of the Republic of Slovenia], Fakulteta za podiplomske državne in evropske študije, Ljubljana 2002, p. 1101.
[17] In [legal] theory, it is stressed that the second complainant is a body of the (then existing) European Community entrusted with [the performance of] tasks of a public nature and that it is bound by the objectives, system, and institutional structure of the Treaty. It performs public functions and tasks that were traditionally performed by national central banks (T. Tridimas, Community Agencies, Competition Law and ECSB Initiatives, Yearbook of European Law, No. 1 (2009), p. 266).
[18] See in particular Para. 20 of the reasoning of the mentioned Decision.
[19] Ibidem, Para. 22 of the reasoning.
[20] The ECB invokes its immunity from investigative actions referred to in Protocol No. 7, while Article 39 of Protocol No. 4 expressly determines that the ECB “shall enjoy in the territories of the Member States such privileges and immunities as are necessary for the performance of it tasks [...].” Also from the content of the constitutional complaint (in particular on page 9) it is possible to discern that the ECB advocates the position that the Police seized from the BS numerous documents connected with the work of ECB bodies, including documents concerning decision-making in concrete cases. Essentially, the tasks of the ECB as an EU institution and of the central banks of the eurozone are authoritative by nature.
[21] Companies and other legal entities that are not state authorities have at their disposal the request in accordance with the second paragraph of Article 221 of the CrPA, which does not refer to the protection of general interests, but business interests, with regard to which they may only request that certain information not be published, and cannot refuse to allow the inspection of information or to hand over such.
[22] The mentioned provision reads as follows: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
[23] Judgment of the CJEU in Islamic Republic of Iran Shipping Lines v. Turkey, dated 13 December 2007.
[24] Two Orders of the European Commission for Human Rights in 16 Austrian Communes and some of their Councillors v. Austria, dated 31 May 1974, and Ayuntamiento de M v. Spain, dated 7 January 1991.
[25] This was stated already in the Judgments of the CJEU in Rewe-Zentralfinanz and Rewe-Zentral, 33/76, dated 16 December 1976, Para. 5 of the reasoning, and in Comet, 45/76, dated 16 December 1976, Para. 13 of the reasoning.
[26] Cf. Judgment of the CJEU in Rewe-Zentralfinanz and Rewe-Zentral, Para. 5 of the reasoning.
[27] See, e.g., the Judgment of the CJEU in the joined cases Verholen and others, C-87/90 through C-89/90, dated 11 July 1991, Para. 24 of the reasoning.
[28] See, e.g., the Judgments of the CJEU in Upjohn, C-120/97, dated 21 January 1999, Paras. 27–37 of the reasoning; and in Mono Car Styling, C-12/08, dated 16 July 2009, Paras. 46–52 of the reasoning.
[29] In this sense, see also, e.g., the Judgment of the CJEU in Agrokonsulting-04, C‑93/12, dated 27 June 2013, Paras. 34–61 of the reasoning.
[30] The Judgment of the CJEU in Diouf, C-69/10, dated 28 July 2011, Para. 69 of the reasoning.
[31] Cf., e.g., the Judgments of the CJEU in DEB, C-279/09, dated 22 December 2010, Paras. 36–59 of the reasoning, and Kingdom of Spain v. Council, C-521/15, dated 20 December 2017, Paras. 87 and 89 of the reasoning.
Type of procedure:
review of constitutionality and legality of regulations and other general acts
constitutional complaint
Type of act:
statute
individual act
Applicant:
Bank of Slovenia
Date of application:
5. 9. 2016
Date of Decision:
19. 4. 2018
Type of decision adopted:
ruling
Outcome of proceedings:
rejection
rejection
rejection
Published:
Official Gazette RS, No. 32/2018
Document:
AN03908

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