| Polno besedilo: |
No. U-I-54/09
Date: 14 April 2011
DECISION
At a session held on 14 April 2011 in proceedings to review constitutionality initiated upon the petition of the Stranka Slovenskega Naroda [the Party of the Slovene Nation], Maribor, represented by Zdenko Vinkov, Vice President, and Mednarodni zavod MIR [the International Foundation MIR], Ljubljana, represented by Jon Jamnikar, Director, the Constitutional Court
decided as follows:
1. The first paragraph of Article 16a of the Referendum and People's Initiative Act (Official Gazette RS, No. 26/07 – official consolidated text) is not inconsistent with the Constitution.
2. The petition to initiate proceedings for the review of the constitutionality of the second and third paragraphs of Article 12a, and the second paragraph of Article 16b of the Referendum and People's Initiative Act is dismissed.
3. The petition to initiate proceedings for the review of the constitutionality of the second and third paragraphs of Article 16, of Article 16b, and the Section 2 of Chapter II of the Referendum and People's Initiative Act is rejected.
Reasoning
A.
1. The first petitioner (the Party of the Slovene Nation) challenges the third paragraph of Article 12a, the second and third paragraphs of Article 16, the first paragraph of Article 16a, Article 16b, and the entire Section 2 of Chapter II of the Referendum and People's Initiative Act (hereinafter referred to as the RPIA). It alleges that the statutory regulation of the legislative referendum is inconsistent with the Constitution to the extent that it regulates referendums requested by voters due to insufficient and imprecise regulation, i.e. numerous gaps in the law. It is allegedly inconsistent with the principle of legal certainty (Article 2 of the Constitution) and the right to participate in the management of public affairs (Article 44 of the Constitution) that the legal position of the initiator of a request for the calling of a referendum is ambiguous after the filing of the referendum initiative. This ambiguity is allegedly most evident in the first paragraph of Article 16a of the RPIA, which does not provide for any procedure that the President of the National Assembly of the Republic of Slovenia should follow after a referendum initiative supported by at least 2,500 voters has been submitted. The petitioner is of the opinion that a procedure should be determined that would clearly regulate the competences of the President of the National Assembly and define the legal position of referendum initiators. The petitioner calls attention to the possibility of arbitrary decision-making by the President of the National Assembly, who on the basis of the first paragraph of Article 16a of the RPIA notifies the referendum initiator only by means of a notice of the determined deadline for collecting the required 40,000 signatures. However, since the RPIA does not provide for a legal remedy against a decision by the President of the National Assembly to not determine a time limit for the collection of the required signatures, this allegedly entails a violation of the right to a legal remedy (Article 25 of the Constitution). The petitioner is of the opinion that regarding the phase when the President of the National Assembly decides on the initiative, the RPIA should determine a procedure which would regulate the legal position of a referendum initiator in detail and would thus prevent the abuse [of the office of the President of the National Assembly].
2. The petitioner claims that Article 16b of the RPIA is inconsistent with Articles 1, 3, 14, 25, 44, and 90 of the Constitution. What is allegedly unconstitutional is the authentication of signatures at local public administrative units. Due to the fact that the regulation does not allow the collection of signatures “in the street”, collecting signatures is allegedly unfeasible or at least made very difficult; successful signature collecting is allegedly conditioned on the available funds of the referendum initiator, which is allegedly inconsistent with the principle of equality before the law (the second paragraph of Article 14 of the Constitution). The principle of equality before the law is also allegedly violated due to the working hours and location of local public administrative units and/or their respective branch offices. Local public administrative units allegedly close for the day before the average voter finishes work. Therefore, the employed population is not able to access administrative authorities or can do so only with great difficulty. Furthermore, the capacity of local public administrative units (e.g. the number of service windows open) is allegedly too low. Long lines occur, which allegedly deters numerous voters from supporting referendum initiatives. Article 16b of the RPIA is allegedly unconstitutional also because the operation of local public administrative units depends on the instructions issued in each instance by various ministries. Also allegedly inconsistent with the Constitution is the fact that the [normally] thirty-five day period determined for giving support to a referendum initiative is fifteen days shorter in cases when support is given in one of the supplementary manners (in hospitals, homes for the elderly, prisons, and similar institutions, as well as by voters abroad or by means of a visit from an official to a person's home).
3. In the opinion of the petitioner, the third paragraph of Article 12a of the RPIA, which determines the thirty-five day time limit for collecting signatures for a request for the calling of a referendum, is inconsistent with the Constitution due to the fact that it is allegedly not sufficiently precise. In connection with Article 16b (due to the working hours of local public administrative units, workdays, and holidays), it is allegedly uncertain how much time a referendum initiator actually has available to collect the required 40,000 signatures, while at the same time such period of time completely depends on the determination of the beginning of this period in the notice issued by the President of the National Assembly. Furthermore, the thirty-five day time limit is allegedly too short; the petitioner is of the opinion that a referendum petitioner should have available at least one hundred days. The petitioner alleges that the second and third paragraphs of Article 16 of the RPIA are inconsistent with Articles 3 and 38 of the Constitution, as the executive branch of power, due to its excessive interference in the legislative procedure, entails a threat to the confidentiality of the personal data of signatories to the referendum initiative. The entire Section 2 of Chapter II of the RPIA is allegedly inconsistent with Article 3 of the Constitution as it does not enable a preliminary legislative referendum to be called.
4. The second petitioner (the International Foundation MIR) challenges the second paragraph of Article 12a, the second paragraph of Article 13, and the second paragraph of Article 16 of the RPIA. Regarding the second paragraph of Article 12a and the second paragraph of Article 16 of the RPIA, it alleges that the seven-day time limit for submitting a notice on a referendum initiative expires already in the middle of the final day (at the end of the workday of the competent department of the National Assembly) and not at the end of the last day. If the initiator submits the notice of the referendum initiative on the final day of the seven-day period, it can at best only the next day obtain the notice of the President of the National Assembly whether, in accordance with the first paragraph of Article 16a of the RPIA, he will determine the time limit for the collection of the required 40,000 signatures. The petitioner calls attention to the fact that, in the event of a negative decision by the President of the National Assembly, the referendum initiator does not have any possibility to challenge the decision, neither can he be issued an interim measure in accordance with Article 32 of the Judicial Review of Administrative Acts Act (Official Gazette RS, Nos. 105/06 and 62/10 – JRAAA]) in time for it to be effective, as pursuant to the first paragraph of Article 91 of the Constitution, the President of the Republic promulgates laws no later than eight days after they have been adopted by the National Assembly. The petitioner opines that due to such regulation an initiator is left to the good will of the President of the National Assembly as he receives his individual act only after “everything is already over”. Since a referendum initiator does not have at his disposal an effective legal remedy against the decision of the President of the National Assembly, there allegedly exists a violation of the right to a legal remedy determined by Article 25 of the Constitution and the right to participate in the management of public affairs determined by Article 44 of the Constitution. Furthermore, the petitioner is of the opinion that Article 13 of the RPIA should make possible the staying of the promulgation of a law also in the event a referendum initiator challenges within a determined time limit the notice of the President of the National Assembly that he will not issue a notice that signatures can henceforth be collected. The existence of this gap in the law in the second paragraph of Article 13 of the RPIA is allegedly inconsistent with the principles of a state governed by the rule of law determined in Article 2 of the Constitution. Finally, the petitioner also calls attention to the, in his opinion, unconstitutional differentiation (with regard to the second paragraph of Article 14 of the Constitution) between referendum initiators and deputies of the National Assembly; namely, when a referendum is proposed by ten deputies or required by thirty deputies, they can file such proposal or request by midnight of the final day of the seven-day time limit that began to run when the law was adopted, while a referendum initiator seeking the support of voters must do so by the end of official working hours.
5. The National Assembly did not respond to the petition.
6. The Government of the Republic of Slovenia submitted an opinion regarding the petitions. In relation to the first petition, the Government is of the opinion that the thirty-five day time limit determined by the third paragraph of Article 12a of the RPIA is appropriate, and also remains so even in connection with Article 16b of the RPIA, which determines the formal conditions for giving support to a referendum initiative. The Government assesses that the second and third paragraphs of Article 16 of the RPIA are not inconsistent with Articles 3 and 38 of the Constitution since the third paragraph of Article 16 determines that personal data pertaining to voters on the list of supporters is protected as confidential. The Government also opines that Article 16a of the RPIA is not unconstitutional. Namely, in this provision time limits are allegedly determined precisely enough and allegedly provide a referendum initiator with sufficient time to adequately prepare for the collection of signatures. With regard to Article 16b of the RPIA, the Government states that a detailed record of signatures given before a competent state authority is absolutely necessary, and therefore the law must precisely determine the conditions necessary for giving support by signature. The prescribed manner of officially registering support is necessary when giving support to a request for the calling of a referendum since collecting signatures “in the street” would enable possible abuse of the institute of the referendum. In the opinion of the Government, Articles 16a and 16b of the RPIA enable every voter to express support for a request for the calling of a referendum by giving one's signature. The working hours of local public administrative units are also allegedly not a barrier to such. Finally, the Government is of the opinion that Section 2 of Chapter II of the RPIA, which no longer provides for a preliminary legislative referendum, is not inconsistent with Article 3 of the Constitution as it does not entail a violation or limitation of the right to directly exercise power.
7. With regard to the second petition, the Government is of the opinion that the seven-day time limit determined by Article 12a of the RPIA, in conjunction with with the formal conditions determined by the second paragraph of Article 16 of the RPIA, entails an appropriate basis for exercising the right to directly exercise power and does not entail a violation of the right to a legal remedy or the right to participate in the management of public affairs. With regard to the different time limits for referendum initiators and deputies of the National Assembly referred to in the second paragraph of Article 12a of the RPIA, the Government opines that such differentiation is justified since an initiative must be supported by the signatures of 2,500 voters, which the competent department of the National Assembly must count and check by the next day.
B. – I.
8. The Constitutional court joined the two petitions for joint deciding and consideration.
9. A petition to initiate proceedings for the review of constitutionality may be lodged by anyone who demonstrates legal interest (the first paragraph of Article 24 of the Constitutional Court Act, Official Gazette RS, No. 64/07 – official consolidated text – hereinafter referred to as the CCA). Pursuant to the second paragraph of the mentioned 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. In the present case, the petitioners substantiate their legal interest by the fact that at the time of, or, more precisely, immediately before lodging their petitions to initiate proceedings for the review of constitutionality they were participants in two respective procedures for the calling of a subsequent legislative referendum. The Party of the Slovene Nation was the initiator of the calling of a legislative referendum on the Act Ratifying the Protocol to the North Atlantic Treaty on the Accession of the Republic of Croatia (Official Gazette RS, No. 23/09, MP, No. 6/09 – hereinafter referred to as the ARPNATARC), while the International Foundation MIR was the initiator of the calling of a referendum on the Act on the Co-existence of Genetically Modified Plants with Other Agricultural Plants (Official Gazette RS, No. 49/09 – hereinafter referred to as the ACGMPOAP). Despite the fact that in the meantime both acts entered into force and thus it is no longer possible to carry out a legislative referendum with regard thereto, the Constitutional Court did recognise the petitioners' legal interest for challenging certain provisions of the RPIA since their allegations regarding the regulation of referendums indicate that a question arises regarding the effective exercise of voters' constitutional right to request the calling of a legislative referendum on an act (the second paragraph of Article 90 of the Constitution) and thus to achieve direct exercise of legislative power, as provided for by the second paragraph of Article 3 and Article 44 in conjunction with Article 90 of the Constitution.
10. With regard to their respective positions in the above-mentioned referendum procedures, the petitioners (within the framework of their allegations) demonstrate legal interest only for the review of those provisions of the RPIA that directly refer to the position of an initiator of the calling of a referendum in the so-called preliminary referendum procedure. The first petitioner therefore does not demonstrate legal interest for challenging the second and third paragraphs of Article 16 of the RPIA from the perspective of a violation of the protection of the personal data of voters who supported a referendum initiative since such an assertion refers to the legal position of individual voters and not directly to the position of a political party as the initiator of the calling of a referendum. Furthermore, the first petitioner does not demonstrate legal interest for the review of Article 16b of the RPIA (except for the second paragraph of Article 16b), which regulates the manners and procedures in accordance with which voters give support to requests for the calling of a referendum; these provisions also do not refer directly to the legal position of a referendum initiator, but rather to the legal position of individual voters who want to give support to a request for the calling of a referendum. Additionally, the first petitioner does not demonstrate legal interest for challenging Section 2 of Chapter II of the RPIA by alleging that it does not regulate the preliminary legislative referendum; this issue is also not related to the legal position of a referendum initiator in a referendum procedure. With regard to these provisions of the RPIA, the Constitutional Court therefore rejected the petition (Point 3 of the operative provisions).
B. – II.
11. While with regard to some of the challenged provisions and allegations the petitioners do demonstrate legal interest for a review of constitutionality, their allegations are nevertheless manifestly unfounded. The allegation of the first petitioner that it is inconsistent with the Constitution that the RPIA does not allow referendum initiators to collect signatures “in the street” in the final phase of the preliminary procedure, but rather that voters can only give support by signing the relevant form in person before the competent state authority (the second paragraph of Article 16b of the RPIA) is manifestly unfounded. The second phase of the preliminary procedure, i.e. collecting the signatures of 40,000 voters in support of a request to call a referendum, is regulated by Article 16b of the RPIA. In this phase, the collection of signatures differs from the collection of the signatures of at least 2,500 voters referred to in the second paragraph of Article 16 of the RPIA. The second phase of the preliminary procedure entails the fulfilment of the condition that a referendum initiative must receive enough support from voters for it to become a request on the basis of which the National Assembly must call a legislative referendum (the second paragraph of Article 90 of the Constitution). Already by Decision No. U-I-217/02, dated 17 February 2005 (Official Gazette RS, No. 24/05, and OdlUS XIV, 6), the Constitutional Court adopted the position that in this phase the role of a referendum initiator is important since it depends to a large degree on his commitment whether an initiative will become a request; however, in addition to ensuring effective exercise of the right to a referendum, the state must also ensure that no irregularities or even abuses occur with regard to such. Therefore, the legislature has the authority to select at its own discretion the manner of giving support to a request for the calling of a referendum which it deems will meet the stated objectives. The Constitutional Court is not competent to decide whether any other manner of giving support would be more appropriate than the currently valid one. It would be competent to do so only in the event that the manner of giving support was determined such that it would actually make giving support to a request for a referendum impossible or disproportionately difficult, which, however, is not the situation in the present case.
12. Also manifestly unfounded is the allegation that the thirty-five day time limit determined by the third paragraph of Article 12a of the RPIA with regard to the collection of signatures for a referendum request is imprecise, or rather, that it is unclear how much time a referendum initiator actually has available for collecting the required 40,000 signatures. It is possible to agree with the allegation of the first petitioner that due to weekends and holidays referendum initiators may have available a different number of workdays during which they can effectively collect signatures for referendum requests. However, such does not make the thirty-five day time limit determined by the law for the collection of such signatures in support imprecise. After it is established that a referendum initiative has been submitted in accordance with the law, the President of the National Assembly determines the time limit for collecting signatures. He must do so within seven days of receiving the initiative. The time limit for the collection of signatures is delimited in terms of a period of time such that two dates are determined, namely the date of the commencement and the date of the conclusion of the time limit (the first paragraph of Article 16a of the RPIA). In determining the time limit, the President of the National Assembly must take into consideration that the request to call a referendum and the time limit for the collection of signatures must be published in the media at least one day before the period begins (the second paragraph of Article 16a of the RPIA). Thus, it is perfectly clear that individual voters have at their disposal thirty-five calendar days to sign – before the competent state authority and during its working hours – a form declaring support for the request for a referendum. Therefore, the assertions regarding the inconsistency of this provision with the principle of clarity and precision determined by Article 2 of the Constitution are manifestly unfounded.
13. Furthermore, the allegation that the thirty-five day period is too short (in the opinion of the first petitioner, a referendum initiator should have at least one-hundred days to collect signatures) is manifestly unfounded. The statutorily determined time limit available for the collection of the signatures of 40,000 voters falls within the manner of exercising the right to a referendum, which is at the discretion of the legislature. With regard to such, the Constitutional Court can decide only whether such a time limit is unreasonable, namely, whether it entails such a burden on individual voters or referendum initiators that it makes the exercise of their right to request, together with other voters, the calling of a legislative referendum impossible or at least disproportionately difficult. The first petitioner does not claim such; its allegations are too general and unsubstantiated. The mere fact that not every referendum initiator is successful in collecting signatures for the calling of a referendum and the fact that a shorter time limit, by the nature of things, as a general rule requires greater effort by referendum initiators, does not entail that the thirty-five day time limit is unreasonably short.
14. Also manifestly unfounded is the allegation of the second petitioner that the second paragraph of Article 12a of the RPIA unjustifiably differentiates between referendum initiators and the deputies of the National Assembly since ten deputies can propose and thirty deputies can require a referendum by midnight of the final day of the seven-day time limit that begins to run when a law is adopted, while a referendum initiator seeking the support of voters must do so by the end of the official working hours of the competent department of the National Assembly. Since an initiative for the calling of a referendum must be supported by the signatures of 2,500 voters, which must be counted and checked for authenticity, prima facie such differentiation seems justified and even necessary.
15. Since the allegations regarding the second and third paragraphs of Article 12a and the second paragraph of Article 16b of the RPIA are manifestly unfounded, the Constitutional Court dismissed the two petitions to the extent that they refer to such (Point 2 of the operative provisions).
16. The petitioners challenge the second paragraph of Article 13 and the first paragraph of Article 16a of the RPIA by alleging that no effective legal remedy and thus no judicial protection is ensured against the act of the President of the National Assembly by which he notifies an initiator of the calling of a referendum that the initiative was not submitted in accordance with the law and that therefore the statutory conditions for determining the time limit for collecting signatures were not fulfilled. In fact, the Constitutional Court has numerous times repeated its standpoint that such acts of the President of the National Assembly are, by their nature, individual acts and that judicial protection against such is ensured in proceedings for the judicial review of administrative acts. Nevertheless, since the question arises in the case at issue whether such regulation of judicial protection is at all appropriate with regard to referendums, the Constitutional Court recognised the petitioners' legal interest for challenging the second paragraph of Article 13 and the first paragraph of Article 16a of the RPIA. It accepted the petitions to the extent that they refer to such, and, since the conditions determined by the fourth paragraph of Article 26 of the CCA were fulfilled, it proceeded to decide on the merits of the case.
17. As the allegation of the second petitioner regarding the second paragraph of Article 13 of the RPIA can also refer to the first paragraph of Article 16a of the RPIA, the Constitutional Court deemed that both petitioners challenge the first paragraph of Article 16a of the RPIA and reviewed constitutionality only with regard to this statutory provision.
B. – III.
18. The second paragraph of Article 3 of the Constitution determines the fundamental principle of the organisation of the state, in accordance with which, in Slovenia power is vested in the people such that citizens exercise it directly and in elections, in accordance with the principle of the separation of legislative, executive, and judicial powers. At the constitutional level, the principle of the direct exercise of power can be derived from Article 90 of the Constitution, which regulates the legislative referendum as a form of direct exercise of legislative power.[1] In the RPIA the legislature determined that when voters directly exercise legislative power they do so by means of the subsequent legislative referendum. By means of such, voters decide on confirming an act adopted by the National Assembly before such is promulgated (Article 9 of the RPIA). The National Assembly may call a legislative referendum on its own initiative,[2] however, it must call such referendum if so required by at least one third of the deputies, by the National Council, or by 40,000 voters (the second paragraph of Article 90 of the Constitution and Article 12 of the RPIA).
19. With regard to the legislative referendum requested by voters, the referendum procedure begins with the so-called preliminary procedure, which is divided into two phases. The first phase begins with an initiative addressed to voters regarding the submission of a request for the calling of a referendum. Such initiative may be submitted by any voter, political party, or other association of citizens (the first paragraph of Article 16 of the RPIA). Initiators must notify the President of the National Assembly of their initiative within seven days of the adoption of the law (the second paragraph of Article 12a of the RPIA), and the initiative must be supported by the signatures of at least 2,500 voters (the second paragraph of Article 16 of the RPIA). The challenged first paragraph of Article 16a of the RPIA does not explicitly determine who is responsible for the evaluation of whether an initiative for the calling of a referendum has been submitted in accordance with the law. What follows from Article 20 of the RPIA is only that the President of the National Assembly establishes whether a referendum question is formally correctly formulated (as required by Article 16c of the RPIA [3]). However, it is possible to conclude from the third paragraph of Article 16 of the RPIA[4] that the evaluation of whether a referendum initiative is supported by the authenticated signatures of at least 2,500 voters is to be carried out by the President of the National Assembly with the assistance of the competent department of the National Assembly[5] and the Ministry of the Interior. If a referendum initiative has been submitted in accordance with the law, the second phase of the preliminary referendum procedure begins – the collection of the signatures of 40,000 voters. The President of the National Assembly must, within seven days of receiving the initiative, determine the time limit for collecting the signatures of voters supporting the request for the calling of a referendum. Concurrently, the referendum initiator is notified of the determined time limit (the first paragraph of Article 16a of the RPIA). The designation of the request for the calling of a referendum and the time limit determined for the collection of signatures are to be published also in the media one day at the latest before such period of time begins (the second paragraph of Article 16a of the RPIA).
20. With regard to the allegations of the petitioners, in the present case the question should be answered whether judicial protection should be ensured against a negative decision of the President of the National Assembly (i.e. in the event that he does not determine a time limit for the collection of signatures).
21. The Constitutional Court has numerous times adopted the position that the act of the President of the National Assembly by which he notifies a referendum initiator that he will not determine the time limit for the collection of signatures is, by its nature, an individual act against which judicial protection by means of proceedings for the judicial review of administrative acts must be ensured (as the Constitutional Court stated in Decisions No. U-I-104/01, dated 18 June 2001 (Official Gazette RS, No. 52/01, and OdlUS X, 123), and No. U-I-217/02, and in Orders No. U-I-346/98, dated 26 October 2000 (OdlUS IX, 255), No. U-I-287/02, dated 21 November 2002 (OdlUS XI, 241), No. U-I-138/03, dated 17 February 2005, and No. U-I-49/08, dated 15 October 2008).
22. In the assessment of the Constitutional Court, the position that judicial protection in proceedings for the judicial review of administrative acts must be ensured against the notice of the President of the National Assembly issued on the basis of the first paragraph of Article 16a of the RPIA should be re-evaluated. With regard to such, the starting point of the Constitutional Court was the principle of the separation of powers as determined by the second paragraph of Article 3 of the Constitution.
23. The principle of the separation of powers is a fundamental principle of the organisation of state power. In comparable constitutional orders, this principle is implemented in various manners. However, the general characteristic of the modern understanding of this principle is that authorities carrying out the fundamental functions of state power are relatively autonomous and independent of other authorities in performing their operations, such that none of them can become predominant. Among them, there exists a refined system of mutual control, limitations, and restraint, intertwined co-dependence and balance (the so-called checks and balance system).[6]
24. Since the constitutional principle par excellence is at issue here, the fundamental rules that regulate the position and relations between the holders of individual functions of state power are determined already by the Constitution. The content of the principle of the separation of powers entails constitutional law relations between individual branches of power. Therefore, it is only possible to more precisely delineate and determine this constitutional subject matter by laws, but it is not possible to introduce mechanisms of checks and balance that are not fundamentally envisaged already in the Constitution.
25. Within the principle of the separation of powers, the legislative function is, as a general rule, performed by the National Assembly as a general elected representative body. The legislative function, however, can be directly exercised also by voters in such a manner that they, upon a proposal by qualified initiators, decide in a subsequent legislative referendum whether a law that has been already adopted by the National Assembly should be confirmed or rejected. Therefore, in a broader sense the referendum procedure is a part of the legislative procedure. In a narrower sense, the legislative procedure entails the procedure for passing laws in the National Assembly,[7] whereas in a broader sense it also includes the legislative initiative (Article 88 of the Constitution), the suspensive veto of the National Council (the second paragraph of Article 91 of the Constitution), the legislative referendum (Article 90 of the Constitution), the promulgation of laws (the first paragraph of Article 91 and the second indent of the first paragraph of Article 107 of the Constitution), and the publication of regulations in the Official Gazette of the Republic of Slovenia (Article 154 of the Constitution).[8] Fundamental rules determining competences and relations between subjects participating in the creation of laws are therefore determined by the Constitution and are a reflection of the principle of the separation of powers at the constitutional level.
26. With regard to the procedure for creating law, the Constitution does not envisage judicial supervision of decisions adopted in the legislative procedure by authorities, i.e. their representatives. Therefore, interferences (intruding, tampering) by the judicial branch of power cannot be envisaged with regard to the referendum procedure without an appropriate basis in the Constitution. Such does not entail that the principle of the separation of powers, as derived from the Constitution, is a barrier to determining judicial protection with regard to the subsequent legislative referendum procedure.
27. In accordance with the first indent of the first paragraph of Article 160 of the Constitution, supervision of the performance of the legislative function is carried out by the Constitutional Court. On the basis of this provision the Constitutional Court is competent to decide on the consistency of acts with the Constitution. With regard to such, it does not decide only whether acts are consistent with the Constitution in terms of their content, but also whether the procedures by which such were adopted are consistent with the Constitution.[9] Already in Decision No. U-I-197/97, dated 21 May 1998 (OdlUS VII, 93), the Constitutional Court stated that statutory provisions are not unconstitutional only when their content is inconsistent with the Constitution, but can also be unconstitutional due to the violation of constitutional rules regarding the legislative procedure.[10] Thus, in the Constitution the principle of the separation of powers is derived in such a manner that only subsequent constitutional supervision of the procedure for adopting acts is envisaged. In the framework of such consideration, the Constitutional Court also ensures the protection of voters' constitutional right to a referendum, including the right of 40,000 voters to request a referendum. In the event that the state authorities that are involved in the referendum procedure violate this constitutional right of voters by their acts or conduct, the act regarding which the referendum would otherwise be carried out would be adopted in an unconstitutional procedure. The Constitutional Court would abrogate such an act.
28. Therefore, for the above-mentioned constitutional law reasons, the Constitutional Court has changed its position regarding judicial protection against an act of the President of the National Assembly issued on the basis of the first paragraph of Article 16a of the RPIA. It is not inconsistent with the Constitution if the RPIA does not determine special judicial protection against an act of the President of the National Assembly by which he notifies a referendum initiator that he will not determine a time limit for the collection of signatures. Initiators of a legislative referendum may claim abuses and irregularities committed by state authorities in the preliminary referendum procedure which entail a violation of the constitutional right to a referendum or the right to request the calling of a referendum by means of lodging a petition to initiate proceedings for the review of the constitutionality of the act regarding which a decision was to be adopted in a referendum.
29. On the basis of the above-mentioned, the Constitutional Court decided that the first paragraph of Article 16a of the RPIA is not inconsistent with the Constitution (Point 1 of the operative provisions).
C.
30. The Constitutional Court reached this Decision on the basis of the first paragraph of Article 48 of the CCA, composed of President Dr. Ernest Petrič, and Judges Dr. Mitja Deisinger, Dr. Etelka Korpič – Horvat, Mag. Miroslav Mozetič, Jasna Pogačar, Mag. Jadranka Sovdat, Jože Tratnik, and Jan Zobec. The Decision was reached unanimously.
Dr. Ernest Petrič
President
Notes:
[1] Article 90 of the Constitution determines the following: “(1) The National Assembly may call a referendum on any issue which is the subject of regulation by law. The National Assembly is bound by the result of such referendum. (2) The National Assembly may call a referendum from the preceding paragraph on its own initiative, however it must call such referendum if so required by at least one third of the deputies, by the National Council, or by forty thousand voters. (3) The right to vote in a referendum is held by all citizens who are eligible to vote in elections. (4) A proposal is passed in a referendum if a majority of those voting have cast votes in favour of the same. (5) Referendums are regulated by a law passed in the National Assembly by a two-thirds majority vote of deputies present.”
[2] On the initiative of at least ten deputies, a deputy group, the proposer of a law or the Government (the first paragraph of Article 11 of the RPIA).
[3] Article 16c of the RPIA determines the following: “A request for the calling of a referendum, an initiative addressed to voters, and an initiative addressed to the National Assembly shall contain the referendum question which reads as follows: “Are you in favour of the enactment of the law … (state the name of the law), which the National Assembly adopted at a session on the following day …?””
[4] The third paragraph of Article 16 of the RPIA determines the following: “The President of the National Assembly, the competent department of the National Assembly, and the ministry competent to manage the register of voting rights shall protect as confidential the personal data of the voters on the list referred to in the previous paragraph, except for the data of the initiator.”
[5] The second paragraph of Article 185 of the Rules of Procedure of the National Assembly (Official Gazette RS, No. 92/07 – official consolidated text – RoPNA) determines the following: “Before a referendum is called, the Legislative and Legal Service delivers its opinion on whether the request for the calling of a referendum meets all the requirements provided by law.”
[6] L. Šturm, Omejitev oblasti: ustavna izhodišča javnega prava [Limiting Power: Constitutional Starting Points of Public Law], Nova revija, Ljubljana 1998, p. 13. See also Decisions of the Constitutional Court No. U-I-83/94, dated 14 July 1994 (Official Gazette RS, No. 48/94, and OdlUS III, 89) and No. U-I-159/08, dated 11 December 2008 (Official Gazette RS, No. 120/08, and OdlUS XVII, 71).
[7] In this sense the concept of the legislative procedure is defined by Article 89 of the Constitution, which is entitled “Legislative Procedure” and determines that the National Assembly shall pass laws in a multiphase procedure unless otherwise provided by its Rules of Procedure.
[8] Cf. paragraph 25 of the reasoning in Constitutional Court Decision No. U-I-104/01, dated 18 June 2001 (Official Gazette No. 52/01, and OdlUS X, 123).
[9] Also the third paragraph of Article 21 of the Constitutional Court Act determines that in deciding on the constitutionality and legality of regulations, the Constitutional Court also decides on the constitutionality and legality of the procedures by which these regulations were adopted.
[10] Once a law has already been adopted and entered into force, it is possible in proceedings before the Constitutional Court to challenge only the content of the law or only the procedure by which the law was adopted, or both concurrently (see, e.g. Decisions of the Constitutional Court No. U-I-119/95, dated 12 October 1995, Official Gazette RS, No. 64/95, and OdlUS IV, 98, and No. U-I-246/97, dated 15 October 1997, Official Gazette RS, No. 65/97, and OdlUS VI, 127).
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