|
Strasbourg, 26 March 2004
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CDL-JU (2004)029
Eng. only
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EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
in co-operation with
the Constitutional
court of azerbaijan
|
INTERNATIONAL
LEGAL TRAINING
WORKSHOP
Improving Eexamination Methods of
Individual Complaints
Effective Case Management
Effective Decision Drafting
Baku, 26-27 February 2004
REPORT
ON
“The Constitutional Complaint”
Arne
Mavcic, Slovenia |
A History
With the introduction of the Constitutional Court by the Constitution of 1963, the then
Slovenian Constitutional Court also acquired jurisdiction over the protection
of basic rights and freedoms. It
was empowered to decide on the protection of self-government rights and other
basic freedoms and rights determined by the then Federal and constituent
republic Constitutions if these were violated by an individual act or deed by a
State or municipal body or company if this were not guaranteed by other
judicial protection by statute (Article 228.3 of the Constitution of the SRS of
1963 and Articles 36-40 of the then Constitutional Court Act). The decision of
the Constitutional
Court
in such proceedings had a cassatory effect in the case of an established
violation (an annulment or invalidation or amendment of an individual act, and
the removal of possible consequences; or a prohibition on the continued
performance of an activity). The jurisdiction of the Constitutional Court was, therefore, subsidiary. It was possible
to initiate such proceedings only if, in a specific case, there was no judicial
protection envisaged, or if all other legal remedies were exhausted.
However, in practice the former Constitutional Court rejected such individual suits on the basis
of a lack of jurisdiction, and directed the plaintiff to proceedings before the
ordinary Courts. Such a state of
affairs also created a certain negative attitude in the Constitutional Court itself, since it knew in advance that it
would reject such suits and thus carry out a never-ending task. The then Constitutional Court itself warned that in relation to individual
acts, the most sensible solution would be for decisions to be transferred, as a
whole, to the ordinary Courts. The negatively arranged jurisdiction of the Constitutional Court (whenever other legal protection was not
provided) resulted in the fact that its activities in this field showed no
results, although this activity was initiated precisely because of a complaint
for the protection of rights. However, the then system of the constitutional
review guaranteed throughout, the individual the right of popular complaint
(actio popularis) without the appellant having to demonstrate his/her own
standing.
From then on, the constitutional complaint no
longer had any place in the system, until it was again reintroduced by the
Constitution of 1991. This specific legal remedy thus remained combined with
the previous system, i.e., with the possibility of lodging a popular complaint
(actio popularis) (Article 162.2 of the Constitution of 1991; Article 24 of the
Constitutional Court Act of 1994) with the Constitutional Court - despite the
individual as petitioner having to demonstrate his/her standing - which in
effect limits the procedural presumption. Accordingly, an individual may dispute all categories
of (general) act by lodging a constitutional or popular complaint (actio
popularis) if he/she is directly aggrieved.
B The Constitutional Complaint in Slovenia
The provisions of the Slovenian Constitution of
1991 that regulate the constitutional complaint in detail are relatively modest
(Articles 160 and 161 of the Constitution). However, the Constitution itself
(Article 160.3 of the Constitution) envisages special statutory regulations
(provisions of Articles 50-60 of the Constitutional Court Act).
The Constitutional Court decides cases of constitutional complaints
alleging violations of human rights and basic freedoms (Article 160.1.6 of the
Constitution). The protection thus embraces all constitutionally guaranteed
basic human rights and freedoms, including those adopted through the
international agreements that have become part of the national law through
ratification.
Any legal entity or individual may file a
constitutional complaint (Article 50.1 of the Constitutional Court Act), as may
the Ombudsman if it is directly connected with individual matters with which he
deals (Article 50.2 of the Constitutional Court Act), although subject to the
agreement of those whose human rights and basic freedoms he is protecting in an
individual case (Article 52.2 of the Constitutional Court Act). The subject-matter of a constitutional
complaint may be an individual act of a government body, a body of local
self-government, or public authority allegedly violating human rights or basic
freedoms (Article 50.1 of the Constitutional Court Act).
The precondition for lodging a constitutional
complaint is the prior exhaustion of all possible legal remedies (Article 160.3
of the Constitution; Article 51.1 of the Constitutional Court Act). As an exception to this condition the Constitutional Court may hear a constitutional complaint even
before all legal remedies have been exhausted in cases if the alleged violation
is obvious and if the carrying out of the individual act would have irreparable
consequences for the complainant (Article 51.2 of the Constitutional Court
Act).
A
constitutional complaint may be lodged within sixty days of the adoption of the
individual act (Article 52.1 of the Constitutional Court Act), though in
individual cases with good grounds, the Constitutional Court may decide on a constitutional complaint
after the expiry of this time limit (Article 52.3 of the Constitutional Court
Act). The complaint must cite the disputed individual act, the facts on which
the complaint is based, and the alleged violation of human rights and basic
freedoms (Article 53.1 of the Constitutional Court Act). It must be made in
writing and a copy of the respective act and appropriate documentation must be
attached to the complaint (Article 53.2 and Article 53.3 of the Constitutional
Court Act).
In a senate of three judges (Article 162.3 of the
Constitution; Article 54.1 of the Constitutional Court Act) the Constitutional Court decides whether it will accept or reject the
constitutional complaint for hearing (on its allowability) at a non-public
session. The Constitutional Court may establish a number of senates depending
on the need. The ruling of the Constitutional Court on the allowability of a constitutional
complaint (Article 55.3 of the Constitutional Court Act) is final. The constitutional complaint may be
communicated to the opposing party for response either prior to or after
acceptance (Article 56 of the Constitutional Court Act). The Constitutional Court normally deals with a constitutional
complaint in a closed session, but it may also call a public hearing (Article
57 of the Constitutional Court Act). The Constitutional Court may suspend the implementation of an
individual act, or statute, and other regulation or general act on the grounds
of which the disputed individual act was adopted (Article 58 of the
Constitutional Court Act).
The decision in
merito of the Constitutional Court may:
- deny the complaint as being unfounded (Article
59.1 of the Constitutional Court Act);
- partially or entirely annul or invalidate the
disputed (individual) act or return the case to the body having jurisdiction,
for a new decision (Article 59.1 of the Constitutional Court Act);
- annul or invalidate (ex officio) unconstitutional
regulations or general acts issued for the exercise of public authority if the
Constitutional Court finds that the annulled individual act is based on such a
regulation or general act (Article 161.2 of the Constitution; Article 59.2 of
the Constitutional Court Act);
- in case it annuls or invalidates a disputed
individual act, the Constitutional Court may also decide on the disputed rights
or freedoms if this is necessary to remove the consequences that have already
been caused by the annulled or invalidated individual act, or if so required by
the nature of the constitutional right or freedom, and if it is possible to so
decide on the basis of data in the documentation (Article 60.1 of the
Constitutional Court Act); such an order is executed by the body having
jurisdiction for the implementation of the respective act which was
retroactively abrogated by the Constitutional Court, and replaced by the
Court's decision on the same matter; if there is no such body having
jurisdiction according to currently valid regulations, the Constitutional Court
appoints one (Article 60.2 of the Constitutional Court Act).
Accordingly, the
particularities of the Slovenian regulation are as follows:
-
Exceptions to the precondition that all legal remedies must have been
previously exhausted, for filing a constitutional complaint (Article 51 of the
Constitutional Court Act);
-
A wide definition of constitutional rights as the subject of protection by the
constitutional complaint in comparison with other systems which specifically
define the circle of the rights so protected;
-
A judgment (of the ordinary Courts) as the potential subject of a dispute in a
constitutional complaint, which is relatively rare;
-
Ex officio proceedings inasmuch as the Constitutional Court is not limited by
the complaint in the event that it finds that an individual act annulled is
based on an unconstitutional regulation or general act - in such a case, the
regulation or general act may be annulled or invalidated (Article 59.2 of the
Constitutional Court Act);
-
The coexistence of the constitutional and popular complaint (actio popularis),
the latter restricted only by the standing requirements for the appellant;
-
No particular court fee is required in the proceedings: each party pays its own
costs in the proceedings before the Constitutional Court unless otherwise determined by the Constitutional Court (Article 34.1 of the Constitutional Court
Act);
-
The possibility of an ultimate decision on constitutional rights (Article 60.1
of the Constitutional Court Act).
The
core of judicial protection of human rights lies in the constitutional
complaint, since:
-
Human rights are attributes of any democratic legal system;
- The constitutional complaint is (only) one of the
legal remedies for protecting constitutional rights;
- The constitutional complaint is an important
remedy for the protection of human rights connected with the human rights
themselves;
The Constitution guarantees the constitutional
complaint, in the same way as the rights it protects; at the same time, the
constitutional complaint is limited by statute in favour of the operational
capacity of the Constitutional Court.
Its effectiveness is disputed, since successful
constitutional complaints are in a clear minority, although that should be no
reason for their restriction or abolition. Such restriction or abolition is also very often
the result of the great burden of this kind of case on Constitutional Court.
Furthermore,
despite some contradictory properties of this institution, the possibility of
justice or the judicial protection of constitutional rights must remain open to
the individual. The very existence of the constitutional complaint ensures a
more effective review of violations of constitutional rights on the part of
State bodies.
C Human
Rights Protection Viewed Through Slovenian Constitutional Case-Law
The Constitution of 1963 explicitly authorized the
Constitutional Court to make decisions on the protection of the self-government
right as well as other basic rights and freedoms specified by the Federal as
well as by the constituent republic Constitution, if these rights were violated
through an individual act of government, municipal body or by the activities of
other organisations, and no other judicial protection was provided for by
statute (Article 228.3 of the Constitution of the SRS). Further details were derived from Articles 36-40 of
the Constitutional Court Act. Examples of constitutional case-law from that period reveal that
Constitutional Courts rejected such individuals' complaints due to a lack of
jurisdiction, and they used to refer such complainants to the ordinary Courts. The activity of the Constitutional Court in the field of basic constitutional rights
and freedoms was predominantly based on petitions lodged by citizens. In the
initial period of the activity of the Constitutional Court, following the Constitution of 1963, the
protection of human rights and freedoms by the Constitutional Court made no intensive progress. Perhaps this was
due to an insufficiently specific constitutional and legal basis, one that
would provide the Constitutional Court with enough practical standards for its
decision-making. The reason perhaps
lay in the whole system, which was not in favour of the Constitutional Court protection of basic rights.
The
Constitution of 1974, however, removed the jurisdiction of the Constitutional Court over individual constitutional rights and
freedoms, and attributed the protection of these rights to the ordinary Courts.
Nevertheless, in the
second period of the Constitutional Court's activity, from the Constitution of 1974
till the Constitution of 1991, the number of decisions explicitly relating to
constitutionally protected human rights and freedoms, slightly increased. In this respect the examples of the
concretisation of the Principle of Equality before the Law, the Freedom of
Work, the right to social security, and the right to legal remedies, are of
special significance. Unfortunately, most of these decisions taken by the Constitutional Court included little reasoning. The reader may be
prevented from comprehending all of the background reasons for the decision.
It was also characteristic of Slovenian
Constitutional Case-Law prior to 1991 that, in comparison with Europe, it avoided the use of legal principles a great
deal more, even those explicitly included in the text of the Constitution
itself. In common with foreign
practice, however, the Principle of Equality greatly predominated among
otherwise rarely used principles. Decisions consistently remained within the framework of legal (formal)
argument and no other value references were ever allowed: the Constitutional Court respected the Principle of Self-Restraint
and stuck to the presumption of the constitutionality of statutes.
The
new Constitution of the Republic of Slovenia of 1991, along with the catalogue of
classical basic rights, in combination with the newly defined powers of the Constitutional Court, set the ground for the intensification of
its role in this domain. It is considered that the Constitutional Court now has sufficient space for such activity.
The Slovenian Constitution contains adequate definitions of rights which allow
for professionally correct understanding and reasoning. Almost all basic rights have the nature of
legal principles and are thus open to such an extent that they require
significant further concretisation and implementation.
The question as to whether Slovenian Constitutional
Case-Law from the period after the introduction of the 1991 Constitution, in
its relations to basic rights and freedoms, has adapted to or is more in line
with foreign constitutional case-law, can be answered in the sense that
Slovenian Constitutional Case-Law comes close to foreign case-law in its
approach to basic rights. The
number of examples from this field has increased. Concerning this, it is
necessary to bear in mind that the "frequency" of individual rights
before Constitutional Courts mainly depends on what kind of problems appellants
place before Constitutional Courts. The Constitutional Court now appears as the
guardian of constitutionality in such a way that it decides not only on the
accordance of general legal acts with constitutional provisions on basic
constitutional rights (in the sense of an abstract and specific review of
general legal acts) but also on constitutional complaints against the violation
of human rights and basic freedoms by individual acts (Article 160.1 and
Article 162 of the Constitution). Here it is, however, necessary to add that in
principle the new Constitution slightly limited the still broad possibilities
for individuals' dispute of general acts. In accordance with this principle,
any one still can submit a petition for the initiation of proceedings, yet on
the condition that they are able to prove their standing. The concretisation of
this newly prescribed condition is one of the issues which the Constitutional
Court is consistently concerned with in its actual practice.
The basic current text was taken from Mavcic A.,
Constitutional Law of Slovenia, Kluwer Law International, Den Haag/Boston/NY,
Suppl. 27 (June 1998), pages 262-269, however the text was
modified and updated.
Constitution
(Official
Gazette RS, Nos. 33/91, 42/97, 66/00 and 24/03)
Article 160
Unless
otherwise provided by law, the Constitutional Court decides on a constitutional complaint only
if legal remedies have been exhausted. The Constitutional Court decides whether to accept a constitutional
complaint for adjudication on the basis of criteria and procedures provided by
law (Para. 3).
Article 161
(Abrogation of a Law)
If in deciding on a
constitutional complaint the Constitutional Court establishes the
unconstitutionality of a regulation or general act, it may in accordance with
the provisions of the first paragraph of this article annul or abrogate such
regulation or act (Para. 2).
Article 162
(Proceedings before the Constitutional Court)
The Constitutional Court may decide whether to initiate proceedings
following a constitutional complaint with fewer judges as provided by law
(Para. 3).
CONSTITUTIONAL COMPLAINT
(Constitutional Court Act, Official Gazette RS, No.
15/94)
Article
50
1. Any person may, under the conditions determined by this Law, lodge a
constitutional complaint with the Constitutional Court if he believes that his human rights and
basic freedoms have been violated by a particular act of a state body, local
community body or statutory authority.
2. The human rights ombudsman can, under the conditions defined by law, lodge a
constitutional complaint with the Constitutional Court concerning a particular issue which it is
discussing.
Article
51
1. A constitutional complaint may be lodged only after all legal means have
been exhausted.
2. Before all extraordinary legal means have been exhausted, the Constitutional Court may exceptionally decide on a constitutional
complaint if a violation is probable and if certain irreparable consequences
would occur complainant as a result of the implementation of a particular act.
Article
52
1. A constitutional complaint shall be lodged within 60 days after the day of
the acceptance of a particular act against which a constitutional complaint is
permitted.
2. A human rights ombudsman shall submit a constitutional complaint with the
agreement of the person whose human rights or basic freedoms are being
protected during a particular matter.
3. In specially founded cases the Constitutional Court may exceptionally decide on the
constitutional complaint which has been lodged after the time-limit defined in
the first paragraph of this article.
Article
53
1. The constitutional complaint must indicate the particular act which is the
subject of the complaint and the facts of the alleged violation of human rights
and basic freedoms on which the complaint is based.
2. A constitutional complaint shall be lodged in writing. It must have enclosed
with it a copy of the particular act which is the subject of the complaint and
all documents forming the basis of the complaint.
3. An complaint with supplements must be lodged in three copies.
1. Procedure for Examining a
Constitutional Complaint
Article
54
1. A decision on whether to accept a constitutional complaint and begin
proceedings shall be brought by the Constitutional Court in a senate of three judges at a session
closed to the public.
2. If the complaint is incomplete and if the Constitutional Court cannot examine it because it does not
contain all the required data or documents from the preceding article of this
Law, the Constitutional
Court
shall calls for the complainant to supplement the complaint within a specific
time-limit.
Article
55
1. The Constitutional Court shall decide not to begin proceedings if:
- the constitutional complaint was lodged too
late, except in cases from the third paragraph of article 52 of this Law,
- legal means have not been exhausted, except in
the case from Article 51 of this Law,
- the constitutional complaint was lodged by a
person with no authorisation to do so,
- if the complaint was submitted without due
cause within the specified time-limit without supplementing the complaint,
in cases from the second paragraph of Article 54 of this Law.
2. The Constitutional Court shall not accept a
constitutional complaint if:
- there is no obvious evidence of a violation of
human rights and basic freedoms from Article 50 of this Law,
- if the decision provides no solution to an
important legal question and if the violation of human rights or basic
freedoms did not have any important consequences for the complainant.
3. The rejection or acceptance of a
constitutional complaint shall be decided upon unanimously by the senate. An
complaint against such resolution shall not be permitted.
4. If a constitutional complaint was not
accepted by the senate, it shall nevertheless be accepted if such is the
written decision of any group of three judges of the Constitutional Court within 15 days after the initial decision.
2. Discussion and Adjudication
Article
56
After being accepted, a constitutional complaint shall be sent to the body
which issued the particular act and against which the constitutional complaint
was lodged, in order that they may reply to the constitutional complaint within
a determined period.
Article
57
If a constitutional complaint is accepted, it shall be discussed by the Constitutional Court, usually at an in camera session, but also
possibly at a public hearing.
Article
58
If a constitutional complaint is accepted, the senate or the Constitutional Court may suspend the implementation of the
particular act which is the subject of the complaint, if its implementation
would cause irreparable damage. The Constitutional Court may also suspend the implementation of a
certain law or other regulation or general act for the exercise of public
authority, on the basis of which the individual act was adopted.
Article
59
1. The Constitutional Court shall issue a decision declaring that the complaint
was unfounded or it shall accept the complaint and partly or completely
abrogate or vitiate the act that was the subject of the complaint, and return
the matter to the competent body.
2. If the Constitutional Court establishes that a given abolished act was
founded on an unconstitutional regulation or general act issued for the
exercise of public authority, such act may be abrogated or vitiated by
application of the provisions of chapter IV of this Law.
Article
60
1. If the Constitutional Court abrogates an individual act, it may also decide
on a contested right or freedom if such procedure is necessary in order to
abolish consequences that have already occurred on the basis of the individual
abrogated act, or if such is the nature of the constitutional right or freedom,
and if a decision can be reached on the basis of information in the record.
2. The provision from the preceding paragraph shall
be implemented by the body competent for the implementation of the particular
act which was abrogated by the Constitutional Court and replaced by decision of the same. If there is no such competent body according
to valid regulations, the Constitutional Court shall appoint one.
THE RULES OF PROCEDURE
OF THE CONSTITUTIONAL
COURT
(Official Gazette RS, No. 93/03)
The Constitutional Court shall have three three‑member panels
for the examination of constitutional complaints. The division of work among
the panels and their composition shall be regulated by the Constitutional Court according to a plan of work (Para. 2 of
Article 10).
The sessions of the Constitutional Court shall be as a rule determined for the spring
term between 10 January and 15 July, and for the autumn term between 10
September and 20 December (Para. 2 of Article 11). Panel sessions shall also be held within the
periods mentioned in the previous paragraph (Para. 3 of Article 11).
In constitutional-complaint cases, persons who are
not parties to proceedings shall not be given information on the state of the
proceedings, unless they have been allowed, on the basis of Paragraph 3 of the
previous article, to inspect a file (Para. 4 of Article 25).
A decision reached in the proceedings commenced
upon a constitutional complaint or a ruling issued in the proceedings examining
a constitutional complaint shall be published and recorded in a database in the
form which contains imaginary initials instead of the names of persons and
locations (Para. 2 of Article 30).
Article 32
(The Acceptance of an Application)
(1) Requests for the review of the
constitutionality of a statute, the constitutionality and legality of a
regulation, or a general act for the exercise of public authority (hereinafter
request), petitions for instituting proceedings for the review of the
constitutionality of a statute, the constitutionality and legality of a
regulation or a general act for the exercise of public authority (hereinafter
petition), constitutional complaints, and other applications and writings shall
be filed with the Office of the Registrar of the Constitutional Court.
(2) The contents of individual applications shall
be determined in an annex of these Rules of Procedure (Annex 1).
(3) A submitter may submit a petition or a constitutional
complaint on forms which are attached in an annex of these Rules of Procedure
(Annex 2 – petition, Annex 3 – constitutional complaint). The forms shall also
be found at the Constitutional Court, on the website of the Constitutional Court and at the head offices of the courts which
offer free legal aid.
Article 33
(The Submitting of an Application)
(1) Applications determined in Paragraph 1 of the
previous article may be filed personally in the Office of the Registrar of the Constitutional Court during office hours, sent by mail, by means
of communication technology or, under the conditions determined by these Rule
of Procedure, by means of information technology.
(2) Applications that are filed in the electronic
form, however which do not contain a safe electronic signature, shall not be
considered applications that the Constitutional Court receives in the framework
of office operation, and thus it is not obliged to respond to them.
(3) If a constitutional complaint for which ZUstS
determines that it must be filed in three copies and that it must include
certain documents, is filed in the electronic form and has an electronic
signature, the application is entered into the record of constitutional
complaints, if the applicant in the period of time of three days after its
filing submits personally or by mail the documents determined in Paragraphs 2
and 3 of Article 53 of ZUstS. If the documents are not submitted within the
mentioned period of time, it shall be considered that the application was not
filed.
(4) A time when an application arrives at the Constitutional Court shall be considered the time of submitting
the application in the electronic form.
Article 37
(The Completion of an Application)
(1) If it is established that an application does
contain all the elements necessary for its examination, consideration and
adjudication, the Constitutional Court shall reject such without calling the
applicant to supplement it, unless ZUstS provides otherwise.
(2) If the judge rapporteur calls the applicant to
supplement the application, they also warn them of the consequences determined
by ZUstS if the petitioner does not complete their application within a
specified time.
Article 40
(Authorization)
An authorized person must have a special
authorization to represent a party in proceedings before the Constitutional Court. In
constitutional-complaint proceedings, the authorization for representation in
such proceedings must be given after the service of an individual act against
which the constitutional complaint is filed.
If a
constitutional complaint also contains a petition for the review of the
constitutionality or legality of regulations or general acts for the exercise
of public authority, and their joint consideration is not necessary or
expedient, a panel of the Constitutional Court may upon the proposal of the
judge rapporteur separate by a ruling the petition due to separate
consideration and decision Para. 2 of Article 49). A separated application may
be entered as an independent case, or may be joined with another case if the
requirements under the previous article are met (Para. 3 of Article 49).
A decision or a ruling adopted in proceedings
instituted upon a constitutional complaint, and a decision in jurisdictional
disputes, shall be published in the Official Gazette, if this is so decided by
the Constitutional
Court
(Para. 5 of Article 68). A decision or
a ruling adopted in the proceedings of adjudication upon a constitutional
complaint shall be published in the form which contains imaginary initials instead
of the names and the places (Para. 6 of Article 68).
9. Panels
Article 74
(The Application of the Rules of Procedure
Provisions)
(1) The provisions of these Rules of Procedure
which refer to consideration and decision shall be sensibly applied also to the
work and decisions of panels, unless these Rules of Procedure do not determine
otherwise.
(2) In the cases of constitutional complaints a
panel shall decide on the proposal of a judge rapporteur or any other Constitutional Court judge for priority consideration according
to Paragraph 3 of Article 46.
Article 75
(Circulation After a Panel Session)
(1) A panel ruling that a constitutional complaint
is rejected or not accepted for consideration shall be submitted to other Constitutional Court judges in circulation, according to
Paragraph 4 of Article 55 of ZUstS.
(2) If the Constitutional Court judges who are not panel members agree with
the rejection or non-acceptance of a constitutional complaint, the ruling may
be delivered still prior to the expiry of a time limit determined in Paragraph
4 of Article 55 of ZUstS.
(3) A panel may decide to supplement or change the
reasoning of a ruling whose operative provisions were accepted. In such a case
the supplemented or corrected reasoning of a ruling shall be prior to its
redaction submitted to panel members in three-day circulation. If during this
time limit any panel member declares that they do not agree with the reasoning,
the case together with their proposal for re-consideration shall be placed at
the panel session, otherwise it is after the expiry of the time limit submitted
to other Constitutional
Court
judges in circulation according to Paragraph 2 of this article.
Article 76
(The Decision of a Panel)
(1) If at voting on a ruling on the non-acceptance
or rejection of a constitutional complaint at a panel session a Constitutional Court judge announces their separate opinion, they
shall elaborate such in five days from the day when they receive the edited
text of the ruling.
(2) A panel ruling shall be submitted to other Constitutional Court judges when the time limit for submitting a
separate opinion expires or when a Constitutional Court submits their separate opinion to the Office
of the Registrar.
Article 77
(The Cessation of being a Rapporteur)
(1) If a
judge rapporteur had voted against the acceptance of a constitutional complaint
in proceedings for its examination, and then the constitutional complaint was
accepted on the basis of Paragraph 4 of Article 44 of ZUstS, they shall cease
to be the rapporteur in the same case.
(2) In
such a case from the previous paragraph of this article, the judge rapporteur
shall be that judge who voted for the acceptance of the constitutional
complaint. If two members of the panel voted for the acceptance of the constitutional
complaint, the judge rapporteur shall be the one whose last name is
alphabetically first, if the Constitutional Court judges do not agree otherwise.
(3) If, in
such a case from the previous paragraph, none of the members of the panel voted
for the acceptance of the constitutional complaint, the judge rapporteur shall
be the judge who voted for its acceptance whose last name precedes is
alphabetically first, if the Constitutional Court judges who voted for
acceptance do not agree otherwise.
Article 78
(The Editing of a Panel Ruling)
The final text of a panel ruling shall be edited by
the President or the President of the panel.
Article 79
(Decision on Costs)
If a constitutional complaint is not accepted for
consideration, it shall also be decided on the costs of the proceedings if such
were declared by a ruling on its non-acceptance or rejection or by a ruling on
the discontinuance of proceedings for the examination of the constitutional
complaint.
Article 80
(Publication)
(1) A
ruling which was adopted in proceedings examining a constitutional complaint
shall be published in the form containing only the imaginary initials of the
persons and places.
(2) A
panel decides on the publication of a ruling determined in the previous
paragraph in the Collection of Decisions and Rulings of the Constitutional Court, while the Constitutional Court shall decide upon the proposal of the judge
rapporteur on the publication of such in the Official Gazette of the Republic of Slovenia.
Article 81
(Corrections of Errors)
(1) Errors in rulings which were adopted at a
session shall be corrected by a ruling that is issued by the President of the
panel. The correction ruling shall be entered at the end of the original,
parties to proceedings shall be serviced the copy of the ruling.
(2) If the ruling has already been published, the
correction ruling shall be published in the same manner.
Annex to the Rules of
Procedure:
1.
The Contents of Requests, Petitions and Constitutional ComplaintsA request,
petition, or constitutional complaint should contain:
- the
first and last name, the title or firm of the petitioner,
- the
permanent or temporary residence or the seat of the petitioner,
- the
first and last name or the firm and the permanent or temporary residence
or the seat of the representative or mandatory of the petitioner,
- the
statement of the general or individual act which is challenged by the
application, and the organ which issued this act,
- the
statement of the provisions of the Constitution or statute which were
allegedly violated by the challenged act,
- the
statement of the facts on which the applicant grounds their claim, and
which allegedly entail the violation of the Constitution or statute,
- the
statement of the reasons why the challenged act is allegedly inconsistent
with the Constitution or statute.
Besides
the stated components, a petition should also show of the legal interest of the
petitioner and the proof of their status when the applicant is not a natural
person.
Besides the stated components, a constitutional complaint should also contain:
- a
statement of the allegedly violated human right or fundamental freedom,
- a
statement on the exhaustion of legal remedies,
- the
facts which substantiate the obviousness of the alleged violation, and the
facts which substantiate the asserted irreparable consequences which would
occur for the petitioner by the execution of a single act, if the
constitutional complaint is filed before the exhaustion of legal remedies,
- the
circumstances on the timeliness of the constitutional complaint or the
facts which substantiate deciding the constitutional complaint, even
though it has been filed after the expiration of the time limit for its
filing.
If a
request is made by the representative organ of a local community, the
resolution on making the request should be enclosed with the request; in the
request the allegedly threatened rights of the local community should be
stated.
If a request is made by the mayor on behalf of the
representative organ of a local community, the authorization of the council of
the local community or the statement of the general authorization contained in
the charter of the local community should be enclosed with the request.
If a request is made by a trade union which represents a certain group of
workers throughout the country, the proof of its representation should be
enclosed with the request; in the request the allegedly threatened rights of
workers should be stated.
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Applicant/seal of attorney's office:
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Constitutional complaint is to be sent to the
address:
The
Constitutional Court of the Republic of Slovenia
P.O.
Box 1713
SI-1001
LJUBLJANA
029-e_files/image001.gif)
CONSTITUTIONAL
COMPLAINT
The
form contains rubrics for the entry of the recommended components of a
constitutional complaint (Annex 1 of the Rules of Procedure of the
Constitutional Court of the Republic of Slovenia, Official Gazette RS, No. 93/03).
Any
person may, under the conditions determined by the Constitutional Court Act
(Official Gazette RS, No. 15/94 – ZUstS), lodge a constitutional complaint with
the Constitutional Court if they believe that their human rights and basic
freedoms have been violated by an individual act of a state body, local
community body or holder of public authority.
1.1
CONSTITUTIONAL COMPLAINANT
a)
Name and surname / title or company's name:
b)
Permanent or temporary residence / registered office:
c)
Representative of a legal entity: (state also the legal basis for
representation: e.g. authorization in a statute, order of a competent body,
etc.)
1.2
STATUTORY REPRESENTATIVE
Complete
this rubric only in cases when the complainant has a statutory representative
(e.g. the parent of a minor person, etc.)
a)
Name and surname:
b)
Permanent or temporary residence of the statutory representative:
1.3
AUTHORIZED PERSON
Complete this rubric only if the complainant is represented by an
authorized person. In this case such a person must attach their authorization
for representation before the Constitutional Court, which stems from the
time when the right to file a constitutional complaint was created.
a)
Name and surname / name of the law firm:
b)
Permanent or temporary residence / registered office:
Complainants
who jointly submit a constitutional complaint, however who do not have a joint
statutory representative or an authorized person, should designate an
authorized person for the acceptance of writings.
When
submitting a constitutional complaint, a complainant living abroad who does not
have an authorized person in the Republic of Slovenia
should designate an authorized person for the acceptance of writings in the Republic of Slovenia.
a)
Name and surname / name of the law firm:
b)
Address / registered office:
2. CHALLENGED ACT
IMPORTANT:
A constitutional complaint must indicate the individual act which is challenged
(Paragraph 1 of Article 53 of ZUstS). A constitutional complaint must have
enclosed with it a copy of the particular act which is challenged and all the
documents on which the complaint it based (Paragraph 2 of Article 53 of ZUstS).
Statement of the individual act which is challenged
by this constitutional complaint:
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Court or authority
which issued the act
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Reg. No.
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Date
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3.
EXHAUSTION OF LEGAL REMEDIES
IMPORTANT:
A constitutional complaint may only be filed after all legal remedies have been
exhausted (Paragraph 1 of Article 51 of ZUstS).
Prior to the exhaustion of legal remedies the
Constitutional Court may exceptionally decide on a constitutional complaint if
the alleged violation is evident or if by the implementation of an individual
act the complainant would suffer irreparable consequences (Paragraph 1 of
Article 51 of ZUstS).
State, in time sequence, all the decisions issued
in connection with the subject of your constitutional complaint:
Court or authority which issued the
decision
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4.
TIMELINESS
IMPORTANT: A constitutional complaint shall be filed within 60 days from
the service of an individual act against which the constitutional complaint can
be filed (Paragraph 1 of Article 52 of ZUstS).
In specially substantiated cases the Constitutional Court shall exceptionally
decide on a constitutional complaint that was filed after the expiry of the
sixty-day time limit (Paragraph 3 of Article 52 of ZUstS).
State the circumstances that demonstrate the fact that the constitutional
complaint was filed in due time (e.g. the date of the service of the individual
act):
5. VIOLATED HUMAN RIGHTS AND FUNDAMENTAL
FREEDOMS
IMPORTANT: The challenged individual act, the facts that substantiate the
complaint and the allegedly violated human rights and fundamental freedoms must
be stated in a constitutional complaint (Paragraph 1 of Article 53 of ZUstS).
5.1. Introduction (Describe briefly the subject of decision-making (issue)
in the challenged individual act)
5.2. Statement of
allegedly violated human rights and fundamental freedoms
State
which of your human rights and fundamental freedoms were violated by the
challenged act (e.g. presumption of innocence under Article 27 of the
Constitution).
5.3. The reasons that
substantiate the alleged violations
State the reasons by which you substantiate that your human rights or fundamental
freedoms were violated. If you assert several human rights or fundamental
freedoms violations, state the reasons for each alleged violation separately.
(Use another page, if
necessary.)
6. OTHER STATEMENTS
If you file a constitutional complaint prior to the
exhaustion of legal remedies, state the facts that substantiate the evident
character of human rights and fundamental freedoms violations, and the facts
which substantiate the allegation of irreparable consequences that you would
suffer by the implementation of the individual act.
If the constitutional complaint is being filed
after the expiry of the 60-day time limit, state the facts that substantiate
extraordinary adjudication of the constitutional complaint that is filed after
the expiry of the mentioned time limit.
(Use
another page, if necessary)
7. ATTACHED DOCUMENTS
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No.
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Document
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10.
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IMPORTANT:
A constitutional complaint shall be filed in writing. A copy f the challenged individual act and
appropriate documents on which the complainant bases their complaint must be
attached to the complaint. The constitutional complaint must be filed, with
attachments, in three copies. (Article 53 of ZUstS)
Place
and date:
Signature
of the complainant:
Up-134/97-17
14 March 2002
D E C I S I O N
At a session held on 14
March 2002 in
proceedings to decide the constitutional complaint of A.A. of Ž., represented
by B.B., attorney in Z., the Constitutional Court
decided as follows:
1. Judgment of the
Supreme Court No. I Ips 200/95, dated 9 January 1997, judgment of Ljubljana Higher Court No. Kp 1033/94, dated 31 August 1994, and judgment of Novo Mesto Basic Court, Sevnica Unit, No. K 56/93, dated 25
April 1994,
are overturned.
2. The case is
remanded to Krško District Court.
Reasoning
A.
1.
On 28 April 1997 the complainant lodged the constitutional
complaint against the judgments cited in the disposition of this decision. With
the final judgment she was found guilty of committing a criminal offence of
arson, pursuant to Article 180.1 of the Penal Code of the Republic of Slovenia
(Official Gazette SRS, No. 12/77 et seq. – hereinafter KZ77). She was sentenced
to imprisonment of one year and was to pay compensation for the damage caused
by the criminal offence.
2.
Article 27 of the Constitution was allegedly violated with the challenged
judgments as, according to the assertions of the complainant, the court and the
expert witness made a conclusion on the existence of the criminal offence and
guilt prior to the finality of the court decision. Furthermore, the
instructions of the court to the expert witness, and subsequently also the
expert opinion itself were given contrary to the presumption of innocence. The
violation of Article 29.3 of the Constitution (the right to present all
evidence to the benefit of the defendent) allegedly occurred as the court
dismissed the proposed evidence of the defense to examine the witness C. C.
without giving grounds for such a decision. Additionally, this right was
allegedly also violated since the court did not directly hear the expert of
psychiatry Dr. Č. Č., as his expert opinion was only read at the
trial. Moreover, the court allegedly violated the constitutional right provided
in Article 29.4 of the Constitution which secures the defendant the right not
to incriminate himself or his relatives or those close to him, or to admit
guilt (the privilege against self-incrimination). The complainant asserted that
the court in the legal caution prior to every examination (not only in the
investigation on 20 January 1993 and 15 March 1993, but also at the trial on 4
October 1993
and 25 April 1994) instructed her that “… the confession of a
criminal offence is a mitigating circumstance which may be considered in
sentencing”. The instructions of the court concerning “a mitigating
circumstance as the result of a confession” were allegedly deceptions for
reaching an unlawful goal – a confession. The complainant was allegedly mislead
and deceived, as she expected that due to the given confession she would
receive a suspended sentence; throughout the proceedings she denied the
criminal intent of the arson of the building.
3.
From the reasoning of the judgment in the lower court, it follows that the
court entirely considered the defense of the defendant regarding the confession
of the act committed and the course of events on 25 September 1992 (the critical day). The court established
that the complainant did not deny that she cast away a burning match on the
paper and hay, which was lying in the upper area of the outbuilding of the
injured party D. D. The court held that, with the examining of
E. E. and F. F., it was completely established that the arson occurred around
17.30. The court established the ability of a reasonable judgment of the
defendant at the moment of committing the criminal offence, with the expert of
psychiatry. It determined that at the critical day the ability of a reasonable
judgment and the controlling of the emotional reactions and ensuing acts of the
defendant was diminished due to the strong emotional reaction, however, not
substantially. She committed the criminal offence in anger and because she felt
offended, as the written note they had left her was offensive. However, the
vengeance demonstrated at the time of committing the offence does not mean that
at that particular time the defendant was mentally abnormal. The court
concluded, as regards to the complainant’s criminal responsibility that her
awareness, as she herself explained that she cast the burning match on the
paper and hay and yet she knew that this could cause a fire, only indicates
that she had committed the offence with the highest form of guilt, i.e. with a
direct intent. The cause for the complainant’s conduct was an argument with the
F. F.´s parents, nevertheless, due to the overall feeling of being aggrieved,
her ability to rationally judge and control the emotional reactions was
diminished, however, not substantially. According to the court’s opinion, the
complainant’s hostility is additionally manifested through two circumstances:
1) after setting a fire she walked towards V.; as she had, after about 5
minutes, turned around, heard the cracking noise and seen smoke on the
corn-rack of F. she continued to walk without calling for help; 2) her
hostility and vengeance are also manifested in the fact that she left the house
leaving the electric stove on. On the basis of the above-stated, the court
concluded that following the carried out hearing of evidence the complainant
fulfilled all the objective and subjective elements of the criminal offence of
arson pursuant to Article 180.1 of KZ77. The court considered the fact that the
complainant had no criminal record and her sincere defense as mitigating
circumstances.
4.
The Ljubljana Higher Court dismissed the appeal as
unfounded and affirmed the judgment of the lower court. In the reasoning the
court explained why it was not possible to consent to the assertions in the
appeal that the defendant was not aware or did not wish to cause a fire, as she
cast the match on the ground. The court established that the defense of the appellant
implied her distress caused by F.´s mother, and it completely agreed with the
finding of the lower court that the note, the defendant had left for F´s
mother, showed her vengeance or threat. The appellate court completely affirmed
the decision of the lower court according to which, regarding the established
motive, the expressed vengeance and threat, did not accept the defense of the
defendant that she had not deliberately set fire on the building. Moreover,
according to the opinion of the Higher Court, the correctness of the finding of the lower
court allowed no doubt that the defendant had committed the offence with direct
intent. Thus, the factual situation was correctly established and on such basis
the lower court correctly applied the Penal Code. The Higher Court also fully agreed with the imposed sentence
and it established that the committed offence could not be deemed to be of a
low significance, furthermore, special mitigating circumstances, which would
allow the pronouncement at a suspended sentence as well as imposing a reduced
sentence, were not present. In the opinion of the Higher Court, all the mitigating circumstances were amply
considered.
5. The Supreme Court dismissed a request for the
protection of legality as unfounded. As
derives from the reasoning of the challenged judgment, the substantial
violation of the provisions of criminal procedure, which was allegedly in the
fact that the court should not have based its evaluation whether the convicted
person had committed the criminal offence on her defense, did not exist.
Moreover, the Supreme Court established that the lower court instructed before
every hearing the convicted person that the confession of a criminal offence is
a mitigating circumstance, which may be as such considered in sentencing. As
regards to the above-stated, the Supreme Court established that the lower court
acted neither in accordance with the provisions of Article 218 of the Code of
Criminal Procedure (Official Gazette of SFRJ, No. 4/77 et seq. – hereinafter ZKP77),
which refer to the hearing of a defendant in investigation, nor in accordance
with the provisions of Articles 314, 316 and 317 ZKP77, which provide what a
defendant must be instructed in prior to pleading their case at the trial. The
Supreme Court emphasized that neither ZKP77 nor the new Code of Criminal
Procedure (Official Gazette of RS, No. 63/94 et seq. – hereinafter ZKP), which
came into force on 1 January 1995, provided the court with the basis on which
the defendant should also be instructed that the confession of a criminal
offence may be considered as a mitigating circumstance. However, in the opinion
of the Supreme Court the lower court could have based the judgment on her
defense, as coercion, threat or other similar methods were not used against the
convict to acquire any statements or a confession (Article 259.3 of ZKP). In
the viewpoint of the Supreme Court, only in such a case the court decision
could not have been based on her testimony (Article 218.10 of ZKP77). As
derives from the reasoning of the challenged judgment, the violation of the
right to defense was not given, due to the fact that the court did not examine
the expert witness at the trial. At the trial on 15 April 1993 the expert opinion was read with the consent
of the parties, thus in accordance with the provision of Article 333.2 of
ZKP77.
B.
6.
The panel of the Constitutional Court accepted the constitutional complaint
against the challenged judgments for consideration with order No. Up-134/97,
dated 5 December 2000. Pursuant to Article 56 of the Constitutional
Court Act (Official Gazette RS, No. 15/94 – hereinafter ZUstS), the
constitutional complaint was served to all the competent courts, which did not
reply to it.
7.
The Constitutional Court examined criminal record No. K 56/93 of Novo Mesto Basic Court, Sevnica Unit.
8.
The complainant asserted that with the challenged judgments her rights
determined in Article 29.4 and Article 27 of the Constitution were violated.
9.
Article 29 of the Constitution provides legal guarantees in criminal
proceedings. In accordance with subparagraph 4, a person charged with a
criminal offence must, in addition to absolute equality, be guaranteed the
right not to incriminate himself or his relatives or those close to him, or to
admit guilt. Thereby, the Constitution provides the privilege against
self-incrimination. The International Covenant on Civil and Political Rights
(Official Gazette RS, No. 35/92, IT, No. 9/92) embraces a similar provision.
Article 14.3.g [1] provides that, in determination of any criminal charge
against a person, everyone shall be entitled in full equality not to be
compelled to testify against himself or to confess guilt. The Convention for
the Protection of Human Rights and Fundamental Freedoms (Official Gazette RS,
No. 33/94, IT, No. 7/94 – hereinafter EKČP) does not explicitly regulate
such a right, however, according to the case-law of the European Court of Human
Rights (hereinafter ESČP), the privilege against self-incrimination is
recognized as one of the general guarantees of a fair trial determined in
Article 6 of EKČP. [2]
10.
By virtue of the linguistic and authentic interpretation of the provision of
Article 29.4 of the Constitution, it could be established that the privilege
against self – incrimination implies the constitutional right to silence, [3]
which also the legislature summarized. [4] The right to silence is, as well as
the prohibition against any form of coercion in obtaining confessions and
statements, one of the fundamental (constitutional) procedural rights of the
defendant. The right to silence does not only mean the prohibition against the
use of coercion or deception, but also the prevention of self-incrimination, as
the defendant is possibly not aware (for the lack of legal knowledge) that they
are not obliged to incriminate themselves. [5] A legal caution, in which the
defendant must to be instructed in this right, must be as such that a decision
whether to exercise the right to silence entirely depends on their free will.
[6] The essence of the privilege against self-incrimination in conjunction with
the prohibition against extorting testimonies is that the authorities of
prosecution in the broadest sense must allow the defendant to be completely
passive, or that the defendant willfully, rationally and above all voluntarily
decides whether to cooperate with them or not. Furthermore, the right to
silence has an extraordinarily important evidentiary procedural consequence. A
state prosecutor must prove all the elements of the indictment and the
defendant is not obliged to do anything in their defense. In this aspect the
right to silence is the element of the constitutional right determined in
Article 27 of the Constitution (the presumption of innocence), therefore, the
prosecutor must prove all the elements of a criminal offence in order to
convince the court, even if the defendant remains completely passive. The
Constitutional Court in decision No. U-I-18/93, dated 11 April 1996 (Official
Gazette RS, No. 25/96 and DecCC V, 40), emphasized that the presumption of
innocence means that the burden of proof (onus probandi) is on the plaintiff
(the state) and not on the defendant, and that the State as the plaintiff bears
the burden of persuasion: “Actore non probante reus absolvitur!” Precisely the
right to silence is the stronghold which prevents that the burden of proof
falls on the defendant. The right to silence secures the defendant the
possibility not to say anything about the charges against them, [7] thereby it
is particularly important that the defendant is aware that they have the right
to silence without any consequences that the exercising of this right in itself
would have for them.
11.
In the discussed case the complainant was given the following legal caution by
the judge: “She is instructed that she is not obliged to testify nor answer
questions, a confession is regarded as a mitigating circumstance which as such
may be considered in sentencing, that she has the right to an attorney, that
she must notify every change of residence until the end of the criminal
proceedings …”. As regards to the stated in the previous paragraph, it is
crucial for the review whether the complainant’s constitutional right
determined in Article 29.4 was violated, if after such a legal caution the
complainant could have freely and independently decide whether to exercise this
right or not.
12.
The instruction that a confession is a mitigating circumstance, which may be
considered in sentencing, affected the complainant’s decision whether to say
anything and what to say. With such a legal caution the complainant was led
into temptation – she had to decide an additional issue - whether to cooperate
with the court or not. The promised “reward” (a lower sentence which the
complainant even expected as a suspended sentence) undoubtedly increased the
possibility of a decision in this direction – in the direction of a confession
(notwithstanding the fact whether the complainant was, in fact, guilty of the
alleged criminal offence). Simultaneously with the offered “reward” the
probability of an autonomous and independent decision decreased, and the
probability of a decision for the offered “reward” (a lower sanction)
increased. Thereby, the subjective circumstances of the complainant have to be
considered as well: during the court proceedings she was 18 years old and she
had already tried to commit suicide. Moreover, the circumstance for the part of
the deciding body - the court, had to be considered as well: such a legal
caution was repeated to the complainant four times. The complainant’s
confession was thus not obtained respecting her will to freely and
independently decide her interest on the basis of a legal caution on her
rights.
13.
A court as an independent and impartial body has a task to decide on charges
brought against the defendant (Article 23.1 of the Constitution). The task of
the court is to establish the truth and hear both sides, as well as to decide
the dispute. Its tasks is not to try to persuade one of the parties to consent
to the assertions of the other side, and that even in criminal proceedings
where there exists a duty of a state prosecutor to prove with certainty that
the defendant is guilty, yet the defendant may be completely passive. Precisely
the fact that the court does not cooperate with the state prosecutor but
remains impartial is one of the functions of the privilege against
self-incrimination, as well. Therefore, it is unfair and unjust if a court as a
body which has to judge, tries to persuade the defendant to confess to the
committing of a criminal offence in a manner such that the court promises a
reward (a lower sentence). The court has to establish a substantive truth.
However, the truth is not necessarily what the state prosecutor asserts.
Persuading for a confession of a criminal offence forces the defendant to act
against themselves even if they did not commit a criminal offence, or they did
not commit it in a manner as asserted by the state prosecutor in the
indictment. Such a legal caution not only forces the defendant to cooperate
with the prosecution, but also forces them to act against their interests and
to confess the allegations in the indictment. Thus, it is also inconsistent
with the presumption of innocence (Article 27 of the Constitution), since it
derives just from the opposite presumption – from the presumption of guilt.
14.
The court with the given legal caution actually persuaded the complainant to
confess and thereby testify against herself. As in this case, persuading by the
court, whose role is to be an independent and impartial body, can no longer be
seen as enabling a person to decide for themselves whether to testify against
themselves or not. It derives from the defendant personal right that they are
not obliged to testify that such a decision may not be bound by any conditions,
supplements or pressures. In a situation when an individual is secured the
right to silence every, even the smallest pressure, may cause the violation of
human rights. The defendant is in an inferior position merely for the fact that
they are at a police station or before a judge. This fact alone can influence
their decision. For this particular vulnerability a threshold for the review of
the privilege against self-incrimination must be set with a special care and
rigorousness in order to be carried out. This means that every more or less
subtle influencing or conditioning must be interpreted as a pressure or an
influence on a free decision. Thus, according to the Constitutional Court, the legal caution given by the court meant
influencing the will of the complainant to decide whether to exercise the right
to silence. Therefore, her decision could not be free. Accordingly, in the
proceedings before the lower court the complainant was violated a guarantee
provided in Article 29.4 of the Constitution, and as regards the reasons from
the previous paragraph, also the right from Article 27 of the Constitution. The
violations were not remedied in the appellate proceedings, as they were not
remedied in deciding on the request for the protection of legality. The
standpoint of the Supreme Court, according to which the lower court could base
its judgment on the complainant’s testimony due to the fact that coercion,
threat or other similar means that would force her to confess were not used,
and is based merely on the restrictive linguistic interpretation, is regarding
the above-mentioned inconsistent with the provision of Article 29.4 of the
Constitution. Thereby, the Supreme Court overlooked the teleological
interpretation of the privilege against self-incrimination, embraced in the
provision of Article 29.4 of the Constitution, as one of the fundamental,
generally recognized procedural guarantees of the defendant (Paragraph 10 of
this reasoning). It is namely not enough that only the prohibition of use of
coercion, threat or deception exist, this prohibition must be defined as an
active procedural right of the defendant, even for an extremely passive thing –
a silence. [8]
15.
As the Constitutional
Court
established that in the criminal proceedings the complainant was violated her
human rights determined in Article 29.4 and Article 27 of the Constitution, it
overturned the challenged judgments and remanded the case to the competent
court. In the renewed decision-making the court will have to secure the complainant
all the procedural guarantees determined in the Constitution.
16.
As the challenged judgments had to be overturned for the violations stated in
the previous paragraph, it was not necessary to further establish whether the
other asserted violations of human rights existed.
C.
17.
The Constitutional Court reached this decision on the basis of Article 59.1 of
ZUstS, composed of: dr. Dragica Wedam-Lukić, President, and Judges: dr. Janez Čebulj, dr. Zvonko Fišer, Lojze Janko, Milojka
Modrijan, dr. Ciril Ribičič, dr. Mirjam Škrk, Franc Testen and dr.
Lojze Ude. The decision was reached unanimously. Judge Ribičič gave a
concurring opinion.
P r e s i d e n t
Dr. Dragica Wedam-Lukić
Footnotes:
Up-134/97
27
March 2002
The Concurring Opinion
of Judge Dr. Ribičič
I
voted for the decision of the Constitutional Court on overturning the judgments
for which A. A. from Ž. Z. lodged the constitutional complaint. I agree that
the complainant was violated the constitutional rights, as the court with the
legal caution persuaded the complainant to confess the criminal offence even
though she is secured the right to silence as well as the privilege against
self-incrimination. However, I believe that in this case and in other similar
cases it would be more reasonable to reach declaratory decisions with which the
Constitutional
Court
establishes the violation of the complainant’s rights and that she would be
assessed the adequate material satisfaction. The advantage of the solution that
I suggest is that the renewed adjudication for the violations that the Constitutional Court establishes in 2002, however, they had
occurred at the beginning of 1993, and the complainant already served the
sentence, would not take place. It is not reasonable to remand the case which
can take quite long and, moreover, it is hard to predict its final result. The
confession to which the court persuaded the complainant will, even though it
should not, influence the new adjudication.
It
is common knowledge that the European Court of Human Rights on the basis of the
Convention for the Protection of Human Rights and Fundamental Freedoms with the
Protocols (Article 41) awards just material satisfaction when it establishes
the violation of rights and freedoms prescribed with the Convention. Indeed
this remedy of the European Court, which the Court constantly applies [1], was
created as the Court does not have jurisdiction to overturn the decisions of
national courts. However, this does not apply to the constitutional court in
relation to the decisions of domestic courts.
Thus,
it is obvious that the overturning of a judgment is a stronger, more important
competence as the awarding of just satisfaction. Therefore, I find the striving
to build such a lenient possibility into our legal system even less disputable.
I am convinced that also in some cases in Slovenia it is not in the interest of the complainant
whose constitutional rights were violated that the whole very painful criminal
proceedings are repeated, particularly in a case where for the kind of the
established violation it is not possible to predict with certainty the
favorable final result. In some cases it will not be possible to repeat the
trial due to the absolute limitation of the criminal prosecution. Therefore,
the best solution for such cases is the establishing of the violation (with or
without overturning the judgment), which gives the complainant moral
satisfaction and, with the awarded just satisfaction, also material
satisfaction. Obviously such a decision by no means interferes with the
complainant’s right to claim damages on the basis of Article 26 of the
Constitution. A decision on such claim depends on the fulfilling of the
conditions according to tort law.
Awarding of just satisfaction would, in my opinion, be reasonable first of
all in cases where the overturning of a judgment is not possible, or it would
not lead to a different decision in a renewed proceedings, or it would even
lead to a decision to the complainant’s prejudice. In the discussed case the
issue of the reasonableness of the overturned judgment arises. In some cases
which the Constitutional Court already reviewed, and in others which it has not
yet finally decided, a declaratory judgment on the violation and just material
satisfaction are the only thing that the Constitutional Court can do if it
establishes the violation of human rights in criminal proceedings. I refer
particularly to constitutional complaints lodged by private and subsidiary
prosecutors, which naturally cannot and may not result in the overturning of a
final judgment of acquittal, but merely whish to establish that in the criminal
proceedings their constitutional right was violated. The Constitutional Court
does not recognize private and subsidiary prosecutors the right to lodge a
constitutional complaint. It is possible that such a standpoint of the
Constitutional Court, with which I cannot agree, was also influenced by a
negative opinion on declaratory judgments and just satisfaction.
That
such regulation for which I strive is not incompatible with the role of
constitutional courts in the contemporary democratic systems is proved by the
instances of its introduction in some states. For example the amendments to the
Constitution of the Slovak Republic from 2001 explicitly provide (Article 127)
that the Constitutional Court may award adequate material satisfaction
(primerane finančne zadostučinenie) on the basis of a constitutional
complaint for the violation of human rights.
Regarding
the fact that this possibility is not explicitly provided in the Constitution
and the legislation in Slovenia, the question arises whether the Constitutional Court could nevertheless begin to apply it. One of
the possibilities is that, with the aid of an interpretation of the
Constitution and the legislation, the Constitutional Court would establish that it has a sufficient
basis not only for adopting such declaratory decisions but also for determining
just material satisfaction. [2] This could be perhaps possible to carry out
with the application of the provisions of the Judicial Review of Administrative
Acts Act on the basis of Article 6 of the Constitutional Court Act which
provides that for the issues of procedure not regulated by this Act, regarding
the legal nature of a case, the Constitutional Court applies the provisions of
statutes which regulate proceedings conducted by courts. According to the standpoint
of Judge Dr. Janez
Čebulj,
the Constitutional
Court
may also decide a claim of an injured party for the compensation of damages as
it has a direct basis for this in Article 62 of the Judicial Review of
Administrative Acts Act in conjunction with Article 6 of the Constitutional
Court Act. Judge Dr. Čebulj particularly emphasizes the meaning of these
provisions for the cases of violations of the right to have any decision
brought without undue delay (Article 23 of the Constitution) [3] [4].
Irrespective of the fact whether the possibility of awarding just
satisfaction would be regulated with an amendment to the statute or without
such an amendment, this could substantially diminish the number of applications
from Slovenia regarding the violations of human rights, lodged with the
European Court of Human Rights. The deciding on such applications would be
substantially influenced by the fact that within the legal system of Slovenia
there exist an additional legal protection and an effective legal remedy for
claiming the violations of human rights. This would be to the benefit of all
citizens who could more simply, faster and cheaper exercise their rights, and
to the benefit of the Republic of Slovenia.
Considering
the fact that I was in a minority with the proposition for a declaratory
decision and just satisfaction, I had to decide whether to support the decision
in the disposition on the overturning of the judgment and remanding the case.
Despite the expressed serious doubts, I decided to vote in favor of the
majority decision, inter alia also because the complainant explicitly requested
the overturning of the challenged judgments [5], and did not even subsidiary
request a declaratory decision and just satisfaction.
Dr. Ciril Ribičič
Footnotes:
[5]
A. A. in the constitutional complaint requests that the Constitutional Court »entirely overturns the challenged judgments
and remands the case to the lower court«.
