>DOKUMENT : AN01448
>ZAUPNOST :
>REPUB : 5
>VRSTAD : 01
>DVLOG : 941011
>VRSTAV : 20
>VRSTAA : 03
>DODL : 980212
>VODL : 1
>VREŠ : 06
>JEZIK : 2
>DVHOD : 980303
>POD :
P18 Other
>ZADEVA :
U-I-283/94
>EVIDENCA :
E-12/98
>IMEVLAG :
Danijel Starman, Koper and others
>AKT :
Elections to the National Assembly Act (Official Gazette RS, no. 44/92) (ZVDZ)
Local Elections Act (Official Gazette RS, no. 72/93, 7/94, 33/94 and 70/95) (ZLV)
Records of Voting Rights Act (Official Gazette RS, no. 46/92) (ZEVP), article 22
Statute of the Urban Municipality of Koper (Official Publications Koper/Capodistria, no. 9/95), para. 4 of article 53, article 134, para. 2 of article 140.
Delegates Act (Official Gazette RS, no. 48/92) (ZPos)
Standing Orders of the National Assembly (Official Gazette RS, no. 40/93, 28/96 and 26/97)
>PROBLEM :
The principle of a state ruled by law and a social state.
Protection of the rights of the autochthonous Italian and Hungarian National Communities.
Principle of equality before the law.
Declaring national affiliation.
Special rights of the Italian and Hungarian national communities in Slovenia.
Delegates, immunity.
Legal interest as a procedural condition for commencing a proceeding before the Constitutional Court on the basis of an initiative.
Nationality, education, bilingual education.
Principle of legality.
Administrative organs, tasks, public authority.
Public authorities.
National Assembly, representatives of national communities, delegates.
Elections, National Assembly.
Municipality, mayor.
National community, representation at the local level.
Local community, legal person.
Dissenting opinion of a constitutional judge.
Concurring opinion of a constitutional judge.
Legal basis:
Constitution 1974, articles 252 and 338
Constitution, articles 2, 5, 14, 16, 61, 64, 83, 120 and 121.
Elections to the Assembly Act, articles 10 and 37
Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia (UZITUL) para. 2 of point 3.
Constitutional Amendments of 1989, articles 163 and 250.
Constitutional Court Act (ZUstS), articles 21, 25 and 48.
>SKLEPI :
>IZREK :
It is not in conflict with the Constitution that the Elections to the National Assembly Act gives members of the Italian and Hungarian self-governing national communities the right to cast two votes at elections of delegates to the National Assembly.
It is not in conflict with the Constitution that the Local Elections Act gives members of the Italian and Hungarian self-governing national communities the right to cast two votes at elections of members of a municipal council.
Article 22 of the Records of Electoral Rights Act is not in conflict with the Constitution.
It is in conflict with the Constitution that the Records of Electoral Rights Act does not determine measures according to which the commissions of the Italian and Hungarian self-governing national communities decide on inscription in the special electoral roll of citizens, members of the autochthonous Italian and Hungarian national communities. The National Assembly must rectify this conflict with the Constitution prior to calling the next regular elections to the National Assembly.
The fourth paragraph of article 53, article 134 and the second paragraph of article 140 of the Statute of the Urban Municipality of Koper are not in conflict with the Constitution and law.
The initiative is rejected in the part which refers to the Delegates Act and the Standing Orders of the National Assembly.
>TEKST :
It is not in conflict with the Constitution that members of the autochthonous Italian and Hungarian national communities have the constitutionally guaranteed right that in elections of delegates to the National Assembly and at elections of members of a municipal council they cast two votes - one for the election of the representative of the autochthonous national community and the second for election of other delegates or members of the municipal council. The Constitution guarantees members of these communities general and special voting rights.
It is in conflict with constitutional provisions of a state ruled by law, the division of authority, the legality of the workings of the administration and public authorities that measures are not determined by law according to which the commissions of the self-governing national communities decide on inscription of electors in a special electoral roll of citizens, members of the autochthonous Italian and Hungarian national communities.
A citizen does not show legal interest in impugning the standing orders or statutory arrangement of the extent of the mandate of delegates to the National Assembly only in that he has voting rights.
The provisions of a municipal statute according to which the deputy mayor must be a member of the Italian national community if the mayor is Slovene, is not in conflict with constitutional provisions on equality before the law since the distinction among candidates is founded on the protection of the autochthonous Italian or Hungarian national communities.
It is not in conflict with the Constitution and with law if a municipal statute determines that the autochthonous Italian national community is directly represented on the council of a local community.
It is not in conflict with the Constitution if a municipal statute gives local communities legal subjectivity.
>AVTOR :
>OBJAVA :
Official Gazette of RS, no. 20/98
>POSLANA :
>OPOMBA :
In the reasoning of its decision, the Constitutional Court refers to its case no. U-I-274/95 (OdlUS V, 119).
By resolution of the Constitutional Court of 4.4.1996, case no. U-I-139/45 was joined to the case being tried because of common treatment and decision.
POLNI TEKST:
U-I-283/94
12.2.1998
DECISION
At a session held on 12 February 1998, in a proceeding for assessing constitutionality and legality commenced on the initiative of Danijel Starman of Koper and others, the Constitutional Court
reached the following decision:
1. It is not in conflict with the Constitution that the Elections to the National Assembly Act (Official Gazette RS, no. 44/95) gives members of the Italian and Hungarian self-governing national communities the right to cast two votes at elections of delegates to the National Assembly.
2. It is not in conflict with the Constitution that the Local Elections Act (Official Gazette RS, no. 72/93, 7/94, 33/94 and 70/95) gives members of the Italian and Hungarian self-governing national communities the right to cast two votes at elections of members of the municipal council.
3. Article 22 of the Records of Electoral Rights Act (Official Gazette RS, no. 46/92) is not in conflict with the Constitution.
4. It is in conflict with the Constitution that the Records of Electoral Rights Act (Official Gazette RS, no. 46/92) does not determine measures according to which the commissions of the Italian and Hungarian self-governing national communities decide on inscription in the special electoral roll of citizens, members of the autochthonous Italian and Hungarian national communities. The National Assembly must rectify this conflict with the Constitution prior to calling the next regular elections to the National Assembly.
5. The fourth paragraph of article 53, article 134 and the second paragraph of article 140 of the Statute of the Urban Municipality of Koper are not in conflict with the Constitution and law.
6. The initiative is rejected in the part which refers to the Delegates Act (Official Gazette RS, no. 48/92) and the Standing Orders of the National Assembly (Official Gazette RS, no. 40/93, 28/96 and 26/97).
Reasoning
A.
1. By resolution on 6.6.1996, the Constitutional Court partially accepted and partially rejected the initiative of Danijel Starman and others (hereinafter: the initiators) whereby they impugned the provisions of the following regulations:
- Records of Voting Rights Act (Official Gazette RS, no. 46/92 - hereinafter: ZEVP),
- Elections to the National Assembly Act (Official Gazette RS, no. 44/92 - hereinafter: ZVDZ)
- Self-governing National Communities Act (Official Gazette RS, no. 65/94 - hereinafter: ZSNS),
- Local Elections Act (Official Gazette RS, no. 72/93, 7/94, 33/94 and 70/95 - hereinafter: ZLV)
- Statute of the Urban Municipality of Koper (Official Publications Koper/Capodistria, no. 9/95 - hereinafter: the Statute)
2. The initiative was accepted in the part which refers to:
- the asserted anti-constitutionality of the right of members of the Italian and Hungarian national communities (hereinafter: national communities) to cast two votes at elections to the National Assembly and at elections to a municipal council - one for the election of representatives of the national community to the National Assembly or municipal council and the other for election of other delegates or members of the municipal council; these rights are given them by ZVDZ and ZLV,
- article 22 ZEVP,
- fourth paragraph of article 53, article 134 and the second paragraph of article 140 of the Statute.
3. The initiators believe that double voting rights, as they themselves characterise the rights of members of the national communities to cast two votes at elections to the National Assembly and to a municipal council, is in conflict with the constitutional principle of equality before the law. Double voting rights in their opinion is impermissible discrimination which in no way contributes to the protection of the national communities.
4. In the original initiative, the initiators expressed the standpoint that the Standing Orders of the National Assembly (Official Gazette RS, no. 40/93, 28/96 and 26&97) should restrict the limits of the mandate of representatives of the national communities. In their opinion, it is anti-constitutional if representatives of the national communities take part in decision making on all matters which are within the jurisdiction of the National Assembly.
5. The provision of article 22 ZEVP, which enables inscription in the electoral roll on demand to members of the Italian and Hungarian nationalities who do not have permanent residence in nationally mixed settlements, in the opinion of the initiators, is anti-constitutional because extending rights to nonautochthonous members of the national community exceeds the constitutional protection of the nationalities.
6. In the opinion of the initiators, the following provisions of the Statute are also in conflict with the Constitution:
- the provision of article 134, which awards local communities the status of a legal person (the initiators believe that by establishing legal persons of public law the Statute encroaches on the jurisdiction of the legislator),
- the provision of the second paragraph of article 140, because it determines the direct representation of national communities in the councils of local communities (the initiators believe that the special provisions on rights of national communities do not come into consideration for local communities because it is not a self-governing local community), and
- the provision of the fourth paragraph of article 53, which determines that the deputy mayor must be a member of the Italian nationality if the mayor is not a member of the Italian nationality (such that, the initiators believe, the passive voting rights of persons who are not of the Italian nationality are discriminatorily restricted).
7. On 14.11.1996, the initiators submitted "a proposal for the temporary restraint of ZVDZ, insofar as it gives members of the national communities double voting rights, the provisions of the Standing Orders, insofar as these do not determine limits to the mandate of representatives of the national communities (especially the second paragraph of article 119 and the second paragraph of article 128(, and the Delegates Act (Official Gazette RS, no. 48/92 - hereinafter ZoP) in entirety in relation to representatives of national communities". They again stress in this submission their standpoint that it is anti-constitutional that delegates who are representatives of national communities take part in decision making on all matters in the National Assembly, e.g., also in the election of the President of the Government and the appointment of ministers. The Constitutional Court considered that with the cited proposal the initiators had extended the initiative also to the Standing Orders and ZoP. They carried out a public hearing on the proposal for the temporary restraint and, after it, rejected the proposal by resolution.
8. The Secretariat of the National Assembly for legislation and legal affairs (hereinafter: the Secretariat) first (prior to the partial acceptance of the initiative) answered to the whole initiative. It believes that the initiative is unfounded, since "the laws which the initiators impugn as violating the Constitution only implement constitutional provisions on the special rights of the autochthonous national communities", The special protection of the national communities, in the opinion of the Secretariat, is the implementation of the principle of equality, namely such that it respects the special position and circumstances in which these communities live. Even if the laws had determined other or wider rights than the Constitution determines, this would not be in conflict with it, the Secretariat believes.
9. Double voting rights in the opinion of the Secretariat derive from the third paragraph of article 64 of the Constitution, and in relation to the composition of the National Assembly and the position of delegates in it, also from the third paragraph of article 80 and the first paragraph of article 82 of the Constitution. In relation to the rights of members of national communities who live outside nationally mixed regions, the Secretariat draws attention to the provision of the fourth paragraph of article 64 of the Constitution, which entrusts to the legislator determining the rights which members of national communities shall realise also outside regions in which these communities live. Statutorily determining the status of members of national communities, in the opinion of the Secretariat, is "very debatable because of constitutional provisions which guarantee human rights and freedoms, including the provision of article 61 of the Constitution". The Secretariat also believes that the initiators do not show legal interest in lodging the initiative under consideration.
10. After the issuing of the resolution on the partial acceptance of the initiative and after the carrying out of a public hearing, the Secretariat once more (exhaustively) answered to the accepted part of the initiative. It states in answer that the so-called double voting rights are required by constitutional provisions; it is the implementation of the special constitutional rights under the third paragraph of article 64 of the Constitution in addition to general voting rights. The Secretariat stresses the commitment of the Constitution to the protection of the rights of national communities and it derives from the so-called positive concept of regulating the position of these communities. The Constitution guarantees them special rights which appear as "positive discrimination". The Secretariat stresses the protection of minorities as an important measure of the democraticness of an ethnically plural society. It draws attention to article 4 of the Framework Convention of the Council of Europe on the protection of ethnic minorities, to which Slovenia is also a signatory; this article determines that measures which are a result of respecting the specific circumstances in which members of a minority live cannot be treated as discrimination against members of the majority nation.
11. The Secretariat states that the arrangement of the position of the national communities under the Constitution signifies continuity in this field, since the positive concept of protection of minorities was already introduced here with the Constitution of 1974 and later constitutional amendments. It mentions also the provisions of the Declaration at the time of independence and the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia (Official Gazette RS, no. 1/91 - I - hereinafter: TUL), which determine that the Italian and Hungarian national communities in the RS and their members are guaranteed all rights from the then Constitution and valid international contracts. It also states the provisions of article 338 of the Constitution from 1974 (amendment from 1989), according to which the national communities have at least one delegate each in each of the councils of the then Assembly SRS. It draws attention that the national communities had special voting rights under these provisions and a termination of this right would signify violation of the principle of confidence in law.
12. The Secretariat draws attention to the obligations of Slovenia under international law according to the Contract on friendship and cooperation between the Republic of Slovenia and the Republic of Hungary, under the Agreement on guaranteeing special rights of the Slovene national minority in the Republic of Hungary and the Hungarian national community in the Republic of Slovenia (Official Gazette - International Contracts, no. 6/93) and under the Osim Agreement from 1975. It also stresses that the Framework Convention of the Council of Europe on the protection of national minorities demands of signatories, among which is Slovenia, that in all fields of economic, social, political and cultural life they adopt, as necessary, measures for encouraging the active and full equality between members of national minorities and members of the majority nation. From the cited convention, states the Secretariat, derives the requirement for public participation of minorities in public affairs and especially in minority affairs.
13. In relation to article 22 ZEVP, the Secretariat states that under the Constitution special voting rights of members of the national communities are not territorially limited and that the rights of members of national communities are guaranteed under the Constitution irrespective of their numbers and distribution. The Secretariat refers also to the provision of the fourth paragraph of article 64 of the Constitution, according to which the law shall regulate the position and manner of exercising the rights of the Italian or Hungarian national communities in regions in which they live, mandatory self-governing local communities for exercising these rights, and those rights which members of these national communities shall exercise also outside these regions.
14. In relation to the statements of the initiators that the Standing Orders and ZoP should limit the rights of delegates - representatives of the national communities, the Secretariat states that from all the provisions of the Constitution which speak of delegates, derives their equal position irrespective of the electoral base and any other circumstances. According to the standpoint of the Secretariat, this applies for all rights of delegates of the national communities under article 19 ZoP, as well as for rights which derive from the Standing Orders (e.g., the right to form a special delegate group, the right to select working bodies in which they will participate etc.). The Secretariat also believes that the procedural preconditions are not given for trying the constitutionality of the Standing Orders and ZoP. The initiators are claimed not to have shown legal interest, since the Standing Orders and ZoP regulate relations which concern delegates and the rules of their work in parliament. The Secretariat further draws attention to the fact that the representative of the initiators expressed the standpoint at the public hearing that ZoP does not apply to elected representatives of national communities. In relation to this, the Secretariat believes that it is necessary to reject the initiative in this part because the initiators are claimed themselves to have abdicated from it.
15. The Municipal Council of the Urban Municipality of Koper (hereinafter: the Council) answered to the part of the initiative which refers to the Statute. In relation to the representation of the Italian community on councils of local communities, the Council states that it "analogously respected the provisions which regulate the number of members of members of the Italian national community on the municipal council". The provision that the deputy mayor must be of the Italian community if the mayor is not, in the opinion of the Council has support in article 39 ZLS.
16. The Italian and Hungarian self-governing national communities also took a stance to the initiative. Both believe that the impugned provisions are not in conflict with the Constitution, but signify in fact the realisation of constitutional directives on protection of the autochthonous Italian and Hungarian national communities.
B. - I.
17. The initiative being tried raises constitutional questions which relate to the protection of the autochthonous Italian and Hungarian national communities. Respecting or protecting ethnic, religious, linguistic and other minorities is an important indicator of a democratic society. Democratic states devote special attention to the protection of minorities. The protection of minorities is guaranteed in two forms: as a ban on discrimination on the basis of nationality, language, religion or racial affiliation, and as the guarantee of special rights which appertain only to the minority or its members. The latter form of protection is known in the theory as positive protection of minorities. Positive protection causes so-called positive discrimination, because members of minorities are guaranteed rights which members of the majority do not have. Such a type of measure represents a high level of protection of national minorities, which the majority group of the population recognises for them, and which indicate a democratic society.
18. The rights of national minorities are regulated in international law by multinational conventions and bilateral agreements between states. The position of the Italian minority or national community in Slovenia was arranged after the second world war by the Special Statute of the Free Trieste Territory, annexed to the London Memorandum on the agreement between the governments of FLRY, Italy and Great Britain. The Special Statute ceased to apply with the validation of the Agreement between SFRY and the Italian Republic concluded in Osim (Official Gazette SFRY - International contracts, no. 1/77; hereinafter: the Osim Agreement). The Osim Agreement expressed in the preamble for both states "commitment to the principle of the maximum possible protection of the citizens - members of the minorities, which derives from their constitutions and their internal legislation and each side shall implement it autonomously, whereby it shall behave also according to the principles of the Founding Charter of the United Nations, the Universal Declaration on Human Rights, the Convention on the prevention of any form of racial discrimination, and universal pacts on human rights". Article 8 of the Osim Agreement determines: "When the Special Statute annexed to the London Memorandum on Consent of 5 October 1954 ceases to apply, each side states that it will maintain in validity internal measures which it has already adopted with the implementation of the mentioned statute, and that in the framework of its internal law, it will guarantee to members of the affected minorities the same level of protection as determined by the Special Statute which ceases to apply". The Special Statute ceased to apply on the day on which the Osim Agreement entered into validity, but it remained the measure for guaranteeing the rights of national minorities in the neighbouring states. In the provisions of the agreement there is nothing to be found which would guarantee to members of the minorities the right to direct representation on representative organs.
19. The position of the Hungarian national community in Slovenia is regulated by the Agreement on guaranteeing special rights of the Slovene national community in Hungary and the Hungarian national community in the Republic of Slovenia, signed on 6.11.1992 and ratified by law on 26.3.1993 (Official Gazette RS - MP, no. 6/93). In article 8 of this agreement, it is determined that the signatories, in conformity with internal legislation, shall guarantee suitable participation of the minorities in decision making on local, regional and state levels on matters which refer to the rights and position of the minorities and their members.
20. One of the measures for the protection of minorities is also guaranteeing their participation in decision making on public affairs. However, valid international law does not guarantee to minorities representation on representative bodies (Ohlinger/Pernthaler, Projeckt eines Volksgruppenmandats im Kaernter Landtag, p. 8; the authors also refer to the work of Oeter, Minderheiten im institutionellen Staatsaufbau. See also Turk, Mednarodnopravni vidiki sedanjega polo_aja slovenske narodnoste skupnosti v Italiji, p. 6; the author states that it is possible to find exceptions in only a few international contracts - e.g. in the peace treaty of Sevres and in the memorandum on Cyprus). Even the Framework Convention of the Council of Europe on the protection of ethnic minorities, which Slovenia has also signed but not yet ratified (the Convention does not yet apply), does not explicitly require of the signatories that representation of minorities be guaranteed on representative organs. It only determines that the signatories are bound to adopt, if this is necessary, suitable measures in all fields of economic, social, political and cultural life for encouraging the full and effective equality between members of a national minority and members of the majority nation. Measures adopted on the basis of this obligation shall not be considered discriminatory (third paragraph of article 4).
21. Although international law does not require this, the constitution and laws of some states guarantee the participation of minorities in decision making on general matters in representative bodies. Above all the following models of guaranteeing this right are known (they can also be combined)1:
a) division into electoral units adapted to the territorial distribution of minorities (this measure is established among others in the following states: Hungary, Croatia, Finland, Belgium, Italy and Switzerland).
b) omission of the electoral threshold for national minority parties (this measure is established among others in the following states: Hungary, Germany, Poland, Rumania) and
c) guaranteeing delegate places for minorities on representative bodies (this right is guaranteed among others in the following states: Croatia, Rumania, Hungary, Denmark, Finland).
22. The Slovene Constitution of 1974 did not contain provisions on mandatory representation of national communities in municipal and republican assemblies. In article 252, it was determined that members of nationalities may found self-governing communities for education and culture in municipalities in which they live. These communities shared decision making on specific matters in the field of education and culture in councils of municipal assemblies or of appropriate self-managing interest communities. Representation of members of national communities on the councils of assemblies was only guaranteed by internal candidature rules of the then Socialist League of Working People, which had a monopoly role in the procedure of deciding candidates.
23. With the constitutional amendments of 1989 (Official Gazette SRS, no. 32/89) provisions on the protection of nationalities were amended and supplemented. In article 250 appeared the definition of these two nationalities as autochthonous. After article 163 was added a provision according to which, in the assemblies of municipalities in which live members of the Slovene nation together with members of the Italian or Hungarian nationalities, these two nationalities must be represented. In the third paragraph of article 338 of the Constitution, it was determined that the Italian and Hungarian nationalities shall each have one delegate in each of the councils of the Assembly SRS. In conformity with this constitutional provision, the Elections to the Assembly Act (Official Gazette SRS, no. 42/89 and 5/90, Official Gazette RS, no. 10/90 and 45/90) determined that for elections of delegates of members of the Italian or Hungarian nationalities to councils of the Assembly SR Slovenia in nationally mixed regions, special electoral units shall be formed and that special electoral units could also be formed for the election of delegates of members of the Italian or Hungarian nationalities to councils of municipal assemblies (article 37). The law determined in article 10 that electors in the regions of special electoral units and other members of these nationalities in a municipality which has a region in which members of the Italian or Hungarian nationality also live autochthonously with members of the Slovene nation (so-called nationally mixed regions) shall have active voting rights in elections of the delegates of the Italian or Hungarian nationalities, and to councils of municipal assemblies electors in the regions of special electoral units, and other members of the nationality in a municipality which has a nationally mixed region only if such is determined by the statute of the municipality. The law gave passive voting rights only to members of the Italian and Hungarian nationalities.
24. The Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia (Official Gazette RS, no. 1/91-I) in the second paragraph of the third point determined: "The Italian and Hungarian national communities in the Republic of Slovenia and their members are guaranteed all the rights under the Constitution of the Republic of Slovenia and valid international contracts". By the Constitution of the Republic of Slovenia was meant the then valid Constitution, that is the Constitution of 1974, amended and supplemented with amendments.
25. The current Constitution determines in the first paragraph of article 5 that the state shall on its territory protect and guarantee the rights of the autochthonous Italian and Hungarian national communities. The special rights of the autochthonous Italian and Hungarian national communities in Slovenia are regulated in article 64 of the Constitution and in the third paragraph of article 83 of the Constitution, in which it is determined that there shall always be elected to the National Assembly one delegate each of the Italian and Hungarian communities.
26. Article 64 of the Constitution carries the heading "Special rights of the autochthonous Italian and Hungarian national communities in Slovenia". In the fourth paragraph of article 64 it is determined that the national communities shall be directly represented on representative organs of local government and in the National Assembly. In the sixth paragraph of this article it is determined that laws, other regulations and general acts which affect the constitutionally determined rights and position of only national communities cannot be adopted without the consent of the representatives of the national communities.
27. The Constitution guarantees to members of the national communities two mutually indivisibly connected rights: the right to direct representation on representative organs of local communities and in the National Assembly and the right each to one delegate to the National Assembly. The latter is a logical extension of the right to direct representation in the National Assembly. The cited rights are special rights of the national communities, whereby irrespective of the number of their members and irrespective of the voting system, these communities are guaranteed the opportunity to participate in the decision making of the National Assembly and representative organs of local communities.
28. Whenever matters are concerned which affect the constitutional rights and position only of the national communities, the representatives of the national communities in the National Assembly and municipal councils have the right of a "minority veto" (sixth paragraph of article 64 of the Constitution). With this is guaranteed that the representatives of the majority nation cannot outvote the representatives of the two national communities in matters which refer only to the constitutional rights or position of the national communities.
B. - II.
29. The initiators believe that the mandate of delegates - representatives of the national communities should be restricted by the Standing Orders and ZoP or by special laws, to deciding only on those questions which refer to the national communities. In the original initiative, this standpoint was only mentioned, but later the initiators, by the proposal for temporary restraint, extended the initiative also to the cited acts. At the time of reaching a decision on the proposal for temporary restraint, the Constitutional Court did not judge the existence of the procedural preconditions for commencing a proceeding for assessing the constitutionality of ZoP and the Standing Orders. At the time of reaching a decision on the acceptance of part of the initiative, it judged in particular whether the procedural preconditions for commencing this procedure are given. It found that the statutory arrangement of the extent of authority (mandate) of delegates does not encroach directly on the rights, legal interests or legal position of the initiators. It therefore rejected the initiative in this part.
B. - III.
30. ZVDZ determines that:
a citizen of the Republic of Slovenia who on the day of voting has completed 18 years and who has not been deprived of his business capacity has the right to elect and be elected as a delegate (first paragraph of article 7),
- a member of the Italian or Hungarian national communities who has voting rights has the right to elect and be elected a delegate on this national community (article 8).
From none of the provisions of the law does it derive that exercise of special voting rights (rights to elect and be elected a delegate of the Italian or Hungarian national community) excludes exercise of general voting rights.
31. ZVDZ determines a special procedure for the election of delegates of national communities. The delegate of a national community is elected in an electoral unit which is formed in regions in which members of these communities live (sixth paragraph of article 200).
32. ZEVP regulates the records of voting rights such that records of citizens who have the right to elect and be elected a delegate of the Italian or Hungarian national community are maintained individually. The special electoral roll for each election is composed by a commission of the self-governing national community. Electoral rolls are prepared, and (then) confirmed by the administrative organ of jurisdiction (administrative unit).
33. Members of national communities who are inscribed in the general and special electoral rolls may cast two votes at elections to the National Assembly - one for the election of the delegate of the national community and the second for the election of other delegates. These persons thus have double voting rights - general and special.
34. The special voting right signifies a departure from the principle of the equality of voting rights. The principle of equality of voting rights requires that each elector has the same number of votes and that these votes have the same value. Electors who have in addition to general also special voting rights have available two votes; their will is respected twice: in the distribution of the mandates of the delegates of the national communities and in the distribution of the mandates of other delegates. The right of members of the national communities to elect their own delegate irrespective of their numbers already signifies a departure from the principle of the equality of voting rights. Double voting signifies an additional departure from this principle.
35. The special voting rights of members of the national communities is an expression of the constitutionally guaranteed protection of these communities or their members. Although it is a departure from the principle of equality of voting rights, such "positive discrimination" is not constitutionally impermissible, but quite the contrary - the Constitution requires of the legislator that he implement such measures in the legislation. In view of the fact that the Constitution itself envisages or requires departure from the principle of equality of voting rights ("positive discrimination") it was not necessary for the Constitutional Court to weigh the seriousness of the infringement of the equality of voting rights and the seriousness of the constitutional value which such an infringement achieves.
36. The Constitutional Court studied the question of whether the legislator could have realised the constitutional provisions on direct representation of the national communities or on election of one delegate each of the Italian and Hungarian national communities to the National Assembly also otherwise - in a way which would not give to members of the national communities double voting rights. If the law gave only one vote to members of the national communities and enabled them to choose between exercising general and special voting rights (between voting at elections for a delegate of the national community and at elections for remaining delegates) this would take from these persons one of the two constitutional rights. In view of the fact that the Constitution does not limit the general voting rights of members of the national communities, and at the same time gives them the right to elect a delegate of the national community, legislating the right to only one vote with the opportunity of choice (option) would cause members of the national communities to be forced to choose between two constitutional rights; the general voting right and the right to direct representation. By deciding on one of these two rights, they would automatically be denied the other. Such an arrangement would be in conflict with the Constitution, since members of the national communities would be deprived of one or the other right - in relation to their own choice.
37. The right of members of the two autochthonous national communities to vote at elections for a delegate of the national community and at elections for other delegates, derives from the Constitution itself, so the legislator behaved in conformity with the Constitution when he constructed the electoral system. The high level of protection of autochthonous national communities which the Constitution guarantees, does indeed represent a dual departure from the principle of equality of voting rights, but this departure is envisaged and required by the Constitution itself as a form of so-called positive discrimination.
B. - IV.
38. The Constitution determines in the third paragraph of article 64 that the national communities shall be directly represented also on representative organs of local government. In relation to the right of members of the national communities to cast two votes at elections of members of a municipal council, similarly as the analogous arrangement under ZVDZ, it applies that it is not in conflict with the Constitution. The reasons for this finding are the same as have been cited for the arrangement under ZVDZ - only this statutory mechanism enables the realisation of the constitutional command that the national communities shall be directly represented on representative organs of local communities.
B. - V.
39. The special voting right of members of the national communities is recorded on a special electoral roll which is composed by the self-governing national community, and confirmed by the organ of jurisdiction (fourth paragraph of article 2 ZEVP). The electoral roll of citizens, members of the national communities in the regions in which these communities live, is composed by a commission of the appropriate self-governing national community. A special electoral roll is composed for each polling station (article 19). The electoral roll is then confirmed by the organ of jurisdiction (administrative unit). The impugned article 22 determines that citizens, members of the Italian or Hungarian national community, who do not have permanent residence in regions in which these communities live, shall be inscribed in this special electoral roll on their written demand to the appropriate self-governing national community.
40. Special constitutional rights (including the special voting right) are guaranteed only to members of the autochthonous Italian and Hungarian national communities. The concept of autochthonous is not precisely defined in the Constitution, and similarly is not defined in the law. More precise measures for establishing which electors have special voting rights are not found in ZEVP nor in any other law. In practice, at elections of delegates to the National Assembly in 1992 and 1996 the commissions of the self-governing national communities carried out inscription in the special electoral roll without statutory measures.
41, The Constitution determines in the second paragraph of article 121 that self-governing communities may obtain public authority by law for conducting some functions of the state administration. In the second paragraph of article 64 of the Constitution, it is in particular envisaged that the self-governing national communities shall obtain public authority for performing specific tasks within the jurisdiction of the state.
42. The principle of a state governed by law (article 2 of the Constitution), the principle of the division of power (second paragraph of article 3 of the Constitution) and the principle of legality of operation of the administration (second paragraph of article 120 of the Constitution) sets the requirement that holders of public authority must, in view of the principle of legality, be equated with organs of state administration in the exercise of these authorities. In exercising public authority in individual cases, they must have a foundation in law. This also applies for the self-governing national communities when they execute tasks under public authority - especially if in this they reach decisions on the rights of individuals.
43. In view of the fact that the special voting right is recorded by inscription in the special electoral roll of members of the autochthonous Italian and Hungarian national communities, and that this voting right is proved at voting at polling stations precisely by inscription in this electoral roll, measures should have been defined according to which the commissions of the self-governing national communities shall compose these electoral rolls or decide on inscription of individual voters in these electoral rolls. Membership of the autochthonous Italian or Hungarian national communities is a status to which the Constitution (and in conformity with it the law) attaches specific rights (especially the special voting right). So the measures according to which it is established whether a citizen belongs to the autochthonous Italian or Hungarian national community should have been statutorily determined. By determining these measures, the law would not infringe constitutional rights under article 61, according to which everyone has the right freely to express affiliation to his own nation or national community. Each person has the right freely to express affiliation to any nation or national community. In deciding to whom special rights belong, which accrue according to the Constitution only to members of the autochthonous Italian and Hungarian national communities, it is not decisive only the will of the individual, but there must be statutory measures established for this decision.
44. Autochthony is recognised by the Constitution for the Italian and Hungarian national communities. All special rights with which the Constitution protects the national communities relate only to members of the autochthonous Italian and Hungarian national communities - thus not to all persons who define themselves as Italian or Hungarian. In view of this, for the exercise of special rights (especially special voting rights) it is not sufficient that the person defines himself as Italian or Hungarian. An arrangement whereby the commission of the self-governing national community would have to inscribe any citizen of full age and business capacity who declared that he considered himself a member of the autochthonous Italian or Hungarian national community, in the special electoral roll would be constitutionally impermissible. Actual membership of the autochthonous Italian or Hungarian national community, namely, is not only a matter of the individual's will but also a matter of this national community, which in conformity with statutory measures also itself considers such an individual to be its member and inscribes him in the special electoral roll. An arrangement whereby inscription in the special electoral roll would be guaranteed to anyone who defined himself as a member of the autochthonous Italian or Hungarian national community would not increase the protection of the national community but would enable unrestricted abuse, either with exclusively electoral intention or with the intention of undermining the real will of this national community in its operations, in electing its own organs and similar. Such an arrangement would nullify the special rights of members of the autochthonous Italian and Hungarian national communities.
45. The legislator should have determined measures according to which membership of the autochthonous Italian and Hungarian national communities is determined. The lack of such measures enables completely arbitrary decision making, which is in conflict with the principle of a state ruled by law, the principle of the division of power and the principle of the legal workings of the administration. The Constitutional Court found this legal void in connection with the regulation of inscription in the special electoral roll under ZEVP. It imposed on the legislator that he fill this anti-constitutional void by the time of the next elections to the National Assembly. The Constitutional Court decided on a relatively long time limit because of the professional and political complexity and the sensitivity of the matter; the legislator must, namely, take especial care that he fills this legal void such that it does not threaten the constitutional rights of the national communities and other constitutional rights or freedoms.
45. In a judgement of whether it is in conformity with the Constitution that special voting rights can also be exercised by persons who have permanent residence outside the regions in which the autochthonous Italian and Hungarian national communities live, the Constitutional Court had to interpret the concept of autochthony. It considered that it is not constitutionally impermissible that persons who live outside the nationally mixed regions should be considered members of the autochthonous Italian or Hungarian national community. In this it respected above all the provisions of the fourth paragraph of article 64 of the Constitution, according to which "the law shall regulate those rights which members of the national communities exercise outside regions in which the national communities live". It did not decide in this on the question of whether it would be anticonstitutional if the legislator, at the time of filling the anticonstitutional void - thus at the time of defining the measures of affiliation to the autochthonous Italian or Hungarian national communities - as one of the measures were to set also permanent residence in a region in which the autochthonous national communities live.
B. - VI.
47. The initiators impugn the provisions of article 134 of the Statute which awards the status of legal person to local communities. The Constitutional Court found with decision no. U-I-274/95 (OdlUS V, 119) that it was not in conflict with the Constitution that the then valid article 19 ZLS by mandatory interpretation enabled municipalities to award legal subjectivity to their narrower parts. It found that there is an anticonstitutional legal void in ZLS and imposed on the legislator that he arrange the basic characteristics of the status in law of the narrower parts of municipalities which have legal subjectivity. The National Assembly adopted on 30 October 1997 the Amending and Supplementing ZLS ACT (Official Gazette RS, no. 70/97). The Amending ZLS determines in the first paragraph of article 19 that narrower parts of a municipality may have the status of legal person. The statutory provision which gives local communities the status of a legal person is thus not in conflict with the Constitution and law.
48. The impugned provision of the second paragraph of article 140 of the State determines the direct representation of the national communities on councils of the local communities. The initiators believe that the special provisions on the rights of national communities do not enter into consideration for a local community because it is not a self-governing local community. It is true that a local community is not a self-governing local community, but part of the decision making on public affairs can take place in it if a municipality transfers by statute specific tasks for implementation by the local community. These are matters which relate to basic public needs, connected to the narrower local region - local roads, premises for cultural activities, public services in the narrower region, local performances, care for the appearance of the locality. The Constitution commands the direct representation of the autochthonous Italian and Hungarian communities in the National Assembly and representative organs of local government (municipalities), and does not forbid direct representation on representative bodies of narrower parts of a municipality. In view of the fact that the Constitution commands so-called positive discrimination in the form of special voting rights at elections to the National Assembly and to municipal councils, a statutory arrangement which also guarantees such special rights to members of the autochthonous Italian national community at elections to the councils of local communities is not in conflict with the Constitution and law, although it is a departure from the principle of equality of voting rights.
49. The fourth paragraph of article 53 of the Statute determines that the deputy mayor must be a member of the Italian nationality if the mayor is not a member of the Italian nationality. The initiators believe that this is a discriminatory restriction of passive voting rights. The deputy mayor is not elected at direct elections but is appointed by the municipal council. The impugned provision therefore cannot represent an infringement of the equality of voting rights. However, it could represent an infringement of equality before the law (second paragraph of article 14) - discrimination against persons who are not of the Italian nationality but who wish to candidate as deputy mayor. The principle of equality before the law forbids the legislator or representatives of organs of local communities to envisage without material grounds different legal consequences for material circumstances which are in essential elements the same. The restriction of the possibility of election to the function of deputy mayor, which places in a worse position persons who are not of Italian nationality, is materially grounded and thus not constitutionally impermissible. It is based on the already described intention of so-called positive discrimination or the special protection of the national communities. Also this provision of the Statute, which gives specific priority to members of the autochthonous Italian national community was adopted with at least a two thirds majority on the municipal council. This means that this right of members of this national community has been recognised by the majority nation through its representatives on the municipal council; for this reason, too, it is not possible to consider it to be impermissible discrimination.
C.
50. The Constitutional Court adopted this decision on the basis of articles 21, 25 and 48 of the Constitutional Court Act (Official Gazette RS, no. 15/94), composed of: president Dr. Lovro Šturm and judges Dr. Miroslava Ge_-Korošec, Dr. Peter Jambrek, Dr. Tone Jerovšek, Mag. Matev_ Krivic, Mag. Janez Snoj, Franc Testen and Dr Lojze Ude. The first, second, third and fifth points of the judgement proper were adopted unanimously. The fourth and sixth points of the judgement proper were adopted by seven votes against one. Judge Ude voted against. Judge Ude gave a dissenting opinion, judges Jerovšek and Krivic a concurring separate opinion. Judge Jambrek announced a separate opinion.
Notes:
1. A more detailed survey of statutory arrangements:
- In the Danish parliament (Folketing) two minorities (Faroes and Greenland) are each guaranteed two places.
- Germany: at a federal level and in some federal regions (Schleswieg-Holstein, Saar) the electoral threshold does not apply for minorities. Members of minorities may by voting for national parties achieve representation of the minority in parliament. In voting, they are faced with an "actual option" - to vote for a minority party or for one of the parties from the traditional political spectrum.
- Finland: The inhabitants of the Aaland islands are guaranteed a seat in parliament such that the region of the islands represents an independent electoral unit in which one delegate is elected. This delegate has the same rights and duties as all other delegates. He is normally included in the delegate group of the Swedish People's Party, although he is not a member of that party.
- Croatia: The Constitutional Act on Human Rights and the Rights of Ethnic and National Communities or Minorities in the Republic of Croatia (Narodne novine, no. 34/92 - expl. text) determines that members of minorities which amount to more than 8% of the total population - this is the Serbian minority - have the right to elect five representatives to the house of representatives of the Sabora, and members of other minorities together five representatives. In the third paragraph of article 18 it is determined that the delegates of these minorities (with less than 8% of the total population) are "representatives of all ethnic and national communities or minorities who have elected them and must protect their interests".
The electoral law of 1992 (Zakon o izborina zastupnika u Sabor RH, Narodne novine, 22/92) contains identical provisions in relation to the election of representatives of minorities. Four of the five representatives "of minorities below 8%" shall be elected in four special electoral units according to a majority system. They are elected by members of the minorities. The nationality of electors is also inscribed in the electoral roll (Zakon o popisima bira_a, Narodne novice, no. 19/92). Nationality is also cited with candidates in the procedure of candidating (article 15 of the electoral law).
In the original text, the law determined that the number of members of parliament shall be increased if the guaranteed representation of minorities is not achieved at elections; those candidates are elected on state lists (60 delegates are elected under this law in proportional elections on the basis of state lists) of appropriate nationalities, who have not been elected, in relation to the share on individual state lists. If in this way it has not been possible to reach the required number of delegates of appropriate nationalities, under the law supplementary elections shall be carried out. The electoral threshold (3%) applied under the law for all state lists, but the Constitutional Court (U-VII-233/92, Narodne novine, no. 50/92) decided that this voting threshold shall not be used for national minority parties.
The amending electoral law (Narodne novine, no. 68/93) brought changes to the voting system. 80 delegates are elected under the proportional system, and 32 by majority. Of these 32, 28 are elected in "ordinary" electoral units under the principle that approximately the same number of electors elect one delegate each. 12 delegates are elected by the diaspora (Croatian citizens throughout the world) on special lists. Three delegates are elected by citizens of Serbian nationality by the majority system on the state level as a single electoral unit. Four delegates (as previously) are elected by members of minorities in four special electoral units (Italians elect a delegate in the first, Hungarians in the second, Czechs and Slovaks in the third, and Russini, Ukranians, Germans and Austrians in the fourth).
Members of minorities have an option available in casting a vote at elections in small electoral units in which mandates are distributed according to the majority system. In mandatory instructions of the State electoral commission (Obavezne upute broj XII, Narodne novine, no. 82/95) it is stated that the rights of minorities to elect their own representatives is only a right and not an obligation. It is determined that members of minorities may not vote twice for a candidate in electoral units in which are elected one or three delegates. Members of minorities who wish to vote a "general" delegate must obtain attestation at the polling station that they have not voted at special elections for a representative of minorities. On the basis of this attestation, they may cast a vote for a candidate in the "ordinary" uninominal electoral unit.
The mandate of "minority" delegates is not restricted (see Standing Orders of the Sabora RH, Narodne novine, no. 59/92 and 89/92). Croatian law does not recognise the institute of minority consent (veto).
- Rumania: the second paragraph of article 59 of the Rumanian Constitution determines that minority organisations have a guaranteed place in representative bodies even in a case in which they do not collect a sufficient number of votes. A minority may only be represented by one organisation. The electoral law determines in article 4 that the right to one representative belongs to all minority organisations of a single minority together, if on a state level they collect at least 5% of votes which were on average required for the election of one delegate. The number of members of the representative body is suitably increased because of the direct representation of minorities.
- Hungary: representation of minorities in the parliament is guaranteed with a reduction in the number of votes required for the election of a delegate - representative of the minority (articles 49 and 50 of the electoral law).
- Italy: in the South Tyrol (region of Trentino - Alto Adige), the Laden language group has a representative guaranteed on the regional council. If from the list in electoral units (the region is divided into two electoral units - Bolzano and South Tyrol, and voting is by a proportional system with preferential votes), no member of the Laden language group were to be elected under the general rules, the candidate is elected who obtained the largest number of preferential votes. The representative of the minority so elected replaces the last of the candidates from their list who was elected under general rules (in relation to the number of preferential votes).
P r e s i d e n t:
Dr. Lovro Šturm