>DOKUMENT : AN01682

>ZAUPNOST :

>REPUB    : 5

>VRSTAD   : 01

>DVLOG    : 941118

>VRSTAV   : 23

>VRSTAA   : 03

>DODL     : 990128

>VODL     : 1

>VREŠ     : 06

>JEZIK    : 2

>DVHOD    : 990304

>POD      :

P18 Other

>ZADEVA   :

U-I-296/94

>EVIDENCA :

E-9/99

>IMEVLAG  :

National Council

>AKT      :

Act on the Coat-of-Arms, Flag and National Anthem of the Republic of Slovenia and on the Flag of the Slovenian Nation (Official Gazette RS, No. 67/94) (ZGZH), Art. 13, Para. 2, Art. 14, Para. 3 and Art. 21, Para. 2

>PROBLEM  :

Principle of equality before the law.

Constitutional rights and freedoms.

Profession of national affiliation.

Special rights of the autochthonous Italian and Hungarian national communities.

Exercise and restriction of rights.

Statutory determination of the manner of the exercise of rights.

National communities, the right to use national symbols.

Symbols.

Of the State.

Of the nation.

Of a foreign State.

Standing as a procedural condition to initiate Constitutional-Court proceedings by petition.

Legal presumption of Constitutional-Court proceedings, political parties.

Concurring opinion of a Constitutional Court judge.

Legal basis:

Constitution, Art. 14, Para. 1, Art. 64, Art. 162, Para. 2

Constitutional Court Act (ZUstS), Art. 21, Para. 2, Arts. 24, 25

>SKLEPI   :

 

>IZREK    :

Art. 13, Para. 2, Art. 14, Para. 3 and Art. 21, Para. 2 of the Act on the Coat-of-Arms, Flag and National Anthem of the Republic of Slovenia and on the Flag of the Slovenian Nation are not unconstitutional.

 


The petition of the Parliamentary Group of the Slovenian National Party to review the constitutionality of Art. 13, Para. 2 and Art. 21, Para. 2 of the Act on the Coat-of-Arms, Flag and National Anthem of the Republic of Slovenia and on the Flag of the Slovenian Nation is rejected.

>TEKST    :

Statutory provisions which regulate the use of the symbols of the  autochthonous Italian and Hungarian national communities do not interfere with the rights, legal interests or legal position of the petitioner as the parliamentary group of a political party.  Since  the standing of the petitioner was not established, the Constitutional Court rejected the petition.

 

According to Art. 64 of the Constitution, which states that the autochthonous Italian and Hungarian national communities and their members are guaranteed the right to freely use their national symbols, it follows that they may use the symbols of the Italian and Hungarian nations as their own symbols, irrespective of these symbols being identical with an Italian or Hungarian State symbol.  However, according to the Act on the Coat-of-Arms, Flag and National Anthem of the Republic of Slovenia and on the Flag of the Slovenian Nation, on official occasions the symbols which the autochthonous national communities and their members use as their own national symbols may be used only together with the symbols of the Republic of Slovenia, and in a manner such that the symbols of the Republic of Slovenia have priority.  The provisions of the said statute providing that on certain occasions together with the symbols of the Republic of Slovenia the flag of the Italian or Hungarian national communities is also displayed, and that together with the (Slovenian) national anthem, the anthem of these communities may also be played, are therefore not unconstitutional.

>AVTOR    :

 

>OBJAVA   :

Official Gazette RS, No. 14/99

>POSLANO  :

 

>OPOMBA   :

For reasons of joint consideration and adjudication, case No. U-I-254/94, dated 21 January 1999, was joined by a Constitutional Court order to the case at issue.

FULL TEXT:

U-I-296/94

28 January 1999

 

 

                                                                D E C I S I O N

 

At a session held on 28 January 1999 in proceedings to review constitutionality, instituted at the request of the National Council, and to examine the petition of the Parliamentary Group of the Slovenian National Party, following a public hearing in Ljubljana, the Constitutional Court

 

                                                                   d e c i d e d:

 


1. Art. 13, Para. 2, Art. 14, Para. 3 and Art. 21, Para. 2 of the Act on the Coat-of-Arms, Flag and National Anthem of the Republic of Slovenia and on the Flag of the Slovenian Nation (Official Gazette RS, No. 67/94) are not unconstitutional.

 

2. The petition of the Parliamentary Group of the Slovenian National Party to review the constitutionality of Art. 13, Para. 2 and Art. 21, Para. 2 of the Act on the Coat-of-Arms, Flag and National Anthem of the Republic of Slovenia and on the Flag of the Slovenian Nation is rejected.

 

 

                                                               R e a s o n i n g:

 

                                                                           A.

 

1. The National Council challenged Art. 13, Para. 2, Art. 14, Para. 3, and Art. 21, Para. 2 of the Act on the Coat-of-Arms, Flag and National Anthem of the Republic of Slovenia and on the Flag of the Slovenian Nation (hereinafter: ZGZH).  The statutory regulation allegedly makes it possible that on the territory of the Republic of Slovenia the flag and national anthem of another sovereign State (Italy or Hungary) are used.  Using the symbols of another State on the territory of the Republic of Slovenia allegedly represents an encroachment on the sovereignty of the Republic of Slovenia.  For the entitled persons to use the symbols of their national communities independently, that is, without being required that together with their own symbols, also a symbol of the Republic of Slovenia must be used, the symbols of national communities must be distinguished from the symbols of another sovereign State.  The present regulation, which allows the symbols of the autochthonous national communities to be identical with the symbols of another sovereign State, are allegedly unconstitutional.  However, a statutory provision which prohibited the identity of these symbols with the symbols of another sovereign State would not allegedly be in conflict with the right of the autochthonous Italian and Hungarian national communities and their members to freely use their national symbols (Art. 64 of the Constitution).  At the public hearing the National Council also stated that they had proposed the enactment of a mandatory interpretation of the disputed statutory provisions, according to which the symbols of autochthonous national communities could not be understood to be the symbols of a foreign State.  Since the National Assembly had not accepted their proposal, they filed a request with the Constitutional Court to establish the unconstitutionality of the challenged ZGZH provisions.

 


2. Furthermore, the Parliamentary Group of the Slovenian National Party challenged Art. 13, Para. 2 and Art. 21, Para. 2 of ZGZH, arguing that these provisions enabled the use of Italian and Hungarian national symbols on the territory of the Republic of Slovenia.  The challenged provisions were thus allegedly inconsistent with Arts. 61 and 64 of the Constitution, and with the Act on Self-Governing National Communities (Official Gazette RS, No. 64/94).  The Constitution allegedly regulated only the right to the use of one's own language and script, but not also to the use of a flag and national anthem.  The petitioner asserted that they demonstrated their standing by supporting the program policy of the Slovenian National Party,  which included "fostering the complete independence and sovereignty of the Republic of Slovenia and the welfare of the Slovenian nation that would finally enable it to become its own master".

 

3. The National Assembly opined that determining the form and contents of the symbols of the autochthonous Italian and Hungarian national communities in statute would have interfered with the right of national communities and their members to the free use of national symbols as guaranteed by Art. 64 of the Constitution.  The Constitution allegedly did not restrict this right, thus any restriction of it by statute would allegedly violate the rights of both autochthonous national communities as guaranteed by the Constitution.  Moreover, such a restriction would allegedly violate the internationally recognized and valid right of national communities to express their own culture and the right of an individual member of such a community to express their cultural identity.  At the same time, it would allegedly also violate the right of every individual to freely express affiliation with their nation or national community (Art. 61 of the Constitution).  

 

4. According to the National Assembly, the assertion explaining that displaying a foreign flag and playing a foreign national anthem on the territory of the Republic of Slovenia interfered with the sovereignty of the State was questionable.  The Assembly was not aware of any such act in any democratic State that had been determined to be an interference with its sovereignty and thus forbidden.  The sovereignty of a State allegedly also includes the authority of the State itself, and not anyone else, to decide on the use of its own and a foreign State's symbols.  The legal system did not allegedly forbid the use of the symbols of a foreign State, for even ZGZH determined the manner of displaying a foreign flag (Art. 16) and playing a foreign national anthem (Art. 23).  Because national communities, pursuant to the Constitution, allegedly had the right to autonomously determine their national symbols, it was not necessary to distinguish between the flag of an autochthonous national community and the flag of a foreign State.

 

                                                                         B. - I.

 

5. On 21 January 1999 the Constitutional Court ruled to join the petition of the Parliamentary Group of the Slovenian National Party with the request of the National Council for reasons of joint consideration and adjudication.

 

6. On 28 January 1999 a public hearing was held before the Constitutional Court.

 


7. In accordance with Art. 162, Para. 2 of the Constitution, any individual may initiate proceedings before the Constitutional Court if they can demonstrate standing.  Pursuant to Art. 24 of the Constitutional Court Act (Official Gazette RS, No. 15/94; hereinafter: ZUstS), standing for filing a petition is deemed to be demonstrated if the challenged regulation directly interferes with the petitioner's rights, legal interests or legal position.  However, because the challenged provisions do not interfere with the rights, legal interests and legal position of the [first] petitioner, i.e. the Parliamentary Group of the Slovenian National Party, they were found not to have standing.  Thus, the Constitutional Court rejected their petition.

 

                                                                        B. - II.

 

8. The National Council requested that the Constitutional Court decide on whether, from a constitutional perspective, the symbols of the autochthonous Italian and Hungarian national communities may be identical with the symbols of another State.  The petitioner challenged the ZGZH provisions which prescribe that in certain cases together with the national flag also the flag of the Italian or Hungarian national communities may be displayed, and that together with the Slovenian national anthem, also the anthem of these national communities may be played.  The flag of a national community is displayed in the areas populated by the Italian and Hungarian national communities on national holidays (of the Republic of Slovenia), on days of mourning, as determined by the Government, at public ceremonies important for the State, as determined by the Government, on local community holidays, and in other cases if the use of the flag is not contrary to ZGZH (Art. 13, Para. 2 and Art. 14, Para. 3).  The anthem of a national community may be played at ceremonies held by these communities (Art. 21, Para. 2 of ZGZH).  The nature and form of the symbols of the Italian and Hungarian national communities are not regulated by statute, however, the petitioner opines that the Act should at least prohibit these symbols from being identical with the symbols of the Italian and Hungarian State.    

 

9. The Constitution protects the autochthonous Italian and Hungarian national communities and their members in two ways.  First of all it guarantees everyone, and thus also these individuals, equal human rights and fundamental freedoms irrespective of their ethnic origin (Art. 14, Para. 1).  However, it also vests in individual members, and their national communities as such, certain special rights (Art. 64).  This institutional framework is intended to preserve their identity and the equal participation of both autochthonous national communities and their members in social life.

 


10. In this context the Constitution provides that both autochthonous national communities and their members are entitled to freely use their own national symbols (Art. 64).  The  term "their own national symbols" already entails that this concerns the symbols of the nations whom the Italian and Hungarian national communities are part of, that is the symbols of the Italian and Hungarian nation.  But the nature of the symbols of the Italian and Hungarian nations are extant and cannot be left to someone's choice.  These national symbols were, as such, formed during the history of the Italian and Hungarian nations.  The autochthonous Italian or Hungarian national communities and their members are already entitled by the Constitution to use the Italian or Hungarian national symbols as their own symbols, irrespective of the fact that these may be identical with the symbols of the countries of Italy or Hungary.  Only if the Constitution explicitly provided a condition not allowing national symbols to be equal to State symbols, would Art. 64 be understood differently.

 

11. Accordingly, the petitioner's view that the Constitution prohibits the autochthonous national communities and their members the right to use as their own national symbols the identical symbols of another sovereign State, is not well founded.  In order for the Court to fully address the petitioner's assertion on the unconstitutionality of the challenged ZGZH provisions, it was necessary to decide whether the manner of the use of the symbols used by the autochthonous national communities and their members as their own national symbols, was constitutional.  The petitioner namely challenged the nature of the national symbols for the very reason of the manner in which they were used.

 

12. From ZGZH it follows that the symbols that the autochthonous national communities and their members use as their own national symbols, i.e. the symbols of the autochthonous national communities, may on official occasions only be used together with the symbols of the Republic of Slovenia, and in a manner such that the symbols of the Republic of Slovenia have priority.  Concerning the cases to which the challenged provisions of Arts. 13, 14 and 21 apply, it follows from the text of the challenged provisions that the symbols of the autochthonous national communities may only be used together with the symbols of the Republic of Slovenia.  For this reason, in all three provisions the word "also" is used.  The challenged statutory provisions exclude the use of symbols of the autochthonous national communities during state visits, these being made by either the highest representatives of the Republic of Slovenia on visits abroad or vice versa, and during other performances and public gatherings, which the Republic of Slovenia is present at or participates in.  Thus, the petitioner's assertion does not hold true that in the areas populated by the autochthonous national communities it could happen that the "Slovenian army marches under the Italian (or Hungarian) flag, singing the Italian (or Hungarian) national anthem".        

 


13. From Art. 6 of the Act it follows that in other cases not specifically mentioned by ZGZH, when official occasions are concerned, the symbols of the autochthonous national communities may only be used together with the symbols of the Republic of Slovenia.  According to this provision, the coat-of-arms and flag of the Republic of Slovenia must, when placed down or displayed together with the flag of the Slovenian nation, with the flags of the Italian of Hungarian national communities, with the flags of local communities, with military or foreign flags, or together with other symbols, have a place of honor, if ZGZH does not provide otherwise.  From a literal interpretation of the provision it follows that this does not concern cases in which State symbols or other symbols are used on unofficial occasions.  With such an interpretation of the provision, other established methods of interpretation are not in conflict  either.1

 

The framework of using State symbols on unofficial occasions is determined in other ZGZH provisions; the most important among them being the general provision of Art. 7.  The use of other symbols on unofficial occasions is, however, not a subject of regulation in ZGZH (arg. a contrario from Art. 1).

 

14. By arguing the opposite it would also be possible to conclude that cases of the independent use of other symbols on official occasions do not fall under the ZGZH regulation.  But such interpretation would also mean that, e.g., during public performances important for the Republic of Slovenia, or humanitarian, military or other events, which the Republic of Slovenian is present at or participates in (the examples are stated in Art. 14., Para. 1. of ZGZH), it may be possible to display only the flags of foreign countries, it not being necessary to display the Republic of Slovenia flag.  Such an interpretation would not be consistent with the duty of respecting the State symbols, this being an established tradition in civilized society.  Consequently, Art. 6 can only be interpreted as prohibiting the independent use of other symbols on official occasions.  Official occasions are also those occasions at which the autochthonous national communities participate or appear through their self-governing national communities as entities under public law.  Moreover, it was confirmed at the public hearing held before the Constitutional Court by the national communities' representatives that the autochthonous national communities also understood the statutory regulation in the described manner and that they use their national symbols in the said manner.         

 

 

                                                                           C.

 

15. The Constitutional Court reached this decision on the basis of Art. 21 and Art. 25 of ZUstS, composed of: Franc Testen, President, and Judges Dr. Janez _ebulj, Dr. Zvonko Fišer, Dr. Miroslava Ge_ Korošec, Lojze Janko, Milojka Modrijan, Dr. Mirjam Škrk, Dr. Lojze Ude, and Dr. Dragica Wedam Luki_.  The decision was reached unanimously.  Judge Škrk gave a concurring opinion to Point 1 of the disposition.

 

Footnote:

1See Pav_nik, Argumentacija v pravu [Argumentation in Law], Cankarjeva zalo_ba, Ljubljana, 1991, p. 54 passim.

 

 

                                  P r e s i d e n t:

                                  Franc Testen