Case number: U-II-1/04 ECLI: ECLI:SI:USRS:2004:U.II.1.04

Transcription

1 Case number: U-II-1/04 ECLI: ECLI:SI:USRS:2004:U.II.1.04 Challenged act: The request for the review of the constitutionality of the contents of the request for calling a preliminary legislative referendum on the Bill on the Permanent Residence of Foreigners having the Citizenship of Other State Successors to the Former SFRY in the Republic of Slovenia, Who Were on 23 December 1990 and 25 February 1992 Registered as Permanent Residents in the Republic of Slovenia, contained in the initiative to voters to submit a request for calling a referendum Operative provisions: The referendum question contained in the request for calling a preliminary legislative referendum on the Bill on the Permanent Residence of Foreigners having the Citizenship of Other State Successors to the Former SFRY in the Republic of Slovenia, Who Were on 23 December 1990 and 25 February 1992 Registered as Permanent Residents in the Republic of Slovenia, which in Subpara. 1 reads as follows: "every person who was on 25 February 1992 transferred from the register of permanent residents to the register of foreigners having no permanent residence, and who wants to claim permanent resident status retroactively, must initiate procedures by means of an appropriate application in which they must explain the circumstances due to which they could not timely regulate their status in accordance with the Basic Constitutional Charter, the Constitutional Act for its implementation, the Foreigners Act or other regulations that regulated this issue during the period after the Republic of Slovenia had gained independence," is contrary to the Constitution. The referendum question from the previous item of the operative provisions which in Supara. 2 reads as follows: "the time limit for submitting an application for the retroactive recognition of permanent resident status is six months from the coming into force of this Act;" is not contrary to the Constitution. The referendum question from Item 1 of the operative provisions which in Subpara. 3 reads as follows: "the status is retroactively recognized only to persons for which it is established that they tried to regulate their status during the entire period from 25 February 1992 onwards, however which could not do this due to objective circumstances or due to the violation of substantive or procedural law by an administrative authority;" is contrary to the Constitution. The referendum question from Item 1 of the operative provisions, which in Subpara. 4 reads as follows: "also the Veterans of the War for Slovenia Association may require the renewal of a procedure of issuing a permanent resident permit according to the Foreigners Act (ZTuj1 and ZTuj2) or ZUSDDD or according to this Act, and the time limit for submitting such a request is two years from the coming into force of this Act or from the issuance of a decision on the basis of this Act;" is contrary to the Constitution. The referendum question from Item 1 of the operative provisions which in part of Subpara. 5 reads as follows: "eligible persons according to this Act are not the persons who did not respond to the call of the Presidency of the Republic of Slovenia to leave the Yugoslav People's Army (hereinafter the YPA) or the bodies of SFRY federal authorities within the time limit determined in that call;" is contrary to the Constitution, and in the remaining part which reads as follows: "or acted against the values which are in accordance with Art. 4.1 of the Constitutional Act for the Implementation of the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia protected by the penal legislation of the Republic of Slovenia;" is not contrary to the Constitution. The referendum question from Item 1 of the operative provisions which in Subpara. 6 reads as follows: "every possibility of the retroactive assertion of the rights that are linked with

2 permanent resident status, or the payment of damages, is excluded;" is contrary to the Constitution. The referendum question from Item 1 of the operative provisions which in Subpara. 7 reads as follows: "every act of an administrative authority in issuing decisions in connection with the retroactive regulation of status which is evidently contrary to the Constitution, including the possible issuance of decisions retroactively recognizing permanent resident status without an explicit basis in statute or a lawful regulation, what is determined in Art of the Constitution of the Republic of Slovenia, is explicitly determined in the Act as a serious criminal offense," is contrary to the Constitution. The decision will take effect on the day of its service on the National Assembly. Abstract: The solutions contained in Subparas. 1 and 3 of the referendum question are based on the interpretation that the citizens of other Republics should have regulated their legal status that they had from 25 February 1992 in conformity with the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia (Official Gazette RS, No. 1/91-I hereinafter TUL), the Constitutional Act for the Implementation of TUL (Official Gazette RS, No. 1/91-I hereinafter UZITUL) and ZTuj, "or with other regulations that regulated the issue during the period after the Republic of Slovenia had gained its independence." The Constitutional Court established that the interpretation of Item III of TUL and Art. 13 of UZITUL according to which the citizens of other Republics who were on the day of the plebiscite registered as permanent residents o the territory of the Republic of Slovenia and who remained such also after the expiry of the time limit under ZTuj and also actually resided in the Republic of Slovenia, are not recognized any status and with the expiry of the time limits they lost their permanent residence for which they must apply again, as if they just settled in the Republic of Slovenia, is legally incorrect and cannot find support in any established methods of interpretations that the legal profession is aware of, and is obviously contrary to the principle of equality before the law (Art of the Constitution). Only the interpretation on the basis of which the citizens of other Republics are recognized permanent residence, such as it was recognized to foreigners under Art of ZTuj, would be in conformity with the principle of equality, which already TUL contained in Item III. The regulation proposed in Subpara. 1 of the referendum question is in the part in which it defines as persons eligible for the retroactive claiming of permanent resident status those persons who were on 25 February 1992 "transferred from the register of permanent residents to the register of foreigners having no permanent residence," also contrary to those principles of a state governed by the rule of law which require that legal norms be clear, determined and unambiguous, and that it should not depend on every interpreter how they are interpreted. As the definition of an eligible person under Supara. 1 of the referendum question would, if adopted at the referendum, mean that the legislature is to enact the definition which refers to the transfer to the non-existing register, or would stem from a legal situation which did not exist, the regulation proposed in Subpara. 1 of the referendum issue is inconsistent with Art. 2 of the Constitution also for this reason. The referendum question contained in Subpara. 2, which would bind the legislature to determine six months as the time limit for submitting an application for the retroactive recognition of permanent resident status is in itself not contrary to the Constitution, although the solution is less favorable than the proposed statutory regulation. The regulation proposed in Subpara. 4 of the referendum question, according to which the Veterans of the War for Slovenia Association as a proposer of renewal of proceedings and the time limit of two years for submitting such a proposal should be determined, is contrary to Art. 2 of the Constitution, as it would not be consistent with those Administrative Procedure Act provisions which regulate renewal

3 of proceedings as a "general" extraordinary legal remedy against decisions final in an administrative procedure. The condition proposed in Subpara. 5 of the referendum question, which allegedly excludes the possibility of acquiring a permanent resident permit for those persons who did not respond to the call of the Presidency of the Republic of Slovenia to leave the YPA and the bodies of Yugoslav federal authorities within the time limit determined in that call, would be clearly inconsistent with the Constitution, particularly with the principle of trust in the law as one of the legal principles of a state governed by the rule of law determined in Art. 2 of the Constitution, and would violate the right to equal treatment determined in Art of the Constitution. However, according to the Constitutional Court, the condition proposed in the same subparagraph of the referendum question, according to which also those persons that acted against the values that are in accordance with Art. 4.1 of UZITUL protected by the penal legislation of the Republic of Slovenia, would not be inconsistent with the Constitution. Concerning that the Constitutional Court derived from the fact that Art. 4 of UZITUL must be interpreted in conjunction with Art. 20 of UZITUL. Besides that it also considered that such activity must contain all the elements of a criminal offence to which the mentioned provision refers. Pursuant to the regulation proposed in Subpara. 6 of the referendum question, what is allegedly excluded is any possibility of compensation for damage which the citizens of other Republic suffered due to their inability to claim the rights related to permanent residence. The Constitutional Court established that the exclusion of the possibility to claim damages for unlawful conduct of the state is contrary to Art. 26 of the Constitution, and that the exclusion of any possibility of claiming the rights related to the recognition of permanent resident status, retroactively, is contrary to Art of the Constitution, which guarantees the right to obtain redress for the consequences of human rights and fundamental freedoms violations. In Subpara. 7 of the referendum question a regulation is proposed according to which the unlawful and unconstitutional issuance of decisions on permanent residence with retroactive effects would allegedly be determined a special criminal offense. The Constitutional Court established that the proposed regulation which represents a new incrimination which interferes with the already determined criminal offense is contrary to Art of the Constitution. When a referendum question refers to a future legislature's obligation to determine a certain activity as a criminal offense, the guaranties provided by the principle of legality under Art of the Constitution must be considered already in forming the referendum question, and not only or merely in forming a penal norm on the basis of the referendum question voted for. Thesaurus: Constitutional Justice - Jurisdiction - Types of litigation - Admissibility of referenda and other consultations - Preliminary referendum Constitutional Justice - Jurisdiction - Decision - In a procedure to carry out a referendum - On the intelligibility of a referendum question Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - Decision in other proceedings - Decision on clearness of unclearness of a referendum question Constitutional Justice - Effects - Determination of effects by the court General Principles - Rule of law Fundamental Rights - Equality Fundamental Rights - General questions - Limits and restrictions Fundamental Rights - Civil and political rights - Right to compensation for damage caused by the State.

4 Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Prohibition of reformatio in peius. Legal basis: Constitution (URS), Arts. 2, 14.2, 15, 26, 28 Referendum and People's Initiative Act (ZRLI), Art. 16 Cases joined: PDF Format: U-II-1-04_English.pdf Full text: U-II-1/04 26 February 2004 D E C I S I O N At a session held on 26 February 2004 in the proceedings to review the constitutionality of the question contained in the request for calling a preliminary referendum, commenced on the request of the National Assembly, the Constitutional Court d e c i d e d a s f o l l o w s: 1. The referendum question contained in the request for calling a preliminary legislative referendum on the Bill on the Permanent Residence of Foreigners having the Citizenship of Other State Successors to the Former SFRY in the Republic of Slovenia, Who Were on 23 December 1990 and 25 February 1992 Registered as Permanent Residents in the Republic of Slovenia, which in Subpara. 1 reads as follows: "every person who was on 25 February 1992 transferred from the register of permanent residents to the register of foreigners having no permanent residence, and who wants to claim permanent resident status retroactively, must initiate procedures by means of an appropriate application in which they must explain the circumstances due to which they could not timely regulate their status in accordance with the Basic Constitutional Charter, the Constitutional Act for its implementation, the Foreigners Act or other regulations that regulated this issue during the period after the Republic of Slovenia had gained independence," is contrary to the Constitution. 2. The referendum question from the previous item of the operative provisions which in Supara. 2 reads as follows: "the time limit for submitting an application for the retroactive recognition of permanent resident status is six months from the coming into force of this Act;" is not contrary to the Constitution. 3. The referendum question from Item 1 of the operative provisions which in Subpara. 3 reads as follows: "the status is retroactively recognized only to persons for which it is established that they tried to regulate their status during the entire period from 25 February 1992 onwards, however which could not do this due to objective circumstances or due to the violation of substantive or procedural law by an administrative authority;" is contrary to the Constitution. 4. The referendum question from Item 1 of the operative provisions, which in Subpara. 4 reads as

5 follows: "also the Veterans of the War for Slovenia Association may require the renewal of a procedure of issuing a permanent resident permit according to the Foreigners Act (ZTuj1 and ZTuj2) or ZUSDDD or according to this Act, and the time limit for submitting such a request is two years from the coming into force of this Act or from the issuance of a decision on the basis of this Act;" is contrary to the Constitution. 5. The referendum question from Item 1 of the operative provisions which in the part of Subpara. 5 reads as follows: "eligible persons according to this Act are not the persons who did not respond to the call of the Presidency of the Republic of Slovenia to leave the Yugoslav People's Army or the bodies of SFRY federal authorities within the time limit determined in that call;" is contrary to the Constitution, and in the remaining part which reads as follows: "or acted against the values which are in accordance with Art. 4.1 of the Constitutional Act for the Implementation of the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia protected by the penal legislation of the Republic of Slovenia;" is not contrary to the Constitution. 6. The referendum question from Item 1 of the operative provisions which in Subpara. 6 reads as follows: "every possibility of the retroactive assertion of the rights that are linked with permanent resident status, or the payment of damages, is excluded;" is contrary to the Constitution. 7. The referendum question from Item 1 of the operative provisions which in Subpara. 7 reads as follows: "every act of an administrative authority in issuing decisions in connection with the retroactive regulation of status which is evidently contrary to the Constitution, including the possible issuance of decisions retroactively recognizing permanent resident status without an explicit basis in statute or a lawful regulation, is explicitly determined in Art of the Constitution of the Republic of Slovenia, shall be determined in the Act as a serious criminal offense," is contrary to the Constitution. 8. The decision will take effect on the day of its service on the National Assembly. R e a s o n i n g A. 1. At the 40th extraordinary session, on 11 February 2004, the National Assembly on the basis of Art and Art of Referendum and People's Initiative Act (Official Gazette RS, No. 15/94 et seq. hereinafter ZRLI) adopted Resolution No /99-28/15 EPA 1016-III (hereinafter NAResolution), by which it requested that the Constitutional Court decide on the constitutionality of the contents of the request for calling a preliminary legislative referendum on the Bill on the Permanent Residence of Foreigners having the Citizenship of Other State Successors to the Former SFRY in the Republic of Slovenia, Who Were on 23 December 1990 and 25 February 1992 Registered as Permanent Residents in the Republic of Slovenia (hereinafter the Bill on SPTDDD), contained in the initiative of the Slovenian Democratic Party (SDP) and New Slovenia (NSI) to voters to submit a request for calling a referendum. [In the Assembly's opinion] the contents of the request for calling the referendum were allegedly contrary to the Constitution, particularly with Arts. 2, 14, 23, 26, 27 and 29, 32.2, 63, 120.2, 153, 155 and The National Assembly established that the initiative to voters for the calling of a preliminary

6 legislative referendum formally relates to the Bill on SPTDD, the contents of which ensures the implementation of Items 1-4 of the operative provisions of Constitutional Court Decision No. U-I- 246/02 dated 3 April 2003 (Official Gazette RS, No. 36/03 and OdlUS XII, 24). Furthermore, the Assembly established that the contents of the referendum question actually exceeds the contents of this Bill and would thus also have an impact on the implementation of the Act on the implementation of Item 8 of the mentioned constitutional decision (the so-called technical act), for which the subsequent legislative referendum had already been called. It opined that the contents of both Acts in no manner overlap and that in the case of possible adoption at the referendum the proposed solutions cannot have effect on the implementation of the so-called technical Act. From the reasoning of the NAResolution it follows that, in connection with the contents of the request for calling a preliminary legislative referendum on the Bill on SPTDD, a question was raised concerning the admissibility of deciding at a referendum on proposed (different) solutions in a case in which the National Assembly is bound to enact a statute in conformity with Constitutional Court decisions, in this particular case in conformity with Decision No. U-I-246/02. If at the referendum the proposed solution for which does not follow the Constitutional Court decisions is voted, the National Assembly would be bound by two contradicting obligations by the Constitutional Court decisions and the voter's will expressed at the referendum. 3. The National Assembly established that the question proposed in Subparas. 1 and 3 of the request for calling a referendum sets for the retroactive recognition of permanent residence such conditions that would prevent the implementation of the Constitutional Court decision (Item 1 of the operative provisions of Decision No. U-I-246/02), by which it had established that the regulation which does not grant the citizens of other Republics the right to be recognized permanent residence from the cancellation of their status from the permanent residents register onwards, was inconsistent with the Constitution. According to the National Assembly, the different regulation proposed in Subparas. 2 and 3 cannot be accepted as one of the manners of the implementation of the Constitutional Court Decision, as it is allegedly inconsistent with its essence and purpose. The condition that permanent residence can only be retroactively recognized to those who could not regulate their status due to objective circumstances or due to a violation of law by an administrative authority, does not allegedly consider the basic findings of the Constitutional Court in Decision No. U-I-284/94 dated 4 February 1999 (Official Gazette RS, No. 14/99 and OdlUS VIII, 22) that Art. 81 of the Foreigners Act (Official Gazette RS, No. 1/91-I hereinafter ZTuj) did not regulate the legal position of the citizens of other Republics and therefore these could not regulate such. 4. Concerning the solutions proposed in Subpara. 2, according to which the time limit to file an application for the issuance a permanent resident permit should allegedly be six months and not one year, the National Assembly stated that the Constitutional Court had annulled the previous time limit of three months and that it is disputed whether the proposed time limit of six months is sufficient and in conformity with the principles of a state governed by the rule of law. 5. The solution proposed in Subpara. 4 was allegedly inconsistent with the Constitution as it granted the Veterans of the War for Slovenia Association the right to require the renewal of proceedings concerning the issuance of permanent resident permits without constitutionally admissible reasons. Such a right privileging one of the organizations of civil society allegedly violates the equality principle and simultaneously also links the issue of the recognition of permanent residence with the war for independence. The determination that the Veterans of the War for Slovenia Association has the right to require such renewal would make an impression that the citizens of other Republics who were granted permanent resident permits had been against the gaining of independence, and would at the same time incite hatred and intolerance prohibited by Art. 63 of the Constitution.

7 6. The referendum question under Subpara. 5 of the request was allegedly inconsistent with the principles of a law-governed state and the principle of equality as the proposed regulation restricts the right to the recognition of permanent residence to persons employed in the YPA merely because of their status or employment, and since it also embraces the members of federal authorities (customs officials, officials in federal inspectoral bodies etc.) who were not mentioned by the call of the Presidency of the Republic of Slovenia to leave the YPA. Furthermore, it was inconsistent with the Constitution as it allegedly did not make it possible for these persons to be able to tell the reasons why they could not leave the YPA. 7. The National Assembly proposed the review of Subpara. 6 of the proposed regulation, according to which any possibility of compensation was excluded, as it opined that such regulation was contrary to Art. 26 of the Constitution. 8. In relation to the proposed regulation in Subpara. 7 of the request, according to which, in the Bill on SPZDDD, every act of an administrative authority in issuing decisions in connection with the retroactive regulation of the status which would evidently be contrary to the Constitution, including the retroactive issuance of decisions without an explicit statutory basis, was allegedly to be determined as a serious criminal offense. Concerning that the National Assembly opined that administrative authorities' activities cannot be considered criminal as the administrative authorities perform their work independently in the framework and on the basis of the Constitution and statutes (Art , Art. 153 and Art. 161 of the Constitution). As from the proposed regulation on the determination of a criminal offense stems that also the issuance of decisions on the basis of Item 8 of Constitutional Court Decision No. U-I-246/02, which mean its direct implementation, was to be determined a criminal offense, the proposed regulation was allegedly inconsistent with Art. 28 and Art. 155 of the Constitution. 9. The National Assembly stated that the opinion of the Legislative Legal Department was part of the reasoning of the NAResolution. The Department's opinion, dated 5 February 2004, brought essentially the same reasons for the unconstitutionality of the referendum questions contained in Subparas. 1, 3, 6 and 7, as they followed from the reasoning of the NAResolution, and as they are summarized in the previous items of this Decision. The opinion, however, did not deal with the solutions proposed in Suparas. 2 and 4 of the referendum question. 10. In their reply to the request, the initiators stated that citizens of other Republics resided on the territory of Slovenia as citizens of the SFRY, and were not obliged to arrange their permanent residence in a manner such as foreigners from other countries already when they enter the country. Since at the disintegration of the SFRY their citizenship of the SFRY was cancelled, they lost all the rights connected therewith. They opined that following a logical interpretation it is evident that on the basis of Art. 13 of UZITUL citizens of other republics should have arranged their temporary or permanent residence by 25 February 1992, as they also could not be granted citizenship automatically. Therefore, according to the petitioners, they could request the recognition of permanent residence for the period from 26 February 1992 onwards only if they had requested such at that time, however their right to temporary or permanent residence was rejected or recognized only from the date that was later than the date of the filing of the application. The initiators established that in 1992 mistakes occurred in recognizing the right to permanent residence, thus it is envisaged in the referendum request that permanent residence is to be retroactively recognized to persons who are established to have tried to arrange their status during the entire period from 25 February 1992 onwards, however who could not achieve this due to objective circumstances. In connection with the proposed time limit of six years for filing a request for the issuance of a permanent resident permit, they opined this time limit cannot be compared with time limits in the

8 area of the legislative regulation of redress of injustices as those are completely different examples in which a certain person was sentenced to imprisonment, internment or forced labor. They opined that the referendum request that veteran associations submit to the competent administrative authority their comments and information in a procedure of the recognition of permanent residence to persons who during the time of the independence war and during the time until the end of the war in Croatia and Bosnia and Herzegovina neither had the citizenship of the Republic of Slovenia, nor arranged their rights as foreigners, was substantiated. As well was allegedly substantiated the request that the right to permanent residence could not be granted to persons who did not respond to the call of the Presidency of the Republic of Slovenia and remained in the YPA or in the composition of SFRY federal authorities after the time when the mentioned institutions of the former federation ceased to operate on the territory of the Republic of Slovenia. A person who did not respond to the mentioned call allegedly violated "Slovenian regulations". In these cases it was allegedly presumed that a person who performs their office in another country also dwells there. In connection with the exclusion of compensation, they stated that the Republic of Slovenia could not take the responsibility of paying compensation to persons who were affected by the disintegration of the former SFRY and the creation of the Republic of Slovenia, the Constitution and statutes of which they should have respected during the time of their presence on its territory. In connection with sanctioning the issuance of decisions recognizing the right to permanent residence from 26 February 1992 onwards to the persons who have not even requested such, they emphasized that only that conduct of an administrative authority in the issuance of decisions in connection with the retroactive regulation of status was allegedly to be considered a criminal offense which would be evidently contrary to Art of the Constitution.[1] They pointed out that an official who misuses their official position is punished already according to the existing penal legislation. They proposed that the Constitutional Court find that the referendum question is not contrary to the Constitution. 11. On the request of the Constitutional Court, dated 19 February 2004, the Ministry of the Interior explained that the competent administrative authorities began to adjust the legal position of the citizens of other republics of the former SFRY who had not applied for Slovenian citizenship or who had been issued negative decisions, so that with the entry of the datum concerning their permanent residence in the register of permanent residents they wrote an official note that, in conformity with Art. 81 of ZTuj, they were foreigners from 26 February The Ministry of the Interior stated that the mentioned persons could not be entered into the records of permanent or temporary registered foreigners until they obtained a permanent or temporary resident permit. Only after they obtain the permanent or temporary resident permit had they, on the basis of Arts. 57 and 58 of ZTuj, to report their permanent or temporary residence. Furthermore, on the question of the Constitutional Court whether the competent authorities notified the mentioned persons of the transfer of their permanent residence, the Ministry of the Interior explained that at the coming into force of Art. 81 of ZTuj it issued instructions for administrative authorities. However, it did not impose on the competent authorities the obligation to inform of that the persons individually. From the annexed instruction of the Ministry of the Interior, "dispatch No. 0016/4", dated 27 February 1992, it follows that all the municipal authorities of the interior in the Republic of Slovenia and the Municipal Secretariat of the Interior of the City of Ljubljana were warned that, from the expiry of the time limit determined in Art. 81 of ZTuj, they must begin to regulate the status of citizens of other republics of the former SFRY who had not applied for Slovenian citizenship or who had been issued a negative decision from the service of which more than two months already lapsed. Furthermore, the instruction contained the warning that the documents possessed by the persons who would become foreigners on 28 February 1992 and who did not apply until then either for temporary or permanent residence, even if these were issued by the competent authorities in our state and were still valid, would become invalid due to the change in the status of these persons. The Ministry also stated that the Municipal Secretariat of the Interior of the City of Ljubljana sent invitations to approximately 7,000 citizens of other republics

9 who had not applied for Slovenian citizenship or whose application had been rejected, and that only one third of such invitations was served. From the instruction of the Municipal Secretariat of the Interior of the City of Ljubljana it follows that all those in case of whom registered mail returned with the mark "departed" or "unknown," were to be excluded from the register of permanent residents ("the mark foreigner is to be entered into and such person be "transferred" abroad on 26 February 1992 with the note Art. 81 of ZTuj"). Those who responded to the invitation were, however, destroyed their personal identification document and instructed that they could remain to reside in the Republic of Slovenia only on the basis of a resident permit or a work or business visa and that for establishment of identity they must have and use their national passport. In accordance with the mentioned instruction, a foreigner was sent to the Foreigners Bureau in order to regulate their residence in the Republic of Slovenia, and such was excluded from the register of permanent residents in the same manner as those who did not respond to the invitation, with an additional note "still in the register of the area". B. I. 12. As it follows from the reasoning of the initiative to voters for the calling of a preliminary legislative referendum (hereinafter the initiative to voters), the referendum question refers to the Bill on SPZDDD (EPA 1016-III) which the National Assembly enacted at the second debate, at its 2 February 2004 session (hereinafter the Bill). 13. With the enactment of the statute to which the initiative to voters refers, the legislature was to implement the obligation as follows from Constitutional Court Decision No. U-I-246/02 (Item 7 of the operative provisions). On the basis of the mentioned decision, the legislature was to remedy the unconstitutionality of the Act on the Regulation of the Status of Citizens of Other State Successors to the Former SFRY in the Republic of Slovenia (Official Gazette RS, No. 61/99 et seq. hereinafter ZUSDDD), which the Constitutional Court established in Items 1, 2, and 3 of the operative provisions. On the basis of Item 1 of the operative provisions it was to enact a regulation according to which the citizens of other republics who had been on 26 February 1992 erased from the register of permanent residents would also be recognized permanent residence retroactively, i.e. from the day of the erasure onwards. On the basis of Item 2 of the operative provisions, the legislature was to regulate the possibility of acquiring a permanent resident permit also for those citizens of other republics who had been pronounced a measure of forcible removal of a foreigner according to Art. 28 of ZTuj as, on the basis of the then regulation the unconstitutionality of which was established with Decision No. U-I- 284/94, it was considered that they had lived illegally in the Republic of Slovenia. Since Art. 1 of ZUSDDD determines actual presence in the Republic of Slovenia as a condition for the acquisition of a permanent resident permit, the legislature is given the special position of these persons obliged on the basis of Item 3 of the operative provisions to define the contents of this indefinite legal concept, particularly determine the period of time of absence according to which the condition of actual presence is no longer fulfilled. Moreover, the Constitutional Court annulled the time limit of three months for filing applications for the issuance of a permanent resident permit due to its inconsistency with the principles of a law-governed state under Art. 2 of the Constitution (Item 4 of the operative provisions). 14. Given the finding that ZUSDDD did not enable the eligible persons to retroactively acquire permanent resident permits and that the issue of the temporal effect of the legal regulation of the recognition of permanent residence could not be regulated differently than that these persons have the right to be recognized permanent residence from the day when they had been deprived of such by the erasure, the Constitutional Court decided that what is established together with the already issued permits is the retroactivity of permanent residence, i.e. from 26 February 1992 onwards, of

10 those persons who had on that day been erased from the register of permanent residents. The Constitutional Court extensively explained the reasons for such a decision in Items 17 to 21 of the reasoning of Decision No. U-I-246/02. At the same time it imposed on the Ministry of the Interior the obligation to issue these persons, out of its official duty, supplementary decisions on the establishment of their permanent residence in the Republic of Slovenia, from 26 February 1992 onwards. The Constitutional Court reached the mentioned decision on the basis of Art of the Constitutional Court Act (Official Gazette RS, No. 15/94 hereinafter ZUstS), which gives the Constitutional Court authority to determine the manner of the implementation of its decision and the body which must implement such. As the Constitutional Court has already explained (for example, in Decision No. U-I-163/99, dated 23 September 1999, Official Gazette RS, No. 80/99 and OdlUS VIII, 209), the legal character of such a decision is different than a decision concerning the constitutional review of a regulation, and the legislature may substitute such by a statute in which it determines a different manner of implementation, if it is possible.[2] The contents of such a statute could be the subject of a repeated constitutional review if such is launched with the Constitutional Court. As, in the case of the manner of implementation contained in Item 8 of the operative provisions of the mentioned decision, the legislature decided for its substitution and enacted the Act on the Implementation of Item 8 of Decision of the Constitutional Court of the Republic of Slovenia No. U-I- 246/02 (hereinafter ZIOdlUS246/02), which is the subject of decision-making at the already called subsequent legislative referendum (the Decree on Calling, Official Gazette RS, Nos. 135/03 and 14/04), the different solutions proposed in the discussed referendum question cannot refer or have impact on ZIOdlUS246/02. Therefore, the Constitutional Court reviewed the constitutionality of the referendum question being the subject of this case separately from the questions which will be the subject of decision-making at the referendum on the so-called technical statute. 15. Concerning the techniques of legal regulation, the legislature had the possibility of either adopting an amendment to the existing ZUSDD or enacting a new statute, to remedy the unconstitutionalities of ZUSDDD, which the Constitutional Court had established in Decision No. U-I-246/02 (Items 1 to 4 of the operative provisions). The legislature decided to enact a new statute to the bill of which the referendum question refers. On the basis of Art. 16 of ZRLI, the Constitutional Court is empowered to only review the constitutionality of the contents of a request for calling a referendum (see Constitutional Court Decision No. U-II-2/03, dated 15 May 2003, Official Gazette RS, No. 52/03 and OdlUS XII, 45). The subject of this so-called preliminary review is thus a referendum question, not a bill to which the referendum question refers. Thus, reviewing the constitutionality of the contents of the request the Constitutional Court did not address the issue of whether the regulation contained in the bill was in conformity with the Constitution. The purpose of the preliminary review of a referendum question is only to prevent from deciding at a referendum on questions that would be contrary to the Constitution. In Decision No. U-II-2/03 the Constitutional Court held that the powers of the Constitutional Court under Art. 16 of ZRLI are to be understood in a manner such that it may issue a negative opinion only when a referendum question is in itself (evidently) contrary to the Constitution. B. II. The Review of the Constitutionality of the Contents of Suparas. 1 and 3 of the Referendum Question 16. The Constitutional Court joined the reviews of the proposed regulations under Subpara. 1 and Subpara. 3. of the referendum question due to their mutual substantive connectedness. 17. The solutions contained in Subpara. 1 and Subpara. 3 of the referendum question derive from the

11 presumption that citizens of other republics had legal, even constitutional possibilities to settle their legal position in which they were from 25 February 1992 onwards. According to the proposed regulation, the citizens of other republics had to settle their legal status in conformity with the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia (Official Gazette RS, No. 1/91-I hereinafter TUL), the Constitutional Act for the Implementation of TUL (Official Gazette RS, No. 1/91-I hereinafter UZITUL) and ZTuj "or other regulations which had regulated this issue during the period of time after the gaining of independence by the Republic of Slovenia". The conditions set in Subpara. 1 and Subpara. 3 stem from the presumption that the legal status of the citizens of other republics was from 25 February 1992 onwards entirely legally regulated, and if these persons want their status to be retroactively recognized they must prove that "they could not arrange it due to objective circumstances or due to a violation of substantive or procedure law by an administrative authority". 18. The starting-point of the proposed regulation that, as regards the regulation of the permanent residence of citizens of other republics until the enactment of ZUSDDD, no gap in the law existed and that there was no illegal erasure of the permanent residence of these persons, is legally erroneous and is not grounded on any interpretation established in a legal profession. 19. Art. 13 of UZITUL[3] as the implementing act of TUL kept the promise given in the Declaration on Good Intentions adopted by the Assembly of the Republic of Slovenia (Official Gazette RS, No. 44/90) at the calling of the plebiscite that the citizens of other republics permanently residing in Slovenia would acquire Slovenian citizenship if they want so. As there was no acquisition of citizenship on the mere operation of (constitutional) law (ex lege), UZITUL had to regulate the position of citizens of other republics in the transitional period, i.e. during the time until the acquisition of citizenship or the expiry of the time limits under Art. 83 of ZTuj. At that time the citizens of other republics were concerning rights and obligations equated with the citizens of the Republic of Slovenia. Thus, from the text of Art. 13 of UZITUL it follows that the transitional period was not intended for only those citizens of other republics who decided for the citizenship of the Republic of Slovenia and filed applications for the acquisition of citizenship, but also to those who did not decide for the citizenship. Art. 13 of UZITUL guaranteed in the transitional period the same rights and obligations to these persons as to the citizens of the Republic of Slovenia. Concerning that it is important to emphasize again that this applies to those citizens of other republics who were on 23 December 1990 registered as permanent residents in the Republic of Slovenia and were actually also present there. 20. The linguistic interpretation[4] of Art. 13 of UZITUL does not allow any doubt that this decision only regulates the transitional period in which citizens of other republics are concerning rights and obligations equated with Slovenian citizens, and that it does not additionally regulate the legal position of those citizens of other republics who did not apply for citizenship of the Republic of Slovenia, however who were registered in the Republic of Slovenia as permanent residents and were actually present there. Thus, in the transitional period, UZITUL guaranteed the citizens of other republics an equal position as the citizens of the Republic of Slovenia (Art. 16 of UZITUL only determined an exception concerning the acquisition of the property right and other rights concerning real estate). Their additional position after the expiry of the "time limits under Art. 81 of ZTuj" is regulated neither with TUL nor with UZITUL. Their legal position was not regulated either in Art of ZTuj[5], but this determined only time limits after the expiry of which ZTuj would begin to apply form them. This means that after the expiry of the time limits determined in this provision these persons lost the status according to which they had been equated with the citizens of the Republic of Slovenia, and were given the status of foreigners. However, it does not follow from that provision that thereby they were found in the same position as foreigners who just entered the country, as they had been registered in the Republic of Slovenia as permanent residents at least from 23 December 1990

12 onwards and had been entered in the register of permanent residents and thus lived in the country legally. 21. It follows from this that by the mentioned constitutional and statutory provisions their legal position was not regulated. As analogy could also not be used (see Item 13 of the reasoning of Decision No. U-I-284/94), the Constitutional Court found the so-called gap in the law. Therefore, it was impossible to assert that the then legal system allowed for their permanent residence to cease ex lege, or that at the expiry of the time limit (or before that), instead of an application for the acquisition of citizenship, they should have filed an application for the acquisition of a dwelling permit if they wanted to continually live in the Republic of Slovenia. 22. The interpretation such as follows from the referendum question is also prevented by the intention the constitution-framer or the legislature had at the enactment of independence legal acts. In the process of gaining independence the Republic of Slovenia did not include only the citizens of the Republic of Slovenia but also citizens of other republics of the former SFRY who were permanent residents on its territory and also had the voting right according to the then regulation. Thus, the citizens of other republics had the right to vote at the plebiscite on the independence and sovereignty of Slovenia. Art. 6 of the Act on the Plebiscite on the Independence and Sovereignty of the Republic of Slovenia (Official Gazette RS, No. 44/90) determined that all persons who had the universal voting right according to the Elections to Assemblies Act (Official Gazette SRS, Nos. 42/89, 5/90 and Official Gazette RS, Nos. 10/90 and 45/90) had the right to vote at the plebiscite. Furthermore, the Proclamation on Plebiscite was addressed to the citizens of the Republic of Slovenia and to all voters in the Republic of Slovenia (Official Gazette RS, No. 44/90). What was allegedly the position of the "inhabitants of Slovenia" already follows from the Declaration on Good Intentions. The declaration contains an explicit assurance that the new state will guarantee all members of other nations and nationalities the right to a universal cultural and linguistic development, and all "those permanently residing in Slovenia to acquire Slovenian citizenship if they want so" (Item 1.2). It was explained by the mentioned declaration that independent and autonomous Slovenia will be a democratic, lawgoverned and social state and that the plebiscite on the independence and autonomy of Slovenia means commitment to "all the best traditions of humanism and civilization, Slovenian and European history and a friendly future of Slovenians and other inhabitants of the Republic of Slovenia." In conformity with the documents adopted at the calling and carrying out of the plebiscite, TUL also refers to all persons on the territory of the Republic of Slovenia when in Item III it ensures them the protection of human rights and fundamental freedoms "irrespective of their national affiliation, without any discrimination, in accordance with the Constitution of the Republic of Slovenia and valid treaties." 23. In Decision No. U-I-248, the Constitutional Court established that, by the omission of regulating the legal position of the citizens of other republics that became foreigners, the principle of trust in the law as one of the principles of a state governed by the rule of law determined in Art. 2 of the Constitution, was violated.[6] It evaluated that the citizens of other republics who did not decide for Slovenian citizenship or were rejected such, concerning their previous position, i.e. as permanent residents, could not expect an essential worsening of their legal status as to their future residence in the new state. They could not expect such crucial worsening given the substance of the independence acts which had envisaged and also implemented the possibility of the acquisition of Slovenian citizenship for those who wanted so, what means much more compared to the permanent residence of a foreigner. In view of this they could not expect that their decision not to apply for Slovenian citizenship would entail losing permanent residence and being placed in a position as if they were just entering the Republic of Slovenia. Furthermore, they could not expect that, by the expiry of the time limits determined in Art of ZTuj, they would be present in the state illegally. The citizens of other

13 republics permanently residing in the Republic of Slovenia could justifiably expect that in the new state they would be treated equal (without any discrimination) to other foreigners. The interpretation of Item III of TUL and Art. 13 of UZITUL according to which the citizens of other republics who were registered as permanent residents in the Republic of Slovenia on the day of the plebiscite and who permanently resided there also after the expiry of the time limits under ZTuj and were also actually present in the Republic of Slovenia, were not recognized any status, lost their permanent residence upon the expiry of the time limits and had to begin to apply for such anew as if they just settled in the Republic of Slovenia, is evidently contrary to the principle of equality before the law (Art of the Constitution). This principle does not only oblige to equally normatively regulate the same positions but also to differently treat different positions. Moreover, it is necessary to emphasize that, until the adoption of the Government order dated 3 September 1992, the competent administrative authorities did not consider permanent residence prior to the coming into force of ZTuj (see Items 9 to 14 of the reasoning of Decision No. U-I-284/94). As the Constitutional Court stated already in Decision No. U-I- 284/94, the Government was not authorized to determine the manner of implementation of statutory provisions (in this case Art of ZTuj), but should have proposed to the legislature a new regulation. Also, the order was nowhere published so that the citizens of other republics could learn about its contents or the change in the application of Art of ZTuj, which regulated the conditions for the acquisition of a permanent resident permit.[7] In conformity with the principle of equality (Art of the Constitution), which TUL already contains in Item III, the only possible interpretation is the one according to which the citizens of other republics are recognized permanent residence in a manner such as it was recognized to foreigners under Art of ZTuj. 24. The regulation proposed in Subpara. 1 of the referendum question is in the part in which it defines as persons eligible to retroactively claim the status of permanent residence those who were on 25 February 1992 "transferred from the register of permanent residents to the register of foreigners without permanent residence", also contrary to the principle of a state governed by the rule of law that requires that legal norms must be clear, determined and unambiguous and that it must not depend on every interpreter how to interpret such (see, e.g., Decision No. U-I-327/94, dated 16 March 1995, Official Gazette RS, No. 20/95 and OdlUS IV, 25 and Decision No. U-I-119/98, dated 17 April 1998, Official Gazette RS, No. 35/98 and OdlUS VII, 77). The proposed definition of an eligible person namely stems from the fiction that the citizens of other republics were after 25 February 1992 recognized somewhat status of a foreigner without permanent residence and that there was a register of foreigners without permanent residence. Art of ZTuj did not determine records on foreigners without permanent residence, thus the citizens of other republics as foreigners could not be transferred to the so-called register of foreigners without permanent residence. This is also explained by the Ministry of the Interior, which stated that there was no such register, but concerning the citizens of other republics having registered permanent residence who did not apply for citizenship after the expiry of the time limits under ZTuj an official note "foreigner" was entered into the register of permanent residents. As such a definition of an eligible person under Subpara. 1 of the referendum question, if adopted at a referendum, would mean that the legislature should enact a regulation that refers to the transfer to a non-existing register, or would stem from a legal situation that did not exist, the proposed regulation under Subpara. 1 of the referendum question is, also for this reason, inconsistent with Art. 2 of the Constitution. The Review of the Constitutionality of the Contents of Subpara. 2 of the Referendum Question 25. The referendum question contained in this Subpara. would oblige the legislature to determine six months as the time limit for filing an application for the retroactive recognition of permanent residence status. Concerning the reasons mentioned at the review of Subparas. 1 and 3 of the