DECISION. At a session held on 17 April 2014 in proceedings to review the petition of Eva Irgl, Vipava, the Constitutional Court. decided as follows:

Transcription

1 U-I-76/14 17 April 2014 DECISION At a session held on 17 April 2014 in proceedings to review the petition of Eva Irgl, Vipava, the Constitutional Court decided as follows: 1. The Decree on Calling a Legislative Referendum on the Act Amending the Protection of Documentary and Archival Material and Archival Institutions Act (Official Gazette RS, No. 23/14) is annulled. 2. The National Assembly must adopt a new act on calling a referendum on the Act Amending the Protection of Documentary and Archival Material and Archival Institutions Act (EPA 1547-VI) within seven days following the publication of this Decision in the Official Gazette of the Republic of Slovenia. REASONING A

2 2 1. The petitioner challenges the Decree on Calling a Legislative Referendum on the Act Amending the Protection of Documentary and Archival Material and Archival Institutions Act (hereinafter referred to as the DePDAMAIA-A1). She alleges that it is inconsistent with Articles 44 and 90 in conjunction with Articles 2 and 3, as well as with Articles 82, 83, 88, and 148 of the Constitution. She also draws attention to violations of Article 42, the first paragraph of Article 133, and Article 169a of the Rules of Procedure of the National Assembly (Official Gazette RS, No. 92/07 official consolidated text, 105/10, and 80/13 hereinafter referred to as the RuPNA- 1). Due to questionable implementation of Article 47a of the Referendum and Popular Initiative Act (Official Gazette RS, No. 26/07 official consolidated text hereinafter referred to as the RPIA) in conjunction with Article 87 of the National Assembly Elections Act (Official Gazette RS, No. 109/06 NAEA), the challenged Decree allegedly also disproportionately interferes with the constitutional right to vote in a referendum and with the right to participate in the management of public affairs of the citizens of the Republic of Slovenia who permanently or temporarily reside abroad on the day of the referendum is to be held. 2. The petitioner alleges that by scheduling the day of the referendum merely three weeks prior to the election of the deputies from the Republic of Slovenia to the European Parliament, the DePDAMAIA-A1 interferes with the constitutional right to a referendum and with the right to participate in the management of public affairs in conjunction with Articles 2 and 3 of the Constitution. According to the petitioner, voting twice in such a short period of time causes voters unnecessary expense, unnecessary loss of time, and a shorter time to become acquainted with the otherwise demanding referendum campaign [issues]. She draws attention to the fact that the day of the referendum falls during the May Day vacation [sic May Day national holiday], and also that there is a school vacation the week prior to the referendum, which means that the vast majority of voters will have difficulty as to following the referendum campaign, early voting, and voting in the referendum itself. As regards the early voting, the petitioner alleges that, in view of Article 69 of the NAEA, it will only be possible for such to be carried out in a period of two days instead of three, as May Day is a national holiday. According to the petitioner, in light of the fact that Article 90 of the Constitution requires the participation of at least onefifth of all voters (i.e. a quorum), all of the mentioned circumstances disproportionally render the exercise of the rights determined by Articles 44 and 90 of the Constitution difficult and even limit the exercise of such rights. The petitioner believes that, in view of the required quorum, the National Assembly should refrain from taking any measures that could indirectly or directly affect the level of referendum participation so that the referendum would not even be valid. She alleges that by the DePDAMAIA-A1 the National Assembly pursued a constitutionally inadmissible and illegitimate objective, namely, to schedule the day of voting on the referendum such that the prescribed quorum of the rejective referendum would not be attained or so that it would be significantly more difficult for it to be attained.

3 3 3. The petitioner also alleges that procedural violations occurred in the adoption of the DePDAMAIA-1 Draft Decree (EPA 1869-VI). She alleges that she attached to the request for calling the legislative referendum the draft decree, in which 15 April 2014 was stated as the day of the calling of the referendum and 25 May 2014 as the day when the referendum was to be held. The National Assembly, i.e. its Committee on Culture, as the competent working body, did not adopt a position on this draft decree, although it should have as the draft decree was a constituent part of the request, and together they formed an integrated whole. Another reason why it should have considered the draft decree is the fact that it was submitted by a petitioner who is a deputy of the National Assembly and who thus on the basis of Article 88 of the Constitution and Article 169a of the RuPNA-1 has the right to propose laws and decrees. Since the National Assembly failed to do so, it allegedly interfered with her position or office as follows from Articles 82 and 83 of the Constitution and with her powers that follow from Article 88 of the Constitution. The petitioner also alleges violations of Article 42, the first paragraph of Article 133, and Article 169a of the RuPNA The DePDAMAIA-A1 allegedly also interferes with the principle of balanced public finances determined by Article 148 of the Constitution, whose second paragraph determines that the revenues and expenditures of the budgets of the state must be balanced in the medium-term without borrowing, or that revenues must exceed expenditures. The higher expense due to holding the referendum on 4 May 2014 in comparison with the expense that would be incurred if the voting on the referendum were held simultaneously with the elections to the European Parliament allegedly entail an additional, unnecessary burden on public finances of approximately EUR 3.5 million. With reference to Decision of the Constitutional Court No. U-I-279/96, dated 10 September 1996 (Official Gazette RS, No. 51/96, and OdlUS V, 126), the petitioner alleges that the National Assembly should follow, in accordance with the Constitution, the [principle of] economy, act with due diligence, and strive for rationality. In accordance with these principles, the National Assembly should schedule the date of the referendum vote on the same day as when the election of deputies from the Republic of Slovenia to the European Parliament is to be held. In such a manner, the burden on the budget of the state would be minimised, as would the burden on citizens in going to the polls. 5. The challenged Decree allegedly also disproportionately interferes with the constitutional right to vote in a referendum and with the right to participate in the management of public affairs of the citizens of the Republic of Slovenia who permanently or temporarily reside abroad on the day of the referendum. Due to short time limits, the implementation of Article 47a of the RPIA, which determines the possibility to vote by mail from abroad, in conjunction with Article 87 of the NAEA, which determines the manner of ascertaining the results of voting by mail from abroad, is allegedly questionable.

4 4 6. In its reply, the National Assembly states that the representative of the proposers [of the referendum] in the case at issue did not act as a deputy, while the request and the Draft Decree were not submitted separately as two independent acts, but together they formed an integral whole, in line with the allegations in the petition. Therefore, the conditions determined by the Rules of Procedure (active standing) for considering the Draft Decree as an attachment to the request were not fulfilled. The National Assembly stresses that it does not fall within the jurisdiction of the Constitutional Court to assess whether the procedure for adopting the challenged Decree was in conformity with the Rules of Procedure if constitutional provisions were not violated as well thereby. However, there were allegedly no such violations. In accordance with the amendments to the Constitution, the right to vote in a referendum is defined as an exclusive right of voters, therefore it is allegedly necessary to respect the will of the petitioners and allow them to realise this instrument of direct democracy as soon as possible, without further delay. The National Assembly concurs with the petitioner that the expense would be lower if the referendum were held together with the elections to the European Parliament; however, in its opinion, substantive reasons (the right to be informed) favour holding the referendum on a separate day and thus outbalance the higher expenses. It opines that due to the right of voters to be informed, the essence of a referendum lies in the campaign in which voters decide how they will vote. Since the content of the statutory change is complex, it is imperative that [the voters] become properly acquainted with it, which thus enables in-depth decision-making. Allegedly, this can only be achieved through a more focused debate. From this perspective, 4 May 2014 is an appropriate day for voting, as during the so-called May Day holidays people will have the time to think and to become additionally informed as to why they will vote in the referendum. If people plan to take some vacation days, they will also be able to participate in early voting in the middle of the week. The National Assembly also alleges that it is the right of proposers of the referendum for all attention to be devoted to the content of the referendum question, which is a distinctly internal national topic, and that the necessary weight be given to it, as elections represent a different political process than voting in a referendum. Therefore, it is appropriate, in the opinion of the National Assembly, not to mix the two topics and not to intertwine the referendum campaign with the election campaign, but instead for separate campaigns and separate voting to be carried out.

5 5 7. The Government also submitted an opinion as to the allegations in the petition. It alleges that holding the referendum on a day that is not the same day as the elections gives it special weight, as voters clearly demonstrate their position relating to the law at issue if the referendum is held separately, without any influence from decision-making on other questions that are unrelated to the referendum. The reasons due to which the petitioner substantiates the unconstitutionality of the DePDAMAIA-A1 are allegedly generalised, as they do not substantiate the allegations in any manner. Holding the concrete referendum at issue separately from the election is allegedly also justified from the viewpoint of equal treatment in calling referendums. 8. The reply of the National Assembly was sent to the petitioner, who replied thereto. In her reply, she maintains the allegations stated in the petition. 9. By Order No. U-I-76/14, dated 10 April 2014, on the basis of the first paragraph of Article 39 of the Constitutional Court Act (Official Gazette RS, Nos. 64/07 official consolidated text and 109/12 hereinafter referred to as the CCA), the Constitutional Court suspended the implementation of the DePDAMAIA-A1 until the final decision is adopted. B I 10. The Constitutional Court accepted the petition for consideration. Since the conditions determined by the fourth paragraph of Article 26 of the CCA were fulfilled, it proceeded to decide on the merits of the case. 11. The challenged Decree determines that the day of calling the referendum, which is when the time limits for holding the referendum begin, is 3 April 2014, and that the voting in the referendum is to be carried out on Sunday, 4 May The petitioner inter alia alleges that the date for voting in the referendum is scheduled on a day that follows school vacations and the May Day holidays, due to which it renders carrying out early voting in full significantly more difficult, considering the statutory regulation in force. In view of the quorums required by the Constitution following the amendment of the Constitution as to the required participation of voters and the majority required to reject a law, scheduling the voting on such date allegedly entails a disproportionate interference with the right to vote in a referendum determined by Articles 44 and 90 of the Constitution.

6 6 12. In accordance with the first sentence of the second paragraph of Article 3 of the Constitution, in Slovenia power is vested in the people. In accordance with the second sentence of the second paragraph of the same Article, the people exercise this power directly and through elections, consistent with the principle of the separation of powers. In such manner, the Constitution introduces at the level of fundamental constitutional principles two ways in which authority is exercised, which in any case lies with the people.[1] Elections are the democratic and generally constitutionally established institute on the basis of which the people i.e. voters entrust power to the members of the representative body for the period of its term of office, which is determined in advance. Elections ensure the legitimacy of the elected members of the representative body exercising power in the name of the citizens.[2] The people hold them politically accountable for the exercise of power, and this accountability is ever again re-established by periodic free democratic elections.[3] Therefore, in this sense we talk about the indirect exercise of power by the people, i.e. representative democracy.[4] The people exercise power directly or directly participate in its exercise in the recognised forms of so-called direct democracy, among which the referendum also falls. This is a form of voters direct decisionmaking on the Constitution, a law, some other legal act, or any other issue that is important for the social community. It entails the right of all citizens who have the right to vote and to cast a vote to decide, in a general vote, on an individual act of (as a general rule) the representative body. From the viewpoint of the functioning of the power of the state, [a referendum] entails the manner of participation of the people in adopting the most important legal and political decisions that otherwise fall within the competence of the representative body.[5] In this case, also the people appear besides the representative body as the legislature. 13. The legislative referendum, as the fundamental form of direct democracy, is regulated by Article 90 of the Constitution.[6] The first paragraph of this Article determines that the National Assembly shall call a referendum on the entry into force of a law if so required by at least forty thousand voters. The second paragraph of Article 90 of the Constitution determines the instances wherein a referendum is inadmissible. In accordance with the third paragraph of Article 90 of the Constitution, the right to vote in a referendum is held by all citizens who are eligible to vote in elections. In order for a decision on the rejection of a law in a referendum to be valid, the constitutional amendment introduced conditions that the previous constitutional regulation did not contain. Namely, on the basis of the fourth paragraph of Article 90 of the Constitution, a law is rejected in a referendum if a majority of voters who have cast valid votes vote against the law, provided at least one fifth of all qualified voters have voted against the law (the rejection quorum). In accordance with the fifth paragraph of Article 90 of the Constitution, the regulation of the manner of implementation of legislative referendums is left to statutory regulation.[7]

7 7 14. By Decision No. U-I-47/94, dated 19 January 1995 (Official Gazette RS, No. 13/95, and OdlUS IV, 4),[8] the Constitutional Court held that the provisions of Article 90 of the Constitution enable the exercise of the right of citizens to direct decisionmaking in the management of public affairs referred to in Article 44 of the Constitution and that they form the constitutional framework within which the right determined by Article 44 of the Constitution can operate or be exercised. The right to vote in a referendum referred to in the third paragraph of Article 90 of the Constitution thus entails a form of direct participation of citizens in the management of public affairs. Therefore, it is constitutionally protected by the right determined by Article 44 of the Constitution. Since it is protected as a human right, the principles and rights determined by Article 15 of the Constitution apply thereto. In accordance with the second paragraph of that Article, the manner in which human rights and fundamental freedoms are exercised may be regulated by law whenever the Constitution so provides or where this is necessary due to the particular nature of an individual right or freedom. In accordance with the third paragraph of the mentioned Article, human rights and fundamental freedoms are limited only by the rights of others and in such cases as are provided by the Constitution. Limitations of human rights and fundamental freedoms must not only be based on an admissible objective defined on such basis, but must also be in conformity with the general principle of proportionality determined by Article 2 of the Constitution. The same also applies to the right to vote in a referendum determined by the third paragraph of Article 90 of the Constitution in conjunction with Article 44 of the Constitution. 15. In accordance with the first paragraph of Article 90 of the Constitution, the National Assembly calls a referendum on the entry into force of a law that it has adopted if so required by at least forty thousand voters. It must call the referendum within seven days following the filing of the request for calling the referendum or following the submission of a revised or corrected request, as determined by Article 22 of the RPIA. In accordance with the second paragraph of Section II of Article 3 of the UZ90, 97, 99, the RPIA shall apply mutatis mutandis until it is harmonised with Article 1 of the UZ90, 97, 99. Hence, the successful implementation of the constitutional right to request a referendum determined by the first paragraph of Article 90 of the Constitution establishes the obligation of the National Assembly to call a legislative referendum. Thereby, the right to vote in a referendum arises in accordance with the third paragraph of Article 90 of the Constitution. By exercising it, voters directly adopt their position on a law adopted by the National Assembly, and by which they directly participate in the exercise of legislative power.[9] Therefore, voting entails the decisive phase of the referendum procedure in which voters directly participate.[10]

8 8 16. One has to concur with the petitioner that, by its nature, the right to vote in a referendum is a so-called positive right that requires the legislature to regulate its exercise, as it is impossible to exercise it without an appropriate statutory regulation.[11] The manner of exercising the right to vote in a referendum on the basis of the constitutional authorisation determined by the fifth paragraph of Article 90 of the Constitution is regulated by the RPIA. The Constitution confers on the legislature the authorisation to choose, at its discretion, the manner of exercising the right to vote in a referendum on the basis of which it will also be possible to exercise such right effectively in practice.[12] The legislature must demonstrate reasonable grounds for selecting the regulation.[13] If the regulation exceeds the manner of exercising the right so as to become a limitation thereof, such regulation falls within the limits of constitutionality if it follows an admissible objective and is proportionate. Hence, the right to referendum decision-making determined by the third paragraph of Article 90 of the Constitution in conjunction with the right to participate in the management of public affairs determined by Article 44 of the Constitution can be limited in accordance with the third paragraph of Article 15 and Article 2 of the Constitution. 17. The legislature must establish by law a constitutionally consistent manner of exercising the right to vote in a referendum and the constitutionally admissible limitations thereof. The application of statutory rules in every instance of an individual referendum must be constitutionally consistent as well. This requirement applies already as regards the implementing regulation by which the National Assembly calls on voters to vote in a referendum, and the same requirement also exists as regards carrying out all individual tasks necessary to carry out the entire referendum procedure, which only concludes after the voting is carried out by ascertaining the referendum results. In deciding in the case at issue, the Constitutional Court assesses the constitutionality of the challenged Decree by which voters are called on to express, on a certain date, their will as regards the law that is subject to decisionmaking in a referendum called precisely by the same decree.

9 9 18. In view of the allegations of the petitioner, the Constitutional Court must first ascertain whether scheduling the date of the referendum represents a manner of exercising the right determined by the third paragraph of Article 90 in conjunction with Article 44 of the Constitution or whether, in light of the circumstances of the case at issue, it has become a limitation thereof. As the Constitutional Court has stressed a number of times, the line between regulating the manner of exercising human rights and the limitation thereof is not always easy to determine.[14] Scheduling the date of voting on the basis of a statutory provision in itself entails regulation of the manner of exercising the human right at issue. Even in instances where the legislature adopts an implementing regulation on the basis of the RPIA it must act reasonably and within the statutory possibilities. In such context, the legislature must respect two fundamental constitutional starting points in order to prevent such regulation from becoming an inadmissible limitation of the right. One of these refers to the obligation of the state to respect human rights (the first paragraph of Article 5 of the Constitution). In such framework, also the regulation of referendums as established by the fourth paragraph of Article 90 of the Constitution is important. The second refers to the requirement to establish rules and to ensure their application in a manner that enables a fair referendum procedure for exercising the right to vote in a referendum (the third paragraph of Article 90 of the Constitution). A fair procedure is the decisive condition for ensuring the veracity of the referendum results, as it ensures the trust of voters in the decision adopted by the (constitutionally determined) majority in a referendum.[15] 19. The obligation of the state to respect and protect human rights and fundamental freedoms follows from the first paragraph of Article 5 of the Constitution, which represents a strengthening of the constitutional basis stated in the Preamble to the Constitution. As regards the so-called positive rights, it does not suffice for the state to merely passively refrain from violating them.[16] These rights oblige it to act in a certain manner.[17] When exercise of the right to vote in a referendum is at issue, such entails that not only must the statutory regulation be such as to allow as effective as possible exercise of the right determined by the third paragraph of Article 90 in conjunction with Article 44 of the Constitution, but also that the implementation of the referendum procedure must be in line with this requirement, starting with the first act by which the referendum begins, i.e. the act on calling the referendum.[18] When scheduling the date of voting on a referendum, the National Assembly must thus ensure respect for this right in accordance with this starting point. Such entails that it must schedule the date so as to allow the maximum number of members of the electorate to participate in referendum voting (i.e. the freedom to participate in voting in a referendum) and to express their will as to whether the law adopted by the National Assembly should enter into force or not (i.e. the freedom to decide on the entry into force of a law).

10 Considering the constitutional regulation, voters decide on the entry into force of a law that has already been adopted by deputies to whom the voters entrusted a mandate to exercise power on their behalf in the previous elections. Hence, the rejective subsequent legislative referendum introduced by the constitution-framers in the last constitutional amendment is a means to prevent the entry into force of a legal act adopted by the representative body that the voters are opposed to (a veto by the people).[19] For such reason, the constitution-framers at the same time logically introduced a quorum in order for a decision on the rejection of such a law to be valid. In accordance with the fourth paragraph of Article 90 of the Constitution, the rejection of a law in a referendum can only be achieved if a majority of voters who have cast valid votes vote against the law, provided at least one fifth of all qualified voters have voted against the law. Participation in a referendum thus becomes an important element of the decision on the rejection of a law in a referendum or on its entry into force. The right to vote in a referendum has a special nature, just as the right to vote does. If or when a decision is made in a referendum, the right to vote in a referendum is, on the one hand, a personal right of the voter; on the other hand, each voter indeed exercises it personally, but in a collective manner, namely with all the other voters in a manner organised in advance and according to a procedure determined in advance.[20] Therefore, the reasons that can affect the decision of the voters, considering the tradition in the state, cannot be unimportant. Whether the voters use this opportunity or not, however, depends only on their free choice. 21. In order for a referendum procedure to be fair, it is first necessary that statutory rules that will enable a fair procedure enter into force. Their constitutionally consistent application in each individual referendum procedure is also equally important to ensure the effective exercise of the right to vote in a referendum. This is the basis for establishing the trust of the voters in the referendum results and thus also the basis for the legitimacy of the decision adopted in the referendum. 22. The constitutional requirement that the National Assembly must ensure effective exercise of the right to vote in a referendum as a positive right, the very nature of the right to vote in a referendum, coupled with the simultaneous constitutional requirement of a quorum for rejecting a law in a referendum, and the requirement of fair implementation of the referendum procedure in each individual legislative referendum, are important constitutional starting points for the National Assembly when scheduling the voting date in a referendum in accordance with the existing provisions of the RPIA. As long as the National Assembly proceeds within these constitutional limits, it has a wide margin of discretion in scheduling the voting date regarding a referendum. B II

11 The DePDAMAIA-A1 determines that the voting day regarding the referendum at issue is on the last day of the week (i.e. on Sunday 4 May 2014), prior to which there is May Day. In accordance with the regulation in force, May Day is celebrated on 1 and 2 May, both of which are national holidays. Thursday 1 May 2014 and Friday 2 May 2014 are at the same time the last two days prior to the day of voting when there can still be referendum campaigning. The first paragraph of Article 69 of the NAEA[21] determines that voters who are absent on the day of voting may vote prior to that day, but no earlier than five days prior to the day of voting and no later than two days prior to the day of voting. Voting is carried out at a special polling station at the registered office of the local voting commission. In conformity with the cited statutory provision and considering the date of the referendum vote (i.e. 4 May 2014), early voting should be carried out on 29 April, 30 April, and 1 May Such entails that one of the days of early voting would be a national holiday (i.e. 1 May), while on the other two days there would be school holidays. The institute of early voting is an additional possibility to cast a vote. Since it extends the possibility of casting a vote, it contributes to the more effective exercise of the right determined by the third paragraph of Article 90 in conjunction with Article 44 of the Constitution. Following the constitutional amendment, it is also important due to the prescribed quorum. The second paragraph of Article 32 of the RPIA in fact determines that a referendum voting day should be scheduled on a Sunday or a national holiday. Hence, the legislature determined a national holiday as the day of the (main) voting, when it is easier for the voters to participate in the referendum than on a regular working day for the vast majority of voters, as they have, as a general rule, fewer obligations. Early voting is intended for those who will be absent on the day of the referendum due to either professional obligations or free time activities on a weekend. These voters can participate in the voting during the time prior to the day of the referendum. In such an instance, the first day of voting follows May Day, which in turn follows the school vacations. Therefore, the entire early voting period falls on either a national holiday or during school vacations. The referendum campaign is due to end during this period of time as well.

12 It namely follows from Articles 16b and 33 of the RPIA that the legislature assessed that during the December holiday period, i.e. between Christmas, the December state holiday, and the New Year s holidays, as well as during school and summer vacations, it is significantly more difficult for voters to exercise their right determined by the third paragraph of Article 90 of the Constitution, and thus it envisaged in advance that during such periods of time referendum activities cannot be carried out.[22] Such regulation is undoubtedly in favorem of the right to vote in a referendum and in conformity with the positive obligation of the state to ensure its effective implementation (the first paragraph of Article 5 of the Constitution). The legislature thus took into consideration the tradition in the state and eliminated, on the legislative level, doubt as to the existence of certain reasons that obviously, in its reasonable assessment, affect the decision-making process of voters, although these reasons in and of themselves do not directly influence the freedom of voters as regards expressing their will in a referendum. During the time of a national holiday, voters have the right to spend the holiday as they wish or to mark it in their own way, in accordance with their general freedom to act (Article 35 of the Constitution). They have the exact same right also during the periods that the school calendar in the state determines in advance as school holiday periods. 25. The allegations of the petitioner that, in view of the above-stated, the voting day regarding the referendum at issue was in truth determined so as to render it difficult to participate in the referendum instead of enabling the highest possible participation are thus weighty. The freedom to actually participate in a referendum is otherwise in each individual case left entirely to voters. However, in light of ensuring respect for the effectiveness of their right, which entails enabling the highest possible participation in the referendum, the National Assembly must enable the greatest number of voters as possible to exercise such right, i.e. to freely decide whether to participate in the referendum. The determination of early voting days during holidays and vacations and the determination of the voting day immediately afterwards (as in the case at issue) in itself renders difficult and hinders the effective exercise of the right to vote in a referendum.[23] This is all the more at the fore in light of the new constitutional regulation of referendums, which introduced stricter conditions for rejecting a law in a referendum. Once the referendum is carried out, the law at issue, which was adopted by the parliamentary majority in the National Assembly, will be either rejected, if the voters who vote so attain the quorum determined by the fourth paragraph of Article 90 of the Constitution, or it will enter into force. In light of the fact that the National Assembly also had other possibilities, the disputed scheduling of the voting day jeopardises the fairness of the referendum procedure and thus destabilises the legitimacy of the decision adopted in the referendum. Its content depends on the expressed free will of the voters, and its legitimacy depends on the awareness that it was adopted in a fair procedure, due to which also voters who voted differently or even abstained from voting have to accept it as legally binding. The procedural aspect is thus decisive for the democratic character (Article 1 of the Constitution) of the referendum decision.

13 Considering the above-stated, scheduling the voting day of the referendum [on the day determined] by the DePDAMAIA-A1 justifies the conclusion that this goes beyond the determination of the manner of the exercise of a right; in the circumstances of the case at issue, such entails an interference with the right to vote in a referendum that at the level of a human right is protected by the right to participate in the management of public affairs (the third paragraph of Article 90 in conjunction with Article 44 of the Constitution). 27. In the assessment of whether an interference is constitutionally admissible, the Constitutional Court assesses whether the regulation pursues a constitutionally admissible objective (the third paragraph of Article 15 of the Constitution) and whether it is in conformity with the general principle of proportionality as one of the principles of a state governed by the rule of law (Article 2 of the Constitution). The Constitutional Court carries out an assessment of the conformity of the challenged regulation with the general principle of proportionality on the basis of the so-called strict test of proportionality, which encompasses the assessment of appropriateness, necessity, and proportionality in the narrower sense (see Decision No. U-I-18/02, dated 24 October 2003, Official Gazette RS, No. 108/03, and OdlUS XII, 86, Para. 25 of the reasoning). 28. Considering the reply of the National Assembly, the objective of the challenged regulation is allegedly to ensure the right of voters to be informed, which allegedly also enables responsible decision-making, due to which the essence of the referendum allegedly lies in preparations to make a decision therein, in which voters learn of the content of the subject of decision-making. Since the referendum and the elections to the European Parliament represent two different types of content, it is allegedly more appropriate not to intertwine the referendum and the election campaigns.

14 In the case at issue, the Constitutional Court does not have to adopt a position on the question as to whether by the amendment of the constitutional regulation of the referendum there perhaps arose any reasons due to which it should alter its position adopted in Decision No. U-I-304/96, in accordance with which there are no constitutional obstacles to simultaneously holding a referendum and election and thus also for the referendum and election campaigns to coincide. Even if respect for the right of voters to be informed of the subject of decision-making in a referendum as the reason why it is allegedly inappropriate to intertwine referendum and election campaigns was recognised as a constitutionally admissible objective to limit the right to vote, such limitation is not necessary to achieve this objective. It is true that voters can freely express their will by voting in a referendum if they are well informed regarding the subject of decision-making. Therefore, concern that voters are well informed and acquainted with the content of the law, including the arguments of both the proponents of the rejection of the law and those of the proponents of the law entering into force, is in itself necessary for the right to vote in a referendum to be effectively exercised. However, even if the objective of avoiding the intertwinement of the referendum and election campaign was constitutionally admissible, it would also be possible to achieve such without an interference with the right to vote in a referendum. The first paragraph of Article 33 of the RPIA provides sufficient possibilities for such. The fact that in accordance with this statutory provision a qualified majority of deputies is required (a two-thirds majority of those present) in order to adopt the decision that the time period between the calling of a referendum and the voting day should be longer cannot entail grounds for interfering with the right to vote in a referendum, which is protected by Article 44 of the Constitution as a human right. This is all the less possible if, when determining the date of the voting, the legislature acts exactly contrary to what is required by respect for the effective exercise of the right to vote in a referendum as a positive right, the condition of a constitutional quorum for rejecting a law in a referendum, and the requirement of the fair implementation of the referendum procedure in each individual legislative referendum. B III 30. Considering the above-stated, due to the determination of the voting date regarding the referendum at issue, the DePDAMAIA-A1 is inconsistent with the right to vote in a referendum in conjunction with the right to participate in the management of public affairs (the third paragraph of Article 90 in conjunction with Article 44 of the Constitution).

15 In terms of its form, a decree calling a referendum is an implementing regulation.[24] On the basis of the first paragraph of Article 45 of the CCA, the Constitutional Court annuls or abrogates implementing regulations and general acts issued for the exercise of public authority that are unconstitutional or unlawful. The Constitutional Court annuls an implementing regulation when it determines that such is necessary to remedy harmful consequences arising from the unconstitutionality or unlawfulness (the second paragraph of Article 45 of the CCA). On the basis of the challenged Decree, the time limits for carrying out referendum activities have already been set (on 3 April 2014). Some referendum activities had also already been carried out prior to the Constitutional Court deciding on the temporary suspension of the implementation of the challenged Decree. 32. On 26 March 2014, the National Assembly received a request from more than 40,000 voters to call a subsequent legislative referendum on the Act Amending the Protection of Documentary and Archival Material and Archival Institutions Act (hereinafter referred to as the DePDAMAIA-A). In conformity with Article 22 of the RPIA, within seven days the National Assembly adopted the challenged Decree, which the Constitutional Court annulled by this Decision. Since a request for the calling of a referendum has been submitted, the National Assembly must call a referendum again. Therefore, on the basis of the second paragraph of Article 40 of the CCA, the Constitutional Court imposed on the National Assembly the obligation to adopt, within seven days following the publication of this Decision in the Official Gazette of the Republic of Slovenia, a new act on the calling of a referendum on the DePDAMAIA-A, in which it is to determine a new date on which the referendum will be called, wherefrom the time limits will be set for referendum activities, as well as a new date for voting in the referendum (Point 2 of the operative provisions). C 33. The Constitutional Court adopted this Decision on the basis of the second paragraph of Article 45 and the second paragraph of Article 40 of the CCA, and the third paragraph of Article 46 of the Rules of Procedure of the Constitutional Court (Official Gazette RS, Nos. 86/07, 54/10, and 56/11) composed of: Mag. Miroslav Mozetič, President, and Judges Dr Mitja Deisinger, Dr Dunja Jadek Pensa, Mag. Marta Klampfer, Dr Etelka Korpič Horvat, Dr Ernest Petrič, Jasna Pogačar, Dr Jadranka Sovdat, and Jan Zobec. The decision was reached unanimously. Mag. Miroslav Mozetič President

16 16 Notes: [1] Cf. F. Grad in: L. Šturm (Ed.), Komentar Ustave Republike Slovenije, Dopolnitev A [Commentary on the Constitution of the Republic of Slovenia, Supplement A], Fakulteta za državne in evropske študije, Ljubljana 2011, p [2] Cf. F. Grad, Parlament in vlada [The Parliament and the Government], Uradni list Republike Slovenije, Ljubljana 2000, p. 29. [3] Cf. J. Sovdat in: I. Kaučič (Ed.), Dvajset let Ustave Republike Slovenije, Pomen ustavnosti in ustavna demokracija [Twenty Years of the Constitution of the Republic of Slovenia, The Importance of Constitutionality and Constitutional Democracy], Ustavno sodišče Republike Slovenije, Ljubljana 2012, p [4] Cf. F. Grad in: L. Šturm (Ed.), op. cit., pp [5] Taken from I. Kavčič in: I. Kaučič (Ed.), Zakonodajni referendum [Legislative Referendum], Inštitut za primerjalno pravo, GV Založba, Ljubljana 2010, p. 21. [6] The constitutional regulation of the legislative referendum was amended by the Constitutional Act amending Articles 90, 97, and 99 of the Constitution of the Republic of Slovenia (Official Gazette RS, No. 47/13 hereinafter referred to as the UZ90, 97, 99). The constitutional amendment requires that the RPIA be harmonised with it within one year (the first paragraph of Section II of the UZ90, 97, 99). [7] The fifth paragraph of Article 90 of the Constitution determines that referendums are regulated by a law passed in the National Assembly by a two-thirds majority vote of deputies present. [8] The same also follows, for instance, from Decisions of the Constitutional Court No. U-I-261/02, dated 22 January 2003 (Official Gazette RS, No. 11/03, and OdlUS XII, 2), and No. U-I-217/02, dated 17 February 2005 (Official Gazette RS, No. 24/05, and OdlUS XIV, 6), and Order No. U-II-3/03, dated 22 December 2003 (OdlUS XII, 101). [9] Cf. S. Nerad in: I. Kaučič (Ed.), op. cit. 2012, p [10] S. Zagorc in: I. Kaučič (Ed.), op. cit. 2012, p [11] The above stated similarly holds true for the right to vote, which is the central political human right. See J. Sovdat in: L. Šturm (Ed.), Komentar Ustave Republike Slovenije [Commentary on the Constitution of the Republic of Slovenia], Fakulteta za podiplomske in državne evropske študije, Ljubljana 2002, pp. 473 and 476. In accordance with the third paragraph of Article 90 of the Constitution, the right to vote in a referendum is held by all holders of the right to vote in elections. [12] Cf. Decision of the Constitutional Court No. U-I-104/01, dated 14 June 2001 (Official Gazette RS, No. 52/01, and OdlUS X, 123). [13] See Decision of the Constitutional Court No. U-I-277/09, Up-1333/09, U-I- 287/09, Up-1375/09, dated 14 June 2011 (Official Gazette RS, No. 58/11). [14] Cf. Decision of the Constitutional Court No. U-I-47/94; see also Decisions No. U- I-217/02, No. U-I-66/08, dated 11 December 2008 (Official Gazette RS, No. 121/08, and OdlUS XVII, 73), and No. U-I-285/08, dated 1 April 2010 (Official Gazette RS, No. 33/10). [15] See J. Sovdat, Sodno varstvo referenduma [Judicial Protection of a Referendum], Pravnik, Nos (2013), p. 641.

17 17 [16] P. Jambrek in: L. Šturm (Ed.), op. cit. 2002, p [17] Cf. ibidem. [18] Calling a referendum is a strictly formalised procedure prescribed by law in which the National Assembly first assesses the referendum request and then adopts the act on calling the referendum, in which it determines the day on which the referendum is to be called, from which the time limits for election activities are determined, as well as the voting day. See S. Zagorc in: I. Kaučič (Ed.), op. cit. 2012, pp. 173 and 174. [19] Cf. I. Kavčič in: I. Kaučič (Ed.), op. cit. 2010, p. 24. [20] J. Sovdat, op. cit. 2013, p [21] Article 55 of the RPIA determines that as regards the questions concerning the procedure for carrying out the referendum that are not specifically regulated by this Act, and as regards criminal provisions, the provisions of the NAEA apply mutatis mutandis. [22] From the first paragraph of Article 16a of the RPIA, which determines the time limit for collecting the signatures of voters supporting a request for the calling of a referendum, it follows that the purpose of the legislature was that on public holidays and vacation days time limits relating to [subsequent] referendum activities should be suspended. If the period in which signatures of the voters supporting a request for the calling of a referendum are to be collected fell, entirely or partially, in the period between 15 July and 31 August, the President of the National Assembly would determine a time limit [for subsequent referendum activities, including the referendum itself] calculated from 1 September onwards. If the time limit for collecting signatures entirely or partially fell in the period between 25 December and 2 January, the President of the National Assembly would determine, upon the request of the applicant, a time limit [for subsequent referendum activities] calculated from 3 January onwards. Also the second paragraph of Article 33 of the RPIA determines that the time limit calculated from the day a referendum is called until the voting day (referendum activities are to be carried out during this time) is suspended during the time determined by the first paragraph of Article 16a of this Act.

18 18 [23] Cf. Decisions of the Constitutional Court No. U-I-279/96 (Para. 17 of the reasoning) and No. U-I-304/96, dated 7 November 1996 (Official Gazette RS, No. 68/96, and OdlUS V, 147, Para. 8 of the reasoning). The Constitutional Court assessed the statutory regulation of the admissible time period between the time the act on calling the referendum is published and the day determined as the day on which the preliminary referendum is called. It established that the RPIA does not allow the postponement of the time when the referendum is carried out for a disproportionally long period of time. No more than 15 days should pass between the day the act on calling a referendum is published and the day on which the referendum is called, except where the determination of the day of the calling of the referendum within the 15-day time period following the publication of the act on the calling of the referendum would lead to a situation where the referendum would be carried out on a day when participation in the referendum would be rendered impossible or hindered as regards a significant number of voters. In the reasoning of these Decisions, the Constitutional Court stated, as an example, that vacations entail such grounds (e.g. August). [24] The Constitutional Court stated such in Decision No. U-I-201/96, dated 14 June 1996 (Official Gazette RS, No. 34/96, and OdlUS V, 99, Para. 9 of the reasoning).