Application of International and EU Law in Slovenia




© Springer-Verlag Berlin Heidelberg 2015
Siniša Rodin and Tamara Perišin (eds.)Judicial Application of International Law in Southeast Europe10.1007/978-3-662-46384-0_13


Judicial Application of International and EU Law in Slovenia



Janja Hojnik 


(1)
Faculty of Law, University of Maribor, Maribor, Slovenia

 



 

Janja Hojnik




1 Introduction


The Republic of Slovenia, as an independent state, acquired its Constitution on 23 December 1991,1 i.e. 6 months after adopting documents on independence and 6 months after adopting the Foreign Affairs Act,2 which regulates substantive and procedural issues related to international treaties. The Constitution in its preamble derives from three principles that are per se principles of international law, i.e. respect for human rights and fundamental freedoms, the right to self-determination and the right of sovereign equality of states.3 The compatibility of the Slovenian Constitution with international law standards was confirmed by the Arbitration Commission of the International Conference on the Former Yugoslavia (known as the Badinter Commission) in its arbitration opinion No. 7 of 11 January 1992.4

The legal status of international law in Slovenia is predominantly determined by the Constitution and by the Foreign Affairs Act,5 but also by the Constitutional Court Act6 and the case law of the Constitutional Court.

By obtaining independence, Slovenia became a member of the international community and as a consequence domestic courts increasingly have to deal with issues concerning the application and interpretation of international law.7 International law has considerably developed in the last decades and now covers numerous fields, from classical issues of international law (e.g. state sovereignty, etc.) to extremely specific issues (e.g. air transport, intellectual property, etc.); it not only concerns relations between states, but more and more the position of individuals (e.g. issues of human rights, international criminal law, international trade and investment law).8 Considering the increase in the amount of secondary international law and in the number of self-executing provisions, the impact of international law upon the work of domestic courts is significant.

In this respect it is important that in 2004 Slovenia became a Member State of the European Union (EU), and its courts (as well as its administrative authorities) had to start applying ‘a new legal order of international law’9 with many specifics in comparison to ‘traditional’ international law.

This chapter examines the application of international law by Slovenian courts—to a large extent by the Constitutional Court. Emphasis is given to ‘traditional’ international law, although the last part of the chapter also considers the application of EU law.


2 Constitutional Status of International Law in Slovenia


The constitutional foundation determining the relationship between the international and Slovenian legal order can be found in Article 8 of the Slovenian Constitution.10 In the first paragraph it provides the overall position of the generally accepted principles of international law and international treaties in the hierarchy of the Slovenian legal order—by placing them above the laws and other provisions, whereas the Constitution is the highest and basic act of the state.11 It derives from this that international law has a similar position in the hierarchy of Slovenian law as in the hierarchy of EU law. The Court of Justice of the EU ruled that EU secondary acts must be applied and interpreted in line with international treaties, whereas the position of the founding treaties is comparable to the Slovenian Constitution. The competences of the Court of Justice of the EU to review international treaties are comparable to the competences of the Slovenian Constitutional Court.12

In this respect, it must be emphasised that Article 153(2)13 of the Constitution more precisely stipulates that ratification of international treaties is to be performed in two forms: by acts of the Parliament (called the National Assembly) and by government regulations (decrees). It derives from this provision that international treaties ratified by a government regulation should be hierarchically placed below the laws.

It is true that according to the Slovenian Constitution the generally accepted principles of international law hold a sub-constitutional status (they are also considered in the case law of Slovenian courts as part of domestic law, unless in contradiction with the Constitution).14 Nevertheless, considering that many generally accepted principles of international law protect fundamental legal and societal values, much the same as the Slovenian Constitution, it is hard to imagine a conflict between them and fundamental constitutional principles.15

The second paragraph of Article 8 states that international treaties apply directly. For formal and substantive reasons, not all provisions of international treaties are, of course, capable of direct application, but only so-called ‘self-executing’ treaty provisions—i.e. provisions that concern individuals and contain sufficiently clear and precise rights and obligations for the parties to invoke them before the courts (and this must be determined by the national courts on a case-by-case basis).16


3 Slovenian Courts’ Structure and Accessibility of Case Law


The judiciary is one of three independent branches of government and its role is outlined in the Constitution. According to the Constitution, judges are independent and are not permitted to belong to political parties. They are elected by the National Assembly from nominees provided by the Judicial Council. Article 126 provides that the organisation and jurisdiction of courts are determined by law.17 It also states that extraordinary courts may not be established, nor may military courts be established in peacetime.

The court structure is arranged hierarchically with 44 local18 and 11 district courts,19 as well as four courts of appeal20 and a supreme court.21 These courts deal primarily with civil and criminal cases. Additionally, there are four specialised courts of the first instance competent for the determination of labour disputes, and one of them also for the determination of social security disputes. The Administrative Court of the Republic of Slovenia has the status of a higher court and deals with administrative matters (actions against the state).

Special status is given to the Constitutional Court, which is provided for by the Constitution and governed by the Constitutional Court Act of 1994. Its nine members are appointed by the National Assembly from nominees recommended by the president. Members of the Constitutional Court serve 9-year terms. The primary concern of this court is to safeguard the constitution by monitoring the constitutionality of laws passed by the National Assembly. The Constitutional Court also decides on the conformity of laws and other regulations with ratified treaties and with the general principles of international law. It also deals with cases involving possible infringements of individual rights.

There are three main websites to access the case law of Slovenian courts.

a)


This is the website of the Slovenian Supreme and High Courts. It is only available in Slovenian and offers a variety of information, e.g. office hours, a calculator for default interest, etc. Additionally, it refers to the website ​www.​sodnapraksa.​si/​, which allows for a case-law search in the following fields:



  • Supreme Court


  • High Courts


  • Higher Employment and Social Tribunal


  • Administrative Court


  • Court of Justice of the European Union


  • Calculation of immaterial damage


  • Professional articles


  • Legal opinions

 

b)


This website provides access to the case law of the Constitutional Court of the Republic of Slovenia. It has published all decisions of the Constitutional Court since Slovenian independence. The website also has an English version: ​www.​us-rs.​si/​en/​. The Case-Law Section of the website is updated periodically. The aim of the website is to allow the foreign public to be informed of the most important Constitutional Court decisions since 1992. The decisions are presented in the following manner: Registration Number, Date of the Decision, Challenged Act, Keywords, Legal Basis, Abstract, and Full-Text. In addition, decisions and certain orders (if the Constitutional Court so decides) are published in the Official Gazette of the Republic of Slovenia, local official gazettes, on CD-ROM, in the IUS-INFO databases (in Slovene), as well as in the Collected Decisions and Orders of the Constitutional Court (in Slovene along with abstracts in the English language).

 

c)


IUS-INFO is Slovenia’s leading online portal for legal and business information. Over the past 20 years, IUS-INFO has become the focal point of legal developments in Slovenia, where all current legal and other information converges into the biggest interconnected collection of legal knowledge. The portal comprises:



  • consolidated texts of complete legislation in the Republic of Slovenia


  • IUS-INFO Register, a directory of legal acts in force classified by subjects, which contains useful information and references


  • the largest collection of case law from all Slovenia’s courts


  • legislation and case law of the European Union


  • comprehensive collection of legal publications, professional articles and legal opinions


  • official notices and calls for public tender


  • schematic collection of preparatory acts named ‘Poročevalec Državnega zbora RS’


  • daily updated information on legal matters (news, commentaries and columns).

Document cross-referencing enables users to navigate through substantially connected collections and provides an intuitive method to search for an answer to specific legal problems. The search engine uses advanced filtering to classify found documents according to several criteria so that the more important information is presented at the top of the search results. The page MOJ IUS-INFO (MY IUS INFO) allows favourite documents to be saved, which enables faster access to frequently used content, the management of settings for the daily information tool, IUS Alert, and the management of users’ accounts.

 


4 Application of International Law by the Slovenian Courts



4.1 Introduction


The authority to apply international law by the judiciary is determined by the Constitution, which in Article 125 states that judges are independent in the performance of the judicial function; however, they are bound by the Constitution and laws. In this respect, Article 3 of the Courts Act provides more precisely that when performing his judicial profession a judge shall be bound by the Constitution and laws, and that according to the Constitution he is also bound by the general principles of international law and by ratified and published international treaties. This means that all judges, at ordinary and specialised courts of all instances, are under the obligation to apply international law. Nevertheless, the most important role in this respect is given to the Constitutional Court22 as the highest judicial authority for the protection of constitutionality and legality as well as of human rights and fundamental freedoms.23

International law is part of the legal education of judges and other legal professionals, as it is included as a mandatory course at undergraduate level in all three law schools in Slovenia, whereas specific international law courses (e.g. diplomacy law) are offered as optional courses. Additionally, international law courses are also offered at the masters and PhD level. Nevertheless, the bar exam does not include examination of international law, apart from its constitutional aspects, discussed in this chapter. Further, the bar exam centre for education in the judiciary24 offers various seminars for judges, e.g. on the recent case law of the European Court for Human Rights, cross-border judicial co-operation, etc.


4.2 Application of Article 8 of the Constitution by the Constitutional Court


Article 8 of the Constitution which provides for the status of international law within the Slovenian legal order is applied by the Constitutional Court in two ways. Firstly, as a subject of interpretation—when the Constitutional Court defines its content by interpreting certain words and concepts mentioned therein, the conditions for the application of international treaties, etc., and secondly, as a legal basis for the application of international legal sources. Additionally, there are three aspects of the application of international law:



  • as a standard of review of laws and other provisions;


  • as a subject-matter of constitutional review;


  • as an interpretative instrument to substantiate its rulings.


4.2.1 Interpretation of Article 8



4.2.1.1 Dualism with Elements of Monism

The Constitutional Court asserts in its rulings that Article 8 at a general level determines the relationship between international law and the legal order of the Republic of Slovenia.25 International law and domestic law are therefore considered as two separated systems. This view is also shared by Slovenian legal theory,26 which means that a dualistic approach towards the relationship between international and national law has been adopted. Nevertheless, there are some elements of monism, which can be noticed in the way international treaties are endorsed in the domestic legal order. This endorsement does not require specific legislation, but only confirmation of an act of ratification and the consequent direct application of the provisions of international treaties.

In addition to Article 8, Article 15 of the Slovenian Constitution, which concerns the exercise of human rights and fundamental freedoms, relates to the status of international law in Slovenia. Article 15(5) provides that ‘no human right or fundamental freedom regulated by legal acts in force in Slovenia may be restricted on the grounds that this Constitution does not recognise that right or freedom or recognises it to a lesser extent’. The Constitutional Court ruled that ‘Article 15(5) gives human rights and fundamental freedoms, recognised by ratified international treaties, constitutional rank’.27


4.2.1.2 Application of Generally Accepted Principles of International Law

Generally accepted principles of international law are not often used as a standard of review in the case law of the Slovenian Constitutional Court.28 It has, however, defined their meaning. The Constitutional Court says that generally accepted principles of international law include general legal principles recognised by civilised nations, as well as rules of international customary law. Therefore, in the case concerning military courts, the Court found:

The provisions of the Decree on Military Courts of 24 May 1944, which even at the time of issuing and application conflicted with the general legal principles recognised by civilised nations as well as the Constitution of the Republic of Slovenia, shall not be applied in the Republic of Slovenia.29

Furthermore, in the case concerning ‘stolen kids’ the Court found that ‘(j)udicial state immunity has developed on the basis of state practice to become international customary law’.30

The Court is competent to review the consistency of legislative and executive acts with generally accepted principles; it cannot, however, present a standard of review of international treaties in the procedures of a priori references of constitutionality.31

Many generally accepted principles of international law concern relationships between states (e.g. peaceful resolution of conflicts, principle of equality of states, principle of non-intervention, etc.) and are therefore rarely applied in domestic judicial procedures.32 The exceptional situation concerns ex post review of acts of ratification of international treaties. In this respect, the Constitutional Court in the case concerning the Agreement between the Republic of Slovenia and the Republic of Croatia on Border Traffic and Cooperation interpreted the principle uti possidetis and ruled that it is ‘a generally accepted principle of international law and as such applies also to Slovenia’.33 When applying these principles it is particularly difficult to decide whether a certain rule or principle actually is a generally accepted principle of international law. In this respect, in its older case law, the Constitutional Court did not allow references to the General Declaration on Human Rights, explaining that it did not have the power and nature of an international treaty, whereas later it started to treat it as part of international customary law.34

In general, the Constitutional Court has applied generally accepted principles of international law mostly in relation to the regulation adopted during World War II and immediately afterwards. In Case U-I-23/93,35 it reasoned from the fact that after WWII the international legal order was established on the basis of the condemnation of the Nazi and Fascist regimes and the persecution of the perpetrators responsible for the crimes committed, which was confirmed by the entire international community of that time. In the mentioned decision, the Constitutional Court took the position that certain activities of an individual during the war can be a reason for such a person not to be entitled to Yugoslav citizenship. In the case concerning the Victims of War Violence Act,36 the Court ruled that:

Legislation which recognizes the status of victim of war violence to persons who collaborated with the occupying forces would be inconsistent with the generally valid principles of international law, and thereby also inconsistent with the Constitution.37

In this respect, it should also be mentioned that in the case concerning the Convention against Torture,38 Judge Škrk stated in her concurring opinion that:

we cannot overlook the fact that the Convention against Torture, which defines torture as an offence under criminal law, was adopted on 10 December 1984. Today, the prohibition of torture, alongside the prohibition of genocide and grave massive breaches of human rights, is among the absolutely binding (peremptory) norms of customary international law (ius cogens), which have erga omnes effects. It is thus the case of norms in international law which in the hierarchy of legal norms are above other norms and principles of international law.39


4.2.1.3 What Is an ‘International Treaty’?

What constitutes an international treaty is at an informal level left to the Ministry for Foreign Affairs. In line with the Vienna Convention on the Law of Treaties, the Slovenian Foreign Affairs Act defines an international treaty in Article 69.40 The second paragraph of the same provision states that an opinion on whether an international instrument is an international treaty shall be given by the Ministry of Foreign Affairs before the commencement of the procedure for the conclusion of an international treaty. This is a soft-law provision, as in the case of dispute the Constitutional Court is competent to define what constitutes an international treaty.41

The Constitutional Court has adopted a broad interpretation of international treaties, so that Article 8 of the Constitution also encompasses treaties sui generis (e.g. Vatican accords, concordats, pacts, etc.). In its ruling concerning the Agreement between the Republic of Slovenia and the Holy See, the Court had to determine whether the Agreement was an international treaty, as it would otherwise not be competent for its review. The Court found:

The Agreement is being reached by the Republic of Slovenia as an independent and autonomous State and the Holy See as a sui-generis subject of international law. Treaties that the Holy See enters into as the highest and sovereign authority of the universal Catholic Church refer to the issues that are directly connected with the Catholic Church in States – treaty parties (…). Irrespective of the special character of agreements between the States and the Holy See (known as concordats, conventions, covenants, modus vivendi, protocols or agreements) the prevailing theory of international law treats them as real treaties, which do not only confirm the existing rights of treaty parties (e.g. the free activities of the Church), but can also create new rights and obligations for both sides. What applies to the interpretation of these agreements as well as to treaties entered into by States are the rules of the Vienna Convention on Contract Law (…), which was also signed and ratified by the Holy See.42

It should also be emphasised that in the case concerning the Act on the Reestablishment of Agricultural Communities and Restitution of their Property and Rights, the Constitutional Court stated that legislation, which would condition enforcement of a ratified and published international treaty binding upon Slovenia with the adoption of a new international treaty, would contravene Articles 8 and 153(2) of the Constitution.43


4.2.1.4 The Role of Ratification and Publication

Ratification and publication of international treaties are of paramount importance for their application.44 In the Case Rm-1/97 concerning the European Association Agreement, the Court held:





  • Article 8 of the Constitution provides that proclaimed and ratified international agreements shall apply directly. From the viewpoint of international law, ratification is unilateral declaration of intention of one contracting party addressed to the other contracting party, to the effect that it accepts the content of a signed agreement as binding. Such declaration of intention is delivered by the State on the occasion of exchanging instruments of ratification. According to the provision of indent 5 of article 107 of the Constitution, such instruments are published by the President of the Republic.


  • However, the President of the Republic may publish such instrument of ratification after the National Assembly has passed the law on ratification of an international agreement. The instrument of ratification is an international act, and the law on ratification is an act under internal law, whose importance is twofold. On the one hand, it is a sort of authorization granted to the President of the Republic, allowing him to publish an instrument of ratification and, on the other hand, it is a normative act by which obligations under international law are transformed into internal law of the State (…).


  • Thus, provisions of an international agreement are integrated in the internal legal system of the Republic of Slovenia with the coming into force of such agreement on condition that they have been ratified in accordance with the internal law of the Republic of Slovenia. By an international agreement, rights and obligations are created for the State.


  • When the international agreement has been approved by the law on ratification, it can create rights and obligations also for natural and legal persons in the country if its provisions are by their nature such that they make this possible (in the case of the so called ‘self-executing treaty’).45

This subject-matter has also been explored by the Constitutional Court in the case concerning the Agreement between the Republic of Slovenia and the Republic of Croatia on Border Traffic and Cooperation. In relation to the effects of ratification the Court held46:

Ratification47 creates internal legal effects of an international treaty; the latter becomes a part of the domestic legal order. This does not change the international obligation of the state. Quite to the contrary, with ratification of an international treaty the state upholds international obligations covered by international law (…) Non-fulfilment of the obligation is a breach of the treaty – it means that the court has made an international tort.

If a treaty is not ratified and published in the Official Gazette, it does not apply in Slovenia.48 This was clarified by the Constitutional Court, e.g. in the case concerning the Israeli Agreement, which was signed by army officials only.49 However, it is sufficient if the act of ratification is only published in the Slovenian language.50

From the point of view of ratification, two groups of treaties must be distinguished:

a)

Treaties ratified by an act of the National Assembly; and

 

b)

Treaties ratified by a Government regulation (decree).

 

The former are considered to be hierarchically above laws, whereas the latter are considered to be below laws, adopted by the National Assembly.51 The internal hierarchy of legal acts per se does not affect the fulfilment of international treaties. Problems could therefore arise if the provisions of such a treaty are inconsistent with a national act of a higher rank (the Constitution, a law), as the constitutional demand for consistency of legal acts requires primacy of the constitution over all international treaties and primacy of parliamentary acts over international treaties ratified by the Government—whereas the principle of international law ‘pacta sunt servanda’ requires respect of international treaties bona fide.52 It should also be emphasised that the Government may not ratify a treaty if this requires the adoption of new laws or the changing of existing ones.


4.2.1.5 Self-Executing Effect of International Treaties

The second paragraph of Article 8 of the Slovenian Constitution provides that international treaties apply directly. Direct application, however, is possible only of so-called ‘self-executing’ treaty provisions—i.e. provisions that concern individuals and contain sufficiently clear and precise rights and obligations for the parties to invoke them before the courts.53 Whether a treaty provision is self-executing must be determined on a case-by-case basis by the national courts.54 When this is not the case, the treaties oblige the authorities to adopt further regulation.

So, for example, the Constitutional Court decided in a case concerning the Convention on Children’s Rights that the Convention is directly applicable and overrides a provision of Slovenian law on the right of a child to keep contacts with his parents. The Court claimed that the principle ‘lex posterior derogate legi priori’ does not apply in the relation between the Convention and national legislation, but that the former is hierarchically higher than the latter. On the other hand, as regards some procedural rights of children guaranteed by the European Convention on the Exercise of Children’s Rights, the Court decided that they are not directly applicable and cannot be assured without appropriate legislative action of the national authorities:

If treaties are not directly applicable, such ratified and published treaties create international obligations for the state to adopt in its national legal order appropriate national legal acts by which it ensures compliance with such obligations.55

In this respect also the Constitutional Court’s ruling on the Convention against Torture is illustrative. The Court found therein that:

Most certainly, the Convention against Torture does compel the legislature to incriminate torture in (the Criminal Code) and such in a form as the aforementioned criminal offence is defined in Article 1 of the same. The Convention against Torture leaves it to the national legislature to determine the penalties for such, while it compels the legislature to define torture as regards the prescribed penalties as a grave criminal offence. Thus, such requirements of the Convention against Torture cannot be ascribed the nature of self-executing provisions or provisions that can be applied directly before Slovenian criminal courts. The impediment to the direct application of the Convention against Torture in the prosecution of alleged offenders of torture is the requirement to respect the principle of legality (nullum crimen nulla poena sine lege praevia), which is a universally recognized general principle of law, recognized by civilized nations and determined in Article 28 of the Constitution. However, the obligations accepted by means of treaties bind the state to comply with such obligations. (…) As regards the discussed issues, the Constitutional Court refers to the generally recognized treaty law principle of pacta sunt servanda, which compels contracting states to perform treaties in good faith.56

When an international treaty provision is in conflict with a domestic law provision, the question arises whether a national judge may adopt a ruling that is faithful to international law. If the conflicting national law was adopted prior to the applicability of an international treaty in Slovenia, judges should follow the Constitutional Court position that the hierarchically higher provisions of the treaty override the contrary provisions of national legislation. However, when contrary national legislation was adopted after the international treaty started to apply in the domestic legal order, it is disputable whether a judge may apply the international treaty provision or whether he should start a procedure for a constitutionality review of the conflicting law before the Constitutional Court. The Slovenian Constitutional Court has still not decided on this matter. However, on the basis of its human rights case law, Umek concludes that judges may deliver a ruling themselves if consistent interpretation of domestic law in the light of the treaty is possible. In the opposite situation, however, they should ask the Constitutional Court for a constitutionality review.57


4.2.2 Application of International Law as a Standard of Review of National Law



4.2.2.1 Applicable Approaches

The Constitutional Court has developed several approaches to the review of national regulation in the light of international treaties and generally accepted principles of international law.

When interpretation of a right under an international treaty is comparable to the interpretation of a right under the Slovenian Constitution, the Court considers the asserted breach of the right on the basis of the Constitution only. Consequently, the Court ruled that Article 6 of the European Convention on Human Rights (ECHR) does not assure a broader right to effective judicial protection than the Constitution and therefore reviewed the challenge only in light of Article 23 of the Constitution.58 Similarly, the Court reviewed the requirement that courts in civil proceedings should enable parties to use a language which they understand only in the light of Article 62 of the Constitution,59 whereas the Court only reviewed the asserted procedural mistakes, which also breached Article 6 ECHR, in light of Articles 22 and 23 of the Constitution.60 The Court noted that these two provisions ‘guarantee at least such extent of protection as the first paragraph of Article 6 ECHR’.61 Another example in this series of cases concerned the right to property as assured by Article 1 of the First Protocol to the ECHR, but which is also regulated by Article 33 of the Constitution. For this reason the Court reviewed the asserted breach of this right only in view of the constitutional provision.62

When, on the other hand, the substance of international treaty provisions does not overlap with similar provisions of the Constitution or when the latter does not contain any similar provision, the Court reviews the contested provision of national law directly in the light of the relevant international treaty. In this respect, the Court usually uses the Vienna Convention on the Law of Treaties and legal doctrine as well as the case law of international courts and other institutions.

Consequently, in the case concerning the Lipica Stud Farm Act, the Constitutional Court reviewed the Act in the light of the Aarhus Convention and ruled:

The provision of the Act on the Amendment to the Lipica Stud Farm Act which with regard to the spatial regulation plan excludes a procedure for the preparation and adoption of such a plan in accordance with general spatial regulations although the plan is considered to be a state detailed area plan, and thereby also prevents the public from participating in such, is inconsistent with the Aarhus Convention.63


4.2.2.2 References to the European Convention on Human Rights

Particular importance is given to the case law of the European Court of Human Rights (ECtHR), which is binding upon Slovenia. For example, in a case concerning the right to a trial, the Slovenian Constitutional Court emphasised:

Irrespective of its positions mentioned in the previous paragraph of the reasoning, in the review of the challenged Administrative Dispute Act’s provisions the Constitutional Court must consider the case law of the ECtHR, according to which the effective judicial protection of the right to a trial within a reasonable time is ensured only if it also encompasses protection which affords appropriate satisfaction. The Constitutional Court must consider this case law irrespective of the fact that it was adopted in a case in which Slovenia itself did not participate in proceedings before the ECHR. It namely concerns a clear and well established practice of the ECtHR, according to which conditions which must be fulfilled are determined in abstract so that concerning the ECHR it is possible to consider that the legal system of any contracting state contains an effective legal remedy against the violation of the right to a trial within a reasonable time also in cases in which a violation has already ceased.64

Furthermore, in a case concerning the Housing Act, the Constitutional Court stated that although the Slovenian Constitution does not recognise the right to a home, this does not mean that such a right is not guaranteed by international treaties that are binding upon Slovenia, and consequently relied on Article 8 ECHR and the ECtHR ruling in Larkos v. Cyper.65 It derives from here that the Constitutional Court relies on the case law of the ECtHR in all relevant cases, not only when reviewing the compatibility of a law or decree with the ECHR or when considering a breach of a right guaranteed by the Convention—irrespective of whether the parties rely on the Convention or not.66

It is true, however, that the Court often does not expressly use international law as a standard for review of the national law, but it is evident only from its reasoning that the Court also used international law when reviewing a provision. For example, in its ruling concerning the Criminal Procedure Act, the Court found that ‘(t)he regulation determined in the Criminal Procedure Act (…) according to which the President of the court appoints a legal representative without obtaining the prior opinion of the defendant, is not inconsistent with the Constitution.’ However, from its reasoning it follows:

Neither the Constitution nor the ECHR and International Covenant on Civil and Political Rights grant a defendant the right to require the right to choose a legal representative also in cases in which a legal representative is appointed ex officio. (…) It does not follow from the text of the above-mentioned provisions of ECHR or from the case law of ECtHR that a defendant should be guaranteed the right to a particular legal representative in cases in which a legal representative is appointed ex officio.67

Furthermore, in the case concerning the Non-litigious Civil Procedure Act, the Constitutional Court reviewed compulsory detention in closed wards of psychiatric hospitals and in this respect in its reasoning relied on the case law of the ECtHR:

The European Court of Human Rights (hereinafter ECtHR), deciding in the case Winterwerp v. The Netherlands, determined three fundamental requirements that must be met for the detention of mental patients to be lawful. According to the ECtHR, involuntary commitment is allowable only if the mental disorder has been reliably demonstrated based on objective medical expertise, and if the patient’s mental disorder is of such a kind or such a gravity as to make him an actual danger to himself or to others. The third demand refers to the duration of commitment. Commitment may last only as long as the mental disorder justifying it persists.68


4.2.2.3 References to the International Law Within the Scope of a Constitutional Complaint

A constitutional complaint is a legal remedy by which a constitutional complainant in proceedings before the Constitutional Court claims a violation of human rights or fundamental freedoms.69 A constitutional complaint cannot be lodged due to the erroneous application of substantive or procedural law or due to an erroneously established state of the facts in proceedings before courts. A constitutional complaint may, as a general rule, be lodged against a judicial decision only after all (ordinary and extraordinary) legal remedies in the Republic of Slovenia have been exhausted.70 As such, it cannot be used to claim breaches of Article 8 as a fundamental constitutional principle.71 Nevertheless, the complainants may challenge breaches of rights that have been made by wrongful interpretation or application of international treaties and generally accepted principles of international law under the same conditions as are imposed for a review of wrongful interpretation or application of domestic regulation. Further, the complainants may directly challenge breaches of human rights guaranteed in international treaties that are binding upon Slovenia. In practice, the most frequent document of reference is understandably the ECHR, but also the International Covenant on Civil and Political Rights and the General Declaration on Human Rights that is considered as international customary law in Slovenia and as such directly applicable. With the entering into force of the Lisbon Treaty, the Charter of the EU on Fundamental Rights also gained binding force and as such needs to be applied by the Slovenian Courts.

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