Uveljavljanje evropskih standardov v praksi slovenskega Ustavnega sodišča

slovenian

2004

IUS SOFTWARE d.o.o.
(Obvezni izvod spletne publikacije)

In the first part the author discusses the genesis of the constitutional amendments adopted due to the integration of Slovenia into the European Union (colectively referred to as the European article). As the author critically evaluates these constitutional amendments, which are based on an abstract (the proposals to explicitly mention integration into the European Union in the Constitution were not accepted) and restrictive approach, he concludes that they correctly enabled from the constitutional viewpoint the integration of Slovenia into the European Union. In the author's opinion, two of the adopted amendments have the greatest significance. The first establishes that the legal acts and dicisions of international organizations shall be applied in Slovenia: "in accordance with the legal regulation of these organizations,"which enables the direct application and primacy of EU law. The second refers to the motives for the integration of Slovenia into international organizations (respect for human rights, democracy and the principles of the rule of law), and according to the evaluation of the constitutional legal experts, it enables the Constitutional Court to interfere in individual exceptional cases if these values were in any manner endangered by EU law. With reference to this, the author establishes that the European Union has recently, particularly by adopting the Charter of Fundamental Rights of the European Union in 2000 and by adopting the Constitution for Europe, invested a great deal in the development and the protection of human rights. In the second part of the paper the author discusses the more than fortyyears of experience of the Constitutional Court of the Republic of Slovenia, which is important from the viewpoint of the new demanding tasks which await the Court following integration into the European Union. Thereby the author devotes most of his attention to the decisions of the Constitutional Court which refer to the case-law of foreign courts, e.g. the German Federal Constitutional Court, the Supreme Court of the USA, and the European Convention on Human Rights and the case-law of the European Court of Human Rights. The Constitutional Court has so far referred to the European Convention on Human Rights in more than 300 decisions, and in approximately 80 cases it has referred in the reasonings to the case-law of the European Court of Human Rights. An analyses of these cases shows that the Constitutional Court did not restrict itself to the very few decisions of the European Court of Human Rights in which Slovenia was a defendant. Of particular importance are references to the European Convention on Human Rights and the case-law of the European Court of Human Rights in cases in which the level of the protection of individual human rights is lower in the Constitution of the Republic of Slovenia than in the European Convention on Human Rights. The author critically discusses the case-law of Slovenian courts regarding adjudication within a reasonable time. In the closing part the author proposes an amendment to the Constitution which would revoke the competence of the Constitutional Court to review the constitutionality of executive regulations which can cause disputes to be reviewed before the Constitutional Court which are in other states of the European Union considered only at the level of lower courts. Finally, the author proposes initiating a petition to draft a special agreement on mutual informing and co-operation of the constitutional courts in cases in which they review cases which refer to EU law.

26.01.2021