Download Constitutionality Day Welcome speech by the President of the

Constitutionality Day
Welcome speech by the President of the Constitutional Court, Mag. Miroslav Mozetič
Constitutional Court of the Republic of Slovenia, 18 December 2014
Distinguished President of the Republic, Mr Borut Pahor,
President of the National Assembly, Dr Milan Brglez,
President of the National Council, Mr Mitja Bervar,
President of the Supreme Court, Mr Branko Masleša,
and other representatives of the judiciary,
Judge at the European Court of Human Rights Dr Boštjan M. Zupančič,
Judge at the Court of the European Union and President of the Third Chamber, Dr
Marko Ilešič,
Judge of the General Court of the European Union, Mr Miro Prek,
distinguished Ombudsman Mrs Vlasta Nussdorfer,
distinguished representatives of other constitutional institutions,
distinguished representatives of religious communities,
distinguished Professor Dr Marijan Pavčnik,
distinguished Dean of the Faculty of Law in Ljubljana, Prof. Dr Miha Juhart,
the leaders of the parliamentary groups,
I would especially like to welcome the former judges of the Constitutional Court.
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And of course, I also wish to welcome all the others whose names I did not mention
here. I wish to extend a warm welcome to everyone present here, at the solemn
session of the Constitutional Court in honour of the Constitutionality Day.
I would particularly like to welcome the President of the European Court of Human
Rights, Mr Dean Spielmann, who has kindly accepted our invitation to deliver a speech
at the celebration of the Constitutionality Day. I am deeply honoured to welcome you
among us today.
But before I give the floor to Mr Spielmann, let me share with you some thoughts about
this celebration.
Distinguished guests,
This year again, as many times before, we are celebrating the Constitutionality Day,
but not as a memento that 23 years ago, a year after the plebiscite decision in favour
of an independent state, we adopted a new Constitution, but as a reminder, a reminder
of the commitment that we took on by adopting a new Constitution. With the
proclamation of the independence and sovereignty and the adoption of the
Constitution, we were supposed to start building something new – a new social order
based on the respect for and protection of human dignity, human rights and
fundamental freedoms, the principles of the state governed by the rule of law, all with
the purpose of guaranteeing a free and just society.
It is no coincidence that the representatives of all three branches of power are gathered
here today, the Ombudsman, representatives of the legal profession, or rather
teachers of several generations of lawyers, and representatives of civil society. I can
safely say that on this occasion we are gathered here as those or the representatives
of those who were (are) most responsible for the implementation of constitutionality in
our Slovenia. Of course, each within his or her own competences.
One can argue with the general belief that our reality is far from the glorious principles
enshrined in the Constitution only intentionally, with cynicism, by covering one's eyes
and ears. It is enough to open any news media, be it newspaper or any other media.
All, so to speak, compete to show things as true-to-life as possible or as most graphic
as possible, sometimes even by means of exaggeration. Make no mistake; this is not
intended to be a criticism of the media. I believe that they are just holding us a mirror.
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If this is done in good faith and if the mirror does not lie (as it usually does not), then it
is our turn to answer the question of whether we have really done everything we were
obliged to do within our competences in order to achieve to the highest degree possible
what we are obliged to achieve by the Basic Constitutional Charter on the Sovereignty
and Independence and the Constitution, and, last but not least, whether we have done
what we swore to achieve when taking up our duties.
If I try to provide an answer regarding the Constitutional Court: I am sure that the
Constitutional Court accomplished its mission to the fullest extent possible, namely the
tasks of the highest and ultimate guardian of the Constitution and the guardian of
human rights and fundamental freedoms in the state. When hearing such statements,
we are much used to saying that it could have been even better, that more could be
done. It is true, it is in fact probably always possible to be better and do more. However,
there are limitations imposed by the fact that we are merely human beings and I am
sure that the Constitutional Court reached those limits.
To confirm this statement, I will present just a few numbers (further details in this regard
will be discussed in the annual report, which will be presented to the public early next
year). In this manner, we have received by 15 December this year 1,210 different
applications, 950 of which were constitutional complaints and 242 of which were
petitions and requests for the review of consistency of regulations and 19 of which
were requests for resolving the jurisdictional disputes. These are the applications with
which we, the judges, are dealing. During this period, we have solved 1,180 cases. In
doing so, we decided on the merits, that is adopted a decision, not an order, in more
than 60 cases; half of these cases were constitutional complaints and the other half
were decisions reached in the proceedings for the review of the constitutionality or
legality of regulations. There are 930 different applications from the previous years that
still need to be decided.
This clearly shows that the vast majority of petitions and requests were rejected or not
accepted for consideration by the Constitutional Court, and that the vast majority of the
constitutional complaints were rejected or not accepted for consideration. With regard
to these cases, it should be noted that these decisions were not taken without due
diligence and that none of the cases was decided by just a single judge. Therefore,
any arbitrariness or favouritism on behalf of an individual judge is excluded.
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With regard to the Constitutional Court as a guardian and interpreter of the Constitution
and the guardian of human rights and fundamental freedoms, it is the substantive
decisions, decisions of the Constitutional Court on the merits, that are, of course, of
particular interest. As I said, there were more than 60 such decisions adopted in the
past year. The range of legal issues discussed is wide. We thus assessed the
constitutionality or legality of the provisions of a series of statutes, such as the Real
Property Tax Act together with the Real Property Mass Appraisal Act, Personal Income
Tax Act, Tax Procedure Act, Civil Procedure Act, Enforcement and Securing of Civil
Claims Act, Free Legal Aid Act, Court Fees Act, Spatial Planning Act, Minor Offences
Act, Roads Act, National Assembly Elections Act, Protection of Documents and
Archives and Archival Institutions Act, Electronic Communications Act and Police Act.
With regard to the review of the Banking Act, we have for the first time submitted a
preliminary question to the Court of Justice of the European Union.
The range of constitutional values and principles and human rights and fundamental
freedoms that we have safeguarded through our decisions is also broad. These run
the gamut from the basic principles of the state governed by the rule of law and the
social state, the constitutional guarantees in various judicial proceedings, to the right
to compensation (Article 26), prohibition of torture (Article 18), presumption of
innocence (Article 27), protection of personal liberty (Article 19 ), protection of human
personality and dignity (Article 21), right to personal dignity and security (Article 34),
protection of privacy and personal rights (Article 35), protection of communications
(Article 37), protection of personal data (Article 38), as well as rights to social security
and health care, and rights of persons with disability.
I would particularly like to emphasise that, when interpreting human rights and
fundamental freedoms, the Constitutional Court does not base itself only on the
Constitution, but always takes into account also the international instruments binding
on Slovenia, including in particular the (European) Convention for the Protection of
Human Rights and Fundamental Freedoms, comprising also all the case law of the
European Court of Human Rights, and more recently increasingly also the Charter of
Fundamental Rights of the European Union.
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The judiciary in general, and the Constitutional Court is no exception, namely
experiences criticism that is sometimes justified, but often unjust, in particularly very
generalized and superficial, as well as criticism without any underlying arguments.
Therefore, I thought it was necessary to present you with some concrete data that
show the efforts made by the Constitutional Court for the protection of constitutionality.
I will not judge the regular courts. However, I am sure that I can state in the name of
all of the judges of the Constitutional Court that we carry out our duties professionally
and honestly, that in our decisions we are looking for what is constitutionally right and
just, that we tend to interpret the law humanely and to this end we always use the basic
premise of our Constitution, that is human dignity, as our starting point.
Let me conclude with a statement from the preamble to the Universal Declaration of
Human Rights: Recognition of the rights of all members of the human family is the
foundation of freedom, justice and peace in the world. And this is also underlined by
our Constitution.
Thank you for your attention and I hope everyone enjoys the holidays ahead of us.