Here you can get yourself acquainted with the reasoning behind the application to the European Court of Human Rights, which has been sent from Ljubljana, Slovenia on March 17th 2023 by the Gorenšek Law Firm (Mr. Domen Gorenšek) in the name of the Applicants, Mr. Aleš Primc and Mrs. Metka Zevnik. The first draft has been prepared by myself (Facebook, Twitter)
E. Statement of the facts
The Constitutional Court of the Republic of Slovenia (hereinafter: the Constitutional Court), on the basis of two constitutional appeals, in two decisions U-I-91/21, Up-675/19 and No. U-I-486/20, Up-572/18, both dated June 16th 2022, found that a legal regulation which provides that (i) marriage may be entered into only by two persons of different sex and (ii) same-sex partners living in a formal partnership may not adopt a child together - is incompatible with the constitutional prohibition of discrimination. It gave the legislator a six-month period within which to remedy the constitutional inconsistency found. It further ruled that, until the unconstitutionality is rectified, (i) marriage shall be deemed to be a living union between two persons, irrespective of sex, and (ii) same-sex partners living in a civil partnership may jointly adopt a child under the same conditions as spouses.
The National Assembly abolished this "unconstitutionality" on October 4th 2022, by adopting the Law on Amendments to the Family Code (DZ-B) under the abbreviated procedure. On October 11th 2022, the Council of State accepted the request for the National Assembly to reconsider the law. On October 18th 2022, the National Assembly (re)adopted the Law on Amendments to the Family Code (hereinafter: DZ-B). The complainant, as a representative of 30.600 referendum petitioners, wished to organise the collection of signatures for the referendum request. The National Assembly rejected the petition, issuing Decision No. 542-08/22-4/43 of October 28th 2022 on the inadmissibility of calling a legislative referendum on the Law on Amendments to the Family Code (DZ-B) and setting the appellants a 15-day time-limit for submitting a request to the Constitutional Court to review the constitutionality of that decision. On November 11th 2022, the referendum initiators, representatives of 30,600 citizens (Primc and Zevnik) initiated a request to the Constitutional Court to review the constitutionality of the Decision on the inadmissibility of calling a legislative referendum. Subsequently, by Decision U-I-389/22-16 of December 14th 2022, the Constitutional Court ruled that the above-mentioned Decision on the inadmissibility of calling a legislative referendum on the Law on Amendments to the Family Code (DZ-B) is not incompatible with the Constitution of the Republic of Slovenia.
The appellants - as the representative of the 30.600 referendum petitioners - submits that, in the proceedings before the Constitutional Court under Case No. U-I-398/22-16 (decision published on 11 January 2023), the Republic of Slovenia violated his right to a fair trial under Article 6 of the ECHR, in that the court proceeded in a following manner:
I. by failing to properly assess the constitutional-legal quality of the amendment to the Family Code (DZ-B) in the light of Article 90(2)(4) of the Constitution of the Republic of Slovenia ('the Constitution' - CRS), that is to say, whether/if it is indeed a 'law that eliminates an unconstitutionality'. More precisely, whether it is a law that merely and exclusively abolishes an unconstitutionality, without adding, in the content of the law itself, any content that does not concern this abolition of the unconstitutionality - and therefore does not fall within the scope of a law governed by Article 90(2)(4) of the CRS. Conversely, if an amendment contains content which does not merely and exclusively involve the abolition of an unconstitutionality, such a statute cannot be considered to be a statute on which a referendum is not admissible;
II. it failed to adequately address the significance of the procedural abuse of the Rules of Procedure of the National Assembly in the manner in which the amendment to the DZ-B was adopted under the abbreviated procedure - in the light of the passive content of Article 44 of the CRS ("Every citizen has the right to participate in the management of public affairs through his elected representatives.");
III. completely avoided a properly in-depth assessment and proportionality test - in the light of the active content of Article 44 of the CRS - ("Every citizen has the right to participate directly in the management of public affairs in accordance with the law.");
IV. ruled in a biased chamber by failing to ensure that the manifestly biased judge, Dr. Katja Šugman Stubbs, was excluded from the hearing.
Since 2013, when the constitutional amendment to Article 90 of the CRS was adopted (without the participation of the people), the possibility of abuse of the institution of the referendum ban has been open and unprotected in Slovenian constitutional and political law.
By a simple manoeuvre, the Government and the National Assembly can decide to write down the content/substance they do not want to be publicly debated (or decided by the people in a referendum) in one of the types of laws on which a referendum is not admissible according to Article 90(2) of the CRS. Although they are listed in only four orders, there are in fact several types of laws (10):
i. laws on emergency measures to ensure the defense of the State,
ii. laws on emergency measures to ensure security,
iii. laws on emergency measures to deal with the consequences of natural disasters,
iv. laws on taxation,
v. laws on customs duties,
vi. laws on other compulsory levies,
vii. laws adopted for the implementation of the State budget,
viii. laws on the ratification of international treaties,
ix. laws abolishing unconstitutionality in the field of human rights and fundamental freedoms,
x. laws abolishing other unconstitutional provisions.
In the case of Article 90(4)(2) of the CRS, content which does not fall within the scope of the aforementioned institute could thus be added to the content which, in principle, serves to "abolish unconstitutionality", and in the internal politico-legal procedure, it can only be removed in the last instance by the Constitutional Court, through the tool used by the appellant - the constitutional complaint against the decision of the National Assembly regarding the inadmissibility of the call for a legislative referendum.
The Appellant is aware that the ECtHR is not the body to judge constitutional and politico-legal inconsistencies in domestic legislation, but in the light of Article 6 ECHR, each State is obliged to demonstrate that it has ensured a fair (and of course just) trial in its internal constitutional/legal review of the political/legislative process at issue - and the Appellant alleges and demonstrates that this was not the case here.
Pursuant to Article 21 of the Act on Referendums and Popular Initiatives (hereinafter: the Act on Referendums and Popular Initiatives, ARPI), the appellant therefore filed a petition for review of constitutionality, explicitly pointing out the constitutionality of the issued Decision on the inadmissibility of the call for a legislative referendum on the DZ-B in terms of violation of Articles 22, 44 and 90 of the CRS. It is also important to point out here that the ARPI singles out as "even more special" types of laws (only) those referred to in Article 90(2)(1), namely Article 21a of the ARPI - because these are laws on urgent/emergency measures (see above: i., ii., iii.) , where "speed of adoption" may indeed be an important factor.
In the Constitutional Court's decision No. U-I-398/22 from December 14th 2022, the Constitutional Court of the Republic of Slovenia clearly stated in paragraph 12 that it had itself established a practice in the past according to which "the Constitutional Court, when assessing the decision of the National Assembly that a referendum is inadmissible, does not carry out a balancing exercise between the constitutional values affected, but assesses, within the limits of its legal reasoning and taking into account all the circumstances of the case, whether a law referred to in Article 90, paragraph 2, of the Constitution is at issue in the particular case."
In paragraph 13 of the above-mentioned decision, the Constitutional Court further confirms its practice by stating that "the regulation ensures a clear, defined and transparent referendum procedure, creates conditions for a faster completion of the legislative procedure and introduces predictability into the referendum procedure, thereby improving the position of the interested subjects."
The appellant notes that the Constitutional Court's reasoning stretches the meaning of speed in the legislative procedure to all four orders, and it is also evident that the Constitutional Court's own practice to-date has extremely limited its scope of review - to the exclusive detriment of the initiators of referendums.
In paragraph 15 of this decision, the Constitutional Court explicitly quotes the appellant, who claims that "if the Constitutional Court were to find that the DZ-B does, however, eliminate the unconstitutionality found, it does not eliminate that unconstitutionality in a constitutionally compatible manner, since it was adopted under the abbreviated procedure and is incompatible with Articles 1, 2, 3, 35, 39, 46 and 53 of the CRS." The Constitutional Court also finds that "the DZ-B does not, however, eliminate the unconstitutionality in a constitutionally compatible manner, since it was adopted under the abbreviated procedure and is incompatible with Articles 1, 2, 3, 35, 39, 46 and 53 of the CRS."
Further, in paragraph 16 of this decision, the Constitutional Court adds that "this also means that the Constitutional Court is not assessing the compatibility of the new regulation with the Constitution in these proceedings. In the present case, the Constitutional Court must therefore assess only whether the DZ-B is a law that eliminates an unconstitutionality in the area of human rights and fundamental freedoms or another unconstitutionality (Article 90(2)(4) CRS), which precludes a legislative referendum on it. In view of the above, the petitioners' allegations of the unconstitutionality of the DZ-B are irrelevant or cannot be the subject of assessment in the procedure under Article 21 of the ARPI."
Moreover, in paragraph 17, the Constitutional Court assists the National Assembly: "Since the question of the constitutionality of the adopted (new) regulation is not subject to review in the procedure under the current Article 21 of the ARPI, the legislator is not obliged to state in the decision prohibiting the referendum the reasons that the new regulation eliminates the established unconstitutionality in a constitutionally compatible manner."
The Appellant notes that, by such reasoning, the Constitutional Court has abrogated its fundamental duty, which is to review constitutionality. In the present case, the Constitutional Court does not wish ("because of its own previous practice") to determine whether (i.) the legislator (the National Assembly) was entitled to a summary procedure, nor whether (ii.) the legislator has drafted a legislative solution to remedy an unconstitutionality which is in fact just and only that (or whether the declared purpose may have been exceeded), nor does it wish to determine whether (iii.) there has been a procedural irregularity in the process of adopting the amendment, let alone (iv.) to make a substantive assessment of whether the amendment may be fundamentally unconstitutional or constitutionally incompatible in its substance.
In their challenge to the decision of the National Assembly before the Constitutional Court, the appellants have demonstrated with numerous examples that the content of the decision has been extended beyond the Constitutional Court's decision into the fields of education, health care, counselling, etc.
Moreover, in paragraph 18 of the decision, the Constitutional Court in fact only confirms a number of the appellant's allegations that the amendment to the DZ-B inappropriately expands the field of family law regulation beyond the scope of its own decisions: "The Constitutional Court, in its Decisions No. U-l-486/21, Up-675/19 found, that a legal regulation which stipulates that (i) only two persons of different sex may enter into a marriage and (ii) same-sex partners living in a formal partnership cannot adopt a child together is incompatible with the constitutional prohibition of discrimination. DZ-B, by amending Article 3(1) of the DZ, establishes that marriage is a living union between two persons, which consequently also changes the meaning of Article 213(1) and Article 223 of the DZ in such a way that it also allows same-sex partners to jointly adopt children. The Constitutional Court therefore concludes that DZ-B eliminates the unconstitutionality established by the above-mentioned decisions of the Constitutional Court."
It is therefore obvious that the formulation "two persons of different sex" has been replaced by "a living community of two persons", and it is not at all clear whether it is really only (the former classical) "two persons of different sex" and then (only) "two persons of the same sex", but the definition is suddenly open, as the Appellants persistently stated and proved in all the arguments in their appeal to the Constitutional Court.
If - for example - we take the definition of "two people" seriously and, just for the sake of practice, take B-sexual people (who by definition do not have only one partner, but at least two partners, one of each of the classic sexes) out of the LGBTQIA+ acronym (which is already quite modest and outdated), we immediately find ourselves in the legally enabled field of mix-sexual polygamy. Two bisexual people in a "marriage" is the least legitimised quadruple bond (living community)- since at least two additional people are needed to satisfy the "equality" and "B" condition. Therefore, two bisexuals do not have the same rights as two homosexuals!? Which is just one of the many practical issues that arise with such an undeveloped and ill-considered, and above all time-accelerated, change in the law. A number of other issues - also related to legislation - raised by the appellant in his appeal to the Constitutional Court include, for example: unconstitutionality on the grounds of violation of the rule of law, in particular the principle of the certainty of the law (p. 15), violation of the personality rights of children (p. 18), violation of the right to conscientious objection (p. 20).
In paragraph 20 of that decision, the Constitutional Court even quotes the appellant's submissions concerning all those areas "in which the legislator attaches certain legal consequences to the institution of marriage. These criticisms by the petitioners are frivolous. The petitioners state that the change in the definition of marriage is also to be reflected in changes in, for example, housing, infertility treatments and assisted reproduction procedures, the regulation of the presumption of paternity and maternity in the case of children born in marital unions, the regulation of the right to decide freely on the birth of children, and anti-corruption legislation. However, they do not, in particular, specify the provisions of the legislation or the provisions thereof which are allegedly affected by the amended definition of marriage. The Constitutional Court cannot be expected to search the legal order of the Republic of Slovenia itself for the laws and their individual provisions which are to be affected by the new definition of marriage in Article 1 of the DZ-B. This is particularly true in the procedure under Article 21 of the ARPI, which sets an extremely short (albeit instructional) time limit for the Constitutional Court to make a decision." The appellants notes that: the Constitutional Court first adopted the contested decision (on the unconstitutionality of the previously applicable Family Code), which took approximately 3 years. Then, the legislator (the National Assembly) summarily reproduced/copied the instructions of the Constitutional Court and removed the public from the debate by a shortened procedure, which took about 4 months. Now the Constitutional Court refers to the fact that "there was no time" and that it is the appellant who is obliged to provide transparency for the incorporation of the DZ-B into the general legislation, while the appellants had only a short time (15 days!) to prepare the appeal - much less than the Constitutional Court - which is bound by the clear legal principle of "Iura novit curia". The National Assembly and the Constitutional Court (who should have been in the know from the first decisions (June 2022) how they will be integrated into the rest of the legislation!) are the main state institutions that are obliged to uphold the principle of legality and the rule of law.
And in paragraph 21 of the decision, the Constitutional Court reveals itself: "Otherwise, even if the definition of marriage in Article 1 of the DZ-B does in fact produce legal consequences (effects) in other areas of law, this does not mean that the DZ-B is not law within the meaning of the fourth order of the second paragraph of Article 90 of the Constitution."
The US is therefore acutely aware of the existence of the possibility of legal consequences that go beyond the mere "correction of an unconstitutionality", but at the same time it has been concealing them all along, thereby protecting the back of the legislator who has abused the fast-track legislative procedure in the face of content that should have been adopted thoughtfully, reasonably and with the broadest possible social consensus.
The fact that the legislator, for such important legislation, used a procedure that did not allow for the information, let alone a qualitative analysis, of the broader professional and lay legal public, through the classical legislative procedure in the National Assembly, is an argument that the Constitutional Court should have had considered with all the seriousness - regardless of its own (misguided, self-limiting) jurisprudence to date.
The arguments have already been made, there was no urgency in the adoption of the DZ-B, the Constitutional Court should - as the Appellant expects - either allow the collection of signatures for the referendum request and allow the referendum itself, or clearly distinguish between "additional content" and that which explicitly and only "eliminates unconstitutionality" - and allow a referendum on the former.
Linked to points II) and III): In the reasoning of its judgment, the Constitutional Court should have clarified its position on possible violations of Article 44 of the CRS, and should have also applied the constitutional proportionality test - all in order to reassure the Appellants and the public that there may not have been a procedural (not substantive!) interference with constitutionality in the "remedying of unconstitutionality" process itself, or that the decision to ban the referendum was in fact based on a considered and clearly constitutionally supported judicial decision.
Dr. Katja Šugman Stubbs, as a legal expert and advocate for "LGBT rights", appeared in a promotional video in the 2012 Family Referendum campaign. The video is available at the following link: https://vimeo.com/11333299.
In fact, Judge Dr. Katja Šugman Stubbs should have recused herself for obvious bias already when deciding on Decisions No U-I-91/21, Up-675/19 and No U-I-486/20, Up-572/18, both of 16 June 2022.
F. Statement of alleged violation(s) of the Convention and/or Protocols and relevant arguments
The appellants submit, within the time-limit, that the judge who took part in the proceedings to rule on the constitutionality of the decision on the inadmissibility of the legislative referendum on the Family Code (ZD-B) cannot be regarded as impartial. As stated above, the judge, Dr Katja Šugman Stubbs, was already a vocal advocate for LGBTQIA+ interests in 2012 and even actively participated in the campaign as a legal expert. The appellants invoke Article 6(1) of the European Convention on Human Rights, which guarantees, under the Right to a Fair Trial, that his civil rights and obligations or any criminal charge against him shall be decided fairly and publicly and within a reasonable time by an independent and impartial tribunal established by law. However, in the light of the facts presented, this was not guaranteed to the petitioner in the present case. The same is also guaranteed by Article 23 of the Constitution of the Republic of Slovenia (right to justice), which stipulates that everyone has the right to have his rights and obligations and the charges against him decided without undue delay by an independent, impartial tribunal established by law. He may be tried only by a judge chosen according to rules laid down in advance by law and by the rules of court. Impartial, of course. The law, of course, requires that a judge be disqualified if he or she is compromised in any way in a case. There are undoubtedly circumstances in the present case which not only could, but also objectively raised doubts as to the judge's impartiality, since the judge who ruled in the present case had previously publicly exposed herself and thus expressed her views, which she is perfectly entitled to exercise. On the other hand, fundamental procedural postulates also guarantee the appellants the right to have the case decided by a judge who presents at least the appearance of impartiality. That postulate was not satisfied in this particular case, since a judge who had ruled on a case in which she had previously taken an uncontroversial position on the same issue should have recused herself. This is evident from the attached link to a video from 2012, when a referendum campaign was held on an identical issue. Judge Dr Stubbs should therefore have recused herself beyond reasonable doubt in the specific case. Civil rights encompass the freedoms of individuals in society, including the right to a fair trial. On the basis of the foregoing, it is clear that the appellants have been subjected to a violation of their Convention right under Article 6 ECHR, which guarantees equal protection of the rights before courts (and other public authorities …) which adjudicate on one's rights, duties or legal interests.
The appellants' arguments and submissions were not adequately addressed in the proceedings themselves, as the Constitutional Court did not address or take into account the appellants' submissions at all. In this context, another flagrant violation crystallises, namely the violation of Article 13 of the European Convention on Human Rights. In its decision, the Constitutional Court merely stated that »within the limits of legal reasoning and taking into account all the circumstances of the case, it will assess whether the law referred to in Article 90(2) of the Constitution is applicable in a particular case«, which is not a statement of reasons as required in judicial proceedings, including proceedings before the Constitutional Court. In fact, the Constitutional Court Act itself (Official Gazette of the RS, No 64/07, 109/12, 23/20 and 92/21), in Article 26(3), stipulates quite unequivocally that a decision rejecting a petition must state the reasons on which it is based.The fact is that the Constitutional Court did not take into account all the circumstances of the case. This is primarily indicated by the legally bizarre statement in paragraph 20 of the decision, which goes so far as to state that »the Constitutional Court cannot be expected to search the legal framework of the Republic of Slovenia itself for the laws and their individual provisions which are to be affected by the new definition of marriage as set out in Article 1 of the Law on Marriage«. A contrario! This is precisely what is expected of the highest guardian of constitutionality and human rights in the country. This is also supported by a legal principle dating back to Roman law, iura novit curia. The mere uncritical acceptance of the assertion by one of the parties, in this particular case the opposing party (the National Assembly), that the DZ-B has abolished unconstitutionality is by no means sufficient for the Constitutional Court to conclude that this was indeed the case. At the same time, such argumentation completely nullifies the fundamental principle of the separation of powers in the state (citizens rightly expect that the various state bodies will critically monitor each other) and the provision of Article 2 of the Constitution of the Republic of Slovenia, which stipulates that Slovenia is a state governed by the rule of law.
The appellants argued before the Constitutional Court that the amendment to the DZ-B does not resolve the unconstitutionality in an appropriate manner, as it extends the content to other areas, including but not limited to education, health care and counselling, while the Constitutional Court itself states in its decision U-I-91/21 that the right to adoption is not a human right of adults. In the specific case of the Constitutional Court's decision, it is therefore »merely« a matter of correcting an unconstitutionality, not of correcting a violation of human rights. The dissenting opinion of the Constitutional Court Judge Dr. Rok Svetlič of 6 January 2023 (6 U-I-91) clearly states that the assessment of the unconstitutionality of the possibility of adoption of children in LGBTQIA+ relationships should have stopped at the first stage of the test used by the Constitutional Court to assess the violation of Article 14(1) of the CPR.
Even before the adoption of the amendment, homosexuals were already guaranteed by law the same human and constitutional RIGHTS as heterosexuals in all areas of life (adoption of a child is not a human right of an adult) and sexual orientation is not checked when entering into a marriage).
Children living in LGBTQIA+ relationships were already fully equal to all other children before the adoption of the DZ-B and it does not give them any new rights. At the same time, it should not be ignored that a referendum on the same subject was allowed and held in 2015, where voters overwhelmingly and decisively rejected the demand of LGBTQ+ activists for any further amendments to the right of a child to be adopted into the community of a woman and a man, as well as to the understanding of marriage as the living union of a wife and a husband.
The appellants further wonder whether the case at hand will even make it through the bureaucratic mills of the European Court of Human Rights, and indeed into the hands and hands of the competent judges of that Court.
In view of the fact that the adoption of a child is therefore in no way a human right of adults, the decision of the National Assembly of 28 October 2023 to declare inadmissible the calling of a legislative referendum on the Law amending the Family Code (DZ-B) No 542-08/22-4/43 of 28 October 2023 was also unconstitutional for the above reason. This would also have to be indisputably established by the Constitutional Court if it were to proceed in accordance with Article 6 of the European Convention on Human Rights. However, the appellants' right to an effective remedy, guaranteed by Article 13 of the European Convention on Human Rights, has also been infringed by the failure to give a reasoned decision which is not even reviewable and by the judge's decision in a case in which she should have disqualified herself. It provides that everyone – whose rights and freedoms recognised by the Convention have been violated – has the right to an effective remedy before the domestic authorities, even if the violation was committed by an official in the performance of his official duties. Last but by no means least, Article 25 of the Constitution of the Republic of Slovenia guarantees him that right. In the present case, therefore, there can be no question of any effective remedy – in view of the apparently unreasoned order and the uncritical adoption of the opposing party's interpretation.
At this point, the appellants draw attention to another legally important fact which the Constitutional Court overlooked on the basis that it did not comply with the provisions of Articles 6 and 13 of the Convention. If the Constitutional Court had delved into the merits of the case, it would have been required to apply the so-called proportionality test in reaching its decision. Since it failed to do so, that test was not carried out at all.
This is one of the key instruments of constitutional law on the basis of which the Constitutional Court should have assessed in a specific case whether the prohibition of a referendum, and thus also the prohibition on the management of the public affairs of the petitioners of the referendum, is a proportionate measure to achieve the objective.
The aim of the new amendment Act is merely to eliminate the unconstitutionality. The Court did not even take a position on whether the prohibition of a referendum, which covers several fundamental human rights and freedoms guaranteed by the Constitution, including the right to the direct exercise of power by citizens (Article 3(2) of the CPR), the right to participate in the management of public affairs (44. Article 44 of the CPR) and the right to a referendum (Article 90 of the CPR), outweighs the »right« to adopt children in LGBTQIA+ relationships«, which is not a human right at all, and whether such a decision is factually and legally justified from a constitutional law perspective to abolish the definition of marriage as the union of a husband and wife.
In the light of all the reasons set out above, the appellants request the referring court to admit the case for hearing, to take all the evidence offered and to rule in such a way as to declare that the decision of the Constitutional Court of the Republic of Slovenia U-I-398/22-16 of 14 December 2022 is not in compliance with Article 6 and Article 13 of the European Convention on Human Rights (ECHR).
G. Compliance with admissibility criteria laid down in Article 35 § 1 of the Convention
Request for a review of constitutionality
Request for a review of the constitutionality of the Decision on the inadmissibility of calling a legislative referendum. Subsequently, by Decision U-I-389/22-16 of December 14th 2022, the Constitutional Court ruled that the above-mentioned Decision on the inadmissibility of calling a legislative referendum on the Law on Amendments to the Family Code (DZ-B) is not incompatible with the Constitution of the Republic of Slovenia. The decision was received by the Appellants on January 11th 2023.
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Press conference in front of the Constitutional Court, Mar 16th 2023
Mar 18, 2023