Slovenia / Supreme Court / Order X Ips 21/2019/ ECLI:SI:VSRS:2019:X.IPS.21.2019

Country

Slovenia

Title

Slovenia / Supreme Court / Order X Ips 21/2019/ ECLI:SI:VSRS:2019:X.IPS.21.2019

View full Case

Year

2019

Decision/ruling/judgment date

Tuesday, August 13, 2019

Incident(s) concerned/related

Other forms of hate speech

Related Bias motivation

Migrant status

Groups affected

Migrants

Court/Body type

National Court

Court/Body

Supreme Court of the Republic of Slovenia (Vrhovno sodišče Republike Slovenije)

Key facts of the case

In 2019, a municipality council adopted an order calling for a consultative referendum with the aim to establish the will of local residents regarding integration of refugees and migrants, accommodation of migrants who crossed the border in an irregular manner, and reception and registration of foreigners, that is – the establishment of an reception and registration centre in the territory of the municipality. The referendum question was the following, “Are you in favour of establishing a reception and registration centre for migrants in the territory of the municipality?” The Administrative Court ruled that the order was unlawful, as it concerned migration policy, the latter falling within exclusive competence of the state. The court thus regarded the order as an individual rather than general municipal act. The judgment was challenged before the Supreme Court which established that the Administrative Court wrongly applied the law and annulled the judgment.

Main reasoning/argumentation

The Supreme Court, by means of referring to several prior decisions produced by the Constitutional Court, established that an act on calling a municipal consultative referendum represented a municipal regulation (i.e. general municipality act related to its functioning), and not an individual municipal act (i.e. decision concerning administrative issues under its competence). By establishing the legal nature of the municipal act, the court ruled that it was the competence of the Constitutional Court, and not the Administrative Court, to assess its compliance with the constitution and the law. According to the Supreme Court, the legal status of a municipal act was not determined by its compliance with the law, as wrongly established by the Administrative Court.

Is the case related to the application of the Framework Decision on Racism and Xenophobia, the Racial Equality Directive?

Key issues (concepts, interpretations) clarified by the case

The Supreme Court clarified the legal nature of an act governing the call for municipal consultative referendum, namely that it represented a general (i.e. regulation) rather than an individual municipality act. As a result, it is the Constitutional Court which is responsible to review its compliance with the constitution and the law.

Results (sanctions, outcome) and key consequences or implications of the case

The Supreme Court annulled the judgment produced by the Administrative Court, and established that an order calling for a consultative referendum was a municipal regulation and that it was up to the Constitutional Court to decide on whether such a regulation was consistent with the constitution and the law. The outcome of the case shall thus depend of possible future actions by relevant bodies (e.g. municipality council, government) and a possible decision by the Constitutional Court.

Key quotation in original language and its unofficial translation into English with reference details

"Iz obrazložitve izpodbijane sodbe je razvidno, da je Upravno sodišče svoje sklepanje, da gre v obravnavanem primeru za konkreten in posamičen akt in ne za splošni akt, napačno oprlo na presojo njegove nezakonitosti. Ugovor glede pristojnosti Upravnega sodišča za odločanje je namreč zavrnilo z ugotovitvijo, da se referendumsko vprašanje nanaša na vprašanja, ki niso v pristojnosti občinskega sveta. Pravna narava splošnega akta in s tem pristojnost za odločanje Upravnega sodišča pa ni odvisna od njegove nezakonitosti."

“It is apparent from the reasoning of the challenged judgment that the conclusion by the Administrative Court that the observed case concerns a concrete and individual act rather than a general one was wrongly based on an assessment of unlawfulness of the act. Namely, it rejected the objection concerning the jurisdiction of the Administrative Court by establishing that the referendum question was related to issues which were not within the competence of the municipality council. However, legal nature of a general act, and related jurisdiction of the Administrative Court, is not dependent of its unlawfulness.”

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