TFL Vsebine / Odločitve Ustavnega sodišča

»Publisher's Note: The full text of this Decision/Order is available only in Slovene. This is a summary that has been prepared for informational purposes only.«   Decision of the Constitutional Court No. U-I-480/20, dated 11 March 2021   Proceedings for a review of constitutionality were initiated by a request of a voter who filed such on the basis of Article 21a of the Referendum and Popular Initiative Act. The Constitutional Court decided on the conformity of Article 52 of the Act Determining Intervention Measures to Mitigate the Consequences of the Second Wave of the COVID-19 Epidemic (ADIMMCSWE) with the first indent of the second paragraph of Article 90 of the Constitution.   In accordance with the mentioned provision of the Constitution, a referendum may not be called on laws on urgent measures to ensure the defence of the state, security, or to eliminate the consequences of natural disasters. By the challenged statutory provision, the legislature amended the previous provision of Article 38 of the Act Amending the Higher Education Act (HEA-K), in accordance with which the National Agency of the Republic of Slovenia for the Quality of Higher Education (NARSQHE) had to verify, during the first next extension of the higher education institution accreditation after the entry into force of the HEA-K, whether the stricter conditions for establishing a higher education institution determined by the first and second paragraphs of the amended Article 14 of the Higher Education Act are fulfilled. As the challenged Article 52 of the ADIMMCSWE entered into force, the statutory regulation was amended such that the NARSQHE only verifies during the second extension of the higher education institution accreditation whether the stricter conditions for establishing a higher education institution are fulfilled. The National Assembly substantiated the inadmissibility of a referendum on the ADIMMCSWE by the fact that it is a law referred to in the first indent of the second paragraph of Article 90 of the Constitution. With regard to the above, the Constitutional Court had to assess whether the challenged statutory measure (i.e. the extension of the period within which the existing higher education institutions must fulfil the changed, stricter conditions for establishing a higher education institution) is substantively an urgent measure to ensure the elimination of the consequences of a natural disaster.   Firstly, the Constitutional Court explained the terms “national disaster”, “elimination of the consequences thereof”, and “urgency” contained in the first indent of the second paragraph of Article 90 of the Constitution. The Constitution does not contain special provisions as regards the term “elimination of the consequences of a natural disaster” that would define it, nor has the Constitutional Court in its hitherto case law interpreted its content. According to the Constitutional Court, a characteristic of natural disasters is that they arise in nature and negatively affect society by causing damage to the life or health of people, or their property. The term “elimination of the consequences of a natural disaster” in the first indent of the second paragraph of Article 90 of the Constitution must in such framework be understood in particular as an endeavour to remedy or mitigate the negative consequences caused by a natural disaster. As regards urgency, the Constitutional Court established that it is connected with the measures, not with the law; hence, it is the criterion whose application in a concrete case depends on factual circumstances that refer to the questions of which measures or types of measures are envisaged as urgent and in what time the measures can be realised, i.e. carried out. From the concrete circumstances it also depends whether the effectiveness of the measures would already be affected by postponing the entry into force of the law (due to calling and carrying out a referendum) or by the possible rejection of the law in a referendum. The Constitutional Court also stressed that the COVID-19 epidemic is a natural disaster, therefore the law that entails the basis for urgent measures for ensuring that the consequences of this epidemic are remedied is a law referred to in the first indent of the second paragraph of Article 90 of the Constitution.   Taking into account that the urgency of measures is to a significant degree a question of fact, the facts that demonstrate urgency must be convincingly substantiated. The decision of the National Assembly that a referendum is inadmissible must be reasoned, and the order must contain the reasons due to which it is not admissible to call a referendum. It is admissible to explain these reasons or to additionally elaborate on them also in proceedings before the Constitutional Court. The National Assembly or the Government, which possess concrete data, must therefore substantiate that the case at issue concerns a law on urgent measures, with regard to which the reasons must essentially follow already from the order declaring that the referendum is inadmissible. This holds all the more true when a law is concerned whose provisions refer to numerous fields of society, while in proceedings before the Constitutional Court only individual provisions thereof or individual measures are challenged. In such an instance it is of key importance that in proceedings before the Constitutional Court the National Assembly and the Government concretise the generalised substantiation that the order declaring that a referendum is inadmissible and that within the framework of the reasons stated in the order declaring that a referendum is inadmissible they substantiate that the challenged concrete measures are urgent.   The Constitutional Court established that in the case at issue this requirement was not met. Since the Government and the National Assembly failed to demonstrate or reasonably substantiate that the COVID-19 epidemic has consequences for the possibility of fulfilling (stricter) conditions to establish a higher education institution and for the related procedures for extending the accreditation of higher education institutions, the Constitutional Court, for this reason alone, established that the challenged statutory provision is inconsistent with the first indent of the second paragraph of Article 90 of the Constitution. Therefore, it abrogated Article 52 of the ADIMMCSWE in conjunction with Article 38 of the HEA-K, which is amended by the challenged statutory provision.