On Wednesday, after a public hearing on the validity of the referendum on the second railway track act, the Slovenian supreme court granted the appeal of the initiator of the referendum, Vili Kovačič, and annulled the results of the referendum from last September. The procedure will have to be repeated, and the act on the second track is therefore still not in force. The reasoning of the supreme court is that the act on the second track must be confirmed at the referendum without any doubts about irregularities. Kovačič proposes holding a new referendum jointly with the elections in autumn.
Among other things, the supreme court established that the government had financed an unlawful referendum campaign with state budget appropriations amounting to €97,000. It determined that the act on the second track must be confirmed at the referendum without any doubts about irregularities, which is why the referendum procedures must be repeated.
According to the judge-rapporteur Erik Kerševan, the court followed the assessment of the Slovenian constitutional court that the Referendum and Popular Initiative Act and part of the Elections and Referendum Campaign Act are in conflict with the Slovenian constitution, so it focused on the issue of whether the consequences could have impacted the outcome of the referendum.
Enforcement of act entails risks
On this basis, the supreme court judges determined that the referendum campaign which had been financed by the government with budget appropriations amounting to €97,000 had been unlawful since they had “only emphasised the positive consequences of enforcing the act on the second track and the negative ones originating from a rejection of the act but not the potential risks an enforcement would entail”. In order for voters to freely express their will about the subject of a referendum, it is of utmost importance that all information is available to them, including different views.
“The supreme court does not deny that there are certain advantages of enforcing the act, but it also cannot be denied that it entails risks,” Kerševan said in a short explanation of the judgement. In addition, the referendum campaign had not presented the claims of those opposing the enforcement of the act in the same way as claims of its supporters.
Government had strong media campaign which certainly influenced result
The supreme court also emphasised that the government is not obligated to completely abandon the presentation of arguments for the enforcement using budget appropriations, but it also needs to present the risks. According to Kovačič, the government campaign which used budget appropriations was one-sided. The supreme court does agree with the government that, also in light of previous referendums, the use of funds for the needs of a referendum campaign in the above-mentioned amounts does not by itself guarantee success at a referendum. But it is not possible to conclude that in this concrete case the referendum campaign of the government and the associated use of budgetary appropriations did not in any way affect the outcome of this referendum.
Despite the established irregularities, the supreme court cannot calculate the impact these violations had on the outcome of the referendum, but the fact remains that they certainly influenced it to some extent. “More than 150 announcements during the highest rated shows, leaflets, posters …” listed Kerševan. According to him, the supreme court is aware that their decision constitutes an invitation to voters to participate in a referendum in which they have already cast their votes or which they have decided not to vote in.
Kovačic claimed from beginning that referendum was unlawful
According to the final report of the Slovenian state election commission on the outcome of the referendum, 20.55 percent of the people eligible to vote participated in the referendum on the second railway track act at the end of last September. The act on the second track was supported by 53.47 percent of all valid voters, while 46.47 percent voted against it. The referendum failed both because of a low turnout and because of the result itself, writes STA. But even before the act could enter into force, Kovačič appealed against the report of the state election commission due to irregularities which had in his view affected the fairness of the referendum procedure and thus the outcome. He also appealed against the decision of the government to allocate €97,000 from the state budget for the needs of the government at the referendum or the promotion of voting at the referendum.
The supreme court then turned to the constitutional court, which at the end of January ruled that the Referendum and Popular Initiative Act and part of the Elections and Referendum Campaign Act were in conflict with the constitution. According to constitutional judges, the referendum dispute before the supreme court is not clearly regulated, and the government can only use budget appropriations for a campaign if it presents both reasons for and against an act.
Vili Kovačič: Only idiots would make the decision to hold a separate referendum
In a statement after Wednesday’s victory, Kovačič said that he had been partly expecting it. In the end, the judges had acted reasonably and fairly, and they had taken our arguments into account, he said. After the ruling of the supreme court, he also announced a fight for the new date of the referendum “to keep another stupidity from happening”. He emphasised that the new referendum must be held jointly with the election. “This year there are two more things, and only an idiot would make the decision to hold a separate referendum,” was his clear statement. He added that the goal of democracy is to have as many people as possible decide, not as few as possible. Kovačič is convinced that more and more people are aware of the project and that they will vote against it – among other things, Kovačič believes that they will oppose it due to the mess with the model of the second track, which showed that the government “is actually stealing money”, according to the initiator of the referendum.
Kovačič was represented before the supreme court by the lawyer Lucija Ušaj Šikovec.