The Constitutional Court made a mistake by dismissing the appeal for a constitutional review of the referendum on Tito street in Radenci! With this, it allowed for a referendum with totalitarian content!

The Constitutional Court

The Constitutional Court of the Republic of Slovenia rejected the appeal of the mayor of Radenci, Roman Leljak, for a constitutional review on the totalitarian content, which means that the referendum on Tito street in Radenci will happen after all. The majority of constitutional judges based their decision to reject the initiative on the grounds that there was a lack of legal interest. Three constitutional Judges, Dunja Jadek Pensa, Marko Šorli and Klemen Jaklič, opposed the decision, and the latter has shared his opinion, which is also signed by Šorli. In it, Jaklič categorically rejects the majority’s argument and claims that the initiator’s legal interest is indisputable.

The majority in the Constitutional Court rejected the mayor of Radenci, Roman Leljak’s appeal for a constitutional review of the content of the referendum in question, which he claimed is totalitarian. The reason for the rejection, according to them, is that Leljak has not shown a legal interest. However, the Constitutional Court Judge Klemen Jaklič, Ph.D., challenges the justification of the majority in a separate opinion.

In the introduction to his negative opinion, Jaklič describes Leljak’s initiative and says that the initiator is challenging the Act on calling a consultative referendum on the renaming of Tito street in Radenci. Leljak claims that this is an issue that citizens should not decide on in a referendum, as naming a street after Tito and confirming the naming is unconstitutionally infringing on human rights and fundamental freedoms, which is inconsistent with the constitutional order of a democratic state. He continues with the decision of the court or the majority of the judges of the Constitutional Court, which, with the exception of three of its members, rejected the appeal, claiming that there is a lack of legal interest. Leljak emphasized that he filed the appeal as a citizen and voter, not as a mayor.

Legal interest is undeniable
Constitutional Court Judge Jaklič emphasizes that he does not agree with the decision of the majority and that, given what has been explained, it is obvious that the initiator has a legal interest. Calling such a referendum means that if he wants to actively influence the formation of the political will of the majority of citizens regarding the issue of renaming or preserving the name Tito street, he will have to take part in it. It is also a publicly known fact that the initiator has already clearly expressed his views on this issue. It can also be deduced from this that if a referendum takes place and he wants to influence the decision himself, he will have to actively decide on this issue in the referendum. And even if he did not attend it himself and, for example, boycotted it, the decision of the political majority in the referendum on this issue could have consequences for him as a citizen.

Regarding the consultative referendum, Jaklič believes that, although not legally binding, it still represents an important indication of the political will of citizens and thus is not insignificant in its meaning for the Municipal Council and local authorities in general, about the will of local citizens or voters. The local political authority, which chooses not to comply with the decision of the majority of citizens, needs to take it into account that it may not be elected in the next elections. This is exactly the kind of political influence that the institute of the consultative referendum is intended for, and it is indisputable that this institute has its influence and its power. Otherwise, it would make no sense at all for the legislature to provide for it in the law at all.

Taking all of these facts into account, as the constitutional judges should, Jaklič writes that it is completely indisputable that every citizen, including Leljak, has a direct legal interest in filing an appeal for a constitutional review of such a referendum, on the grounds that its content could be contrary to the constitution. There is no other legal forum that can ban a referendum if its content and issue are unconstitutional. So how is it possible to write, as even the majority of judges did almost automatically, that the initiator has no direct legal interest? Any serious answer, Jaklič adds somewhat cynically, will be sought in vain in the decision of the majority.

The Constitutional Court has never ruled in such a case before
Jaklič further disputes the statement in the reasoning of the decision, claiming that the Constitutional Court has already ruled the same in a similar case once in the past, namely, in the case no. U-I-133/09 on which the majority formally relies, which was a consultative referendum on the incineration of waste at the Lafarge cement plant, d. d., in Trbovlje. At the time, the Constitutional Court rightly denied the direct legal interest of Lafarge, which opposed the referendum “merely” on the grounds that it allegedly infringed on its reputation in the market and in public. Lafarge could have only challenged a subsequent legal act that might have followed the referendum’s will and might have interfered with Lafarge’s rights and/or obligations. However, if the company believed that the referendum alone had already encroached on its good name, it had the opportunity to contest that intervention and its possible comprehensive remediation, including any lost profits, in a regular civil court, which, of course, really means that it had no direct legal interest in the appeal for a constitutional review of the Constitutional Court.

However, this is exactly the opposite of what is happening in the case of the referendum on Tito street, which we are deciding on today. In today’s case, the call for a referendum with an unconstitutional content alone is the thing that represents an interference, against which the initiator has no other legal remedy. Thus, he cannot protect his rights and prevent the possible unconstitutional use of public authority (the caller of a referendum with the unconstitutional issue is the Municipal Council) and public institutes (consultative referendum on the constitutionally prohibited content) – unless he does that before the Constitutional Court. The immediacy of his legal interest is undeniable. The majority decided to overlook this, and as Jaklič pointed out a bit cynically, this is certainly not because Leljak is the “wrong” complainant and has the “wrong” content of the initiative, which should be off the table as quickly as possible and without a discussion on the contents, to avoid problems.

The Constitutional Court should assess the content
Jaklič concludes his dissenting opinion with the conclusion that a direct legal interest was expressed in this case and that the contents of the appeal should be assessed. With regard to this part of the assessment, he expressed his belief that public authority, which is the Municipal Council in this case, and public institutes, which is the consultative referendum in this case, cannot be used in a free democratic society for the purposes of glorifying totalitarian content or personalities, which represent a denial of the very essence of a free democratic society.

With the referendum confirmation of the majority of citizens in the constitutionally mandated free democratic society, that some totalitarian content should be officially glorified – for example, a crime against humanity, or a person who is a symbol of one of the totalitarianisms (reaffirmation of the name of the street is a glorification), this same majority – knowingly or unknowingly – abolishes the otherwise constitutionally mandated regulation of this society as a free democratic society.

However, as long as the constitution of a free democratic society (which is what the Constitution of the state of the Republic of Slovenia is) is valid, such actions cannot be legally valid. The same would not be legally permissible or in compliance with the constitution if someone officially used any other forums of public authority, for example, the celebration of Statehood Day, to glorify symbols that are inconsistent with the free democratic society or even directly opposite to it, as an expression of public authority and in the name of that public authority. This principle of constitutional incompatibility of the use of public authority and public forums or institutes to glorify unconstitutional content, in itself, of course, does not prevent something else: the glorification of such totalitarian symbols and personalities by private individuals, their societies and the like. But this is something quite different from the use of public authority and its authoritarian forums and institutes to glorify such undemocratic content, which is illiberal and inconsistent with human dignity. The latter is incompatible with the constitutional order of a free democratic society. If it were allowed, it would represent its denial and the de facto change, through a level that is hierarchically below the constitutional level, Constitutional Court Judge Klemen Jaklič concludes his opinion.

Aleš Ernecl