Cerar: “It points to the extreme tightening of the internal situation at the Constitutional Court”

SR/STA

26. 5. 2023, 20.05

Updated: 26/05/2023, 22:36

Today, the Constitutional Court annulled the suspension of the amendment to the Act on RTVS. Constitutional judges voted to lift the suspension Matej I accept, Rajko Knez, Katja Šugman Stubbs in Špelca Mežnar. He voted against Rok Svetličwhile the judge Marko Šorli in Klemen Jaklič they did not vote. With this, the Constitutional Court opened the door for the constitution of the new Council of RTVS, whereby the Constitutional Court set a seven-day deadline for the constitution from the publication of the decision in the official gazette. Within this period, the first meeting of the council must be convened by the acting CEO or the person replacing him. If the latter does not convene the meeting, the first meeting can be convened by at least one third of the members of the council, according to the decision of the Constitutional Court. V. d. General Director of Radiotelevision Slovenia (RTVS) Andrei Grah Whatmough in his response, he confirmed that he respects today’s constitutional decision and that he will convene the first meeting of the institute’s new council within the prescribed period.

Blockade

The Constitutional Court’s decision to annul the suspension of the amendment to the RTVS Act is of a procedural nature and not substantive, which indicates an internal blockage of the court, he told STA Miro Cerar.

As Cerar assessed, the conduct of the constitutional judges indicates that a substantive decision is still to come. “Obviously, the court has decided that it will be a lesser evil if, in the current situation, it lifts the suspension of the amendment, than if it persists. Due to the exclusion of two constitutional judges and due to markedly different legal views, the constitutional court is in an internal blockade and is not yet capable of accepting substantive decisions regarding the constitutionality of the contested provisions of the law,” he said.

The Constitutional Court also wrote in today’s decision that it cannot even be ruled out that the decision could only be made with (first or subsequent) changes in the composition of the judges of the Constitutional Court. “This is a significant departure from the original announcement by the Constitutional Court itself that it will consider and resolve the matter as an absolute priority, whereby the intolerable situation on public radio and television has only been prolonged and the heated public debate has intensified in recent months,” Cerar added.

A “serious conversation” will be needed

Cerar described the fact that two judges did not participate in the voting as worrying. “This is contrary to the nature of judicial and constitutional decision-making, and at the same time it is also inconsistent with the express regulation in the Act on the Constitutional Court, which stipulates that judges may not abstain from voting when making decisions.” According to him, this indicates “extremely tense internal situation at the Constitutional Court”. “In my opinion, this also requires a serious conversation within the court. Someone should take responsibility for such things happening,” he is sure.

Non-participation in decision-making is otherwise not something that would “required very dramatic measures”, added Cerar. It would be normal for the constitutional judges to be able to clear this up or arrange it among themselves.

As he also emphasized, he understands the complexity and multifacetedness of the subject under consideration, but in his opinion, constitutional judges should be able to cope with such demanding situations. “Constitutional judges are experts who were elected to this position precisely because they are supposed to have a superior sense of responsibility towards the rule of law and the protection of the integrity of the constitutional court,” he said.

The German example

In the explanation of the decision, the Constitutional Court stated that the Act on the Constitutional Court does not contain special rules for decision-making in cases where, due to the exclusion of one or more judges, the court cannot form a majority decision with the required number of votes. Therefore, it was inspired by the German regulation, which stipulates that in the event that the required majority is not required for the annulment or determination of the unconstitutionality of the contested act, this act remains in force.

In Cerar’s opinion, it would make sense to amend the Act on the Constitutional Court to avoid the repetition of such situations.

At the same time, he was also critical of the leakage of internal information from the court, because all this weakens the authority of the constitutional court and trust in the rule of law.