Vesna Božič Štajnpihler: References to Foreign Case Law in Decisions of the Constitutional Court of the Republic of Slovenia (ABSz, 2022. Különszám, 25-37. o.)

I. Introduction

We live in an increasingly globalised world and the judicial arena is no exception to this trend. The increasingly international experience of judges and legal staff at courts as well as enhanced and readily available possibilities to use internet-based data and international legal or judicial networks have an impact on adjudication. At the level of constitutional courts the focus is frequently on fundamental issues and principles that are common to numerous legal systems rather than on national legal systems' individual traits and particularities. Therefore, at this level of jurisdiction the introduction of positions and arguments from foreign case law may be more realistic and practical than at other levels of jurisdiction. The Constitutional Court of the Republic of Slovenia (hereinafter: "CCRS") relatively frequently refers to the case law of supranational courts and constitutional courts of other countries in its decisions. This was surely influenced by the fact that the CCRS was newly established when the Republic of Slovenia gained its independence in 1991. The Constitutional Court of the former Social Republic of Slovenia was an entirely different institution that issued only legalistic, i.e. formalistic, decisions grounded in judicial self-restraint and a presumption of the constitutionality of legislation. In its decisions, there was no room for human rights and fundamental freedoms or fundamental democratic legal principles. The CCRS thus began its work in a completely transformed state, on the basis of a new Constitution, and without being able to rely on a line of precedents. In light of our country's commitment to respect the fundamental principles characteristic of modern democratic states and to protect human rights and fundamental freedoms, the decision of the CCRS to look for inspiration beyond its borders is therefore hardly surprising. As statistical data regarding references to foreign case law in the cases of the CCRS are not available, this paper aims to provide an overview of such references. Following a brief introduction of the Slovene legal order and of the CCRS, the paper presents the research questions pursued and the methodological approach applied. This is followed by clarifications regarding the positions of the case law of the European Court of Human Rights (hereinafter: "ECtHR"), the case law of the Court of Justice of the European Union (hereinafter: "CJEU"), and of the case law of foreign constitutional courts or courts with equivalent jurisdiction[1] within the Slovene legal order. The main part of the text provides information concerning the CCRS's practice of referring to foreign case law. It is divided into three sections. The first presents references to the case law of the ECtHR, the second references to the case law of the CJEU, and the third references to the case law of foreign constitutional courts. Building on the findings of this part, the conclusion provides suggestions for further research of this phenomenon.

II. The Slovene Legal Order and its Constitutional Court

The Republic of Slovenia is a relatively young country that gained its independence on 25 June 1991. The Constitution of the Republic of Slovenia (hereinafter: "Constitution")[2] was adopted and entered into force on 23 December 1991, six months after Slovenia became an independent state. It is a modern constitution based on the principles that characterise modern European constitutional legal orders, such as the principle of democracy, the principles of a state governed by the rule of law, the principle of a social state, and the principle of the separation of powers. The Constitution guarantees an extensive catalogue of human rights and fundamental freedoms. Human dignity, as the source and the common expression of all human rights, forms the foundation of the Slovene constitutional order.

The Constitution also established the CCRS, vesting it with an extensive array of competences that were further regulated by the Constitutional Court Act, adopted in 1994.[3] The most important competences of the CCRS are the power to review the constitution-

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ality (and legality) of regulations and the power to decide constitutional complaints. The latter are the most numerous and have accounted for almost 80 percent of all the CCRS's cases in recent years, and cases regarding constitutional review accounted for about 20 percent.[4]

For the purpose of this text, it should be pointed out that the analysis of the references to foreign case law has only taken into account the cases that the CCRS decided on the merits. This entails that only decisions - i.e. odločbe, which entail a substantive review of the case by the CCRS - were included, while orders - i.e. sklepi, which are adopted upon an examination of only the procedural requirements and without a substantive review of the case - were not taken into account. From a quantitative perspective, orders are much more numerous than decisions, i.e. in 2019, only 18.6% of all resolved cases regarding a review of constitutionality or legality and 5.5% of all resolved constitutional complaint cases were resolved by a decision. Decisions are drafted by the judge rapporteur with the assistance of the assigned legal advisor(s) and, as a general rule, they are adopted by a majority of the judges. As is the case in most continental or civil law legal systems, the decisions are devised as opinions of the CCRS, i.e. the majority that voted for the decision, rather than as opinions of individual judges, which is characteristic of common law systems. Judges have the possibility to submit concurring or dissenting opinions, which are published together with the decision.

Another point that should be noted is the structure of the decisions of the CCRS. Firstly, they contain an introductory part specifying the type of proceedings at issue, who initiated the proceedings, and the date of the session of the CCRS when the case was decided. The second part consists of the operative provisions of the decision. These are followed by the third part containing the CCRS's reasoning. The reasoning is further divided into three sections. Section A summarises the submissions of the parties. Section B contains the reasoning of the CCRS in the strict sense. Section C provides the legal basis of the decision, the composition of the CCRS, the vote, and the information whether any of the judges wrote dissenting or concurring opinions. Judges' separate opinions are published together with the CCRS's decisions.

III. Research Questions and Methodological Approach

As statistical data concerning references to foreign case law are not available, the aim of this paper is to provide an overview of references to foreign case law in the decisions of the CCRS. For the purpose of this text, the term foreign case law shall entail the jurisprudence of supranational courts, such as the ECtHR and the CJEU, as well as the case law of foreign constitutional courts or foreign courts with equivalent jurisdiction. A reference to foreign case law shall include general references to the case law of a supranational court or foreign constitutional court or citations of specific decisions of a supranational court or foreign constitutional court.