SLO-1999-1-003
a)  Slovenia / b)  Constitutional Court / c) / d)  11-03-1999 / e)  U-I-367/96 / f) / g)  Uradni list RS (Official Gazette), 24/99; Odlocbe in sklepi ustavnega sodisca (Official Digest), VIII, 1999 / h)  Pravna Praksa, Ljubljana, Slovenia (abstract); CODICES (Slovene).
 
Keywords of the systematic thesaurus:
 
 
Constitutional Justice - Effects - Determination of effects by the court.
Institutions - Legislative bodies - Political parties - Financing.
Fundamental Rights - Equality - Scope of application - Elections.
Fundamental Rights - Civil and political rights - Right to participate in public affairs - Right to participate in political activity.
Fundamental Rights - Civil and political rights - Electoral rights - Right to stand for election.
 
Keywords of the alphabetical index:
 
Political party, competitive opportunity.
 
Headnotes:
 
The exclusion from State financing of political parties that did not win seats in the elections to the National Assembly signifies an impermissible discrimination against these parties and thus a violation of the equality of voting rights (Article 43 of the Constitution). The legislator may determine a threshold for obtaining funds from the State budget but this threshold may only be such that it excludes from State financing political parties that have proposed lists for which at the elections it was shown that they did not have a realistic chance of obtaining at least one seat. The legislator thus prevents running for the sole purpose of obtaining funds from the State budget.
 
Summary:
 
The disputed Article 23 of the Political Parties Act (hereinafter: "the Act") states:
 
"A party whose candidates were elected to the National Assembly at the last election has the right to funds from the budget in relation to the number of votes obtained in all election units at the last elections to the National Assembly.
 
A party under the previous paragraph has the right to funds from the budget for each vote obtained from a registered voter to a level of 30 tolars. The amount shall be allocated to the party monthly.
 
The amount under the previous paragraph shall be adjusted monthly with the retail price index according to the most recent known data from the Institute for Statistics of the Republic of Slovenia."
 
Article 43.1 of the Constitution lays down that the right to vote shall be universal and equal. The principle of equality of voting rights relates to the right to vote (active voting right) and the right to be elected (passive voting right). The principle of equality of the passive voting right prohibits the State from discriminating against or privileging particular candidates, political parties or other political groups in the competitive fight for the votes of electors. The same competitive possibilities must be legally guaranteed to political parties in relation to determining candidates, the election campaign, State financing and the reimbursement of election campaign expenses. The essence of the principle of equal opportunities is that the State (and similarly local communities) operates neutrally in the competition among political parties for obtaining or retaining political authority at elections.
 
Distinguishing among political parties in relation to State financing signifies a violation of the principle of equal competitive opportunities of political parties and thus of the principle of equality of passive voting rights. This distinction is a violation of the constitutionally guaranteed equality of voting rights. Such a violation is constitutionally permissible only if it protects some other constitutional value, if it is necessary for the achievement of the aim and if the gravity of the violation is proportional to the harm which would be done to this constitutional value, if there was not such an encroachment.
 
There is no apparent Constitutional reason for the distinction among political parties whose candidates have been elected to the National Assembly (parliamentary parties) and other (extra-parliamentary) political parties which the disputed arrangement creates. The discrimination cannot be based on the aim of preventing excessive fragmentation of political parties or ensuring the normal functioning of the legislative body; the disputed solution is not urgently required to achieve this aim since the same aim could be achieved by imposing a voting threshold. Similarly, the disputed arrangement cannot be grounded on ensuring the seriousness of candidatures at elections and excluding candidates who have no possibility of success or on preventing candidatures only in order to obtain funds from the budget; the exclusion of all extra-parliamentary parties from State financing is an exaggerated measure to achieve this aim.
 
By the disputed arrangement, the State creates a distinction among political parties and does not retain a neutral role in the competition among them. The distinction signifies a violation of the principle of equality of voting rights. In view of the fact that there is no constitutional ground for this encroachment, the provision of the first paragraph of Article 23 of the Act is in conflict with Article 43 of the Constitution.
 
By annulling part of the provision of the first paragraph of Article 23 of the Act, the Constitutional Court would actually supplement the Law, since it would extend State financing of parties. Since the Law regulates the disputed matter in a way which cannot be annulled (Article 48 of the Constitutional Court Act, Official Gazette RS, no. 15/94) the Constitutional Court simply found the provision unconstitutional and charged the legislator to remove the unconstitutionality.
 
The legislator must, within the time-limit set down in the judgment proper of this decision, adapt or supplement the unconstitutional arrangement such that it will remove the discrimination between parties that obtained seats in Parliament and parties that did not. Although it can specify a threshold for obtaining funds from the State budget, this threshold may be expressed in the number of votes obtained in the elections, or by some other measure. However, this threshold may only be such as to prevent parties who have submitted candidatures for which it is shown at the elections that they had no real chance of success (of obtaining at least one seat) from obtaining funds from the budget. By such a restriction, the legislator prevents persons or parties running in elections with the sole intention of obtaining budget funds. The threshold for obtaining funds from the State budget can be higher than the number of signatures necessary to support a candidature. The legislator thus has the right, in determining the necessary conditions for standing for election, to choose a lower threshold, and in determining conditions for obtaining money from the State budget, a higher one; in the first case, greater care is required since forecasting the success of individual lists at elections is uncertain. In the second case, it is possible to judge the seriousness of the candidature by the actual result of the election.
 
Supplementary information:
 
This principle is known as Recht auf Chancengleichheit in German constitutional legal theory and constitutional court practice.
 
Legal norms referred to:
 
-   Article 43.1 of the Constitution;
 
-   Article 48 of the Constitutional Court Act (ZUstS).
 
One judge dissented.
 
Cross-references:
 
By resolution of the Constitutional Court of 17.12.1998 cases no. U-I-4/98 and no. U-I-6/98 were joined to the case being heard because of common treatment and decision.
 
Languages:
 
Slovene, English (translation by the Court).