Lawyer Blaž Babič has recently informed the public that the content of the lawsuit regarding the Family Code, for violation of Articles 6 and 13 of the European Convention of Human Rights, has been submitted to the European Court of Human Rights. The Family Code of the Republic of Slovenia introduces highly controversial amendments to the Family Law, which now allow for the adoption of children within the LGBTQIA+ community, while abolishing marriage, defined as the union of a husband and wife. The lawsuit was filed by the coalition “The Voice for Children and Families” (Glas za otroke in družine). The full text of the lawsuit is available here.
Lawyer Blaž Babič reports that a case of the controversial Family Code has been taken to the European Court of Human Rights (ECHR). The case concerns the introduction of highly controversial amendments to the Family Code, which already allows for the adoption of children within the LGBTQIA+ community, while at the same time abolishing marriage, defined as the union of a husband and wife. The lawsuit was filed by the coalition “The Voice for Children and Families”. The Slovenian version of the Family Code was deliberately translated into English and filed in English in order to avoid the two watchdogs at the ECHR – Ana Vilfan Vospernik (granddaughter of Tito’s Chief of Staff) and Katka Zidar Al-Mutaira (sister-in-law of the controversial former Minister of Justice Goran Klemenčič). The latter often throw out such lawsuits.
Let us remind you of what the case is all about: on the 16th of June 2022, the Constitutional Court of the Republic of Slovenia found that a legal regulation which provides that marriage may be entered into only by two persons of different sex, and that same-sex partners living in a formal partnership may not adopt a child together, is incompatible with the constitutional prohibition of discrimination. The court gave the legislator a six-month period within which to remedy the constitutional inconsistency found.
The National Assembly abolished this “unconstitutionality” on the 4th of October 2022, by adopting the Law on Amendments to the Family Code (DZ-B) under the abbreviated procedure. On the 11th of October 2022, the Council of State accepted the request for the National Assembly to reconsider the law. On the 18th of October 2022, the National Assembly (re)adopted the Law on Amendments to the Family Code. The complainant, as a representative of 30,600 referendum petitioners, wished to organise the collection of signatures for the referendum request. The National Assembly rejected the petition on the basis of inadmissibility of calling a legislative referendum on the Law on Amendments to the Family Code (DZ-B) and setting the appellant a 15-day time-limit for submitting a request to the Constitutional Court to review the constitutionality of that decision. On the 11th of November 2022, the referendum initiators, representatives of 30,600 citizens (Aleš Primc and Metka Zevnik) initiated a request to the Constitutional Court to review the constitutionality of the Decision on the inadmissibility of calling a legislative referendum. Subsequently, by Decision U-I-389/22-16 of the 14th of December 2022, the Constitutional Court ruled that the above-mentioned Decision on the inadmissibility of calling a legislative referendum on the Law on Amendments to the Family Code is not incompatible with the Constitution of the Republic of Slovenia.
On the 14th of December 2022, the Constitutional Court ruled that the above-mentioned Decision on the inadmissibility of calling a legislative referendum on the Law on Amendments to the Family Code is not incompatible with the Constitution of the Republic of Slovenia. The appellant – as the representative of the 30,600 referendum petitioners – then argued that, in the proceedings before the Constitutional Court under Case No. U-I-398/22-16 (decision published on the 11th of January 2023), the Republic of Slovenia violated their right to a fair trial under Article 6 of the European Convention on Human Rights, by failing to properly assess the constitutional-legal quality of the amendment to the Family Code. This is because every citizen has the right to participate in the management of public affairs through elected representatives. The Court also completely avoided a proper in-depth assessment and proportionality test. At the same time, it ruled in a biased chamber because it failed to ensure that the clearly biased judge, Dr Katja Šugman Stubbs, was excluded from the decision-making process. Since 2013, when the constitutional amendment to Article 90 of the Constitution of the Republic of Slovenia was adopted (without the participation of the people), the possibility of abuse of the institution of the referendum ban has been open and unprotected in Slovenian constitutional and political law, the initiators of the ECHR review pointed out among other things.
The Constitutional Court’s own case law has so far severely limited its scope of review, to the exclusive detriment of the initiators of referendums.
The government and the National Assembly can, by a simple manoeuvre, decide to write down the subjects they do not want to be publicly debated or decided by the people in a referendum in one of the types of laws on which a referendum is not admissible according to Article 90(2) of the Constitution, the initiators explain.
In the case of Article 90(4)(2) of the Constitution of the Republic of Slovenia, content which does not fall within the scope of the aforementioned institute could thus be added to the content which, in principle, serves to “abolish unconstitutionality”, and in the internal politico-legal procedure, it can only be removed in the last instance by the Constitutional Court, through the tool used by the appellant – the constitutional complaint against the decision of the National Assembly regarding the inadmissibility of the call for a legislative referendum.
The appellant is aware that the ECHR is not the body to judge constitutional and politico-legal inconsistencies in domestic legislation, but in light of Article 6 of the European Conventiion on Human Rights, each State is obliged to demonstrate that it has ensured a fair (and of course just) trial in its internal constitutional/legal review of the political/legislative process at issue – and the appellant alleges and demonstrates that this was not the case here. Therefore, pursuant to Article 21 of the Referendum and Popular Initiative Act, the appellant therefore filed a petition for review of constitutionality, explicitly pointing out the unconstitutionality of the issued Decision on the inadmissibility of the call for a legislative referendum on the Law on Amendments to the Family Code in terms of violation of Articles 22, 44 and 90 of the Constitution.
In the Constitutional Court’s decision No. U-I-398/22 of the 14th of December 2022, the Constitutional Court of the Republic of Slovenia clearly stated in paragraph 12 that it had itself established a practice in the past according to which “the Constitutional Court, when assessing the decision of the National Assembly that a referendum is inadmissible, does not carry out a balancing exercise between the constitutional values affected, but assesses, within the limits of its legal reasoning and taking into account all the circumstances of the case, whether a law referred to in Article 90, paragraph 2, of the Constitution is at issue in the particular case.” In paragraph 13 of the above-mentioned decision, the Constitutional Court further confirms its practice by stating that “the regulation ensures a clear, defined and transparent referendum procedure, creates conditions for a faster completion of the legislative procedure and introduces predictability into the referendum procedure, thereby improving the position of the interested subjects.”
The appellant notes that the Constitutional Court’s reasoning stretches the meaning of speed in the legislative procedure to all four orders, and it is also evident that the Constitutional Court’s own practice to-date has extremely limited its scope of review – to the exclusive detriment of the initiators of referendums.
This is an inappropriate extension of the content beyond the Constitutional Court’s decision to the fields of education, health, counselling, and others
In paragraph 15 of this decision, the Constitutional Court explicitly quotes the appellant, who claims that “if the Constitutional Court were to find that the Law on Amendments to the Family Code does, however, eliminate the unconstitutionality found, it does not eliminate that unconstitutionality in a constitutionally compatible manner, since it was adopted under the abbreviated procedure and is incompatible with Articles 1, 2, 3, 35, 39, 46 and 53 of the Constitution.”
Furthermore, in paragraph 16 of this decision, the Constitutional Court adds that “this also means that the Constitutional Court is not assessing the compatibility of the new regulation with the Constitution in these proceedings. In the present case, the Constitutional Court must therefore assess only whether the Law on Amendments to the Family Code is a law that eliminates an unconstitutionality in the area of human rights and fundamental freedoms or another unconstitutionality (Article 90(2)(4) of the Constitution), which precludes a legislative referendum on it. In view of the above, the petitioners’ allegations of the unconstitutionality of the Law on Amendments to the Family Code are irrelevant or cannot be the subject of assessment in the procedure.” Moreover, in paragraph 17, the Constitutional Court assists the National Assembly: “Since the question of the constitutionality of the adopted (new) regulation is not subject to review in the procedure under the current Article 21 of the Referendum and Popular Initiative Act, the legislator is not obliged to state in the decision prohibiting the referendum the reasons that the new regulation eliminates the established unconstitutionality in a constitutionally compatible manner.”
The appellant notes that, by such reasoning, the Constitutional Court has abrogated its fundamental duty, which is to review constitutionality. In the present case, the Constitutional Court does not wish (“because of its own previous practice”) to determine whether the legislator (the National Assembly) was entitled to a summary procedure, nor whether the legislator has drafted a legislative solution to remedy an unconstitutionality which is, in fact, just and only that (or whether the declared purpose may have been exceeded), nor does it wish to determine whether there has been a procedural irregularity in the process of adopting the amendment, let alone to make a substantive assessment of whether the amendment may be fundamentally unconstitutional or constitutionally incompatible in its substance.
In their challenge to the decision of the National Assembly before the Constitutional Court, the appellant has demonstrated with numerous examples that the content of the decision has been extended beyond the Constitutional Court’s decision into the fields of education, health care, counselling, and others.
Moreover, in paragraph 18 of the decision, the Constitutional Court in fact only confirms a number of the appellant’s allegations that the amendment to the Law on Amendments to the Family Code inappropriately expands the field of family law regulation beyond the scope of its own decisions. The Constitutional Court therefore concludes that the Law on Amendments to the Family Code eliminates the unconstitutionality established by the above-mentioned decisions of the Constitutional Court.
The legislator has removed the public from the debate by using the abbreviated procedure!
It is therefore obvious that the formulation “two persons of different sex” has been replaced by “a living community of two persons”, and it is not at all clear whether it is really only (the former classical) “two persons of different sex” and then (only) “two persons of the same sex”, but the definition is suddenly open, as the appellant persistently stated and proved in all the arguments in their appeal to the Constitutional Court.
If – for example – we take the definition of “two people” seriously and, just for the sake of practice, take the letter B, meaning bisexual people (who by definition do not have only one partner, but at least two partners, one of each of the classic sexes) from the LGBTQIA+ acronym (which is already quite modest and outdated), we immediately find ourselves in the legally enabled field of mix-sexual polygamy. Two bisexual people in a “marriage” is, at the very least, a legitimised quadruple bond (living community) – since at least two additional people are needed to satisfy the “equality” and “B” condition. Therefore, two bisexuals do not have the same rights as two homosexuals!? Which is just one of the many practical issues that arise with such an undeveloped and ill-considered, and above all time-accelerated, change in the law. A number of other issues – also related to legislation – raised by the appellant in his appeal to the Constitutional Court include, for example: unconstitutionality on the grounds of violation of the Rule of Law, in particular the principle of the certainty of the law, violation of the personality rights of, as well as the violation of the right to conscientious objection.
In paragraph 20 of this decision, the Constitutional Court even quotes the appellant’s statements regarding all these areas “in which the legislator attaches certain legal consequences to the institution of marriage. These criticisms by the petitioners are frivolous. The petitioners state that the change in the definition of marriage is also to be reflected in changes in, for example, housing, infertility treatments and assisted reproduction procedures, the regulation of the presumption of paternity and maternity in the case of children born in marital unions, the regulation of the right to decide freely on the birth of children, and anti-corruption legislation. However, they do not specify their statements by explicitly referring to the provisions of the legislation or provisions thereof which are allegedly affected by the amended definition of marriage.” The appellant notes that the Constitutional Court first adopted the contested decision (on the unconstitutionality of the previously applicable Family Code), which took approximately three years. Then, the legislator (the National Assembly) summarily reproduced/copied the instructions of the Constitutional Court and removed the public from the debate by using a shortened procedure, which took approximately four months.
The Constitutional Court keeps on hiding the possible legal consequences, thus protecting the legislator
The Constitutional Court is acutely aware of the existence of the possibility of legal consequences that go beyond the mere “correction of an unconstitutionality”, but at the same time it has been concealing them all along, thereby protecting the legislator who has abused the fast-track legislative procedure in the face of content that should have been adopted thoughtfully, reasonably and with the broadest possible social consensus.
The fact that the legislator, for such important legislation, used a procedure that did not allow for the information, let alone a qualitative analysis, of the broader professional and lay legal public, through the classical legislative procedure in the National Assembly, is an argument that the Constitutional Court should have had considered with all the seriousness – regardless of its own (misguided, self-limiting) jurisprudence to date.
The Constitutional Court did not even consider the most crucial issue, i.e. whether the prohibition of the referendum, and thus also the prohibition of the management of public affairs of the initiators of the referendum, is a proportionate measure for the introduction of the adoption of children in LGBTQIA+ relationships and the abolition of the marriage of husband and wife, given that neither the adoption of a child in an LGBTQIA+ relationship nor the abolition of the marriage of husband and wife is a human right, while participation in the management of public affairs (Article 44 of the Constitution of the Republic of Slovenia) and the right to a referendum (Article 90 of the Constitution of the Republic of Slovenia) are two fundamental human constitutional rights.
A conflict of interests: judge Šugman Stubbs should have recused herself because of her obvious bias!
In the explanation of its ruling, the Constitutional Court should have clarified its position on possible violations of Article 44 of the Constitution and should have also applied the constitutional proportionality test. It is also important to note that Constitutional Court Judge Katja Šugman Stubbs appeared as a legal expert as a defender of “LGBTQIA+ interests” in a promotional video in the 2012 Family Referendum campaign. In fact, Judge Šugman Stubbs should have recused herself for her obvious bias when deciding on this matter. The appellant submits, within the time-limit, that the judge who took part in the proceedings to rule on the constitutionality of the decision on the inadmissibility of the legislative referendum on the Family Code cannot be regarded as impartial. As stated above, the judge, Dr Katja Šugman Stubbs, was already a vocal advocate for LGBTQIA+ interests in 2012 and even actively participated in the campaign as a legal expert. The appellants invoke Article 6(1) of the European Convention on Human Rights, which guarantees, under the Right to a Fair Trial, that their civil rights and obligations or any criminal charge against them shall be decided fairly and publicly and within a reasonable time by an independent and impartial tribunal established by law. However, in the light of the facts presented, this was not guaranteed to the petitioner in the present case.
The same is also guaranteed by Article 23 of the Constitution of the Republic of Slovenia (the right to justice), which stipulates that everyone has the right to have his or her rights and obligations and the charges against them decided without undue delay by an independent, impartial tribunal established by law. A person may be tried only by a judge chosen according to rules laid down in advance by law and by the rules of court. Impartial, of course. The law, of course, requires that a judge be disqualified if he or she is compromised in any way in a case. There are undoubtedly circumstances in the present case which not only could, but also objectively did raise doubts as to the judge’s impartiality, since the judge who ruled in the present case had previously publicly exposed herself and thus expressed her views, which she is perfectly entitled to exercise.
On the other hand, fundamental procedural postulates also guarantee the appellant the right to have the case decided by a judge who presents at least the appearance of impartiality. That postulate was not satisfied in this particular case, since a judge who had ruled on a case in which she had previously taken a clear position on the same issue should have recused herself. This is evident from the attached link to a video from 2012, when a referendum campaign was held on an identical issue.
The assessment of the unconstitutionality of the possibility to adopt children in LGBTQIA+ relationships should have stopped at the first stage of the test!
Judge Dr Stubbs should therefore have recused herself in the specific case, without a doubt.
The specific case of the Constitutional Court’s decision is therefore “merely” a matter of correcting an unconstitutionality, not of correcting a violation of human rights. The dissenting opinion of the Constitutional Court Judge Dr Rok Svetlič of the 6th of January 2023 (6 U-I-91) clearly states that the assessment of the unconstitutionality of the possibility of adoption of children in LGBTQIA+ relationships should have stopped at the first stage of the test.
Even before the adoption of the amendment, homosexuals were already guaranteed by law the same human and constitutional RIGHTS as heterosexuals in all areas of life (adoption of a child is not a human right of an adult) and sexual orientation is not checked when entering into a marriage.
Children living in LGBTQIA+ relationships were already fully equal to all other children before the adoption of the Law on Amendments to the Family Code and the latter does not give them any new rights.
The appellants further wonder whether the case at hand will even make it through the bureaucratic mills of the European Court of Human Rights, and indeed into the hands and hands of the competent judges of that Court.
In view of the fact that the adoption of a child is therefore in no way a human right of adults, the decision of the National Assembly of the 28th of October 2023 to declare inadmissible the calling of a legislative referendum on the Law amending the Family Code was also unconstitutional for the reasons listed above.
Domen Mezeg
