Area: Pravosodje
Competent authority: MNZ
EZU URL: .nan
Initiative ID: 94
Initiative accepted and completed: '2013-05-08'
Initiative classified in EZU: .nan
Initiative forwarded in response: '2013-04-24'
Initiative published: '2013-02-28'
Initiative submitted: '2013-02-28'
Response from the competent authority: 'The Ministry of the Interior and Public Administration
  (the Ministry) has received your proposal to amend the law on the election of public
  authorities by requiring every candidate standing for election on any list for any
  public office to submit, when submitting his/her candidature, a certificate from
  the Ministry of Justice stating that he/she is not the subject of any criminal or
  pre-trial proceedings or is not the subject of any criminal or pre-trial proceedings.
  You go on to say that this would also apply to those who have been in office for
  many years.The Ministry is the ministerial authority responsible for electoral law.
  Elections to state bodies are governed by the following laws:1.    Act on Elections
  to the National Assembly (Official Gazette of the Republic of Slovenia, No. 109/06
  - UPB1, 54/07 US Decree No.: U-I-7/07-22, Up-1054/07-24, 49/08 US Decree No.: U-I-272/07-12;
  hereafter: ZVDZ),2.    Act on the Election of Members of the European Parliament
  from the Republic of Slovenia (Official Journal of the RS, No. 40/04-UPB1, 41/07-ZVRK
  and 109/09),3.U-I-160/97, 11/03 Official Journal of the United States of America:
  U-I-417/02-7, 73/03 Official Journal of the United States of America: U-I-346/02-13
  and 49/08 Official Journal of the United States of America: U-I-272/07-12).In the
  following, we explain the legal regulation of the field of candidacy in direct elections
  and also the assessment of the citizen''s proposal. Given that the basic electoral
  law is the ZVDZ, the provisions of which also apply, to a large extent, to the election
  of members of the European Parliament and to the election of the President of the
  Republic, we will present the current regulation through this law.Universal suffrageWe
  can only speak of modern democratic elections if they are conducted on the basis
  of universal suffrage. Universal suffrage is the right of every citizen to vote
  and to be voted for, regardless of class, nationality, race, economic or other affiliation.
  In accordance with the principle of universal suffrage, the only persons excluded
  or temporarily restricted from exercising this right are those who, because of mental
  illness or youth, are unable to vote.The right to vote includes both an active part
  (the right to vote) and a passive part (the right to be elected). A citizen of the
  Republic of Slovenia who has attained the age of 18 on the day of the vote has the
  right to vote and to be elected as a Member of Parliament. The first limitation
  of the general (active and passive) right to vote, as laid down in the Law on Elections
  to the National Assembly (Official Gazette of the Republic of Slovenia, 109/06-UPB1,
  54/07 US Decree No.: U-I-7/07-22, Up-1054/07-24 and 49/08 US Decree No.: U-I-272/07-12),
  is therefore the age. The second limitation relates to persons who, by reason of
  mental illness, retardation or handicap, have been totally deprived of their legal
  capacity or have had their parental rights extended beyond the age of majority by
  their parents or other persons, and are incapable of understanding the meaning,
  purpose and effects of the election. In proceedings for the deprivation of legal
  capacity or the extension of parental responsibility beyond the age of majority,
  the court shall decide separately on the deprivation of the right to vote and to
  stand as a voter. Further restrictions on the passive right to vote are provided
  for by law, in particular in cases of incompatibility under the Law on Members of
  Parliament and the Law on Integrity and Prevention of Corruption. In this case,
  the aim is to prevent conflicts of interest.The legislation also provides for the
  possibility of early termination of the mandate. One of the grounds is a final conviction.
  As a Member of the National Assembly of the Republic of Slovenia, pursuant to Article
  8 of the Law on Members of the National Assembly of the Republic of Slovenia (Official
  Gazette of the Republic of Slovenia, No. 112/05-UPB2 20/06-ZNOJF-1, 109/08, 39/11
  and 48/12), the mandate of a Member of the National Assembly of the Republic of
  Slovenia shall be terminated if he/she is sentenced by a final judgment to an unconditional
  prison sentence exceeding six months. The legal presumption of innocence in the
  Constitution of the Republic of SloveniaThe petitioner states as a ground for restricting
  the passive right to vote that the candidate should be required to submit a certificate
  that he or she is not undergoing criminal or pre-trial proceedings. By imposing
  such a restriction, the law would interfere with Article 27 of the Constitution,
  thereby undermining the constitutional presumption of innocence. The introduction
  of the presumption of innocence is one of the most important steps in the field
  of criminal procedural law. It guarantees the individual one of the fundamental
  rights that are now enshrined in almost all criminal justice systems throughout
  the world. Thus, we can hardly speak of a democratically developed country if it
  does not have the principle of the presumption of innocence incorporated into its
  system. According to this principle, everyone is presumed innocent unless proven
  guilty beyond reasonable doubt. This principle appears in various forms in the legal
  instruments themselves, but it is explicitly stated in the Constitution in Article
  27: "Whoever is accused of a criminal offence shall be presumed innocent until his
  guilt has been established by a final judgment." Legal consequences of a convictionBanning
  a candidate from standing for election on the grounds that he or she is the subject
  of pre-trial or criminal proceedings is also contrary to criminal law, since, according
  to the Criminal Code, the termination or loss of individual rights can only be linked
  to a final conviction. According to Article 78 of the Criminal Code, the legal consequences
  of a conviction cannot arise even if the offender has been sentenced to a fine,
  suspended sentence or judicial caution, or if the sentence has been remitted. In
  the light of the above, the legal consequences are all the more unlikely to arise
  in a case where criminal proceedings are pending. Such consequences should also
  be limited in time (Article 80(2) of the Criminal Code).Interference with the ongoing
  mandate of directly elected officialsWe would also point out that it is constitutionally
  objectionable to propose that the new restrictions on the passive right to vote,
  and thus the new grounds for dismissal or termination of the mandate of directly
  elected officials, should apply to those who are already in office and whose mandate
  would thus be terminated. Such an interference with the mandate could be regarded
  as an interference with a right of which the person was unaware before taking office.
  This is an interference with the principle of the protection of legitimate expectations,
  which is rooted in the rule of law and guarantees the protection of rights against
  legal interference with prospective effect, and guarantees to the individual that
  his legal position will not be worsened arbitrarily by the State, i.e. without a
  substantive reason based on an overriding public interest.In the light of the above,
  we do not consider your proposal to be suitable for further consideration. At the
  same time, we would like to inform you that a package of laws is pending in the
  National Assembly which seeks to regulate the above-mentioned issue in accordance
  with the Constitution of the Republic of Slovenia and international conventions.
  The draft laws are published in the Reporter of 7.2.2013 and on 8.3.2013 on the
  website of the National Assembly.'
Text file: 94.txt
Title: Amendment of electoral rules
URL: https://www.stopbirokraciji.gov.si/pobuda/?st=94
