The Human Rights Ombudsman warns against the problematic practice of making hasty legislative amendments outside the regular legislative procedure, often without thorough analysis of the proposed changes. Dr Simona Drenik Bavdek, Human Rights Ombudswoman, expects the proportion of laws adopted under expedited or urgent legislative procedures, as well as so-called omnibus laws, to be lower during the new term of the National Assembly than in the previous mandate. Such a practice constitutes poor legislative drafting and subsequently requires numerous corrections and amendments, as it is insufficiently based on in-depth reflection and expert analysis. This approach undermines the rule of law and diminishes the democratic nature of the legislative process by reducing opportunities for experts and the public to participate in the legislative preparation process.

The Ombudsman notes that the National Assembly is already considering the proposed Act Amending the Parliamentary Inquiry Act. The amendment is being discussed under a shortened legislative procedure. As the proposed Act, among other things, interferes with the competences of the Ombudsman and other independent institutions, as well as the rights of potentially affected individuals and legal entities, the Ombudsman considers the shortened procedure inappropriate. This is because it prevents broader public debate, which is a prerequisite for the adoption of high-quality legislation through an inclusive democratic process.

The proposed amendment to Article 1.a of the Parliamentary Inquiry Act (ZPPre) restricts the current regulation so that constitutional review proceedings against an act ordering a parliamentary inquiry could, in future, only be initiated by the Judicial Council and the Prosecutor General, and only in relation to the independence of judges, the judiciary, and state prosecutors. This means that the list of authorised applicants would no longer include one-third of deputies, the Bank of Slovenia, the Human Rights Ombudsman, the Court of Audit and self-governing local communities, nor the person under investigation or other natural or legal persons under private law affected by the subject matter of the parliamentary inquiry.

The proposed amendment therefore limits the possibility of a constitutional review under Article 1.a of the ZPPre to cases where the Judicial Council and the Prosecutor General deem that an act ordering a parliamentary inquiry interferes with the independence of the judiciary or the prosecution service. Regarding these bodies, the Constitutional Court established in Decisions Nos. U-I-246/19 and U-I-214/19 that the ZPPre regulation was unconstitutional since it did not provide for judicial protection, a legal remedy, or another effective procedure to prevent an unconstitutional parliamentary inquiry. However, these decisions should not be understood to mean that only the judiciary and the prosecution service may have access to a constitutional legal remedy against an act ordering a parliamentary inquiry. To date, the Constitutional Court has only addressed the independence of judges and state prosecutors, as these were the specific subjects of the requests submitted by the Judicial Council and the Prosecutor General. Consequently, the proponents' reliance on existing constitutional case law to justify narrowing constitutional review in the proposed new Article 1.a, with regard to both the circle of potential applicants and the permissible grounds for challenging an act ordering a parliamentary inquiry, is unconvincing. Like the judiciary and the prosecution service, the Ombudsman and other independent supervisory institutions have a constitutionally grounded interest in safeguarding their independence. Yet the proposed amendment would deprive them of such protection in the context of parliamentary inquiries.

The Ombudsman believes that, by limiting the range of individuals entitled to request a constitutional review of an act ordering a parliamentary inquiry, the proposal significantly reduces the likelihood of determining whether the matter is of public importance before the parliamentary inquiry begins. It should be recalled that Article 93 of the Constitution provides that the National Assembly may order an inquiry only into matters of public importance. This means that a parliamentary inquiry which does not concern a matter of public importance cannot be consistent with the Constitution. However, the proposed regulation does not allow for such verification.

Furthermore, by depriving the person under investigation and others affected by the act ordering a parliamentary inquiry of a legal remedy against such an act, the proposal raises serious questions about its compatibility with Article 25 of the Constitution. These individuals would no longer have access to an effective legal remedy against an act of the National Assembly that would be available in advance of the parliamentary inquiry and have suspensive effect. The proposed amendment would also remove the restriction that prevents the National Assembly from appointing an inquiry commission before the Constitutional Court has ruled on the submitted request (currently set out in the fourth paragraph of Article 1.a of the ZPPre), and would abolish the Constitutional Court’s power to annul such an act (currently set out in the fifth paragraph of Article 1.a of the ZPPre).

Instead, the proposed amendment introduces the right of the person under investigation to bring an action in administrative litigation for violations of human rights or fundamental freedoms committed during the parliamentary inquiry (proposed Article 15.a). Such an action could be filed within eight days of the final report of the parliamentary inquiry commission being served. The Ombudsman notes that, pursuant to Article 25 of the Constitution, individuals must have the right to a legal remedy against decisions of state authorities affecting their rights, duties or legal interests. The constitutionally recognized right to a legal remedy therefore encompasses not only violations of human rights, but also violations of the broader sphere of rights, duties and legal interests. The Ombudsman also agrees with the Legislative and Legal Service of the National Assembly that the proposed judicial protection for the person under investigation would lower the existing standard of legal protection and that the newly envisaged judicial protection would be ineffective and unclear. This is because the person under investigation would not have a legal remedy at the time the parliamentary inquiry begins or during its course, but only after it concludes. In practice, this generally means only at the end of the National Assembly’s mandate, after the final report has been served, and even then only if the National Assembly adopts the final report. Experience shows, however, that final reports are often not adopted. If the National Assembly were not to adopt the report, the person under investigation would remain without judicial protection under the proposed Article 15.a.

Moreover, it remains unclear what powers the Administrative Court would have in such proceedings, or what the person under investigation could realistically achieve through this form of protection (presumably, only a declaration that certain human rights had been violated).

Furthermore, the Ombudsman adds that under the proposed Article 15.a, judicial protection would only be available to the person under investigation, whereas the granting of the status of person under investigation falls within the competence of the National Assembly commission itself (Article 7). No appeal or other legal remedy is available against the commission’s decision in this regard. Consequently, by deciding not to grant a particular person the status of person under investigation, the inquiry commission could restrict that person’s access to judicial protection before the Administrative Court. The European Commission has also consistently emphasized the importance of respecting the rule of law in the regulation and conduct of parliamentary inquiries in its annual Rule of Law Reports on Slovenia. In light of the serious concerns relating to the proposed amendments to the Parliamentary Inquiry Act, particularly the proposed new Articles 1.a and 15.a, the Ombudsman advises caution and calls on the National Assembly to examine the legislative proposal under the regular legislative procedure. The Ombudsman also calls for a democratic debate involving various professions and interested members of the public, since at least the aforementioned provisions raise serious concerns regarding their compatibility with the Constitution of the Republic of Slovenia.