By: Petra Janša
“I did not support the decision because it introduces a new standard for assessing legal interest that is no longer a constitutional-judicial standard but merely an open-ended, vague text,” Klemen Jaklič wrote in his dissenting opinion.
Constitutional Judge Klemen Jaklič recently issued a dissenting opinion in a case where the Constitutional Court ruled on a petition for the constitutional and legal review of a municipal spatial planning ordinance in Ankaran. This ordinance changed the designated use of land owned by the petitioners from building land to agricultural or forest land. The petitioner argued before the Constitutional Court that the amendments to the spatial act altered the intended use of their land, negatively affecting its buildability and usability.
A new “standard”
Land previously designated as buildable was reclassified as agricultural or forest land, significantly limiting or even prohibiting construction. Under previous court practice, legal interest in challenging such acts was only recognised if the petitioner could not effectively contest the changes within the building permit process. However, the new “standard” recognises legal interest at the level of the spatial planning amendment itself, provided that the provisions on land use designation are sufficiently specific to determine the boundaries of permissible land use. In Decision No. U-I-332/22, the Constitutional Court introduced this new standard for assessing legal interest in challenging spatial acts. According to this standard, legal interest is established when land use conditions in a spatial act are sufficiently precise to define the limits of permissible land use. Most Constitutional Court judges believe that changes in land designation during spatial planning can directly impact individual rights and legal positions. By adopting this interpretation, the Constitutional Court has expanded the understanding of legal interest. The court argues that, in certain cases, the mere designation of land use is specific enough to warrant constitutional or legal review. The judges believe that this approach will ensure more comprehensive protection of individuals’ rights in spatial planning procedures.
Arbitrariness and unpredictability
At first glance, the ruling may seem minor, but in reality, it is groundbreaking as it undermines the principle of legal predictability and leads to complete arbitrariness in judicial decision-making. What is at stake? The court is introducing a new ad hoc “standard”, which asserts that in the specific part of spatial planning acts, practically all provisions define land use conditions with such precision that they already determine the boundaries of permissible land use. However, the essence of the specific part of a spatial act lies precisely in its contrast to the general part: it specifies detailed land use conditions, setting concrete boundaries for permitted and prohibited use, argues Jaklič. This new “standard”, which encompasses practically all provisions of a detailed spatial plan, ultimately fails to define anything concrete – it is no longer a standard at all but an “open blank check that seemingly grants legal interest to challenge virtually all provisions of a spatial planning act”. Jaklič warns that the new standard is excessively vague and open-ended, creating opportunities for abuse or arbitrary interpretation. According to him, the primary function of spatial planning acts is to delineate land use boundaries, and this new standard effectively allows nearly all provisions of such acts to be contested. In his view, this does not lead to clearer judicial practice but rather to its erosion, reducing legal predictability and equality in decision-making.
The mission of the Constitutional Court
“Such an introduction of indeterminacy into the Constitutional Court’s decision-making can be described as a breakdown of constitutional jurisprudence and represents a step in the opposite direction from what a Constitutional Court should be doing in a constitutional democracy. The essence of constitutional adjudication lies in building a jurisprudence that is as consistent, clear, and well-developed as possible, so that in concrete cases, it applies equally to all parties and similar cases,” Jaklič wrote. He further added that “when doctrine is clear and well-defined, a judge must apply it in future cases regardless of who the party in the specific proceeding is, and regardless of their own ideological, political, or other extra-legal preferences in each case.” “When the Constitutional Court reaches this level of doctrinal development and adheres to it in principle, it fulfils its mission,” Jaklič stated unequivocally.
Past criticism of the court
“I did not support the decision because it introduces a new standard for assessing legal interest, which is no longer a constitutional-judicial standard but merely an open-ended, indeterminate text,” Jaklič states in his dissenting opinion. According to Jaklič, the shift from relatively well-defined and established standards to increasingly open-ended texts is problematic for the Slovenian Constitutional Court, particularly because the court has faced precisely such criticisms in recent years. There is a growing number of contradictory rulings, which inevitably leads to judicial arbitrariness in future cases, or at the very least, makes it impossible to demonstrably prevent it. “The breakdown rather than the development of doctrine weakens the appearance of judicial independence and the role of the Constitutional Court as an institution. Part of the mission of any composition of the Constitutional Court is to strive to further develop constitutional jurisprudence and, through its consistent application in concrete cases, demonstrate the legal independence of its decision-making,” Jaklič concludes in his dissenting opinion. Constitutional Judge Rok Svetlič also joined Jaklič in his dissenting opinion in the case.