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We claim that Slovenia limited freedom of expression by limiting political campaign speech.

The applicant is an anti-corruption activist and a leader of a non-registered group "Taxpayers do not give up" (DavkoplacevalciSeNeDamo). Since the beginning of 2017, the applicant and the group were expressing their disagreement with a government's railway project, which will cost a lot of taxpayers' money and is a high corruption-risk. Government has tried to limit their freedom of expression by all possible means.

Over 40.000 citizens signed applicant's petition and they triggered a national referendum on the railway project legislation. They argued that the referendum should be held on the same day with presidential elections in October or November 2017 in order to enable proper campaigns on the referendum question. Under the constitution, a referendum is only valid if both the turnout and the "no" vote pass a certain threshold, which is set very high. Consequently, the date of the referendum is decisive for both the success of the referendum and for the exercise of the freedom of expression of those campaigning. By choosing one or the other date of the referendum, president of the parliament can affect the success of the referendum. More importantly, he can limit the expression of those campaigning if he chooses the date on which the turnout will be low. The voters, the media, or the NGOs would not be interested in a referendum campaign if the referendum is condemned to failure.

The president of the Parliament had the power to choose both dates: the date of the presidential elections and the date of the referendum, which is then confirmed by the Parliament. For the referendum he could have chosen any Sunday in a one year period between September 2017 and September 2018 and he chose 24 September 2017. For the presidential elections, he can choose any Sunday between early October and mid-November 2017. If he chose a referendum just a couple of weeks later than 24 September 2017, the referendum and the elections would be held on the same day. In this case, those wishing to express themselves would be able to campaign properly and to exercise their freedom of expression. Also, in this case those wishing to effectively express by voting in referendum would be able to do so because the turnout threshold would be met.

President of the parliament could choose the same date for the 2017 referendum and for the 2017 presidential elections. He choose different dates. We believe that by doing so he violated freedom of expression twice:
- of people participating in referendum by choosing a date on which referendum is meaningless
- of those campaigning because with this date campaign will be meaningless, but with a different date campaign would be huge

By choosing a date different than a day of presidential elections, he limited expression and there was no legitimate aim and it was not necessary in a democratic society.

We also believe that Slovenia's system, where those opposing the referendum campaign can manipulate and limit their freedom of expression, violates Article 10.

The matter was considered by the Constitutional Court, which ruled in July 2017 by 7-2 that there was no violation. Two judges of the Constitutional Court dissented. They were of the opinion that limitation does not pass the proportionality test. The other 7 judges of the Constitutional Court did not use the proportionality test. They ruled that the parliament has a wide discretion when setting the dates.

Under the ECHR case law, political campaign expression is the most protected form of speech. It can only be limited if limitation is necessary in a democratic society.

Explanation:


By choosing different dates for the referendum and for the presidential elections, the president of parliament limited expression of (1) those participating in referendum and (2) those campaigning in elections. There was no legitimate aim to do so, he never mentioned any legitimate aim, and it was not necessary in a democratic society to limit expression this way.

1. Violation of expression of those participating in referendum

The applicants have collected over 40.000 signatures and triggered a referendum. Together with other voters, they would express their disagreement with a railway project by voting against the project.. By choosing different dates for a referendum and for presidential elections, the president of the parliament de facto disabled their possibility to express their disagreement, because the referendum will be unsuccessful. There was no legitimate aim followed by the president of the parliament and it was not necessary in a democratic society to limit expression.

2. Violation of freedom of expression of those campaigning

The applicants have collected over 40.000 signatures and triggered a referendum. They expected to run a huge campaign against a railway project. By choosing different dates for a referendum and for presidential elections, the president of the parliament de facto disabled their campaign. There was no legitimate aim and not necessary in a democratic society.

The matter was considered by the Constitutional Court, which ruled in July 2017 by 7-2 that there was no violation. Two judges of the Constitutional Court dissented. They were of the opinion that limitation does not pass the proportionality test. The other 7 judges of the Constitutional Court did not use the proportionality test. They ruled that the parliament has a wide discretion when setting the dates.

Under the ECHR case law, political campaign expression is the most protected form of speech. It can only be limited if limitation is necessary in a democratic society.

We also believe that Slovenia's system, where those opposing the referendum campaign can manipulate and limit their freedom of expression, violates Article 10.

INTERIM MEASURE - URGENT - ARTICLE 39

The campaigns for and against the railway project are set to take place between August 25 and September 24, 2017. Political expression is the most protected form of expression under ECHR and if it will be severely violated, the harm will be irreparable.

We urge the Court to issue an interim measure and halt this political campaign until the Court makes its final decision. We ask the Court to halt the parliament's order, which sets the dates of the campaign and the dates of the referendum ("Odlok").

There will be no harm if this political campaign will take place a few months later, because under Slovenian law it can take place in any month until September 2018. On the other side, the harm will be irreparable if campaign takes place with violations. Rights of tens of thousands - if not millions - will be violated.

Usually the Court decides on freedom of expression violations only post-hoc, but this is the case where it has a chance to show how important this freedom is.

In case that the Court decides not to issue the Interim Measure, we still wish our application to be considered by the court and we ask the Court to proceed with a regular application procedure.