I. Introduction
We live in an increasingly globalised world and the judicial arena is no exception to this trend. The increasingly international experience of judges and legal staff at courts as well as enhanced and readily available possibilities to use internet-based data and international legal or judicial networks have an impact on adjudication. At the level of constitutional courts the focus is frequently on fundamental issues and principles that are common to numerous legal systems rather than on national legal systems’ individual traits and particularities. Therefore, at this level of jurisdiction the introduction of positions and arguments from foreign case law may be more realistic and practical than at other levels of jurisdiction. The Constitutional Court of the Republic of Slovenia (hereinafter: “CCRS”) relatively frequently refers to the case law of supranational courts and constitutional courts of other countries in its decisions. This was surely influenced by the fact that the CCRS was newly established when the Republic of Slovenia gained its independence in 1991. The Constitutional Court of the former Social Republic of Slovenia was an entirely different institution that issued only legalistic, i.e. formalistic, decisions grounded in judicial self-restraint and a presumption of the constitutionality of legislation. In its decisions, there was no room for human rights and fundamental freedoms or fundamental democratic legal principles. The CCRS thus began its work in a completely transformed state, on the basis of a new Constitution, and without being able to rely on a line of precedents. In light of our country’s commitment to respect the fundamental principles characteristic of modern democratic states and to protect human rights and fundamental freedoms, the decision of the CCRS to look for inspiration beyond its borders is therefore hardly surprising. As statistical data regarding references to foreign case law in the cases of the CCRS are not available, this paper aims to provide an overview of such references. Following a brief introduction of the Slovene legal order and of the CCRS, the paper presents the research questions pursued and the methodological approach applied. This is followed by clarifications regarding the positions of the case law of the European Court of Human Rights (hereinafter: “ECtHR”), the case law of the Court of Justice of the European Union (hereinafter: “CJEU”), and of the case law of foreign constitutional courts or courts with equivalent jurisdiction[1] within the Slovene legal order. The main part of the text provides information concerning the CCRS’s practice of referring to foreign case law. It is divided into three sections. The first presents references to the case law of the ECtHR, the second references to the case law of the CJEU, and the third references to the case law of foreign constitutional courts. Building on the findings of this part, the conclusion provides suggestions for further research of this phenomenon.
[1] Throughout the text, the term foreign constitutional court is used to include both constitutional courts of other countries and, in countries that do not have a constitutional court, other courts of last resort with comparable competences.