Dvojni kvazi erga omnes učinek uporabe instituta exceptio illegalis

slovenian

2021

volume 57, issue 1/2

hierarchy of legal acts   position of the judiciary in the system of separation of powers   principle of legality in the law of minor offences   principle of separation of powers   public confidence in the judiciary   system of checks and balances   the Supreme Court case-law

Univerza v Ljubljani, Pravna fakulteta

Exceptio illegalis signifies the power of the courts to assess the conformity of an executive regulation with the Constitution and the law in their decision-making and, in the event of an established discrepancy, to refuse its application in the adjudication. Therefore, if the court finds that a general executive act is in breach of a law or is unconstitutional, it cannot apply it as a basis for its adjudication in a specific case and shall ignore its existence. Exceptio illegalis, as a rule, applies only to courts, but not to administrative bodies, which may ignore an executive act only exceptionally, subject to restrictive conditions. The court may not request the review of the legality of an executive act before the Constitutional Court, unless its non-application would lead to an unconstitutional lacuna. Exceptio illegalis is ultimate ratio. It can only be applied when an executive regulation cannot be interpreted not only conforming to the constitution but also in accordance with law. The prevalent view that exceptio illegalis has an effect only in a concrete case is appropriate only stricto sensu. In reality, however, its application gives rise to a "double quasi erga omnes effect". Exceptio illegalis is not only an institute of administrative but increasingly also of criminal law, specifically law of minor offences. Due to the epidemic of infectious disease, the changed social situation, in which the executive power imposes more and more prohibitions and orders on the addressees with executive regulations, contributes significantly to this.

12.11.2024