In connection with a case in 2014, when we also warned about the problem that in cases of threats to state officials, they must initiate prosecution by means of private lawsuits, the Government in its response report explained that the Act Amending the Criminal Code (amendment KZ-1C) had been passed in July 2015. Article 19 of the KZ-1C determines an important procedural modification – all offences under Article 135 of the KZ-1 are to be prosecuted upon proposal (as a sub-type of prosecution ex officio) and no longer (partially) upon a private criminal action. The Government emphasised that the Ombudsman’s recommendations also contributed to this modification. 2.1 CONSTITUTIONAL RIGHTS Regarding the possibility that the Internet could be considered a public place in respect of the prosecution of individual offences that could be considered as incitement to hatred and intolerance, the Ombudsman held several discussions with officials and competent experts at the Ministry of Justice. We believe that solutions based on an appropriate interpretation of Article 2 of the ZRJM-1 should be sought in further discussions, and if case law does not confirm this interpretation, the regulations should be modified to further clarify the obligation to sanction the unconstitutional incitement of hatred and intolerance. The Ombudsman also commented in the 2014 report that the reasons and possibilities for electronic voting should be re-examined. In its response report, the Ministry of Public Administration states that in general they are striving to establish more electronic public administration services, and in this sense, they can also support e-elections. The Ministry of Public Administration presented the e-elections project to the public in June 2013. They warn that a high level of political consensus is required to pass amendments to fundamental voting legislation. With regard to the “Possibilities for identifying insulting anonymous commentators on the Internet”, the Ministry of Justice stated in its response report that this is a complex issue. However, based on the Ombudsman’s recommendations with regard to identifying anonymous commentators when there are indications of minor criminal offences that are dealt with by civil lawsuits (slander and libel), the Ministry of Justice will initiate public discussion about a proposal for the renewed regulation of the content of Article 149b of the Criminal Procedure Act, which would determine that a so-called ex nunc court order or “data preservation system” could be acquired for such minor criminal offences. In the 2014 report, the Ombudsman warned about Constitutional Court Decision no. U-I-70/12-14, which determined that the Protection of Documents and Archives and Archival Institutions Act (ZVDAGA) does not comply with the Constitution if public archives include the documentation of health service providers, who under this law are determined as entities of public law, which contains data on patient treatment. With regard to this, the Government responded that the amended act on archives (ZVDAGA-A) from 2014 partially follows the Constitutional Court Decision, since it enables archiving of health documentation at health service providers; however, a systemic legal regulation to regulate archiving and access to health documentation in accordance with the decision of the Constitutional Court of the Republic of Slovenia has not been adopted yet. With regard to the Ombudsman’s recommendation that a solution in the Public Information Access Act be adopted to enable the realisation of the principle of privacy of procedures conducted by the Ombudsman in relation to matters considered by the Ombudsman pursuant to the Human Rights Ombudsman Act, the Ministry of Public Administration explained that the comparable legal regulations concerning access to documents arising from Ombudsman’s procedures differ. After re-examining the materials in the course of preparing amendments to the ZDIJZ at the beginning of 2015, it was established that no problems had been detected in practice, or that the legal framework of the ZDIJZ enables the use of safeguards that prevent the violation of the confidentiality principle. If monitoring the realisation of the Act in practice shows otherwise in the future, the Ministry of Public Administration will appropriately act within its powers. 2.1.3 Freedom of conscience The number of complaints in this field slightly increased, but remains low in nominal terms (six complaints). Most complaints referred to various issues with regard to freedom of religion and the realisation of the constitutional principle of the separation of state and religious communities. The case presented below refers to this issue. We also received a question with regard to exercising the right to conscientious objection in the education system. Blessing of a public school and benediction of the municipality at an event celebrating the municipal holiday A complainant contacted the Human Rights Ombudsman who believed that the principle of the separation of state and religious communities was violated at two public events. These events were the opening of a primary school and kindergarten, where the facility was blessed by the Bishop of Novo mesto, and the celebration of a municipal holiday, where the Auxiliary Bishop of Ljubljana blessed the municipality. The complainant wished to have the Ombudsman’s opinion on whether these events violated Article 7 of the Constitution of the Republic of Slovenia, and who is responsible for preventing such violations. The Ombudsman expressed the opinion that these cases could have violated Article 7 of the Constitution of the Republic of Slovenia, which stipulates the separation of the state and religious communities, but determines that religious communities are equal, as well as the violation of paragraph two of Article 41 of the Constitution of the Republic of Slovenia that protects people who attend religious ceremonies unwillingly, as well as Article 72 of the Organisation and Financing of Education Act (ZOFVI), which prohibits confessional activities in public kindergartens and schools. When considering this case, we found that the ZOFVI does not envisage sanctions for the implementation of confessional activities in public schools. A law that prohibits certain conduct but does not envisage a sanction for the violation of the prohibition is an incomplete regulation, or lex imperfecta. Due to the lack of a sanction, such a legal provision cannot effectively achieve its purpose, and prohibited conduct could increase if there is no sanction. We pointed this out to the Ministry of Education, Science and Sport, but at first they were not in favour of amending this article, since in their opinion the prohibition could be realised with informal discussions, guidelines and training of head teachers. However, after additional explanations of the Ombudsman, the Ministry promised that they would also consider sanctioning the prohibition under Article 72 when preparing amendments to the ZOFVI, and would additionally dedicate more attention to this topic at further training of head teachers. 2.1.4 Ethics of public discourse Most complaints in the sub-section “Ethics of public discourse” refer to the alleged unconstitutional incitement to inequality and intolerance, or so-called hate speech (27 complaints). In complaints that were addressed to the Ombudsman in connection with hate speech, we noted a strong connection between current social events and expression of hatred. The number of complaints due to hate speech based on religion or ethnicity or speech directed against refugees greatly increased at the end of August 2015 simultaneously with the occurrence of the migrant/refugee issues. The highest number of complaints related to the aforementioned (12), followed by complaints about statements based on sexuality (6). The number of these complaints increased during the December referendum campaign on amendments to the Marriage and Family Relations Act. We also received five complaints on hate speech regarding religious affiliation and four regarding hatred on the basis of nationality. In addition to the usual referrals of complainants to the police and the prosecutor’s office, complainants were referred also to the Anti-Hate Speech Council. This is an informal body that strives to establish higher standards for public discourse and publicly responds to individual cases of hate speech. In 2015, we first noticed that there was a large number of complainants (7) who claimed that an online website did not want to publish their comments and thus interfered in freedom of expression. The publication of an anonymous comment in the media is not a human right or the purpose of freedom of expression. Therefore, we explained to the complainants that the publication of a comment in an (online) medium is not a (human) right and not part of freedom of expression. Every internet medium publishes and deletes comments in accordance 28 ANNUAL REPORT OF THE HUMAN RIGHTS OMBUDSMAN OF THE REPUBLIC OF SLOVENIA FOR 2015 ANNUAL REPORT OF THE HUMAN RIGHTS OMBUDSMAN OF THE REPUBLIC OF SLOVENIA FOR 2015 29 2.1 CONSTITUTIONAL RIGHTS rules for comments and publishing them on appropriate site within the scope of the medium. The new Media Act that was also harmonised with the Ombudsman in this matter was passed during the preparation of this Report.