We also frequently have to explain to complainants that the Ombudsman is not competent to provide an assessment of whether elements of a criminal offence are present in individual cases. Prosecutors and judges are competent for such assessments. Due to the protection of freedom of expression and particularly freedom of the media, the conditions for a criminal prosecution of spoken or written words are justifiably very strict. 2.1 CONSTITUTIONAL RIGHTS The Ombudsman has frequently publicly condemned all cases of incitement to intolerance and hatred. Regarding individual responses, we try to respond only to those cases which indisputably show elements prohibited by the Constitution. These particularly include cases of incitement to hatred against minorities that cannot respond themselves or that have no access to the media. In Article 63, the Constitution clearly states that any incitement to national, racial, religious or other discrimination and inciting hatred and intolerance are unconstitutional. Many complainants do not differentiate between public incitement of hatred and intolerance and the inflaming of national, racial, religious or other hatred and intolerance which are considered by the Constitution as unconstitutional, including expressions of hatred, intolerance and threats directed against individuals, including politicians. In such cases, the victim must seek legal remedies to protect themselves and their reputation. Self-regulatory mechanisms for responding to hate speech must be established and supported Since the conditions for criminal prosecution of so-called hate speech are very demanding, and therefore Slovenia has almost no case law in this field, the Ombudsman supports other forms of responses to hate speech and the initiation of discussions about this issue. It is also obvious on the basis of complaints received by the Ombudsman that a wide grey area of unsuitable public speech exists in practice which fails to meet the requirements for criminal prosecution. Criminal prosecution is suitable only in the most extreme cases, when violence is anticipated or when speech is directed at a group being discriminated against. To this end, other forms of public response and public condemnation of unacceptable practices are also important. This is why self-regulatory mechanisms of responses, such as the Journalists’ Ethics Council and the Slovenian Union of Journalists are very important. The Ombudsman proposes that deputies and other politicians adopt an ethics code and form a tribunal to respond to individual cases of hate speech in politics. The Ombudsman supported the project “Responding to Hate Speech – launch of an independent connecting body”, coordinated by the Peace Institute with partners. The partners of this project are the Ombudsman, the Faculty of Social Sciences (Spletno oko) and RTV Slovenia Multimedia Centre. The Anti-Hate Speech Council (Council) was established at the beginning of 2015 within the scope of this project as an independent body constituted according to the plurality principle. Members of the Council work as individuals for the common good and do not represent any interest group or individual institution. The Council responds to cases of hate speech with public statements at the request of a legal entity or a natural person or at the proposal of a member of the Council. The Ombudsman believes that the Council achieved the goals with their responses: they contributed to setting up public discourse standards and initiated discussions on this issue. One of the project goals was the empowerment of vulnerable groups and the stimulation of active citizenship, which was achieved with several discussions and popular round tables at which hate speech and potential responses to hate speech were debated. During the implementation of the project, Deputy Ombudsman Jernej Rovšek was a member of the Programme Council and the vice-president of the Anti-Hate Speech Council. More information about the project can be found at http://www.mirovni-institut.si/govor. 30 ANNUAL REPORT OF THE HUMAN RIGHTS OMBUDSMAN OF THE REPUBLIC OF SLOVENIA FOR 2015 2.1.5 Assembly and association In 2015, more complaints (8) were received than in 2014 (6) concerning the constitutional right to assemble and associate, three of them founded. Systemic problems were among the subjects of complaint – the first with regard to the enforcement of the right to petition and the second with regard to deficiencies in the enforcement of the voting right of persons with mental disabilities. These are presented below. The unfounded complaints include a case in which, after due consideration of the complaint, we provided our opinion that the provision of the statute of a chamber where only representatives of active members may be elected and appointed as members of chamber bodies does not constitute a prohibited form of discrimination. Enforcement of the right to petition At the end of 2014, the Human Rights Ombudsman received a complaint from a complainant who had addressed three petitions to the National Assembly of the Republic of Slovenia and the Government of the Republic of Slovenia in July 2012, December 2013 and July 2014 respectively, to which he did not receive an appropriate answer. The Commission for Petitions, Human Rights and Equal Opportunities (Commission) considered the first petition and adopted a decision on familiarisation; with regard to the second petition, the complainant received only an answer from the expert co-worker of the Commission, who forwarded a letter from the Ministry of Finance, and the Commission was informed about the petition after two months, i.e. on all received applications prepared by the expert service of the Commission. The complainant received no reply to the third petition from the Commission. The complainant did not receive answers from the Government of the Republic of Slovenia to any of the three petitions; the Office for Religious Communities replied to the first petition, which was not considered sufficient by the complainant, since in his opinion, the answer of the Office for Religious Communities should be considered at a meeting of the Government, since the latter was the addressee of the petition. In the middle of 2015, the complainant addressed a new complaint to the Ombudsman stating that he had received no reply to the petition addressed to the Government. The Ombudsman addressed extensive opinions to the Commission and the Government, including a proposal that both bodies reply to the complainant’s petition. We believed that a state body’s opinion with regard to the content of a petition in a democratic system where the people must effectively influence the execution of power is very important. In the Ombudsman’s opinion, the right to provide information about the reasons for adopting a decision on a petition is also supported by the principle of the rule of law, due to which the decisions of state bodies must include founded reasons, because this prevents an authority from acting independently and ensures equal consideration of all petitioners. The Commission replied that they had considered all three complainant’s of the petitions in accordance with the agreed working method in every term of office and in accordance with the instructions published on the website of the National Assembly. With regard to the systemic proposal by the Ombudsman that the content of the right to petition should be regulated by law, the Commission stated that the content of the right to petition is appropriately arranged with the agreement on the method of work of the Commission and the Rules of Procedure of the National Assembly, so in their opinion a special act is not necessary. In the procedure for considering complaints, the Ombudsman met with the president, vice-president and secretary of the Commission, who all explained that most complainants are satisfied with the consideration of petitions. In a ten-year period, this was the first example of a dissatisfied petitioner. They added that the laws cannot be amended or a new one cannot passed on the basis of only one case. The Ombudsman’s opinion, sent to both bodies, is that the general interpretation of the right to petition can apply only in a case of potentially different legal regulation with regard to the enforcement of the right to petition. The consideration of three complainant’s petitions by the Commission and the fourth petition of the complainant by the Government in Ombudsman’s opinion constituted a restriction of the right to petition which could only be permissible based on a law. Therefore, the right to petition cannot be limited on the basis of an agreement on the method of work of the Commission, Rules of Procedure or Regulation which does not apply to some state bodies, including the National Assembly. ANNUAL REPORT OF THE HUMAN RIGHTS OMBUDSMAN OF THE REPUBLIC OF SLOVENIA FOR 2015 31 2.1 CONSTITUTIONAL RIGHTS with its own rules and commenting conditions, thereby assuming all responsibility for whatever is published. The right to publish an individual’s standpoints in the media may therefore be exercised only on the basis of a right to respond and the right to make corrections.