Case number: U-I-156/93 ECLI: ECLI:SI:USRS:1994:U.I

Transcription

1 Case number: U-I-156/93 ECLI: ECLI:SI:USRS:1994:U.I Challenged act: Act on Amendments and Supplements to the Companies Ownership Transformation Act (Official Gazette of the Republic of Slovenia, no. 31/93), Article 18. Operative provisions: Article 18 of the Act on Amendments and Supplements to the Companies Ownership Transformation Act is not in conflict with the Enabling Statute for the Implementation of the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia. Abstract: The provision of paragraph 1 of Article 18 of the Act on Amendments and Supplements to the Companies Ownership Transformation Act is not in conflict with paragraph 2 of Article 14 of the Constitution. For the prescribing of the date of coming into force of the Act as the date on the basis of which nationality status and, consequently, the right to ownership certificates shall assessed is not of discriminatory nature with respect to certain categories of the population. Thesaurus: Right to ownership certificate with respect to nationality status (nationality of the Republic of Slovenia). Rights and duties of nationals of other (former Yugoslav) republics in the Republic of Slovenia. Principle of equality before the law. Legal basis: Enabling Statute for the Implementation of the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia, Article 13. Republic of Slovenia Nationality Act, Article 40. Law on the Constitutional Court, Article 21. Cases joined: PDF Format: U-I _eng.pdf Full text: U-I-156/ D E C I S I O N At the meeting of 6 October 1994 concerning the proceedings for evaluation of constitutionality commenced on the initiative of Ms. Anica Brakočevič from Novo Mesto, the Constitutional Court

2 e s t a b l i s h e d t h e f o l l o w i n g : Article 18 of the Act on Amendments and Supplements to the Companies Ownership Transformation Act (Official Gazette of the Republic of Slovenia, no. 31/93) is not in conflict with the Enabling Statute for the Implementation of the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia (Official Gazette of the Republic of Slovenia, no. 1-6/91-I). R e a s o n s : A. On behalf of her two children of juvenile age and her husband, the initiator filed an initiative for evaluation of constitutionality of Article 18 of the Act referred to in the adjudication hereof, which specifies rightful claimants with regard to ownership certificates. The initiator claims that her husband and her two children applied within the prescribed period of time for nationality of the Republic of Slovenia on the basis of Article 40 of the Republic of Slovenia Nationality Act, but nationality was granted to them only after 5 December 1992, and their ownership certificates were not issued because of the disputed Act, whose Article 18 provides that only those persons are entitled to them who were nationals of the Republic of Slovenia on 5 December The initiator considers that the disputed provision of the Act is not in conformity with Article 13 of the Enabling Statute for the Implementation of the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia, which provides that, pending acquisition of nationality under Article 40 of the Republic of Slovenia Nationality Act, citizens of other republics shall be subject to the same treatment with regard to their rights and duties as nationals of the Republic of Slovenia. The Secretariat of the National Assembly for Legislative and Legal Matters in its reply to the initiative claims that the disputed statutory provision is not in conflict with Article 13 of the said Enabling Statute. The setting of the date 5 December 1992 is claimed to have been necessary to clearly define the moment to be used as the basis for establishing the age of rightful claimants with respect to ownership certificates. The opposite party also considers that a citizen of any other republic who has applied for nationality on the basis of Article 13 of the Enabling Statute and Article 40 of the Nationality Act respectively will only become a national of Slovenia at the moment when the decision on acquisition of nationality will be handed to him, as is prescribed by Article 15 of the Nationality Act. However, if individual persons have found themselves in a position which is not in conformity with Article 13 of the Enabling Statute, their problems should be solved separately by such means as are still available under the given circumstances. B. With its resolution of 17 March 1994 the Constitutional Court accepted the initiative and commenced the proceedings for evaluation of constitutionality of the disputed statutory provision. In the same way as previously provided in Article 31 of the Companies Ownership Transformation Act, Article 18 of the disputed Act also prescribes nationality of the Republic of Slovenia as the general criterion for free of charge distribution of certificates, provided that such nationality status existed on 5 December Considering the nature of the Act, which was urgently needed to regulate property relations in transitional period, the so prescribed criterion cannot raise any doubts about the constitutionality of such manner of regulation. Neither can one trace in it any inadmissible interference with the constitutional principle of equality before the law, for it was precisely by

3 prescribing a uniform criterion that the legislator has avoided all discrimination or arbitrary differentiation with respect to this form of ownership transformation. It is true that the general prescription of the criterion for distribution of certificates fails to explicitly consider the fact that a certain group of people are still living in the Republic of Slovenia, who, while not (yet) nationals of the Republic of Slovenia, are made completely equal to the latter with respect to their rights and duties. But the question of their status has been unequivocally solved, in reference with all cases where the asserting of rights and imposition of duties within the legal system in force is conditional upon the existence of nationality status, by hierarchically higher and still applicable legislation: the Enabling Statute for the Implementation of the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia, Article 13. This expressly provides that citizens of other republics are made equal with respect to their rights and duties to nationals of the Republic of Slovenia, when the following conditions are fulfilled: that on the day of the plebiscite, 23 December 1990, they had permanent residence in the Republic of Slovenia; that they actually live there; and that they have applied for Slovenian nationality in accordance with Article 40 of the Republic of Slovenia Nationality Act. In addition to the fulfilment of prescribed conditions, Article 13 does not prescribe any time period during which they are entitled to the rights and duties belonging to nationals; in fact it reads "until the acquisition of nationality under Article 40 of the Nationality Act". In addition to the conditions specified in Article 13 of the Enabling Statute, Article 40 of the above Act also prescribes that application under the said Article shall be filed within six months of the coming into force of the Act. A person, then, who fulfils the conditions of Article 13 of the Enabling Statute and who has in time filed his application for acquisition of nationality will be equal with respect to all rights and duties to nationals of the Republic of Slovenia until his application will have been decided, irrespective of the time taken by competent authorities in deciding on it. In all cases where acquisition of a right is conditional upon the existence of nationality, the person concerned my assert his right after having provided evidence of fulfilment of all of the foregoing conditions. His position differs from that of a national only in that the national will prove his nationality status by nationality card, and the said person by a document which proves his fulfilling of prescribed conditions. The fact, that Article 15 of the Nationality Act provides that a person who has acquired the nationality on the basis of Article 40 of the said Act will become a national on the day when decision on acquisition of nationality will be handed to him, cannot by itself affect in any way whatsoever the interpretation and application of provisions of Article 13 of the Enabling Statute. It is true that, until the decision was handed to the person, the latter was not yet a national, but such person was completely equal to any national with respect to all rights and duties. Thus, the right to obtain the certificate does not and should not belong only to a national who was this on 5 December 1992, but it belongs to all those persons whose rights and duties on that day were equal to those of nationals in accordance with Article 13 of the Enabling Statute. Any other interpretation of provisions of Article 18 of the disputed Act would be contrary to elementary rules of interpretation of legal acts and their hierarchical relationships. The Decree on issue, distribution and use of ownership certificates (Official Gazette of the Republic of Slovenia, no. 40/93), also, does not regulate practical assertion of the right to a certificate with reference to those persons whose rights and duties have been made equal to those of nationals, for its Article 18 provides that certificate shall be issued to a rightful claimant on the basis of the record of citizens as maintained by the Ministry of Internal Affairs. Article 15 thereof, however, provides that a rightful claimant to whom a certificate has not been issued at all, and in whose name an evidence account has not been opened with the Social Accountancy Service may request from competent administrative authorities of the corresponding municipality to provide the Social Accountancy Service with accurate information about the claimants's nationality and age. In connection with Article 13 of

4 the Enabling Statute for the Implementation of the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia, this provision, too, should be understood in the sense that the person who fulfils the conditions of the said Article may request from competent authorities to inform the Social Accountancy Service of his fulfilling of all of the conditions on the basis of which such person has been made equal to nationals with respect to the acquisition of a certificate. If the application submitted by such person to competent authorities should not be successful, or if the Social Accountancy Service should fail to take into consideration the equality of the person's status with that of a national, such person shall be entitled to the right of appeal in administrative proceedings, to administrative lawsuit before the Supreme Court of the Republic of Slovenia and, ultimately, with prescribed conditions fulfilled, to constitutional complaint. The mere fact that in the disputed statute the legislator has not explicitly considered also those rightful claimants to certificates who have been made equal, on the basis of Article 13 of the Enabling Statute for the Implementation of the Basic Constitutional Charter, with respect to their rights and duties to nationals, plus the before mentioned hierarchical relationship between the two statutes, as well as the established rules of interpretation of legal acts do not provide any grounds for finding both statutes to be in disharmony and for finding the disputed Act to be in conflict with the Constitution, which is why the Constitutional Court decided so as is evident from the adjudication hereof. C. This Decision was made on the basis of Articles 21 of the Law on the Constitutional Court (Official Gazette of the Republic of Slovenia, no. 15/94) by the Constitutional Court in the following composition: Dr. Tone Jerovšek, President, and Matevž Krivic, M.L., Janez Snoj, M.L., Dr. Janez šinkovec, Dr. Lovro šturm, Franc Testen, Dr. Lojze Ude and Dr. Boštjan M. Zupančič, the judges. The Decision was reached unanimously. P r e s i d e n t : Dr. Tone Jerovšek Type of procedure: ocena ustavnosti in zakonitosti predpisov in drugih splošnih aktov Type of act: zakon Applicant: Ms. Anica Brakočevič, Novo Mesto Date of application: Date of Decision: Type of decision adopted: odločba Outcome of proceedings:

5 ugotovitev ni v neskladju z Ustavo/zakonom Published: Official Gazette of the RS, no. 75/94 and OdlUS III, 100 Document: AN00699