U-I-266/04

Reference no.:
U-I-266/04
Objavljeno:
Official Gazette RS, No. 118/2006 and OdlUS XV, 79 | 09.11.2006
ECLI:
ECLI:SI:USRS:2006:U.I.266.04
Act:
The Victims of War Violence Act (Official Gazette RS, Nos. 63/95, 8/96, 44/96, 70/97, 43/99, 28/2000, 64/01, 110/02, 3/03, and 18/03 – official consolidated text) (VWVA)

the Redress of Injustices Act (Official Gazette RS, Nos. 59/96, 11/01, 87/01, 34/03, 47/03 – official consolidated text, 53/05, and 70/05 – official consolidated text) (RIA)
Operative provisions:
The Victims of War Violence Act (Official Gazette RS, Nos. 63/95, 8/96, 44/96, 70/97, 43/99, 28/2000, 64/01, 110/02, 3/03, and 18/03 – official consolidated text) is inconsistent with the Constitution.
 
The National Assembly must remedy the established inconsistency within a time limit of one year from the publication of the Decision in the Official Gazette of the Republic of Slovenia.
 
The petitions for the initiation of proceedings to review the constitutionality of the Redress of Injustices Act (Official Gazette RS, Nos. 59/96, 11/01, 87/01, 34/03, 47/03 – official consolidated text, 53/05, and 70/05 – official consolidated text) are rejected.
 
Abstract:
In the framework of the authorisation granted by the third paragraph of Article 50 of the Constitution, the legislature adopted a regulation by which it limited granting the status of a victim of war violence to different categories of civilian persons. However, granting the status of a victim of war violence was only made possible regarding those civilian persons who had been subject to the violent acts or forcible measures of an occupier or its collaborators. The legislature entirely excluded from the circle of entitled persons civilian persons who had been subject to violent acts or forcible measures carried out by the armed forces fighting on the opposing side in the armed conflict. In order to define the term civilian victims, it is decisive that these are persons who were subject to violence due to war events without being actively involved on the either side of the armed conflict.
 
In the assessment of the Constitutional Court, by entirely excluding from special protection the mentioned circle of civilian victims of war who had experienced the period of the Second World War in circumstances comparable to those determined by Article 1 of the Victims of War Violence Act, the legislature acted inconsistently with the authorisation determined by the third paragraph of Article 50 of the Constitution. The authorisation given to the legislature by the mentioned constitutional provision is not unlimited. The legislature may only exercise this authorisation within the framework of constitutional principles and by respecting constitutionally guaranteed human rights and fundamental freedoms. By determining in Article 6 of the Victims of War Violence Act that persons who voluntarily or professionally collaborated with the occupier are excluded from the circle of victims of war violence, the legislature acted within the framework of such authorisation. A regulation that allowed persons who collaborated with the occupier to be granted the status of a victim of war violence could be inconsistent with generally accepted principles of international law and thus also with the Constitution. However, it does not follow from the Constitution that the term victim of war violence should be restricted to only those civilian persons who had been subject to violent acts or forcible measures carried out by the armed forces of the occupier. Therefore, it is inconsistent with the Constitution that the legislature excluded from the circle of civilian victims of war violence all those persons who had been subject to violent acts or forcible measures carried out by the armed forces fighting on the other side in the armed conflict.
Password:
1.5.51.1.15.1 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In abstract review proceedings - Finding that a regulation is not in conformity - With the Constitution.
1.5.51.1.16 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In abstract review proceedings - Call to the norm-giver to adjust a regulation with the Constitution.
1.5.51.1.10.1 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In abstract review proceedings - Public hearing - Dismissal of a motion to hold a public hearing.
5.4.14 - Fundamental Rights - Economic, social, and cultural rights - Right to social security.
2.1.2.2 - Sources of Constitutional Law - Categories - Unwritten rules - General principles of law.
2.1.1.4 - Sources of Constitutional Law - Categories - Written rules - International instruments.
1.4.9.2 - Constitutional Justice - Procedure - Parties - Interest.
1.4.51.4 - Constitutional Justice - Procedure - Procedural requirements (in all proceedings except in constitutional-complaint proceedings) - Legal interest to file a petition.
1.5.51.1.2.1 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In abstract review proceedings - Rejection of a petition - Lack of legal interest.
Legal basis:
Art. 50, Constitution [CRS]
Arts. 25 and 48, Constitutional Court Act [CCA]
Note:
By the Order of the Constitutional Court dated 6 October 2005, case No. U-I-208/05 was joined to the present case for joint consideration and decision-making.
Document in PDF:
The full text:
U-I-266/04
9 November 2006
 
 
DECISION
 
At a session held on 9 November 2006 in proceedings to review constitutionality initiated upon the petition of Elizabeta Dolenc, Radovljica, and others, and the petition of Marija Petan, Ljubljana, the Constitutional Court
 
decided as follows:
 
1. The Victims of War Violence Act (Official Gazette RS, Nos. 63/95, 8/96, 44/96, 70/97, 43/99, 28/2000, 64/01, 110/02, 3/03, and 18/03 – official consolidated text) is inconsistent with the Constitution.
 
2. The National Assembly must remedy the established inconsistency within a time limit of one year from the publication of the Decision in the Official Gazette of the Republic of Slovenia.
 
3. The petitions for the initiation of proceedings to review the constitutionality of the Redress of Injustices Act (Official Gazette RS, Nos. 59/96, 11/01, 87/01, 34/03, 47/03 – official consolidated text, 53/05, and 70/05 – official consolidated text) are rejected.
 
 
REASONING
 
A
 
1. The petitioners filed two petitions for the review of the constitutionality of the Victims of War Violence Act (hereinafter referred to as the VWVA) and the Redress of Injustices Act (hereinafter referred to as the RIA). The petitioners are close relatives of persons who died violently during the Second World War (i.e. from May 1942 until May 1945 inclusive). The petitioners allege that those persons were civilian victims who had died during the war due to violence perpetrated by members of the Partisan movement.
 
2. The petitioners are of the opinion that the third paragraph of Article 50 of the Constitution guarantees them, as the closest relatives of persons who were victims of war violence, special protection in conformity with the law. They emphasise that due to the violent death of their relatives they suffered severe consequences both during and after the war. As children they were forcibly deprived of the possibility and right to live in community with their parents. They emphasise that due to the loss of their parents they experienced severe suffering and psychological damage, which continued also in the post-war period, and which are still present particularly in those cases in which the children have not yet succeeded in finding the graves of their parents and to thereby find proper expression of their grief. In the opinion of the petitioners, due to the fact that the remains of their relatives are located in unknown and unmarked places, which are not graves, their right to personal dignity is still being violated.
 
3. The petitioners allege that due to the confiscation of property they also incurred material damage. Their social position was allegedly worsened. Furthermore, they allegedly did not have equal opportunities as others to enjoy education, employment, and a professional career. Already in their childhood, they were allegedly mocked, injured regarding their personal development, and socially marginalised. Their mental integrity was allegedly injured, and their personal development and the formation of their personal identity were hampered. Furthermore, the honour and good reputation of their families were damaged. The petitioners are convinced that they were ostracised for the entire post-war period as their honour and good reputation were stained. By the establishment of the inconsistency of the RIA and the VWVA with the Constitution they would allegedly receive concrete material and non-material legal benefits and rights.
 
4. In the opinion of the petitioners, the state of the facts that is characteristic of the killing of their relatives is in essential elements equal to the state of the facts that apply to the cases of the persons referred to by the third paragraph of Article 4 of the RIA, i.e. “persons who were killed without court sentences.” Also the relatives of the petitioners were allegedly killed without being convicted by a court, i.e. without any legal proceedings. The only difference between the two categories of persons is, according to the petitioners, in the period of time in which they were killed. While the relatives of the persons that were killed after the war enjoy the right to compensation determined by the first paragraph of Article 5 of the RIA and the right to be issued death certificates and to mark the graves [of those killed], the petitioners, who are relatives of persons killed during the war, are not entitled to the mentioned rights.
 
5. The petitioners allege that their position is also not regulated in the VWVA, which in terms of time refers to the period from 6 April 1941 to 15 May 1945, i.e. to the period in which their relatives were killed. The petitioners emphasise that with respect to the provision of Article 1 of the VWVA, which only covers the violent acts or forcible measures of the occupier, they cannot acquire the rights guaranteed to the victims of war violence by Articles 7 and 8 of the VWVA. They emphasise that their relatives do not fall within the circle of persons who voluntarily or professionally collaborated with the aggressor (Article 6 of the VWVA), but that their relatives were civilians or even members of the Partisan movement. In their opinion, the legislature did not have reasonable grounds to exclude the category of persons to which the petitioners and their relatives belong. According to the petitioners, by failing to regulate the legal status of the mentioned persons the legislature violated the principle of a state governed by the rule of law and of a social state determined by Article 2 of the Constitution, the principle of equality before the law determined by the second paragraph of Article 14 of the Constitution, the right to personal dignity and safety determined by Article 34 of the Constitution, the rights to privacy and personality rights determined by Article 35 of the Constitution, and the right to social security determined by Article 50 of the Constitution.
 
6. The petitioners are convinced that the matter concerns an unconstitutional legal gap for which the legislature did not have reasonable and objectively justifiable grounds. Therefore, they propose that the Constitutional Court establish that “the Victims of War Violence Act and the Redress of Injustices Act are not in conformity with the Constitution insofar as they do not regulate the legal position of persons killed during the war and the rights of the relatives of persons killed during the war.”
 
7. The petition of Elizabeta Dolenc and others was sent to the National Assembly, which did not respond thereto. The petition was also sent to the Government, which also did not submit an opinion thereon.
 
 
B – I
 
8. The petitioners substantiate their legal interest by alleging that they are close relatives of persons who as civilian persons allegedly died violently during the Second World War (i.e. between May 1942 and May 1945 inclusive). The Constitutional Court assesses that the petitioners demonstrate the legal interest to file a petition in the part relating to the VWVA. The Constitutional Court has received a large number of submissions supporting the filed petition, due to which it did not deem the persons submitting such to be participants in the proceedings.
 
9. The Constitutional Court joined the two petitions for joint consideration and decision-making. As the allegations in the petition of Marija Petan and others do not deviate substantively from the allegations in the petition of Elizabeta Dolenc and others, the Constitutional Court did not send the other petition to the National Assembly.
 
 
B – II
 
10. The Constitutional Court accepted for consideration the two petitions for the initiation of proceedings to review the constitutionality of the VWVA. Since the conditions determined by the fourth paragraph of Article 26 of the Constitutional Court Act (Official Gazette RS, No. 15/94 – hereinafter referred to as the CCA) were fulfilled, it proceeded to decide on the merits of the case.
 
11. The petitioners proposed the calling of a public hearing. They substantiated their proposal by claiming that the Constitutional Court would thereby gain direct insight into their tragic life stories. The Constitutional Court established, however, that the state of the facts that was the basis for the review of the constitutionality of the challenged statutory regulation was sufficiently explained already on the basis of the submitted documents. Therefore, it decided to not hold a public hearing.
 
 
B – III
 
The Review of the VWVA
 
12. Thus far, the Constitutional Court has decided a number of times on cases in which individuals challenged the VWVA and alleged that they had been unjustifiably excluded from the circle of persons entitled to be granted the status of a victim of war violence.[1] The petitions at issue, however, open a new aspect, i.e. the question of the exclusion of an entire group of persons who in accordance with the criteria determined by the VWVA could well fall within the circle of civilian victims of war, but to whom the VWVA does not grant the status of a victim of war violence merely due to the fact that the circumstances which the VWVA determines as a criterion for granting the status of a victim of war violence were not caused by the occupying forces or their collaborators.
 
13. The starting point for the review of the constitutionality of the challenged statutory regulation is the third paragraph of Article 50 of the Constitution, on the basis of which war veterans and victims of war are guaranteed special protection in accordance with the law. In a number of decisions (e.g. Decision No. U-I-86/94, dated 14 November 1996, Official Gazette RS, No. 68/96, and OdlUS V, 153; and Order No. U-I-327/96, dated 6 May 1999, Official Gazette RS, No. 51/99, and OdlUS IX, 19), the Constitutional Court has already explained the nature of this constitutional right. The mentioned constitutional provision obliges the state to regulate special protection for victims of war violence in a manner that exceeds the rights arising from mandatory social insurance. The content of the right to social security is, however, not determined by the Constitution. Furthermore, the Constitution does not guarantee specifically determined social rights. What follows from this constitutional provision is merely the obligation of the state to create conditions and possibilities for the realisation of social security. Special protection signifies ensuring special rights or a broader scope of rights. The Constitution does not determine the measures that the state must opt for in order to achieve such an aim. Special human rights in the field of social security (social rights) are exercised “under conditions provided by law” – i.e. on the basis of a law that determines the circle of entitled persons, the type and scope of entitlements, the conditions for their acquisition, and the manner of the exercise of these rights.
 
14. When assessing the challenged statutory regulation, the Constitutional Court must also take into consideration the generally accepted principles of international law (Article 8 and the second indent of the first paragraph of Article 160 of the Constitution). This term encompasses, in particular, the rules of customary international law and the general principles of law recognised by civilised nations. These two sources of international law are enumerated in points b and c of Article 38 of the Statute of the International Court of Justice.[2] Within the framework of the constitutional category of ‘generally accepted principles of international law’, the Constitutional Court has applied the ‘general principles of law recognised by civilised nations’ as the criterion for deciding a number of times.[3] In Decision No. U-I-23/93,[4] it proceeded from the fact that after the Second World War the international legal order was established on the basis of condemnation of the Nazi and Fascist regimes and the persecution of the perpetrators responsible for the crimes committed, which was confirmed by the entire international community of that time.[5] In the mentioned Decision, the Constitutional Court adopted the position that certain activities of an individual during the [Second World] War can entail a reason for such person to not be entitled to Yugoslav citizenship. It is also necessary to emphasise the significance of the Preamble to the Constitution, which in this respect states the following: “Proceeding from […] the historical fact that in a centuries-long struggle for national liberation we Slovenes have established our national identity and asserted our statehood […].” From both the materials of the Commission for Constitutional Affairs and constitutional theory, it follows that what is meant by the struggle for national liberation is, in particular, the periods of the national liberation struggle and the struggle for independence.[6] In connection with such, Dr Peter Jambrek wrote: “The Slovene constitutional doctrine of the right of the nation to self-determination was explicitly formed, practically tested, and constitutionally implemented in two key periods of the previous century relating to Slovene statehood – in the years between 1941 and 1945 and between 1987 and 1991.”[7]
 
15. By Article 1 of the VWVA the legislature determined that a citizen of the Republic of Slovenia who during a war or military aggression against the Republic of Slovenia was subject to violent acts or the forcible measures of an occupier, aggressor, or their collaborators, is entitled to the status of a victim of war violence. By such definition the legislature determined that who caused the person to be subject to violent acts or forcible measures is to be the basic criterion for granting the status of a victim of war violence. On the basis of this criterion, the legislature introduced a differential regulation of the position of [various] victims of war violence who in fact had experienced the period of the Second World War in comparable circumstances.
 
16. The basic text of the VWVA was adopted in 1995 as one of the so-called war acts (together with the War Disabled Act, Official Gazette RS, Nos. 63/95, etc. – hereinafter referred to as the WDA, and the War Veterans Act, Official Gazette RS, Nos. 63/95, etc.). As follows from the legislative file (Gazette of the National Assembly, No. 72/02), the VWVA was adopted in order to ensure special protection of those citizens of the Republic of Slovenia who during the war (from 1941 until 1945) had been subject to certain typical and generic forms of war violence, which resulted in consequences for the war generation that society is only able to remedy or mitigate by special material and organisational efforts. Initially, the VWVA only applied to certain categories of such persons; however, the circle of entitled persons was subsequently expanded by several amendments to the VWVA.
 
17. In the original text of the VWVA, the legislature included individual typical categories of civilian persons who had been subject to war violence; however, it did not define the concept of a civilian person itself (neither did it do so in subsequent amendments).[8] The following categories of victims of war violence were defined in Article 2 of the VWVA: exiles, camp prisoners, prisoners, labour deportees, internees, refugees, and stolen children. By the provision of Article 4 of the VWVA, the legislature enabled the status of a victim of war violence to also be granted to persons who had been forcibly mobilised into regular military units of the occupier. These persons can also be listed among the particularly exposed victims of war, as they are civilian persons who, contrary to the then valid rules of international law,[9] had been forced to join the military units of the occupier. Only by the 2002 amendment to the VWVA (i.e. the VWVA-G) did the legislature enable the status of a victim of war violence to be granted to the only category [of persons] who cannot be considered to be civilian victims of war, i.e. members of the former Yugoslav army at the time of the capitulation of the Kingdom of Yugoslavia; however, this category is not relevant to the assessment of the case at issue.[10]
 
18. Depending on the status granted, the VWVA recognises different categories [of victims of war violence] different scopes of statutory rights (health care, spa and climatic treatment, the reimbursement of travel expenses, recognition of the pension qualifying period, the right to a pension under more favourable conditions, the right to military compensation in accordance with a special law, a monthly allowance for life, and priority in the allocation of subsidised housing). Under certain conditions, also family members of a person who lost his or her life or went missing in the circumstances enabling the granting of the status of a victim of war violence in conformity with this Act (Article 7 of the VWVA) are entitled to such protection.[11]
 
19. In the framework of the authorisation granted by the third paragraph of Article 50 of the Constitution, the legislature namely adopted a regulation by which it limited granting the status of a victim of war violence to different categories of civilian persons. However, granting the status of a victim of war violence was only made possible regarding those civilian persons who had been subject to the violent acts or forcible measures of an occupier or its collaborators. The legislature entirely excluded from the circle of entitled persons civilian persons who had been subject to violent acts or forcible measures carried out by the armed forces fighting on the opposing side in the armed conflict. In order to define the term civilian victims, it is decisive that these are persons who were subject to violence due to war events without being actively involved on the either side of the armed conflict.[12]
 
20. In the assessment of the Constitutional Court, by entirely excluding from special protection the mentioned circle of civilian victims of war who had experienced the period of the Second World War in circumstances comparable to those determined by Article 1 of the VWVA, the legislature acted inconsistently with the authorisation determined by the third paragraph of Article 50 of the Constitution. The authorisation given to the legislature by the mentioned constitutional provision is not unlimited. The legislature may only exercise this authorisation within the framework of constitutional principles and by respecting constitutionally guaranteed human rights and fundamental freedoms. By determining in Article 6 of the VWVA that persons who voluntarily or professionally collaborated with the occupier are excluded from the circle of victims of war violence, the National Assembly acted within the framework of such authorisation. A regulation that allowed persons who collaborated with the occupier to be granted the status of a victim of war violence could be inconsistent with generally accepted principles of international law and thus also with the Constitution.[13] However, it does not follow from the Constitution that the term victim of war violence should be restricted to only those civilian persons who had been subject to violent acts or forcible measures carried out by the armed forces of the occupier. Therefore, it is inconsistent with the Constitution that the legislature excluded from the circle of civilian victims of war violence all those persons who had been subject to violent acts or forcible measures carried out by the armed forces fighting on the other side in the armed conflict. Establishing whether potential victims of war violence collaborated with the occupier can be the subject of concrete procedures and thus also the subject of a possible constitutional review of the acts adopted in such procedures, but not the subject of a constitutional review of a regulation.
 
21. Due to the reasons stated above, the Constitutional Court assesses that the challenged regulation determined by the VWVA is inconsistent with the Constitution. As the matter concerns a situation referred to in Article 48 of the CCA, the Constitutional Court established that the challenged statutory regulation was unconstitutional (point 1 of the operative provisions). The Constitutional Court determined a time limit of one year within which the legislature is obliged to remedy the established inconsistency (point 2 of the operative provisions). By regulating the position and the rights of civilian victims of war in conformity with the above-mentioned, the legislature will also enable the family members of the persons killed to acquire, under the conditions determined by Article 7 of the VWVA, certain rights on the basis of this Act.
 
22. As the Constitutional Court established an unconstitutionality of the challenged regulation determined by the VWVA already due to the inconsistency with the third paragraph of Article 50 of the Constitution, it did not assess the other alleged inconsistencies.
 
23. Considering the fact that the two petitions substantively refer to the regulation determined by the VWVA, the petitioners do not have a legal interest to challenge the RIA. Therefore, the Constitutional Court rejected the petitions in this part (point 3 of the operative provisions). With respect to the petitioners' allegations concerning their inability to build graves and to obtain death certificates, the Constitutional Court explains that these issues are not a subject of the challenged Acts.
 
 
C
 
24. The Constitutional Court adopted this Decision on the basis of Articles 25 and 48 of the CCA, composed of: Dr Janez Čebulj, President, and Judges Dr Zvonko Fišer, Lojze Janko, Mag. Marija Krisper Kramberger, Milojka Modrijan, Dr Ciril Ribičič, Dr Mirjam Škrk, Jože Tratnik, and Dr Dragica Wedam Lukić. The decision was reached unanimously.
 
Dr Janez Čebulj
President
 
 
Endnotes:
[1] See, e.g., Order No. U-I-403/02, dated 12 December 2002 (OdlUS XI, 259).
[2] A. Graseli in L. Šturm (Ed.), Komentar Ustave Republike Slovenije [Commentary on the Constitution of the Republic of Slovenia], Fakulteta za podiplomske državne in evropske študije, Ljubljana, 2002, p. 141.
[3] See the following Decisions of the Constitutional Court: Decision No. U-I-6/93, dated 1 April 1994, Official Gazette RS, No. 23/94, and OdlUS III, 33; Decision No. U-I-67/94, dated 21 March 1996, Official Gazette RS, No. 24/96, and OdlUS V, 31; Decision No. U-I-249/96, dated 12 March 1998, Official Gazette RS, No. 29/98, and OdlUS VII, 47; Decision No. U-I-248/96, dated 30 September 1998, Official Gazette RS, No. 76/98, and OdlUS VII, 176; Decision No. U-I-247/96, dated 22 October 1998, Official Gazette RS, No. 76/98, and OdlUS VII, 195; and Decision No. U-I-23/93, dated 20 March 1997, Official Gazette RS, No. 23/97, and OdlUS VI, 43.
[4] In Case No. U-I-23/93, the Constitutional Court assessed the statutory regulation by which the post-war Yugoslav authorities had denied persons of German nationality who during the occupation had been loyal to the German Reich the possibility to acquire Yugoslav citizenship. It established that such regulation was not inconsistent with the general principles of law that already at that time were recognised by civilised nations.
[5] See United Nations General Assembly Resolution No. 3(I) of 13 February 1946 on the Extradition and Punishment of War Criminals and Resolution No. 95(I) of 11 December 1946 on the Affirmation of the Principles of International Law Recognised by the Charter of the International Military Tribunal in Nuremberg. The Constitutional Court referred to them already in Decision No. U-I-6/93.
[6] Cf.  the treatise of Dr France Bučar, President of the Commission for Constitutional Affairs, entitled Nastajanje slovenske ustavnosti (The Formation of Slovene Constitutionality), in M. Cerar and G. Perenič (Eds.), A Selection of the Materials of the Commission for Constitutional Affairs (1990–1991), Vol. 1, Ljubljana, 2001, p. 236.
[7] P. Jambrek, Komentar Ustave Republike Slovenije [Commentary on the Constitution of the Republic of Slovenia], p. 35.
[8] The concept of a civilian is defined in the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, adopted on 8 June 1977 (Official Gazette SFRY, MP, No. 16/78, and Official Gazette RS, No. 14/92 – hereinafter referred to as Protocol I). In conformity with the first paragraph of Article 50 of Protocol I, a civilian is any person who does not belong to one of the categories of persons referred to in Article 4 A (1), (2), (3), and (6) of the Third Geneva Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian. This is an exclusionary approach in defining the concept of a civilian. Members of the armed forces, the wounded, the sick, and prisoners of war are excluded from the circle of civilians. By interpreting the mentioned definition of the term a civilian from the viewpoint of the rules of the international military law in force during the Second World War, one can establish that also in accordance with the war regulations in force at the time, the wounded and sick in the framework of the armed forces and prisoners of war were specially protected categories that could not be included among civilian victims of war (cf. the Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field and the Convention relative to the Treatment of Prisoners of War, adopted in Geneva on 27 July 1929; on 20 May 1931, the Kingdom of Yugoslavia submitted the instruments of ratification regarding both of them to the Swiss Federal Council. These two Conventions were superseded by the First and Third Geneva Conventions for the Protection of War Victims of 12 August 1949.
[9] The prohibition against [forcibly] recruiting inhabitants in an occupied territory can be extracted by interpreting the Hague Regulations of 1907, which in Article 45 determined that it is forbidden to compel the inhabitants of occupied territory to swear allegiance to the hostile Power. This prohibition was included in the Fourth Geneva Convention, i.e. the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (Official Gazette of the Presidium of the People's Assembly of the FPRY, Nos. 6/50 and 24/50, and Official Gazette RS, No. 14/92), which in the first paragraph of Article 51 determines the following: “The Occupying Power may not compel protected persons to serve in its armed or auxiliary forces. No pressure or propaganda which aims at securing voluntary enlistment is permitted.”
[10] The petitioners do not mention this category in the framework of their allegations.
[11] In conformity with the first paragraph of Article 7 of the VWVA, protection under this Act is extended to a citizen of the Republic of Slovenia, a family member of a person who lost his or her life or went missing in action in circumstances enabling the granting of the status of a victim of war violence in accordance with this Act. Such protection is ensured to the same circle of family members and under equal conditions as in accordance with the regulations on war-disabled persons. Articles 8 through 10 of the WDA determine which family members fall within the circle of entitled persons in accordance with this Act. In conformity with Article 9 of the WDA, the following family members are entitled to protection under this Act:
1. A spouse whom a war-disabled person, fallen combatant, or other person maintained during at least the last year prior to his or her death, and a spouse whose marriage was dissolved by divorce, if he or she has or had the right to maintenance on the basis of a court decision or an agreement, and enjoyed such right until the death of the war-disabled person, fallen combatant, or other person (i.e. the divorced spouse);
2. Children and adoptees, as well as stepchildren, however the latter only under the condition that the war-disabled person, fallen combatant, or other person maintained such during at least the last year prior to his or her death, or from the stepchild’s birth onwards, if he or she is less than one year old and does not have a parent who is maintaining him or her;
3. A parent, adoptive parent, stepfather, or stepmother whom the war-disabled person, fallen combatant, or other person maintained during at least the last year prior to his or her death, provided that the stepfather or stepmother maintained the war-disabled person, fallen combatant, or other person for at least three years and cared for him or her.
On the basis of Article 10 of the WDA, a partnership [of two persons] lasting at least three years that in accordance with the regulations on marriage and family relations is equated with marriage has, under this Act, the same legal consequences as a marriage.
[12] See note No. 8.
[13] Cf.  Decision No. U-I-23/93.
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute
Applicant:
Elizabeta Dolenc, Radovljica in drugi
Date of application:
17.09.2004
Date of decision:
09.11.2006
Type of decision adopted:
decision
Outcome of proceedings:
establishment – it is inconsistent with the Constitution/statute rejection
Document:
AN02964