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Up-1299/06-16
15 March 2007
D E C I S I O N
At a session held on 15 March 2007 in proceedings to decide upon the constitutional compliant of A. A., of Ž. Ž. and Ž, represented by B. B., attorney-at-law in Z. Z., the Constitutional Court
d e c i d e d a s f o l l o w s:
Supreme Court Judgment No. II Ips 208/2006, dated 15 June 2006, Maribor Higher Court Judgment No. I Cp 3068/2005, dated 10 January 2006, and Murska Sobota Local Court Judgment No. P 585/90, dated 18 November 2005, are annulled and the case remanded to Murska Sobota Local Court for new adjudication.
R e a s o n i n g
A.
1. In civil proceedings, the local court dismissed a primary and subordinate claim by which the complainant (a plaintiff in the civil proceedings) requested from the Republic of Slovenia the payment of damages for damage which he sustained in the territory of the Republic of Slovenia as a conscript of the Yugoslav People's Army (hereinafter referred to as YPA) of the former Socialist Federative Republic of Yugoslavia (hereinafter referred to as SFRY). The higher court dismissed his appeal, and the Supreme Court dismissed his revision. The courts' decisions are based on the standpoint that the Republic of Slovenia assumed from the SFRY only those obligations to pay damages sustained in the YPA which the SFRY had to Slovene citizens and persons who had permanent residency and in fact resided in the Republic of Slovenia on the day of the plebiscite. The courts assessed that due to the fact that the complainant is not a citizen of the Republic of Slovenia, did not have permanent residency, nor in fact resided in the Republic of Slovenia on the day of the plebiscite, there is no legal basis for the liability of the Republic of Slovenia. In the statement of reasons they emphasized that such position is evident in the established caselaw.
2. In the constitutional complaint the complainant alleges the violation of Articles 14, 15, 16, 22, and 26 of the Constitution. He explains that he had filed an action for the compensation of damages, for which SFRY was liable at that time, before a competent Slovene court already prior to the disintegration of the SFRY. In his opinion, the circumstance that he is a citizen of Bosnia and Herzegovina should not be relevant for a decision on damages. He states that the Republic of Slovenia should regulate its liability for the obligations of the SFRY differently and compensate damages to the complainant; furthermore, if it, however, decided not to assume liability, it should have assigned the case to the competent court in Bosnia and Herzegovina. He draws attention to the fact that his performance of defence tasks was necessary and beneficial for the Republic of Slovenia.
3. The panel of the Constitutional Court accepted the constitutional complaint for consideration on 7 September 2006. In accordance with Article 56 of the Constitutional Court Act (Official Gazette RS, No. 15/94 – hereinafter referred to as ZUstS), the Constitutional Court sent the constitutional complaint to the Supreme Court. In accordance with Article 22 of the Constitution, the constitutional complaint was also sent to the opposing party in the civil proceedings (the defendant). None of the above-mentioned replied thereto.
B.
4. In the civil proceedings the complainant alleged that he had sustained damage during his military service in the former YPA in the territory of the Republic of Slovenia due to the fact that the conditions regarding the protection of the health of soldiers were deficient and due to the fact that he had been sent for medical treatment too late.
5. At the time when the action was filed (26 February 1988) the SFRY was liable for the compensation of damages for damage sustained in connection with the performance of military duties in the YPA in accordance with the second paragraph of Article 222 of the Service in Armed Forces Act (Official Gazette SFRY, No. 22/74 et sub.).[1] After the disintegration of the SFRY, the successor states did conclude the Agreement on Succession Issues (Official Gazette RS, No. 71/02 – MP, No. 20/02 – MSVN), but the Agreement did not regulate the succession issues of such obligations to pay damages.
6. The challenged decision is based on the standpoint that the Republic of Slovenia is one of the legal successors of the SFRY. Thereby, the local and higher courts – in accordance with the established caselaw[2] - referred to Section I of the Basic Constitutional Charter on the Sovereignty and Independence of the Republic of Slovenia (Official Gazette RS, No. 1/91-I et sub. – TUL [hereinafter referred to as BCC]) and to Article 1 of the Constitutional Act Implementing the BCC (Official Gazette RS, No. 1/91-I et sub. – UZITUL [hereinafter referred to as CAIBCC]), whereas the local court also referred to the Agreement on Succession Issues. By the above-mentioned provision of BCC, the Republic of Slovenia (inter alia) declared that it assumes all the rights and duties which under the former Constitution of Slovenia and the Constitution of the SFRY were transferred to the authorities of the SFRY. Moreover, CAIBCC regulates the assumption of the implementation of so assumed rights and duties by the authorities of the Republic of Slovenia. A (reasonable) assessment of the courts of the liability for damage sustained during the military service in the former YPA, for which SFRY was liable at that time, is based on the above-cited provisions of BCC and CAIBCC; due to the fact that the Republic of Slovenia (also) assumed the competencies connected to territorial defence which were hitherto implemented by YPA,[3] thus therewith it also assumed obligations connected therewith. However, according to the review of the courts, the Republic of Slovenia assumed liability from the disintegrated SFRY only for damage sustained in the YPA which was incurred by its citizens[4] and persons who have the same rights and duties in accordance with Article 13 of CAIBCC.[5]
7. The complainant inter alia alleges that the circumstance that he is a citizen of Bosnia and Herzegovina cannot be relevant for a decision on the liability of the Republic of Slovenia for damage which he sustained in Slovene territory during his military service in the YPA, and for which the SFRY was liable prior to its disintegration, however he had to file the action for the compensation of such in Slovenia. He is of the opinion that such standpoint is inconsistent with the right to equality before the law determined in the second paragraph of Article 14 of the Constitution. A special manifestation of this right in court proceedings is the right to the equal protection of rights determined in Article 22 of the Constitution. Therefore, the Constitutional Court reviewed the challenged decision from the viewpoint of the possible violation of Article 22 of the Constitution.
8. The right to equality before the law inter alia binds courts to treat essentially similar situations similarly from the viewpoint of the interpretation of legal norms. A different treatment of essentially similar situations is constitutionally admissible only in cases in which there exists a sound reason arising from the nature of the matter.
9. It follows from the challenged judgments (and even more evidently from the Legal Opinion of the Supreme Court, dated 19 June 1997, to which all three courts refer in the reasoning of their review) that for the interpretation of the above-mentioned provisions of BCC and CAIBCC the understanding of the courts regarding the nature of the liability of the state for damage sustained by conscripts during their military service is decisive. According to their review, such is a correlate of the right of the state to conscript their citizens to perform military duties: the state is liable to its citizens for such damage (already) due to the fact that it conscripted them to perform military duties, and they had to respond to such conscription as its citizens.
10. The liability of the SFRY for damage caused by the military personnel of the YPA was (in general) determined by the Service in Armed Forces Act. This Act in the first paragraph of Article 222 determined that the SFRY is liable for damage in accordance with general regulations regulating damages which military personnel of the YPA cause by their unlawful and incorrect work in connection with performing their duties to members of a community or to legal entities. In addition, the second paragraph of the same article mutatis mutandis refers to the application of general regulations regulating damages regarding the liability for “other damage” in connection with the performance of military duties. The latter provision (also) includes cases in which a member of the YPA causes damage to another member of the YPA (e.g. to a conscript).[6] In accordance with general regulations regulating damages contained in the Obligations Act (Official Gazette SFRY, No. 29/78 et sub. – ZOR [hereinafter referred to as OA]), in such cases the SFRY was liable either (and as a general rule) due to the fact that damage was caused by a member of the YPA by culpable conduct (or omission of such) (the first paragraph of Article 154 of OA), or on the basis of causality in cases in which damage resulted from things or activities which pose a significant danger to the surroundings (the second paragraph of Article 154 of OA).[7] The liability of the SFRY for damage was based on the same presumptions in view of the content in cases in which damage was sustained by a member of the YPA, as well as in cases in which damage was caused to third persons. It is thus demonstrated that the discussed liability for damage is not based on the circumstance that the state forced individuals to participate in the military defence of the state; it was not liable for damage sustained during their military service by conscripts (merely) because they were conscripted into military service.
11. In light of the above-mentioned, in reviewing whether the Republic of Slovenia has standing to be sued for compensation for damages, all the circumstances of the case must be considered. In the present case the complainant sustained the alleged damage as a member of the YPA in the territory of the Republic of Slovenia prior to its independence. The complainant participated in the defence of the former common state in this territory as a citizen of the SFRY in the army which was at that time also the army of the [Federative] Republic of Slovenia. In accordance with Article 61 of the Civil Procedure Act in force at that time (Official Gazette SFRY, No. 4/77 et sub. – ZPP/77),[8] a court in the territory of which a command of the military unit has its seat has exclusive territorial jurisdiction for disputes with the SFRY arising from the relations with military units, and therefore he had filed the action before the court in Murska Sobota. Thus, the complainant had to file the action before a court in the Republic of Slovenia which had territorial jurisdiction regardless of his republic citizenship at that time or his permanent residency. The republic affiliation of the municipal administrative authority which assigned the complainant [as a conscript] to military service was irrelevant to the complainant's position with regard to the alleged damage. During the court proceedings the disintegration of the former state occurred, and the state consequently ceased to exist. With regard to all the above-mentioned circumstances, the complainant was in an identical position as injured persons who incurred damage during their military service in the territory of the Republic of Slovenia as Slovene citizens. Therefore, the citizenship of an injured person cannot be a sound reason for a differentiation when deciding on the liability of the Republic of Slovenia for damage which occurred in its territory and for which its legal predecessor was liable until independence was declared. Thereby it also cannot be relevant that courts in certain cases impose on the Republic of Slovenia the liability to pay damages for damage which occurred during their military service to Slovene citizens outside of its territory.[9] Considering the fact that the successor states did not regulate this issue by a treaty, a different standpoint could entail that injured persons would not be able to be compensated for damage only due to the fact that during lengthy court proceedings the state disintegrated. This would be inconsistent with the principle of fairness.
12. Due to the fact that the courts violated the complainant's right to the equal protection of rights determined in Article 22 of the Constitution, the challenged judgments had to be annulled and the case remanded to the court of first instance for new adjudication. Consequently, the Constitutional Court did not have to review the existence of other alleged violations. In the new proceedings the court will have to decide by taking into consideration the reasons which dictated the adoption of the present decision.
C.
13. The Constitutional Court reached this decision on the basis of the first paragraph of Article 59 of ZUstS and the third indent of the third paragraph of Article 46 of the Rules of Procedure of the Constitutional Court (Official Gazette RS, Nos. 93/03 and 98/03 – corr.), 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. Judge Škrk submitted a concurring opinion.
Dr. Janez Čebulj
President
Notes:
[1] The question whether the courts should apply the later act (the Service in Armed Forces Act, Official Gazette SFRY, No. 7/85 et sub.), which came into force on 24 February 1985, regarding the time of the damaging event (year 1986), is not relevant. The relevant provisions concerning the liability for damage (in the later act this is the second paragraph of Article 218) are namely in both acts identical in substance.
[2] See, e.g., Legal Opinion of the Supreme Court, dated 19 June 1997, published in: Pravna mnenja [Legal Opinions] No. 1/97, p. 8.
[3] The competencies of the part of the armed forces exercised by the YPA were transferred to the SFRY, whereas the territorial defence was within the competence of the former Socialist Republic of Slovenia (Article 305 of the Constitution of the Socialist Republic of Slovenia, Official Gazette SRS, No. 6/74 et sub.).
[4] The courts of first and second instance did indeed write that the condition for the liability of the Republic of Slovenia is the injured party's citizenship and permanent residency at the time of the damaging event (thus in the former Socialist Republic of Slovenia). However, from the (otherwise spare) statement of reasons of the Supreme Court and from the Legal Opinion of the Supreme Court, dated 19 June 1997, to which the courts refer in the challenged judgments, it can be understood that the question of citizenship of the Republic of Slovenia as a successor state is crucial for the review of the assumption of such liability.
[5] Article 13 of CAIBCC reads as follows: “Citizens of other republics who had registered their permanent residency in the Republic of Slovenia and who in fact lived here on the day of the plebiscite on the sovereignty and independence of the Republic of Slovenia on 23 December 1990, are equal in rights and duties with the citizens of the Republic of Slovenia until they acquire citizenship of the Republic of Slovenia in accordance with Article 40 of the Citizenship of the Republic of Slovenia Act or until the expiration of the time-limits determined in Article 81 of the Aliens Act, except in the cases determined in Article 16 of the present act.”
[6] See also the caselaw (e.g. Supreme Court Judgment No. II Ips 182/2000, dated 5 October 2000, and Supreme Court Order No. II Ips 257/98, dated 7 October 1998).
[7] See also the Supreme Court decisions cited in footnote 6, and Supreme Court Judgments No. II Ips 2/2001, dated 20 September 2001, and No. II Ips 456/97, dated 19 November 1998.
[8] Article 61 of the Civil Procedure Act reads as follows: “In disputes with the SFRY arising from relations with military units, the court in the territory of which the command of the military units has its seat, has exclusive jurisdiction.”
[9] See, Legal Opinion of the Supreme Court, dated 19 June 1997.
The concurring opinion of judge Dr. Mirjam Škrk
1. I completely agree with the decision dated 15 March 2007 and its reasons, therefore I voted in favour. In paragraph 11 of the reasoning, the Constitutional Court, in determining the reasons for the annulment of the decisions of the regular courts, also refers to the principle of fairness. I do not have any reservations regarding this. In my opinion, this concerns fairness intra legem, which is not only a principle of law according to Slovene national law,[1] but it also has the nature of a general principle of law recognised by civilized nations and it is as such legally binding under Article 8 of the Constitution. The notion of generally accepted principles of international law according to Article 8 of the Constitution foremost includes the rules of international customary law and the general principles of law recognised by civilized nations.[2] As a general principle of law, fairness inter alia binds all regular courts in the country.[3] This is even more important due to the fact that in the present case it is undisputable that it is a case which is connected to the disintegration of the former SFRY and thus to the succession of states.
2. In this respect, the question is raised whether in the complainant's case the judgments of refusal (and thus unfavourable for the complainant) also do not interfere with the principle of the protection of acquired rights. The latter is, regardless of the fact that points of view regarding its scope are not entirely unified in doctrine,[4] a recognised principle of international law in cases of the succession of states.[5] As such, the principle of the protection of the acquired rights of natural and juridical persons is included in Article 6 of the Vienna Convention on Succession of States in respect of State Property, Archives and Debts, dated 8 April 1983.[6] The Convention is not yet in force. However, it contains the principles of international law on the succession of states.[7] The International Law Commission (ILC) which drafted the Convention included a provision on the protection of acquired rights as a “safeguard clause” among the general provisions.[8] Thereby it wanted to eliminate any presumption that the effects of the succession of states in respect of state property, archives, and debts, which is the subject of the aforementioned Convention, may in any manner interfere with the acquired rights (and obligations) of natural and juridical persons.[9]
3. In cases of the succession of states, the principle of the protection of acquired rights as a principle of international law protects in the strict sense of the word the rights of aliens whose property or rights (and obligations) are in the territory that is a subject to succession, and which may not be affected due to the change of sovereignty in this territory. The complainant was indeed not an alien at the time of filing the action against the YPA. He was a citizen of another socialist republic within SFRY who regarding the applicable regulation at that time had to sue the YPA before the Slovene court which had territorial jurisdiction in the case. However, by the disintegration of the SFRY he became an alien for Slovenia and consequently he should have been entitled [to sue] also on the basis of the protection of acquired rights.
Judge
Dr. Mirjam Škrk
Notes:
[1] See, M. Pavčnik, Pravičnost in pravo [Fairness and Law], Pravnik, Ljubljana, Vol. 56 (2001), pp. 1-3, pp 3-30.
[2] See, Constitutional Court Decision No. U-I-266/04, dated 9 November 2006, par. 14 of the reasoning, Official Gazette RS, No. 118/06.
[3] The first paragraph of Article 3 of the Courts Act (Official Gazette RS, 19/94 and other amendments). This provision is not amended in the official consolidated text (ZS-UPB3), Official Gazette RS, No. 27/07, which is not yet in force. For the day of it coming into force, see Article 39.
“Judges shall be bound by the Constitution and laws in the performance of the judicial function. In accordance with the Constitution, they shall also be bound by general principles of international law and by ratified and published treaties.”
[4] See, M. N. Shaw, International Law, fifth edition, Cambridge University Press, 2003, p. 905, and I. Brownlie, Principles of Public International Law, Fifth Edition, Clarendon Press Oxford, 1998, p. 652.
[5] The doctrine of acquired rights is perhaps one of the few principles which are firmly grounded in state succession law and is one of the least disputable. D. P. O'Connell, State Succession in Municipal Law and International Law, Volume I, Cambridge University Press, 1967, p. 267.
[6] MDKND, Official Gazette RS, No. 60/02, MP, No. 17/02. I wish to draw attention to the inconsistency of the Slovene translation of this provision.
[7] See, Opinions No. 1, dated 7 December 1991, and No. 9, dated 4 July 1992, of the Conference on Yugoslavia Arbitration Commission. 31 International Legal Materials (ILM) (1992), pp. 1495-1496 and p. 1525.
[8] Yearbook of the ILC, 1981, Vol. II, Part Two, Report of the Commission to the General Assembly on the work of its thirty-third session. New York, 1982, p. 24.
[9] Ibid.
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