U-I-80/16, U-I-166/16, U-I-173/16

 

 

By Decision No. U-I-80/16, U-I-166/16, U-I-173/16, dated 15 March 2018 (Official Gazette RS, No. 24/18), the Constitutional Court decided, upon the request of multiple courts – i.e. the Slovenj Gradec District Court, the Ljubljana District Court, and the Ljubljana Local Court – on the constitutionality of the statutory regulation in accordance with which the total amount of compensation that a court can decide on in judicial proceedings for damage caused by the removal of persons from the register of permanent residents was limited. The courts claimed that the regulation inadmissibly retroactively interferes with the acquired rights of applicants who due to the challenged statutory regulation were deprived of the right to obtain compensation in full, due to which this regulation is allegedly inconsistent with Article 155 of the Constitution.

 

The Constitutional Court held that the challenged regulation does not retroactively interfere with the acquired rights of the persons removed from the register of permanent residents. Therefore, it is not inconsistent with the prohibition of retroactivity (the second paragraph of Article 155 of the Constitution).

 

When an unconstitutional retroactive validity of a law is claimed that actually does not exist, the Constitutional Court always also assesses whether the law is in conformity with the principle of trust in the law (Article 2 of the Constitution). Such ensures the individual that the state will not arbitrarily worsen his or her legal position, i.e. without a reason based on a prevailing public interest. Hence, it is significant whether the legal position of the persons removed from the register of permanent residents has worsened as regards invoking claims for compensation in judicial proceedings against the state for damage caused by the removal of these persons from the register of permanent residents when the challenged Act entered into force.

 

From the viewpoint of this assessment, it was essential in which position these persons were at the time when the Act entered into force and when it became applicable. Therefore, two groups of injured parties must be distinguished, namely (1) those who filed actions for compensation against the state even prior to the Act entering into application, and whose claims had not become time-barred by then (the first group of injured parties), and (2) those who prior to the Act entering into application did not have judicial proceedings pending against the state or they initiated such proceedings by then but their claims for compensation would have been time-barred under the regulation previously in force (the second group of injured parties). The positions of the mentioned two groups were different when the Act entered into application.

 

When the challenged statutory regulation became applicable, the injured parties from the first group had the right to expect compensation for damage incurred due to removal from the register, namely on the basis of Article 26 of the Constitution. Therefore, they could justifiably expect that the amount of monetary compensation would depend exclusively on the amount of damage and that that amount would not be limited by law. The adoption of the challenged Act interfered with this right of theirs. Thereby, their position when invoking claims for compensation against the state deteriorated. It is essential for this group that while judicial proceedings were pending, the legislature changed the conditions for invoking claims for compensation, namely in proceedings in which actions were filed against the state due to the unlawful conduct of its authorities. It thereby ensured a more favourable position of the state as the defendant, and the possible amount due from the state in these proceedings was already determined. The legislature did not state reasons in the public interest that in view of these obligations of the state could justify the interference of the legislature with the pending judicial proceedings. Therefore, it acted contrary to Article 2 of the Constitution.

 

As regards the second group of injured parties, the Constitutional Court established that their position is different because it is not possible to presume for them in general that they had the right to expect compensation for damage on the basis of Article 26 of the Constitution. Their position was thus only determined by the pilot judgment of the ECtHR in Kurić and others v. Slovenia, which imposed on the Republic of Slovenia the obligation to specifically regulate compensatory protection in order to mitigate the consequences of removal from the register of permanent residents. In doing so, the Constitutional Court took into account two aspects of the ECtHR’s position in particular: 1) individual assessment of how much each individual complainant was materially deprived of, and 2) a separate assessment of claims regarding material and non-material damage, with the awarding of compensation for both types of damage. In this respect, the law treats the second group of injured parties less favourably. From the viewpoint of the mentioned judgment of the ECtHR, the limitation of the amount of monetary compensation determined by Article 12 of the Act entails a deterioration of the position of those injured parties that in individual judicial proceedings attempt to prove the concrete scope of the sustained damage and demand appropriate monetary compensation that exceeds the statutorily determined highest lump sum of monetary compensation.

 

The Constitutional Court assessed that a serious crisis as regards public finances can entail a constitutionally admissible objective for adopting a law that limits the total amount of monetary compensation. However, the regulation was unconstitutional, as not even in individual cases in which a disproportionate discrepancy would be established between the demonstrated scope of damage and the statutorily limited lump sum of monetary compensation did the Act enable individual assessment of the positions of individual injured parties. Therefore, the challenged regulation was also unconstitutional in the part in which it refers to the second group of injured parties.