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In a request for a review of constitutionality, the court must substantiate that the challenged statutory provision cannot be interpreted and applied in a constitutionally consistent manner and therefore in the relevant proceedings a constitutionally consistent decision cannot be adopted without a decision of the Constitutional Court regarding the unconstitutionality of the law at issue. If the applicant fails to fulfil this requirement, which follows from Article 156 of the Constitution and the first paragraph of Article 23 of the Constitutional Court Act, the Constitutional Court rejects the filed request.
If the legislature regulates essentially equal positions differently or if it regulates essentially different positions in the same manner, it must demonstrate a sound reason for such that follows from the nature of the subject matter of the regulation (i.e. a constitutionally admissible reason). Since the remission of a debtor’s obligations is significantly related to a value judgment  (as to the appropriateness) of his or her conduct, the value criterion for comparing [the positions of different debtors] is in principle defined by the purpose of the procedure for the remission of debtors’ obligations and thus also by the evaluation of individual groups of cases (i.e. violations or reasons) in terms of the level of liability (i.e. unlawfulness or fault) that can justifiably be ascribed to the debtor. Violations of a debtor’s duty to cooperate entail omissions that may occur on purpose, through negligence, and in exceptional cases perhaps even without a significant basis for a negative value judgment that could justifiably be addressed to the debtor. Such may also entail violations that in themselves do not necessarily always have negative consequences for the bankruptcy estate and the extent of and time frame for the repayment of creditors. Debtors’ attitudes towards individual instances of violations and the (felt) weight of the situation they are facing in the exceptional case of personal bankruptcy (and within such, the remission of obligations), which is a legal expression of an attempt to solve the threat to their economic existence, can also vary substantially. As a consequence, the firmness of the basis for a negative value judgment that can justifiably be addressed to a debtor can also vary substantially. In spite of this, the legislature has envisaged a uniform and very strict sanction for all possible violations of the duty to cooperate. This sanction does not permit, in any circumstance, the remission of any obligations within ten years from the date the order rejecting the debtor’s motion for remission became final. The legislature therefore does not, in any event (including in the event of extremely minor violations), allow the courts to implement the principle of equality in a manner that could exceptionally permit the use of a different legal consequence in the form of a more lenient sanction (in terms of scope or type). A regulation that necessarily requires that courts apply an identical (strict) sanction in all instances of violations of the duty to cooperate presupposes that in the event of any violation, even the most minor one, the debtor is necessarily always also negligent and dishonest. Such a conclusion, however, cannot be adopted in all those instances of violations which may, if at all, substantiate only an extremely weak basis for a negative value judgment against the debtor. The actual effect of the contested regulation may therefore be contrary to the purpose of the obligation as defined by the law. The Constitutional Court could thus not discern any reasonable grounds that would justify the equal treatment of all – even the most minor – violations of the duty to cooperate. The challenged regulation is therefore inconsistent with the principle of equality determined by the second paragraph of Article 14 of the Constitution. 
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Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
Višje sodišče v Ljubljani
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