U-I-16/94

Reference no.:
U-I-16/94
Objavljeno:
Official Gazette RS, no. 37/95 and OdlUS IV, 46 | 11.05.1995
ECLI:
ECLI:SI:USRS:1995:U.I.16.94
Act:
Denationalization Act (Official Gazette of RS, Nos. 27/91, 31/93), articles 80, 81 and 83.
Operative provisions:
The provisions of articles 80, 81 and 83 of the Denationalization Act are not in conflict with the Constitution.
Abstract:
1. On the basis of the will in which the denationalization claimant did to encompass his nationalized property it is legally impossible to assume that his testamentary intent would in the case of encompassing such property be the same, which is why the provision of article 81 of the

Denationalization Act is not in conflict with the Constitution.

2. The provision of article 80 of the Denationalization Act, which restricts the validity of inheritance statements to the bequest having been the object of inheritance by the denationalization claimant, without the property that will be returned to him on the basis of denationalization decision, is not in conflict with the Constitution.

3. Interference with legal relations having been established on the basis of inheritance proceedings concluded by final decision would interfere, in disregard of the conditions prescribed by statute, with accrued rights and legal security of legal entities, which is why the provision of article 83 of the Denationalization Act, which prevents this, is not in conflict with the Constitution.
Password:
Heirs as denationalization claimants.
Principle of justice.
Partial dissenting opinion of a judge of the Constitutional Court.
Legal basis:
Constitution, articles 33, 14, 71 and 67.
Inheritance Act, article 138.
Constitutional Court Act, article 21.
Note:
In stating the reasons for this Decision the Constitutional Court makes reference to its decision U-I-96/92.
Document in PDF:
The full text:
U-I-16/94
11.5.1995


D E C I S I O N

At the meeting of 11 May 1995 concerning the proceedings for evaluation of constitutionality commenced on the initiative of Dr. Alojz Paulin from Ljubljana, the Constitutional Court

made the following decision:

The provisions of articles 80, 81 and 83 of the Denationalization Act (Official Gazette of RS, Nos. 27/91, 31/93) are not in conflict with the Constitution.


R e a s o n s :
 
A.

1. The initiator disputes the provision of article 80 of the Denationalization Act (hereinafter: "the DA"), claiming that it provides that the property belonging to a denationalization claimant under denationalization decision must be inherited on the basis of statute. The initiator considers that the disputed provision is in conflict with article 33 of the Constitution, which guarantees free disposition of property, and thus also free testamentary disposition. The provision is claimed to be in conflict with the Constitution for not making it possible for the real intent of the testator to be ascertained. If the statute has departed from this, it should, in the opinion of the initiator, have taken into consideration in article 83 the shares already paid out according to the actual values obtaining at the time of effecting the payments.

This article provides that legal relations having been established on the basis of a prior inheritance decision may not be interfered with. Article 83 is for this reason claimed to be in conflict with articles 14 and 33 of the Constitution.

The statute is also claimed to be in conflict with article 71 of the Constitution for failing to ensure the protection of farmland, as well as in conflict with article 67 of the Constitution for failing to ensure economic and ecological functions of property.

2. The initiator does not specify the supposed non-conformity of article 83 of the DA with the Constitution.

3. The initiative has been answered by the National Assembly, and the Ministry of Justice also gave its view of the matter.

The National Assembly and the Ministry consider that article 80 of the DA restricts the effect of statements under inheritance law concerning denationalized property in cases where in making a statement under inheritance law the heir could not count on denationalization. Heirs were supposed to make their statements under inheritance law on the basis of the then existing scope of bequest. Paragraph 3 of article 80 of the DA proclaims as void of legal effect the contracts under law of inheritance concluded prior to the issue of the denationalization decision in reference with the
denationalized property, except when the contract expressly provides that it refers to such property as well. In such a case, the interest of the heirs, to have their real will (actual contractual will) taken into consideration, should be protected.

4. In reference with article 81 of the DA the National Assembly states that the statutory solution which in the cases where the will of the testator has not been expressed with respect to denationalized property gives priority to inheritance ab intestato is in accordance with paragraph 2 of article 67 of the Constitution. In this way the statute is claimed by the National Assembly to have protected, in compliance with article 33 of the Constitution, the express will of the testator, and in compliance with paragraph 2 of article 67 of the Constitution, of legal heirs (the conditions under which property may be inherited must be determined by statute). In this connection the National Assembly makes reference to a decision already reached concerning this provision of the statute by the Constitutional Court (U-I-- 96/92).

5. Article 83 of the DA provides that it is inadmissible to interfere with legal relations having been established on the basis of a prior decision on inheritance, unless agreed otherwise by heirs. The provision is claimed by the National Assembly to be based on the principle of immutability of a final decision on inheritance. The Assembly considers that in this way the principle of equality before the law has not been infringed by the statute. For the said general and abstract provision is subjecting to equal treatment everybody whom it may concern.

6. The DA, thinks the National Assembly, does not regulate specifically the protection of farmland, except and in part only, in articles 19, 20, 21 and 27. Such protection is said to be regulated by other laws, which is why the statute is claimed not to be in disagreement with the Constitution.

B.

7. With the conditions under paragraph 4 of article 26 of the Constitutional Court Act (Official Gazette of RS, No. 15/94) fulfilled, the Constitutional Court has immediately proceeded to decide on the merits of the case.

8. Constitutionality of article 81 of the DA was already reviewed by the Constitutional Court in its decision U-I-96/92 (Official Gazette of RS, No. 4/94), by which the provision was found not to be in conflict with the Constitution. In the reasons for such decision the Court pointed out that in the majority of the cases the property having been nationalized represented the major part of testator's property. A regulation which allowed in all cases the ascertainment of testator's will would imply the construction of his will. This would cause numerous lengthy disputes between legal heirs and heirs testamentary, and this possibility has been reduced by the disputed provision of article 81 of the DA without in this way violating the constitutional right to own and inherit property.

9. The initiator provides no such arguments in support of the disagreement of the disputed provision of article 81 with the Constitution as the Constitutional Court has not yet considered in reference with the case under consideration.

This is why the Constitutional Court makes reference to the reasons for the decision U-I-96/94 and finds that article 81 is not in conflict with the Constitution.

10. According to article 138 of the Inheritance Act (Official Gazette of SRS, Nos. 15/76, 23/78), inheritance statements on acceptance or renunciation of inheritance are strictly formal and irrevocable legal transactions. In inheritance proceedings in reference with former owners whose property was nationalized heirs only made inheritance statements with respect to the scope of property which was the object of inheritance, that is, excluding the nationalized portion of the property. In the event of the bequest comprising also the nationalized property, their intent in the inheritance statement could have been completely different. In cases of inheritance statements having been made already prior to nationalization, when all property was still owned by the testator, however, such statements must in accordance with the DA be deemed to be valid. Also valid are inheritance statements made within the framework of the denationalization procedure, when the denationalization claimant already knew about the expected return of property. Without legal effect, then, are only the inheritance statements made, or the contracts under law of inheritance concluded prior to the issue of relevant denationalization decision, and in which denationalization claimants and the parties involved failed to take into account the scope of property obtaining prior to nationalization and the expected property subsequent to denationalization. Such regulation is in the opinion of the Constitutional Court just and is based on general rules of civil law. A different position might injure some heirs in as far as denationalization claimants because by the assumption of the intent of a claimant or party involved the legal transactions having been effected by the parties involved, while being wrong about the actual circumstances, would be deemed to be valid, and the object of inheritance would also be incorrectly defined.

11. As maintained by the initiator, the provision of article 83 of the DA violates the constitutional principle of justice, while also being in conflict with articles 33 and 14 of the Constitution. The initiator considers that in the new inheritance proceedings, the object of which would be the nationalized property returned to the denationalization claimant, the inheritance shares acquired in the previous inheritance proceedings should be taken into account.

It is not possible to agree with the view of the initiator.

Such regulation as is proposed by the initiator is not opposed by the disputed provision of article 83 of the DA such as it is; but such regulation would be in conflict with the regulation under article 81 of the DA, according to which in the case of disregarding the testamentary disposition the new inheritance proceedings shall be carried out according to the rules governing inheritance ab intestato rather than testamentary inheritance. Such regulation as the initiator would wish would mean that this would be neither inheritance ab intestato nor testamentary inheritance but something in between (inheritance ab intestato with inheritance shares acquired in initial inheritance proceedings taken into account). Such system is not known in law of inheritance and, if to be introduced, would have to be specially regulated by the DA, including all such questions as might arise in that connection, but there are no convincing reasons for claiming that such regulation would be more just then the current one, or that the current regulation is for its supposed injustice in conflict with the Constitution. As it is not possible to establish with sufficient certainty the manner in which the testator would dispose of the property to be later on denationalized and concerning which his intent has not been expressly stated in his will, the legislator has prescribed that in such cases the rules of inheritance ab intestato should be applied.

If in the case of inheritance based on statute the inheritance shares having been acquired through inheritance proceedings based on will and concluded by final decision were taken into account, this could lead to a position which would be in direct opposition to the intent of the testator, since it would be precisely in the case of the one who has acquired inheritance on the basis of will that such inheritance would be included in the lawful share of inheritance. In this way, legal heirs would on the basis of new inheritance proceedings acquire more inheritance than the former testamentary heirs and the present legal heirs. And this might even lead to the violation of their right of inheritance.

12. The purpose of the disputed statute is to redress the wrongs done through nationalization of private property. This is why only such relations and conditions as are connected with the aim of the statute are regulated by this statute. It is thus impossible to agree with the initiator claim that the statute should further elaborate the subject matter of articles 71 and 67 of the Constitution. For this is the matter which should be regulated by other statutes.

C.

13. This Decision was made on the basis of article 21 of the Constitutional Court Act (Official Gazette of RS, No. 15/94) by the Constitutional Court in the following composition: Dr. Tone Jerov ek, President, and Dr. Peter Jambrek, Matev Krivic, M.L., Janez Snoj, M.L., Dr. Janez inkovec, Dr. Lovro turm, Franc Testen, Dr. Lojze Ude and Dr. Bo tjan M. Zupan i , the judges. The decision on conformity with the Constitution of articles 80 and 83 of the DA was reached unanimously. The decision on conformity with the Constitution of article 81 was reached with seven votes in its favour and two against it. Votes against were cast by the judges Krivic and Testen. A dissenting opinion was given by the judge Krivic.


P r e s i d e n t:
Dr. Tone Jerovšek
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute
Applicant:
Mr. Alojz Paulin, Ljubljana
Date of application:
13.01.1994
Date of decision:
11.05.1995
Type of decision adopted:
decision
Outcome of proceedings:
establishment – it is not inconsistent with the Constitution/statute
Document:
AN00907