Up-672/16

Reference no.:
Up-672/16
Objavljeno:
Official Gazette RS, No. 32/2019 and OdlUS XXIV, 23 | 13.03.2019
ECLI:
ECLI:SI:USRS:2019:Up.672.16
Abstract:
[The text published below is a summary prepared for the annual report.]
 

The Right of Aliens to Social Security

 

By Decision No. Up-672/16, dated 13 March 2019 (Official Gazette RS, No. 32/19), the Constitutional Court decided on the constitutional complaint of a complainant who challenged judgments that assessed that the Pension and Disability Insurance Institute (the PDII) rightfully halted the payment of his disability allowance as the complainant was removed from the register of unemployed persons due to the expiry of the validity of his personal work permit, which is a condition for enjoying this right. The complainant alleged that his personal work permit expired because he no longer fulfilled the condition of having sufficient means for subsistence while residing in the Republic of Slovenia, which is a condition for acquiring or extending a residence permit and consequently for acquiring or extending a personal work permit. He could have fulfilled the mentioned condition had he obtained a disability allowance in time. As, however, the Institute unlawfully deprived him of the possibility to acquire this right, and the courts established this only after lengthy court proceedings, he no longer fulfilled the mentioned condition in the interim, which is also why he could not extend his residence permit and personal work permit. In view of the above, the complainant was of the opinion that he lost his right to a disability allowance due to the actions of the Institute and courts.

 

Protection of the right to social security determined by the first paragraph of Article 50 of the Constitution is reserved for citizens of the Republic of Slovenia. This, however, does not entail that the Constitution does not guarantee protection of the right to social security to aliens merely because they do not have citizenship of the Republic of Slovenia. Such a narrow interpretation of the provisions of the Constitution could at least in certain circumstances lead to the denial of human dignity, which is the value starting point of human rights and fundamental freedoms. The Constitutional Court has already adopted the position that protection of the right to a pension, which the Constitution explicitly guarantees by the first paragraph of Article 50 as the right to social security, is also guaranteed by the right to private property determined by Article 33 of the Constitution, which also applies to persons who are not citizens of the Republic of Slovenia (see Decision No. Up-770/06, dated 27 May 2009, Official Gazette RS, No. 54/09).

 

In the case at issue, there was no dispute that the complainant fulfilled the conditions for obtaining the right to a disability allowance. The latter was granted to him by a final decision of the PDII, dated 22 January 2013. The right to a disability allowance entails monetary compensation arising from compulsory disability insurance, which is intended to guarantee a person with work-related disabilities who is still able to work social security during his or her unemployment. As a general rule, this allowance is paid until the disabled person is again included in the compulsory insurance scheme (e.g. due to re-employment) or until he or she fulfils the conditions for obtaining the right to a pension. Discontinuation of the payment of the allowance interferes with his or her right to social security or with his or her right to private property determined by Article 33 of the Constitution.

 

The interpretation of the law adopted by the courts – according to which the reasons for which the insured person is no longer registered with the employment service or is no longer listed in the register of unemployed persons, have no relevance to a decision on the discontinuation of the payment of a disability allowance – proceeds from the presumption that it is the insured person who is always responsible for having been removed from the mentioned register. This presumption, however, is false as it does not take into account that also citizens of third countries reside and work lawfully in the Republic of Slovenia and that they are hence included in the compulsory social insurance schemes. For citizens of third countries, special rules relating to residing and work in the territory of the Republic of Slovenia apply. These (can) also affect acquiring and enjoying the rights arising from the social security system. Failure to observe this special regulation can lead to a situation in which an insured person is left without the right to a disability allowance although the person was removed from the register of unemployed person through no fault of his or her own, and possibly even against his or her will. Such does not entail that it is in general inadmissible to discontinue paying a disability allowance to an alien. It does, however, entail that when deciding on the discontinuation of the payment of a disability allowance a disabled person must be able to regulate his or her position (within a reasonable period of time) in a manner that will prevent the discontinuation of the payment of a disability allowance. Obtaining and enjoying the rights arising from compulsory disability insurance cannot be unconditional; it is, however, required that the conditions be reasonable. In this respect, it is also necessary to take into consideration the constitutional requirement according to which the regulation or the interpretation of the mentioned rights must not lead to unjustified different treatment of insured persons who, on the basis of the payment of compulsory insurance contributions, are otherwise in an essentially equal position.

 

The Constitutional Court held that the position of the courts according to which the reasons that led to the complainant being removed from the register of unemployed persons are not relevant to the discontinuation of the payments of a disability allowance is inconsistent with Article 33 of the Constitution. As the position that the Constitutional Court found to be in violation of the right to private property determined by Article 33 of the Constitution was adopted already by the court of first instance, and the Higher Court and the Supreme Court upheld this position, the Constitutional Court abrogated all of the challenged judgments and remanded the case to the court of first instance for new adjudication.

 
Document in PDF:
Type of procedure:
constitutional complaint
Type of act:
individual act
Applicant:
A. B., C.
Date of application:
12.08.2016
Date of decision:
13.03.2019
Type of decision adopted:
decision
Outcome of proceedings:
annulment or annulment ab initio
Document:
AN03988