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Case number:
U-I-284/94
ECLI:
ECLI:SI:USRS:1999:U.I.284.94
Challenged act:
Foreign Citizens Act (Official Gazette of RS, Nos. 1/91-I, 44/97 and 50/98 - CC decisions) (ZTuj), paragraph 1 of article 16, paragraph 2 of article 81.
Operative provisions:
Foreign Citizens Act is in disagreement with the Constitution for failing to determine the conditions for the acquisition of permanent residence permit by persons referred to in paragraph 2 of article 81 upon the expiry of the time period during which they had the possibility to apply for citizenship of the Republic of Slovenia, if they did not do so, or after the date of finality of the decision on refusal to grant citizenship. The provision of paragraph 1 of article 16 of Foreign Citizens Act is not in conflict with the Constitution. The disagreement as established in point 1 of the disposition shall be eliminated by the legislator within six months from the date of publication of this decision in the Official Gazette of the Republic of Slovenia. Pending the elimination of the disagreement ascertained in point 1 of this disposition, no measure of deportation referred to in article 28 of Foreign Citizens Act shall be pronounced against citizens of any other republic of former Socialist Federal Republic of Yugoslavia if on the date of the Plebiscite 23.12.1990 he was registered as having permanent residence in and actually lives in the Republic of Slovenia.
Abstract:
The principles of law-governed state have been violated because the statute has failed to regulate the transition of legal status of citizens of other republics who had permanent residence in the Republic of Slovenia and actually lived in its territory to the status of foreign citizen.

As the statute has failed in transitional provisions to regulate subsequent residence of citizens of other republics as foreign citizens in the Republic of Slovenia, the principle of protection of trust in law as one of the principles of law- governed state has been violated.

The statute has failed to regulate transitional status of citizens of other republics who lived legally in the territory of Slovenia and who had their permanent residence registered, thus making their position less favourable than that of those foreigners who had that status already before the Republic of Slovenia gained independence. As for the above described discrimination there is no real reason to justify it, the omission to legally regulate the position of these persons also constitutes a violation of the constitutional principle of equality.
Thesaurus:
Instructions on execution of Constitutional Court decision.
Time limit for the legislator to eliminate unconstitutionality (article 48).
Citizenship, conditions for its acquisition, permanent residence permit.
Rights of foreign citizens.
Principle of equality before the law.
Principle of trust in law.
Principle of law-governed state.
Constitutional Court, appellate decision of.
Gaps in the law (omission to regulate by statute).
Citizens of (former) other republics, status of.
Permanent residence permit.
Legal status of citizens of other republics of former SFRY.
Concurring opinion of a judge of the Constitutional Court.
Legal basis:
Constitution, articles 2, 13, paragraph 2 of article 14. Enabling Statute for the Implementation of the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia (UZITUL), article 13.
International Pact, article 12.
Convention for the Protection of Human Rights and Fundamental Freedoms (EKČP), article 8.
Constitutional Court Act (ZUstS), article 21, paragraph 2 of article 40, article 48.
Cases joined:
For reasons of joint consideration and adjudication, the Constitutional Court decided with its resolution to attach to the case under consideration the cases U-I-71/95 of 17.6.1998 and U-I-185/97 of 11.6.1998.
Full text:
U-I-284/94
4.2.1999


D E C I S I O N

At the meeting of 4 February 1999 concerning the proceeding for the evaluation of constitutionality commenced on the initiative of Blagoje Mikovič and Vojislav Tomić from Ljubljana, the Constitutional Court

made the following decision:

1. Foreign Citizens Act (Official Gazette of RS, Nos. 1/91-I, 44/97 and 50/98 - CC decisions) is in disagreement with the Constitution for failing to determine the conditions for the acquisition of permanent residence permit by persons referred to in paragraph 2 of article 81 upon the expiry of the time period during which they had the possibility to apply for citizenship of the Republic of Slovenia, if they did not do so, or after the date of finality of the decision on refusal to grant citizenship.

2. The provision of paragraph 1 of article 16 of Foreign Citizens Act is not in conflict with the Constitution.

3. The disagreement as established in point 1 of the disposition shall be eliminated by the legislator within six months from the date of publication of this decision in the Official Gazette of the Republic of Slovenia.

4. Pending the elimination of the disagreement ascertained in point 1 of this disposition, no measure of deportation referred to in article 28 of Foreign Citizens Act shall be pronounced against citizens of any other republic of former Socialist Federal Republic of Yugoslavia if on the date of the Plebiscite 23.12.1990 he was registered as having permanent residence in and actually lives in the Republic of Slovenia.
 
R e a s o n s :
 
A.

1. With its resolution U-I-284/94 of 24.6.1998 the Constitutional Court accepted the initiative for commencing the proceeding for the evaluation of constitutionality of paragraph 1 of article 16 and paragraph 2 of article 81 of Foreign Citizens Act (hereinafter: the ZTuj) to assess whether the disputed statutory regulation is in conformity with the principle of law-governed state (article 2 of the Constitution) and the principle of equality (article 14 of the Constitution).

In the process of examining the initiatives, it established that article 81 of the ZTuj has not regulated precisely the position of citizens of SFRY who were citizens of other republics at the time when Slovenia gained independence and who failed to apply for citizenship of the Republic of Slovenia within a specified time period, or against whom a negative decision (of refusal) was given (hereinafter: citizens of other republics). The Constitutional Court also established that, having regard to the provision of article 13 of the Enabling Statute for the Implementation of the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia, the question arises of correct interpretation and, consequently, also of application of provisions of paragraph 1 of article 16 in connection with paragraph 2 of article 81 of the ZTuj in practice.

2. The Secretariat for Legislative and Legal Matters of the National Assembly in its reply of 8.10.1998 finds that the ZTuj does no contain special provisions regulating the legal status of residence of citizens of former SFRY who have not applied for citizenship of the Republic of Slovenia or against whom a negative decision was given. They consider that, in spite of this, the provisions of the ZTuj have on the basis of an opinion of the Government been applied in practice by taking into consideration permanent residence of the persons involved, which is why their position was not less favourable than that of foreigners having had permanent residence permit at the time of the coming into force of the Act. Incompleteness of the ZTuj, however, supposedly does not endanger legal security of these persons. This is why the provisions in force are supposedly not in disagreement with principles of law-governed state. They stress that in assessing the entire legal position of these persons it is necessary to take into consideration also the implementing of the Act itself in procedures of judicial protection in which the disputed statute is claimed to have been applied in conformity with its aim and legal security of individuals.

3. From the explanations of the Government of 10.9.1998 it is evident that municipal administrative authorities (now the administrative units) have on 26.2.1992 removed from the register of permanent population all citizens of other republics with permanent residence registered in the Republic of Slovenia who did not apply for citizenship of the Republic of Slovenia and transferred them to the record of foreigners. It is claimed that the said transfer was based on article 5 of the Rules on forms for registration or removal from record of permanent residence, on personal file form and households form and on the manner of and maintenance of the register of permanent population (Official Gazette of RS, No. 27/92 - hereinafter:

Rules on permanent population register), which provides that the record shall only contain the data concerning the citizens of the Republic of Slovenia who have registered their permanent residence in the territory of a municipality, and that "in the case of transferring those persons from the register of permanent population to the record of foreigners what was involved was just the establishing of a record in conformity with the said Rules". The persons mentioned were, starting with 26.2.1992, obliged to arrange their status of foreigner in accordance with the ZTuj, and they could only register their residence on the basis of issuance of prior residence permit or labour visa. Since, bearing in mind the provision of paragraph 1 of article 16 of the ZTuj, it was not possible for citizens of other republics to satisfy the requirement of three years of uninterrupted residence in the territory of Slovenia based on temporary residence permit, the Government at its 18th meeting of 3.9.1992 passed the resolution 260-01/91-2/5-8, on the basis of which in the process of considering applications for the issuance of permanent residence permits it was supposedly recognized that the residence condition was satisfied also in the case where the person referred to in paragraph 2 of article 81 has continued to be registered as having permanent residence in the territory of the Republic of Slovenia for not less than three years and has in fact lived there before the provisions of the ZTuj have started to apply to him. Thus, it is claimed that there have been issued: in 1992 - 1468, in 1993 - 763, in 1994 - 361, in 1995 - 312, in 1996 - 640 and in 1997 - 1259 permanent residence permits, in total 4893. Further, it is from explanations evident that in 1991 568 permanent residence permits were still valid which had been issued on the basis of the Act on the Movement and Residence of Foreign Citizens - that is, for those persons who had the status of foreign citizen already prior to the passing of the ZTuj.

4. According to the opinion of the Government, the Ministry of Internal Affairs (hereinafter: the MIA) in deciding on the issuance of permanent residence permits in practical cases correctly used the provision of paragraph 1 of article 16 of the ZTuj, which is why in comparison with foreigners whose permanent residence permit was extended by statute the principle of equality was not infringed. The Government proposes to the Constitutional Court to reject the initiatives. They point out that one should take into consideration that it was possible for the said persons in the period after Slovenia gained independence to arrange their legal position by acquiring citizenship, and that it was possible for them to acquire permanent residence only on the basis of a request, and not on ex officio basis. In the opinion of the Government, many persons who did not file applications for citizenship of the Republic of Slovenia also did not want to obtain a permanent residence permit, for they would be deprived of certain rights in their own country, while some persons, although registered as permanent residents, in fact did not live in the Republic of Slovenia.

B. - I.

5. With the emergence of new states in the territory of the former state - the Socialist Federal Republic of Yugoslavia (hereinafter: SFRY), the legal position of persons who did not live in the republic whose (republican) citizenship they held changed. In the framework of SFRY, Slovenia was a republic to which citizens of other republics used to come primarily for economic reasons for a shorter of longer period of time, and they were registered as temporarily or permanently residing in Slovenia. Citizens of other republics, in so far as Yugoslav citizens, regardless of their (republican) citizenship enjoyed in Slovenia all rights if they were registered as permanently residing in Slovenia. Considering their position which emerged by the fact that Slovenia gained its independence, the acts on gaining independence also contained special provisions which regulated their position in the newly created state. The Enabling Statute for the Implementation of the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia (Official GAzette of RS, No. 1/91 - hereinafter: the UZITUL) in article 13 specially provided that citizens of other republics having permanent residence registered in the Republic of Slovenia on the day of the plebiscite on the independence and sovereignty of the Republic of Slovenia of (23 December 1990) and who actually lived there shall be made equal as regards their rights and duties to citizens of the Republic of Slovenia (the exception being the cases specified in article 16) regarding the acquisition of citizenship of the Republic of Slovenia in accordance with article 40 of Citizenship (of the Republic of Slovenia) Act (hereinafter: the ZDrž) and regarding the expiry of the time periods under article 81 of the ZTuj. On the basis of article 40 of the ZDrž, citizens of other republics having permanent residence in the Republic of Slovenia on the day of the plebiscite and who actually lived there could acquire Slovenian citizenship if they lodged the application with administrative authority competent for internal affairs of the area of their permanent residence within six months of the coming into force of the ZDrž. In the amended ZDrž (Official Gazette of RS, No. 30/91), in paragraphs 2 and 3 of article 40 exceptions were specified for the cases where a citizen of another republic, although fulfilling the conditions mentioned, could not acquire the citizenship of the Republic of Slovenia if subsequent to 26.6.1991 he was sentenced for certain criminal acts or if the conditions under point 8 of paragraph 1 of article 10 - threat to public order, security or defence of the state - were fulfilled.

6. The ZDrž, then, specifically determined the conditions and procedure for citizens of other republics to acquire the citizenship of the Republic of Slovenia. Citizens of other republics who opted for Slovenian citizenship and whose application for citizenship was not rejected have become citizens of the Republic of Slovenia.1 Pending finality of the decision on the granting of citizenship of the Republic of Slovenia, to citizens of other republics the provisions of the ZTuj did not apply (paragraph 1 of article 81).. which meant that their legal position was practically the same as prior to the gaining of independence. For the citizens of other republics who acquired the citizenship of the Republic of Slovenia, the gaining of independence by Slovenia did not in fact imply a change in their legal position.

7. What has been changed substantially is the legal position of citizens of other republics which did not opt for citizenship of the Republic of Slovenia or whose application for citizenship was rejected. The ZTuj which, in the same way as the ZDrž, is one of the laws passed within the scope of the legislation relating to Slovenia's gaining of independence does not contain any special provisions concerning this group of citizens of other republics. In paragraph 2 of article 81 it only provides that with respect to the said persons provisions of the ZTuj shall start to apply two months after the expiry of the time period within which they could apply for citizenship of the Republic of Slovenia, or with the date of issuance of final decision on citizenship.

8. From legislative materials (proposed text of the ZTuj of 24.5.1991, ESA 357) it is evident that during the discussion about the draft of the Act a proposal was made that a special provision should regulate the transitional legal position of citizens of SFRY who would not opt for citizenship of the Republic of Slovenia. The proposal was not taken into consideration, and the reason given for this was that what was involved was a question which need not be regulated by the ZTuj but merely by arrangements between states (reasoned opinion, page 3, point 6). From the foregoing it is evident that the legislator did not regulate the legal position of the group of citizens of other republics under consideration because he thought that the regulation of their legal position will make part of bilateral agreements between states, which the Republic of Slovenia would supposedly conclude in conformity with rules of international law with other states which have emerged on the territory of former SFRY and whose citizens reside in the territory of the Republic of Slovenia. As such bilateral agreements between states have not been concluded, in particular because of war situation in the Republic of Croatia and the Republic of Bosnia and Herzegovina, their legal position has remained unregulated.

9. From the explanations of the Government and evidence submitted by the initiators it is evident that the said gap in the law has in practice been filled in various ways and that it lead to different consequences for citizens of other republics.

10. One of the first consequences of unregulated legal position of citizens of other republics under paragraph 2 of article 81 was that, with the date when the ZTuj started to apply to these persons, competent administrative authorities on the basis of the provision of paragrašh 2 of its article 81 transferred the said persons from the register of permanent population to the record of foreigners. Transfer was effected on ex officio basis, and the citizens of other republics were not informed about the transfer and instructed about their new legal position. The Government explains that in the case of these persons the registration of their permanent residence ceased to be in effect on the basis of the Act on the Record of Accommodation of Community Members and on Population Register - ex lege. Only upon the request of applicants themselves did competent authorities issue a certificate of removal from register. Thus, in the case of the initiator Blagoje Mikovič, the Town Secretariat for Internal Affairs of Ljubljana Town issued the certificate no. 10/3-11656/93 of 24.5.1993, in which it is stated that the initiator had been registered as having permanent residence in Ljubljana in the period between 15.12.1978 and 26.2.1992 and that, due to the application of article 81 of the ZTuj, he is since 16.9.1992 registered as having temporary residence of foreigner and resides in the Republic of Slovenia on the basis of residence permit valid until 22.10.1993 (temporary residence permit). From the enclosed decision of the Administrative Unit of Ljubljana no. 10/20-T-ZB- 1188/93 of 3.5.1995 it follows that the initiator was registered in the record of temporarily registered foreigners (paragraph 1 of article 63 of the ZTuj).

11.The ZTuj grants foreigners various possibilities as regards their residing in Slovenia. On the basis of paragraph 1 of article 13, as a rule, a foreigner may reside in the territory of Slovenia three months, or, for so long as permitted by the visa issued, unless provided otherwise by an international agreement. If he desires to reside for a longer time, he must file the application for temporary residence permit before the expiry of relevant time periods. The foreigner may continue to reside in Slovenia because it is deemed, on the basis of paragraph 3 of article 13, that application filing certificate shall be considered to be temporary residence permit until the time of the issuance of final decision. Paragraph 2 of article 13 specifies the cases where a foreigner can acquire temporary residence permit (schooling, employment, medical treatment, performance of professional activity, marriage, immovable property in Slovenia, enjoyment of the rights arising from work or some other justified reason). Article 16 of the ZTuj regulates the situation in the case when the foreigner desires to permanently reside in the Republic of Slovenia. A foreigner can acquire permanent residence permit only if he satisfies the conditions determined in paragraph 1 of article 16 and if negative (excluding) conditions specified in paragraph 3 of article 19 are not in existence. Paragraph 1 of article 16 provides that permeant residence permit can be issued to a foreigner residing for not less than eight years (three years at the time before the revised ZTuj) without interruption in the territory of the Republic of Slovenia on the basis of temporary residence permit and who satisfies the conditions of paragraph 2 of article 13, which justify permanent residence in the territory of the Republic of Slovenia. And paragraph 3 of article 19 provides that permanent or temporary residence permit cannot be acquired by a foreigner without a means of existence or whose existence is not guaranteed in some other way, who has arrived into the country by violating the provisions of article 13, or in reference with whom such a reason exists as is specified in indents 1, 2, 6 or 7 of article 10 (if he has been ordered to leave the country; if he is in the record of international offenders; if he does not have documents enabling his identity to be established or if such documents are not valid; if he comes from areas where there are contagious diseases and does not have any evidence of vaccination).

12. The consequence of unregulated legal position of citizens of other republics was that - at least up to the adoption of the resolution of the Government of 3.9.1992 that the three-year period of residence shall be deemed to include also permanent residence prior to the coming into force of the ZTuj - competent administrative authorities applied the provision of article 13 and issued to these persons temporary residence permits and considered that they had filed applications for temporary residence. Regardless of whether competent administrative authorities applied provisions of article 13 relating to the acquisition of temporary residence permit or provisions of paragraph 1 of article 16 on acquisition of permanent residence permit in conformity with the resolution of the Government, the said persons had to show that they satisfied at least one of the conditions of paragraph 2 of article 13, which justified a longer period of residence, and that they had means of existence. If a person did not satisfy any of the set conditions or if he did not provide evidence of some other justified reason for longer residence in the Republic of Slovenia, the competent administrative authorities could reject the application for both temporary or permanent residence. When such decision became final, the citizen of the other republic was deprived of the right to reside in the territory of the Republic of Slovenia (article 28 of the ZTuj). Citizens of other republics could not acquire temporary of permanent residence permit also for other reasons. One of the reasons, because of which the said persons could not arrange their status of foreigner, was also that, due to war situation in the country whose citizens they were or for other reason, they did not obtain a valid passport or other certificates which a foreigner is on the basis of article 64 of the ZTuj obliged to attach to his application for the issuance of permanent or temporary residence permit.

13. From the foregoing it is evident that while the ZTuj regulates the acquisition of temporary or permanent residence permit of foreigners the said provisions by their content do not correspond to the position of the group of citizens of other republics under consideration and that they can also not be applied to these persons by the use of statutory or legal analogy.2 The said persons registered their permanent residence in the territory of Slovenia in conformity with applicable laws and regulations and actually resided in the territory of Slovenia. Permanent residence and actual residence in the territory of the Republic of Slovenia are the essential circumstances which assign special legal position to the persons concerned, which is why the provisions of the ZTuj which regulate the acquisition of permanent or temporary residence are inappropriate for them. The legislator should have regulated the position of the persons concerned and/or their transition to the status of foreigner in a special manner in transitional provisions of the ZTuj or in a special statute. For provisions which regulate different legal positions of foreigners have as their starting point the assumption that a foreigner comes to the Republic of Slovenia with the intention of remaining in it for a shorter or longer time and that he will in accordance with provisions of the ZTuj gradually (from temporary residence permit to permanent residence permit) start to arrange his legal position of foreigner. In the light of the development of modern protection of human rights, what has also become the object of international negotiations is also the position of persons with permanent residence in the territory of the countries dissolved subsequent to 1990 who were citizens of predecessor state and have not acquired citizenship of successor state.3

14. The Constitutional Court finds that the provisions of paragraph 2 of article 13 and paragraph 1 of article 16 of the ZTuj should not apply to citizens of other republics who have not acquired the citizenship of the Republic of Slovenia.

Neither should competent authorities have effected the transfer of these persons from the existing register of permanent population to the record of foreigners ex officio, without any decision or notification addressed to the person concerned.

There was no statutory basis whatsoever for them to act so. The Act on the Record of Accommodation of Community Members and on Population Register, which is invoked by the Government in its explanations does not contain any provisions on the removal of permanent residence from register on the basis of the Act itself. Neither is the Government empowered by statute with resolution in so far as individual act to determine the manner of implementation of statutory provisions. On the basis of article 120 of the Constitution, duties and functions associated with public administration shall be conducted independently and at all times pursuant to, and consistent with, the Constitution and the law. When the Government found that in practice the ZTuj could not be applied in practice also to citizens of other republics, it should have proposed to the legislator to regulate their legal position, and should not have interfered with legislative power by a resolution.

15. For the foregoing reasons, the ZTuj, whose transitional provisions do not regulate the legal status of citizens of other republics as that of foreigners in the Republic of Slovenia having had permanent residence in the Republic of Slovenia and having in fact resided in its territory, has violated the principles of law-governed state under article 2 of the Constitution. For this reason, the citizens of other republics upon the expiry of the time periods set in paragraph 2 of article 81 found themselves in insecure position. From the text of transitional provisions, which specify that provisions of the ZTuj be applied, the said persons could not grasp what is the position belonging to them as foreigners and which statutory provisions should apply to them. This is why the Constitutional Court concludes that, because the legal position of citizens of other republics in so far as foreigners in the Republic of Slovenia has not been regulated, the principle of protection of trust in law as one of the principles of law-governed state has been violated.

16. The principle of protection of trust in law guarantees to the individual that the state will not make worse his legal position without justified reasons. It was quite justified for citizens of other republics who did not opt for Slovenian citizenship that they should not expect that they would be made equal to foreigners who are only just coming into the Republic of Slovenia and that they would be deprived of permanent residence, and this even without any notice whatsoever. Slovenia as the future state obliged itself in its acts concerning its gaining of independence that it would guarantee the protection of human rights and fundamental freedoms to all persons in the territory of the Republic of Slovenia regardless of their nationality, without any discrimination, in conformity with the Constitution of the Republic of Slovenia and applicable international law (section III of the Basic Constitutional Charter on the Independence and Sovereignty (Official Gazette of RS, No. 1 - 4/91). Citizens of other republics who did not opt for citizenship of the Republic of Slovenia or whose application was rejected could, having regard to the above mentioned acts relating to Slovenia's gaining of independence, quite rightly expect that this circumstance would not essentially worsen their position and that they would continue to have permanent residence in the Republic of Slovenia if they wish so. The said persons could quite rightly expect that the conditions which would enable them to continue to have permanent residence in the Republic of Slovenia would not be more rigorous than those set in reference with the acquisition of citizenship by article 13 of the UZITUL or article 40 of the ZDrž, and that their legal status would be regulated in accordance with international law.

Thus, the International Covenant on Civil and Political Rights (Official Gazette of SFRY, No. 7/71 and Official GAzette of RS, No. 35/92) in article 12 provides that each person who is legally in the territory of a state shall have the right to freely move in it and to freely chose his residence, and that this right may be limited only for specific reasons set in paragraph 3 of article 12 (limitations provided for by statute, protection of national security, public order, public health and morality, rights and freedoms of others), and if this is in conformity with other rights recognized by the said Covenant.

The application of provisions of the ZTuj on the acquisition of temporary or permanent residence permit may have caused that the persons referred to in paragraph 2 of article 81 of the said statute were not in a position to be able to acquire a permit either for temporary or for permanent residence unless they showed that they satisfied at least one of the justified conditions for prolonged residence in the state (paragraph 2 of article 13 of the ZTuj). When the decision on refusal to grant temporary or permanent residence permit became final, such a person found himself residing in the country illegally and had to leave the territory of the Republic of Slovenia within a certain period of time, or could be deported (article 28 of the ZTuj). The legally unregulated position of citizens of other republics can lead to the violation of the European Convention for the Protection of Human Rights (Official Gazette of RS, No. 33/94 - hereinafter: the EKČP) whose article 8 protects among other things also the right to family life and allows interference only if this is determined by statute and absolutely necessary in a democratic society for reasons of national security, public security and economic welfare of the state, to prevent disorder or crime, safeguard health or morals or to protect the rights and freedoms of other persons. The European Court of Human Rights has already adopted a position that the deporting of a foreigner can constitute a violation of article 8 of the EKČP (Moustaquim v. Belgium), verdict of 18.2.1991, Series A, no. 193; Beldjoudi v. France, verdict of 26.3.1992, Series A, Vol. 234-A) ; Nasri v. France, verdict of 13.7.1995, Series A, Vol. 320).

17. The principle of equality as determined in paragraph 2 of article 14 of the Constitution does not determine equality before laws only for citizens of the Republic of Slovenia but applies to all persons whose legal positions are regulated by law. Article 13 of the Constitution provides that foreigners in Slovenia shall, in accordance with international agreements, have all the rights guaranteed by the Constitution and laws, except for those belonging on the basis of the Constitution and law just to Slovenian citizens. The principle of equality is complied with only if in a statute identical actual states or identical legal positions are also regulated equally. For each instance of different regulation the legislator must have real and sound reasons. This means that the legislator must not act arbitrarily when regulating legal relations. Thus, there must be a sound reason for differentiation which derives from the nature of the matter. Statutory differentiation is thus in agreement with paragraph 2 of article 14 of the Constitution in so far as a norm comprises all and just those subjects who hold the same position with regard to the aim of the law (see for example OdlUS II, 69 and OdlUS V, 96).

18. At the time when Slovenia gained independence, in the territory of the Republic of Slovenia persons resided who had the status of foreigners on the basis of the federal Act on the Movement and Residence of Foreign Citizens (Official Gazette of SFRY, Nos. 56/80, 53/85, 30/90 and 29/90), which applied in the territory of Slovenia right up to the gaining of independence and the coming into force of the ZTuj. Legal position of those persons who were deemed to be foreigners already before the gaining of independence by Slovenia, was regulated by the ZTuj in paragraph 3 of article 82. The statute provided that permanent residence permits having been issued on the basis of former statute shall continue to apply to all foreigners having permanent residence in the territory of the Republic of Slovenia at the time of the coming into force of the ZTuj. On the basis of the said provision, all foreigners who had a permanent residence permit were allowed without any additional conditions to continue to reside in our country. In the case of citizens of other republics who also resided legally in the territory of Slovenia and who had registered their permanent residence, however, the statute did not regulate their transitional legal position, and in this way it caused their legal position to be less favourable than that of foreigners who had that status already before the gaining of independence of the Republic of Slovenia. As for the described differentiation no real and justified reason can be found which would justify that transitional legal position of citizens of other republics who had registered their permanent residence in the Republic of Slovenia and who legally resided in its territory should be essentially different from the legal position of those persons who had the status of foreigner with permanent residence already before the gaining of independence by Slovenia, the omission to regulate the position of the said persons also constitutes a violation of the principle of equality under paragraph 2 of article 14 of the Constitution.

B. - II.

19. On the basis of paragraph 1 of article 48 of the ZUstS, the Constitutional Court shall adopt a declaratory decision if it determines that a statute, regulation or general act for the exercise of public powers was unconstitutional or illegal because a certain matter which its should have regulated was not regulated. In the case under consideration, the Constitutional Court established that the disputed statute was not in agreement with the Constitution for failing to regulate the legal position of persons who became foreigners upon the expiry of the time periods set in paragraph 2 of article 81. This led to the violations of principles of law-governed state, the principle of equality and in certain cases (in the case of deportation or expulsion) possibly also to the violation of human rights and freedoms which belong in accordance with the Constitution and international law to all persons who legally reside in its territory regardless of their nationality. For this reasons the Constitutional Court in paragraph 1 of the disposition hereof decided that the ZTuj is not in conformity with the Constitution and in paragraph 3 of the disposition set a period of six months in which the legislator must do away with the identified disagreement with the Constitution.

20.The provisions of the ZTuj began to apply to the citizens of other republics referred to in paragraph 2 of article 81 starting with 26.2.1992. In the period already elapsed from the coming into force of the ZTuj, citizens of other republics could satisfy the condition of uninterrupted tree year residence in the Republic of Slovenia on the basis of temporary residence permit (paragraph 1 of article 16) - unless they had obtained a permanent residence permit already on the occasion of the first application for residence, taking into consideration their permanent residence prior to 26.2.1992 (resolution of the Government). For citizens of other republics to be able to obtain permanent residence permit, in addition to three years of uninterrupted residence in the territory of Slovenia they also had to satisfy other conditions which justified their prolonged residence in the country ((paragraph 2 of article 13). They had to show that they have means of existence (indent 2 of paragraph 3 of article 19). If competent administrative authorities (who may exercise discretionary power when deciding on the issuance of temporary or permanent residence permit) establish that the said conditions are not satisfied, they shall reject the application by a decision against which the applicant may appeal within three days. Thus, there is a possibility that certain citizens of other republics did not satisfy one from among the other conditions (e.g., due to unemployment) and for this reason could not acquire temporary or permanent residence permit although they satisfied the condition of three years of uninterrupted residence in the country and in fact lived in the territory of the Republic of Slovenia. Also, all applications for the acquisition of citizenship have not been decided yet, or they have not been decided by final decision, or the applicant has not yet even arranged his legal position for the recognition of which he applied (temporary or permanent residence permit).

From the foregoing it follows that legal consequences arising from unregulated legal position of persons who are citizens of other republics of former SFRY still exist. This is why the legislator will have to take into consideration the different position in which the said persons find themselves because of unregulated legal position.

21. As there is a possibility that citizens of other republics referred to in paragraph 2 of article 81 who were registered as permanently residing in the territory of the Republic of Slovenia and in fact lived in its territory on the date of the plebiscite of 23.12.1990 may still not have arranged their legal position, the Constitutional Court on the basis of paragraph 2 of article 40 of the ZUstS decided that against the said persons the measure of deportation of foreigner under article 28 of the ZTuj may not be pronounced until the legislator will have done away with the unconstitutionality ascertained by this decision.

B. - III.

22. On the basis of the initiative received, the Constitutional Court also commenced a proceeding for the evaluation of constitutionality of paragraph 1 of article 16 of the ZTuj. In the process of consideration it established that the provisions is intended exclusively for those foreigners who have or will come into our country and that it cannot be applied, even on mutatis mutandis basis, to regulate the legal position in which citizens of other republics found themselves by the fact that Slovenia gained independence. This is why the Constitutional Court found that the provision of paragraph 1 of article 16 of the ZTuj is from the viewpoint of the present constitutional review not in disagreement with the Constitution.

C.

23. This Decision was made on the basis of article 21, paragraph 2 of article 40 and article 48 of the ZUstS by the Constitutional Court in the following composition: Franc Testen, President, and Dr. Zvonko Fišer, Dr. Miroslava Geč - Korošec, Lojze Janko, Milojka Modrijan, Dr. Mirjam Škrk, Dr. Lojze Ude and Dr. Dragica Wedam - Lukić, the judges. The decision was made unanimously. Judge Ude gave a concurring opinion.


P r e s i d e n t:
Franc Testen


Notes:
1On the basis of article 40 of the ZDrž, approx. 170,000 citizens of other republics have acquired Slovenian citizenship (Nada Kočina, Zakon o državljanstvu Republike Slovenije s komentarjem, MNZ 1993).
2"Administrative authority who makes use of law and for this purpose interprets laws and regulations shall in the case of each application of a law or regulation determine the meaning of it and its aim or purpose - all of which is established by means of various methods of interpretation of the law. The two classical methods of filling gaps in the law are the legal and statutory analogy. We speak about statutory analogy where from a case which has been regulated individually we infer a case that is not regulated which, by its constituents, does not correspond entirely to typical indicators of an abstract state of affairs but is still so similar to them that it matches them in essential properties. And we speak of legal analogy where a certain legal rule is generalized and applied to social relations of another kind, if they correspond to these as far as values are concerned. The only exception regarding the application of analogy exists in criminal law, where it is only admissible to make conclusions based on similarity within a particular norm of penal law which in itself contains sufficiently definite criteria for its substantive definition" (Decision no. U-I-225/96 of 15.1.1998, OdlUS VII, 7).
3The European Convention on Citizenship of the Council of Europe of 6.11.1997, which Slovenia has not signed (and is not in force yet), determines the principles of regulation of legal position of persons who have not acquired the citizenship of the state in which they permanently reside. This question is also being considered by the Committee for International Law (CIL) of the United Nations within the framework of the subject of citizenship of natural persons and state succession (Report of CIL on the work at its 49. session between 12.5.1997 to 18.7.1997).
4Marjan Pavčnik, Argumentacija v pravu, 1991, pp. 146 to 151.
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute
Applicant:
Blagoje Mikovič and Vojislav Tomić, Ljubljana
Date of application:
14. 11. 1994
Date of Decision:
4. 2. 1999
Type of decision adopted:
decision
Outcome of proceedings:
establishment – it is inconsistent with the Constitution/statute
Published:
Official Gazette RS, No. 14/99 and OdlUS VIII, 22
Document:
AN01683

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