Constitutional court case law

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Case number:
U-I-246/02
ECLI:
ECLI:SI:USRS:2003:U.I.246.02
Challenged act:
Act on the Regulation of the Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia (Official Gazette RS, Nos. 61/99 and 64/01) (ZUSDDD), individual provisions
Operative provisions:
The Act on the Regulation of the Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia (Official Gazette RS, Nos. 61/99 and 64/01) is inconsistent with the Constitution, as it does not recognize citizens of other Republics of the former SFRY who were removed from the register of permanent residents on 26 February 1992, permanent residence from the mentioned date. The Act on the Regulation of the Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia is inconsistent with the Constitution, as it does not regulate the acquisition of a permit for permanent residence by citizens of other Republics of the former SFRY from the previous paragraph for whom the measure of the forcible removal of a foreigner was pronounced under Art. 28 of the Foreigners Act (Official Gazette RS, No. 1/91-I and 44/97). Article 1 of the Act on the Regulation of the Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia is inconsistent with the Constitution for the reasons mentioned in the reasoning of this Decision. Paras. 1 and 2 of Art. 2 of the Act on the Regulation of the Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia are annulled in the parts in which they determine a time limit of three months for filing an application for the issuance of a permit for permanent residence. The petition for the commencement of proceedings for the review of the constitutionality of Art. 2.4, Art. 3 and Art. 7.3.12 of the Act on the Regulation of the Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia is dismissed. The petition of the Helsinki Monitor of Slovenia Association for Human Rights Promotion for the commencement of proceedings for the review of the constitutionality and legality of the Act on the Regulation of the Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia is rejected. The legislature is obliged to remedy the unconstitutionalities established in Paras. 1, 2 and 3 of the operative provisions within six months from the day of the publication of this Decision in the Official Gazette of the Republic of Slovenia. The permanent residence status of citizens of other Republics of the former SFRY is hereby established from 26 February 1992 onwards if they were removed on that day from the register of permanent residents, by a permit for permanent residence issued on the basis of the Act on the Regulation of the Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia, the Foreigners Act (Official Gazette RS, Nos. 1/91-I and 44/97), or the Foreigners Act (Official Gazette RS, No. 61/99). The Ministry of the Interior must as an official duty issue them supplementary decisions on the establishment of their permanent residence status in the Republic of Slovenia from 26 February 1992 onwards.
Abstract:
The Constitutional Court established that the Act on the Regulation of the Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia (Official Gazette RS, Nos. 61/99, 54/2000 and 64/01 – hereinafter ZUSDDD) did not enable citizens of other successor States to the former SFRY (hereinafter citizens of other Republics) to also acquire a permit for permanent residence retroactively, i.e. from 26 February 1992, when they lost their permanent residence in the Republic of Slovenia through the revocation of the their permanent resident status and their transfer to the register of foreigners. As the principles of a State governed by the rule of law, in particular the principle of legal certainty, require that the position of citizens of other Republics must not remain legally unregulated, the Constitutional Court in Para. 1 of the operative provisions decided that ZUSDDD is inconsistent with the Constitution, as it does not recognize to citizens of other Republics, who were removed on 26 February 1992 from the register of permanent residents, permanent residence status from the mentioned date.
 
The Constitutional Court established that, due to the special legal position of citizens of other Republics, the legislature should not define the established unconstitutional gap in the law in a different manner than to determine that the mentioned persons who have already acquired a permit for permanent residence are to be recognized permanent residence retroactively. Therefore, the Constitutional Court decided to determine the manner of the implementation of its decision under Para. 1 of the operative provisions such that by the permits for permanent residence that have already been issued to citizens of other Republics, permanent residence status be established retroactively, i.e. from 26 February 1992, being the date of their removal from the register of permanent residents. Furthermore, it imposed on the Ministry of the Interior the obligation to issue, as an official duty, supplementary decisions on the establishment of permanent residence from 26 February 1992 onwards to all those citizens of other Republics who had been on 26 February 1992 removed from the register of residents and who have already acquired permits for permanent residence (Para. 8 of the operative provisions).
 
The Constitutional Court decided that the principles of a State governed by the rule of law require special regulation of the position of citizens of other Republics for whom the measure of the forcible removal of a foreigner from the State was pronounced due to their unregulated legal position. Therefore, it established, in Para. 2 of the operative provisions, the inconsistency of ZUSDDD with the Constitution also for reason of its failing to regulate the acquisition of a permit for permanent residence by citizens of other Republics who were removed from the register of permanent residents and for whom the measure of the forcible removal of a foreigner from the State was pronounced due to their unregulated legal position under Art. 28 of the Foreigners Act (Official Gazette RS, No. 1/91-I and 44/97).
 
From the view of the principles of a State governed by the rule of law (Art. 2 of the Constitution and the principle of administrative bodies being bound by the framework of the Constitution and statutes (Art. 120.2 of the Constitution), and in view of the special position of citizens of other Republics, the Act should define what actual presence means according to ZUSDDD. Due to the loss of permanent residence in the Republic of Slovenia and their legal position being unregulated for a longer time, the citizens of other Republics faced a variety of circumstances, thus it is necessary to prescribe criteria (a framework) for establishing the fulfillment of the condition of actual presence in order to acquire a permit for permanent residence. Therefore, the Constitutional Court decided that Art. 1 of ZUSDDD is in this part inconsistent with the Constitution (Para. 3 of the operative provisions).
 
As the legislature did not have a justified reason for determining a short (preclusive) time period for filing an application for issuing a permit for permanent residence, the Constitutional Court annulled the challenged Art. 2.1 and 2.2, in the part in which a time limit of three months was determined (Para. 4 of the operative provisions).
Thesaurus:
1.5.51.1.16 Constitutional Justice - Decisions - Types of decisions of the Constitutional Court – In abstract review proceedings – Requiring the norm-giver to adjust a regulation with the Constitution
1.5.51.1.15.1 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In abstract review proceedings - Finding that a regulation is not in conformity with the Constitution
1.5.51.1.22 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In abstract review proceedings - Determination of the manner of implementing a decision
5.3.8 - Fundamental Rights - Civil and political rights - Right to a nationality
1.4.51.4. - Constitutional Justice - Procedure - Procedural requirements (in all proceedings except in constitutional-complaint proceedings) - Legal interest to file a petition
5.3.10 - Fundamental Rights - Civil and political rights - Rights of domicile and establishment
1.3.5.15 - Constitutional Justice - Jurisdiction - The subject of review - Failure to act or to pass legislation
3.9 - General Principles - Rule of law
5.1.1.3 - Fundamental Rights - General questions - Entitlement to rights – Foreigners
5.1.1.3.1 - Fundamental Rights - General questions - Entitlement to rights - Foreigners - Refugees and applicants for refugee status
5.3.13.18 - Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defense and fair trial - Equality of arms
3.12 - General Principles - Clarity and precision of legal provisions
1.5.5.1 - Constitutional Justice - Decisions - Individual opinions of members - Concurring opinions
Legal basis:
Constitution (URS), Arts. 2, 22
Constitutional Court Act (ZUstS), Arts. 25, 26.2, 43, 40.2, 48
Cases joined:
By the order of the Constitutional Court dated 18 February 2002, Case U-I-391/02 was joined with the case considered for reason of joint consideration and decision-making.
 
On the basis of Art. 54.2 of the Rules of Procedure of the Constitutional Court of the Republic of Slovenia (Official Gazette RS, Nos. 49/98 and 30/02), the Constitutional Court hereby issues.
Full text:
The following PRESS RELEASE
 
The Constitutional Court (composed of: Dr. Dragica Wedam Lukić, President, and Judges Dr. Janez Čebulj, Dr. Zvonko Fišer, Lojze Janko, Marija Krisper Kramberger, ll.m., Milojka Modrijan, Dr. Ciril Ribičič, Dr. Mirjam Škrk and Jože Tratnik) has reached Decision No. U-I-246/02 dated 3 April 2003, on the constitutionality of individual provisions of the Act on the Regulation of the Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia (Official Gazette RS, Nos. 61/99 and 64/01 – hereinafter ZUSDDD). The decision was reached unanimously. Judge Dr. Ciril Ribičič gave his concurring opinion.
 
The Decision of the Constitutional Court refers to those citizens of other Republics whose permanent residence was registered until 26 February 1992. This means that they had been registered until that date, and on that day they were removed from the register of permanent residents.
 
In Para. 1 of the operative provisions, the Constitutional Court decided that ZUSDDD is inconsistent with the Constitution, as it did not recognize the citizens of other Successor States to the former SFRY (hereinafter citizens of other Republics) permanent residence for the period from their removal onwards. Due to the special legal position of citizens of other Republics, which is reflected in the fact that, prior to their removal from the register of permanent residents, they had permanently resided in Slovenia and actually continued to dwell there, the legislature should not regulate the established unconstitutionality in a different manner than to determine that they also be recognized permanent residence retroactively. Therefore, the Constitutional Court determined in Para. 8 of the operative provisions, as the manner of implementing its Decision, that by the permits for permanent residence that have already been issued to citizens of other Republics, permanent residence be established retroactively, i.e. from 26 February 1992, this being the date of their removal from the register of permanent residents. Furthermore, it imposed on the Ministry of the Interior the obligation to issue, as an official duty, supplementary decisions on the establishment of permanent residence from 26 February 1992 onwards to all those citizens of other Republics who on 26 February 1992 had been removed from the register of residents, and have already acquired permits for permanent residence pursuant to ZUSDDD for the period after the issuance of the permit.
 
In Para. 2 of the operative provisions, the Constitutional Court established the inconsistency of ZUSDDD with the Constitution, as it does not regulate the possibility of the acquisition of a permit for permanent residence for citizens of other Republics who were removed from the register of permanent residents, and for whom the measure of the forcible removal of a foreigner from the State was pronounced due to their unregulated legal position. The Constitutional Court had prohibited the use of this measure for the mentioned persons already by Decision No. U-I-284/94, dated 4 February 1999. The principles of a State governed by the rule of law require that their position be separately regulated.
 
In Para. 3 of the operative provisions, the Constitutional Court decided that Art. 1 of ZUSDDD is inconsistent with the Constitution. This article determines as a condition for the acquisition of a permit for permanent residence actual presence during the time after the removal from the register of permanent residents, without determining the content of this condition in more detail. Concerning the special position of these persons, the Act should determine what actual presence means, in particular it should determine the period of absence following which the condition of actual presence is no longer fulfilled. In this respect, the position of these persons should not be worse than the position of persons who had the status of foreigner already prior to the Republic of Slovenia gaining of independence.
 
In Para. 4 of the operative provisions, the Constitutional Court annulled Art. 2.1 and 2 of the Act in the part in which a time limit of three months was determined by which an application for the issuance of a permit for permanent residence should have been filed. It established that in determining the time limit the legislature did not consider all personal and other circumstances that could hinder entitled persons from filing their applications in time, and that it did not have a justified reason to prescribe such a short time period.
 
The Constitutional Court determined a time limit of six months by which the established unconstitutionalities (Para. 7 of the operative provisions) must be remedied.
 
The Constitutional Court dismissed as manifestly unfounded the petition for the commencement of proceedings to review the constitutionality of Art. 2.4, which determines that an application for the issuance of a permit for permanent residence be filed on a form prescribed by the Minister of the Interior, and of Art. 7.3.12, which provides that the register of received applications also contain data on evidence of uninterrupted actual residence (Para. 5 of the operative provisions). It also dismissed the petition to review Art. 3, which determines that the Ministry of the Interior may refuse to issue a permit for permanent residence if a foreigner has been sentenced by a final judgment to a certain period of imprisonment (three or five years of imprisonment), or for reason of certain criminal offences committed. Even if the legal status of citizens of other Republics was legally regulated on the day of 26 February 1992 in a manner such that their permanent residence was recognized, it could be revoked for the mentioned reasons (Para. 5 of the operative provisions).
 
President
dr. Dragica Wedam Lukić
 
 
U-I-246/02
3 April 2003
 
 

DECISION 



 
At a session held on 3 April 2003 in the proceedings to examine petitions and in the proceedings to review constitutionality commenced upon the petitions of the Society of Erased Residents of Slovenia, Ptuj, and others, represented by Matevž Krivic of Medvode and Neva Miklavčič Predan of Ljubljana, the Constitutional Court
 
d e c i d e d a s f o l l o w s:
 
1. The Act on the Regulation of the Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia (Official Gazette RS, Nos. 61/99 and 64/01) is inconsistent with the Constitution, as it does not recognize citizens of other Republics of the former SFRY who were removed from the register of permanent residents on 26 February 1992, permanent residence from the mentioned date.
 
2. The Act on the Regulation of the Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia is inconsistent with the Constitution, as it does not regulate the acquisition of a permit for permanent residence by citizens of other Republics of the former SFRY from the previous paragraph for whom the measure of the forcible removal of a foreigner was pronounced under Art. 28 of the Foreigners Act (Official Gazette RS, No. 1/91-I and 44/97).
 
3. Article 1 of the Act on the Regulation of the Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia is inconsistent with the Constitution for the reasons mentioned in the reasoning of this Decision.
 
4. Paras. 1 and 2 of Art. 2 of the Act on the Regulation of the Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia are annulled in the parts in which they determine a time limit of three months for filing an application for the issuance of a permit for permanent residence.
 
5. The petition for the commencement of proceedings for the review of the constitutionality of Art. 2.4, Art. 3 and Art. 7.3.12 of the Act on the Regulation of the Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia is dismissed.
 
6. The petition of the Helsinki Monitor of Slovenia Association for Human Rights Promotion for the commencement of proceedings for the review of the constitutionality and legality of the Act on the Regulation of the Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia is rejected.
 
7. The legislature is obliged to remedy the unconstitutionalities established in Paras. 1, 2 and 3 of the operative provisions within six months from the day of the publication of this Decision in the Official Gazette of the Republic of Slovenia.
 
8. The permanent residence status of citizens of other Republics of the former SFRY is hereby established from 26 February 1992 onwards if they were removed on that day from the register of permanent residents, by a permit for permanent residence issued on the basis of the Act on the Regulation of the Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia, the Foreigners Act (Official Gazette RS, Nos. 1/91-I and 44/97), or the Foreigners Act (Official Gazette RS, No. 61/99). The Ministry of the Interior must as an official duty issue them supplementary decisions on the establishment of their permanent residence in the Republic of Slovenia from 26 February 1992 onwards.
 
R e a s o n i n g
 
A.
 
1. In the case at issue two petitions are joined. The first petition was filed by the Society of Erased Residents of Slovenia, Aleksander Todorović, Ilija Rančić and Staniša Milenković. They asserted that the Act on the Regulation of the Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia (Official Gazette RS, Nos. 61/99 and 64/01) (hereinafter ZUSDDD) should have enabled all the citizens of former Republics who were removed from the register of permanent residents to re-acquire the status of permanent residence from the day of the removal, i.e. from 25 February 1992 onwards. They opined that such a position was also taken by Constitutional Court in Decision No. U-I-284/94, dated 4 February 1999 (Official Gazette RS, No. 14/99 and DecCC VIII, 22), in which it established that the removal of the status of citizens of other Republics permanently residing in the Republic of Slovenia was unlawful. According to the petitioners, by adopting the challenged Act the legislature did not entirely remedy the unconstitutionality established in Decision No. U-I-284/94. By enabling the acquisition of a permit for permanent residence only prospectively, ZUSDDD did not allegedly remedy the consequences that occurred due to the unlawful state of affairs, which approximately 10,000 people have faced for several years. As such, petitioner Aleksander Todorović allegedly acquired a permit for permanent residence prior to the coming into force of the challenged Act, on 20 May 1996, Staniša Milenković not until 21 March 2002, and Ilija Rančić in December 2001. Furthermore, from Constitutional Court Decision No. Up-333/96, dated 1 July 1999 (DecCC VIII, 286), it allegedly follows that the citizens of other Republics whose permanent resident status was removed from the register should be retroactively restored their unlawfully deprived status. They opined that the mentioned decision cannot have only effects between the parties (inter partes), but should be a warning to the legislature, judiciary and public administration that all analogous cases must be resolved in an equal manner. The challenged Act was allegedly inconsistent with the Constitution also as it did not enable the acquisition of permanent resident status to those persons who had to leave the Republic of Slovenia or who were unlawfully deported from it due to the unlawful conduct of the State, or for any other reason.
 
2. ZUSDDD was allegedly inconsistent with the Constitution also as it determined a too short time limit for filing an application for the issuance of a permit for permanent residence. In determining the time limit, the legislature allegedly did not consider the special position of the affected persons who had to face the unlawful state of affairs for several years. The challenged statute was allegedly inconsistent with the Constitution also as it required without reasonable need that an application for the issuance of a permit for permanent residence be filed on a prescribed form. The petitioners claimed the violation of Arts. 2, 8, 14, 21, 22, 26, 32, 34, 35 and 53 of the Constitution, and Art. 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette RS, No. 33/94, IT, No. 7/94 – EKČP). The petitioners suggested that the case be considered as a priority matter, according to Art. 52.6 of the Rules of Procedure of the Constitutional Court of the Republic of Slovenia (Official Gazette RS, Nos. 49/98 and 30/02). They stated that, due to the unlawful state of affairs caused by the removal from the register, the affected citizens of other Republics and their family members have been suffering from a severe life crisis for several years (some of them for already ten years), and that it would be inhumane for to wait for legal and financial redress of the consequences of the unlawful state of affairs for several years more. Furthermore, they suggested that the Constitutional Court call a public hearing. They enclosed with the petition documents on the basis of which they demonstrated their legal interest to file a petition (the Statute of the Society of Erased Residents of Slovenia, photocopies of already issued permits for permanent residence, etc.).
 
3. The petition of the Helsinki Monitor of Slovenia, Pavao Trkulja, Staniša Milenković (a petitioner also in the first petition) and Marko Perak contains mutatis mutandis the same assertions. Beside the entire ZUSDDD, they also challenged Art. 1 of ZUSDDD, in the part in which it determines as a condition for the issuance of a permit for permanent residence, uninterrupted actual presence in the Republic of Slovenia, Art. 3, which does not allow the issuance of a permit for permanent residence to persons who were convicted of criminal offenses, and Art. 7, which in Para. 3.12 determines that also evidence of uninterrupted actual presence be registered. The petitioner the Helsinki Monitor demonstrated its legal interest by Ministry of the Interior Decision No. 0302-18/02-026/20-2000, dated 21 July 2000, in which it was recognized the status of a society operating in the public interest. It stated that the Constitutional Court should recognize its legal interest to file petitions concerning all issues relating to human rights. The Helsinki Monitor, as a non-governmental organization for human rights, is allegedly also authorized to file petitions and represent parties in concrete cases.
 
4. The National Assembly replied that from Constitutional Court Decision No. U-I-284/94 it does not follow in which manner the legislature should have remedied the established unconstitutionality, i.e. by an act with retroactive or only prospective effect. Furthermore, this also does not allegedly follow from Constitutional Court Decision No. Up-333/96, to which the petitioners referred. That decision has allegedly only inter partes effects, and only entails the transitional regulation of the status of the complainant concerning his permanent residence as a condition for the issuance of a driver's license. From Para. 10 of the reasoning of that Decision, it allegedly clearly followed that, after the coming into force of ZUSDDD, the complainant had to bring his status in conformity with this Act. According to the opposing party, it is impossible practically and legally to implement the retroactive restoration of a legal status by a general norm. If the petitioners opined that by the restoration of legal status they would have the possibility to demand "financial redress of consequences", the opposing party emphasized that, on the basis of Art. 26 of the Constitution, only compensation for damage such as was caused through unlawful actions of the State bodies may be demanded. As, for the issuance of a permit for permanent residence on the basis of ZUSDDD, the entire period of the actual presence of these persons in the Republic of Slovenia was considered a relevant condition, its fulfillment must suffice for the exercise of individual rights or duties. The exercise thereof should be enabled by statutes adopted in certain fields, or this should be considered in their exercise. In connection with the assertions of the petitioners concerning the too short time limit for filing applications, the opposing party opined that a time period of three months was appropriate and sound. In determining this time limit, it was allegedly considered that the matter concerned the extraordinary acquisition of a permit for permanent residence and that the position of citizens of other Republics in the Republic of Slovenia needed to be regulated as soon as possible. The condition of actual presence in the Republic of Slovenia required by the challenged Act, was allegedly not fulfilled by those citizens of other Republics who left the Republic of Slovenia. Furthermore, those who were deported from the Republic of Slovenia also did not fulfill this condition. The measures determined in Art. 28 of ZTuj were pronounced in conformity with the then existing regulation during the entire period until Constitutional Court Decision No. U-I-284/94 was reached, which prohibited the further pronouncement of this measure. The Constitutional Court did not allegedly evaluate the already pronounced measures of forcible removal, but only prohibited the further pronouncement of such measures, although, on the basis of Art. 30 of ZUstS, it could also review the constitutionality of other ZTuj provisions. Concerning the assertions of the petitioners relating to the unconstitutionality of the challenged Act due to the requirement that an application for permanent residence be filed on a prescribed form, the opposing party explained that the prescribed form enables the computer processing of data and faster and more efficient conduct of proceedings. Forms are allegedly prescribed for the majority of applications regarding the regulation of legal status or the exercise of certain rights. In relation to the applications accepted on the basis of ZUSDDD, the Ministry of the Interior allegedly explained that all the applications were considered and none of them was refused for reason of not being submitted on the prescribed form.
 
5. The Government opined that international public law did not prescribe obligatory standards that would refer to the field of regulating the position of foreigners and citizenship in the circumstances of a succession. It opined that the then adopted legislation respected the principle of the free will and free decision of the individual as one of the basic principles of common international law. Constitutional Court Decision No. U-I-284/94 in no manner allegedly obliged the legislature to enable the acquisition of permanent resident status with retroactive effect, but only enabled the acquisition of such status on the basis of conditions more favorable than determined by the then applying ZTuj. The challenged Act allegedly enabled the acquisition of a permit for permanent residence also to those who had been registered in the Republic of Slovenia only as temporary residents, or had not been registered at all, who had, however, uninterruptedly lived in the Republic of Slovenia from 25 June 1991, which was allegedly not required by Decision U-I-284/94. The Government also opined that the condition of uninterrupted presence is not fulfilled if the interruption was a consequence of the measures based on the ZTuj provisions. In connection with the prescribed form for filing an application for the issuance of a permit for permanent residence, the Government opined that applications could be filed in all possible ways, not only on the prescribed form. It emphasized that entry into the register of residents is of a declaratory nature. The entry itself does not allegedly enable the exercise of rights defined in statutes that regulate individual rights. Permanent resident status is allegedly only a linking circumstance to determine a venue for the exercise of rights, a person is, however, entitled to rights in accordance with his or her status (as a citizen, foreigner).
 
6. The Ministry of the Interior communicated the following data:
– on 26 February 1992, 18,305 citizens of other Republics of the former SFRY who were registered until that date as permanent residents in the Republic of Slovenia were transferred from the register of permanent residents to the records kept on foreigners;
– on the basis of ZUSDDD, 12,937 applications for the issuance of a permit for permanent residence were filed;
– as of 10 February 2003, 12,047 applications had been considered, of which 10,713 applications were granted resulting in the issuance of a permit for permanent residence, 288 applications dismissed, and 97 applications rejected; in 949 cases the procedure was discontinued due to the withdrawal of the application, or due to the fact that the applicant became a citizen of the Republic of Slovenia;
– until 10 February 2003, 1033 permits for permanent residence were issued on the basis of Art. 6 of ZUSDDD, as during the procedure it was established that ZUSDDS was more favourable for the applicant;
– the entire number of permits for permanent residence issued on the basis of ZUSDDD is 11,746;
– due to a failure to observe the time limit for the filing of an application, 79 applications were rejected.
 
The Ministry of the Interior does not maintain data on how many citizens of other Republics were forcibly removed on the basis of Art. 28 of ZTuj, as the then applying ZTuj did not prescribe the keeping of such a record.
 
7. Petitioners the Society of Erased Residents of Slovenia, Aleksander Todorović, Ilija Rančić and Staniša Milenković opined that the positions of the opposing party replying to the petition and the opinion of the Government, are unacceptable.
 
B. – I.
 
8. By Order No. U-I-246/02, dated 19 September 2002, the Constitutional Court accepted the first petition stated in Para. 1 of the reasoning.
 
9. The Constitutional Court accepted also the second petition. As all the conditions under Art. 26.4 of the Constitutional Court Act were fulfilled (Official Gazette RS, No. 15/94 – hereinafter ZUstS) it immediately proceeded to decide on the merits of the case. The Constitutional Court did not accept the motion to call a public hearing, as the state of facts being the basis for the review of the constitutionality of ZUSDDD was sufficiently reasoned and there was no need for additional explanations by the participants.
 
10. Despite the role and significance of the Helsinki Monitor Association for Human Rights Promotion, the Constitutional Court could not recognize its direct legal interest to challenge ZUSDDD. As the Constitutional Court has frequently emphasized, societies and other associations do not have legal interest to challenge regulations that interfere with the legal position of their members or other persons. They have such legal interest only if a challenged regulation directly interferes with their rights, legal interests or legal position as a legal entity. The Constitutional Court exceptionally recognize these subjects the legal interest to file a petition on behalf of and in the interest of their members only when the society or the association is established with the intention of protecting exactly those interests of their members which were allegedly adversely affected by the challenged regulation. For these reasons, the Constitutional Court recognized the legal interest of the Association of Owners of Expropriated Property, as it was established only solely for the purpose of asserting the interests or rights of their members – expropriated persons (Decision No. U-I-75/96, dated 14 November 1996, Official Gazette RS, No. 68/96 and DecCC V, 154). For the same reasons, it recognized the legal interest of the Society of Erased Residents of Slovenia, which it reasoned in its order on the acceptance of the considered petition. Despite the fact that the Helsinki Monitor Association for Human Rights Promotion has the status of a society that operates in the public interest, for the mentioned reasons the Constitutional Court could not recognize its legal interest to challenge ZUSDDD. Thus, it rejected the petition (Para. 6 of the operative provisions).
 
11. Furthermore, the Helsinki Monitor Association for Human Rights Promotion cannot be authorized to represent the petitioners. Pursuant to Art. 86 of the Civil Procedure Act (Official Gazette RS, Nos. 26/99 and 96/02 – ZPP), which concerning representation is applied mutatis mutandis in proceedings before the Constitutional Court (Art. 6 of ZUstS), only a natural person can be authorized to represent a party. A legal entity can represent a party if it is a law firm (Arts. 35 to 40 of the Attorneys Act, Official Gazette RS, Nos. 18/93 and 24/01 – ZOdv). The petitioners can be represented by Neva Miklavčič Predan, as the authority for their representation refers to her name personally.
 
B. – II.
 
12. ZUSDDD was adopted following Constitutional Court Decision No. U-I-284/94, by which the Constitutional Court imposed on the legislature the obligation to regulate the special legal position of citizens of other Republics of the former SFRY who prior to the gaining of independence had been permanent residents in Slovenia and had actually been present in its territory, who however did not apply for citizenship of the Republic of Slovenia or whose application for citizenship was refused (hereinafter citizens of other Republics). The challenged Act enabled the citizens of other Republics to acquire a permit for permanent residence irrespective of ZTuj provisions if they filed their application within a certain time period. The Ministry of the Interior could refuse to issue such a permit only if these persons had been sentenced to imprisonment or convicted of certain criminal offenses (Art. 3 of ZUSDDD).[1] On the basis of the challenged Act, 11,746 citizens of other Republics thus acquired a permit for permanent residence, while as of 10 February 2003 there were still 990 unresolved applications. Certain individuals acquired a permit for permanent residence even prior to the coming into force of the Act, i.e. on the basis of the then applying ZTuj. In both cases of acquiring a permit for permanent residence, these persons were recognized a permanent residence status as of the day of the issuance of the permit for permanent residence, thus only prospectively. ZUSDDD did not regulate the legal position of the mentioned persons during the period of time before the acquisition of the permit for permanent residence, i.e. retroactively. Therefore, the mentioned persons were not recognized permanent resident status in the Republic of Slovenia uninterruptedly, i.e. from their removal from the register of permanent residents and their transfer to the register of foreigners.
 
13. ZUSDDD (Art. 1) enabled the acquisition of a permit for permanent residence also by those citizens of other Republics whose permanent resident status had not been registered (e.g. those who had temporary resident status or a work visa), who, furthermore, had resided on 25 June 1991 in the Republic of Slovenia and had actually been present there from that date onwards. These citizens of other Republics do not belong to the circle of persons who were entitled to the recognition of a permanent resident status from the day of their removal from the register of permanent residents, as they were not listed in the register. Thus, this Decision only refers to those citizens of other Republics who were from 26 February 1992 registered as permanent residents – which means that they were registered and on that day removed from the register of permanent residents.
 
14. The meaning and intention of Decision No. U-I-284/94 was for the legislature to legally regulate the unregulated position of citizens of other Republics, which had already lasted for seven years at the time that decision was issued by the Constitutional Court. The Constitutional Court imposed on the legislature the obligation to regulate within the framework of its discretion the gap in the law so that it could determine the conditions for the acquisition of a permit for permanent residence by the mentioned persons. In Decision No. U-I-284/94 the Constitutional Court only decided the period of time of the unregulated state of affairs – which entails a gap in the law (Para. 1 of the operative provisions). Thus, the assertions of the opposing party and the Government that from the mentioned Decision there does not follow the obligation to regulate the legal position of these persons retroactively, or that the Constitutional Court did not explicitly require this, are unsubstantiated. In conformity with the mentioned Constitutional Court Decision, the legislature should have regulated the entire period in which the position of the mentioned persons was not legally regulated. Such a position also follows from the decisions of the Constitutional Court that it reached in concrete proceedings deciding on constitutional complaints which were filed by the adversely affected citizens of other Republics. The Constitutional Court especially warned the legislature of this position by the already cited Decision No. U-I-295/99, in which, in Para. 10 of the reasoning, it referred the legislature to Decision No. Up-60/97, which had been reached even prior to the adoption of the challenged Act. It explicitly emphasized "that the establishment of the inconformity of ZTuj with the Constitution in Decision No. U-I-284/94 means that for the period of time until the adoption of ZUSDDD the complainants must be recognized permanent resident status at the addresses where they were registered prior to the unlawful removal from the register of permanent residents.[2] In Decision No. Up-336/98, dated 20 September 2001 (DecCC X, 225), for the reasons stated in Decision No. U-I-284/94, the Constitutional Court set aside the judgments of the courts and set aside ab initio the decisions of the Institute for Pension and Disability Insurance, by which the complainant had been for a certain time denied the right to social security benefits, as she had no permanent resident status in the Republic of Slovenia. The requirement that the legislature legally regulate the unconstitutional gap in the law did not only stem from the mentioned Decision of the Constitutional Court. Within the legislative debate concerning the adoption of the mentioned Act, an amendment was proposed in the third reading, in which it was suggested that the period of presence from the removal from the register of permanent residents until the acquisition of a permit of permanent residence be considered to be "lawful presence" (The Amendment of the Deputy Group of the Associated List of Social Democrats, dated 6 July 1999, No. 213-04/99-28/3, EPA 749-II).[3] Last but not least, stemming from the "nature" of the unregulated legal position of citizens of other Republics and from the viewpoint of the principles of a State governed by the rule of law, the legislature should have covered with a new legal regulation the entire period in which citizens of other Republics were not recognized permanent resident status even if they had not changed their actual permanent residence.[4]
 
15. As the challenged Act does not enable citizens of other Republic the acquisition of permanent resident status from the day when it was not formally recognized to them [i.e. when such status was taken away], and thus only partially remedies the established unconstitutionality, it is inconsistent with the Constitution. The principle of legal certainty as one of the principles of a State governed by the rule of law under Art. 2 of the Constitution requires that the position of the mentioned persons not remain unregulated for such period of time. Permanent resident status is an important linking circumstance for the exercise of certain rights and legal benefits that the mentioned persons could not exercise due to the legally unregulated state of affairs. Their position in the Republic of Slovenia was legally uncertain due to the unregulated state of affairs, as by the acquisition of the status of foreigner they lost permanent resident status in the territory of the Republic of Slovenia and found themselves in an unregulated position or in an essentially worsened legal position (e.g. that of having temporary resident status), which has lasted for some of the adversely affected persons for as much as ten years. From the recommendation that the National Assembly made considering the 7th annual report of the Human Rights Ombudsman for the year 2001 (Official Gazette RS, No. 2/03),[5] it follows that the issue of the legal position of such citizens of other Republics still needs to be legally regulated.
 
16. For the mentioned reasons, the Constitutional Court established that ZUSDDD is inconsistent with the Constitution (Para. 1 of the operative provisions). 
 
17. By Decision No. U-I-284/94 the Constitutional Court established that the then valid ZTuj provisions that were applied for the regulation of the legal position of citizens of other Republics do not in terms of their content correspond to the legal position of the mentioned persons and cannot be applied. It exhaustively reasoned why citizens of other Republics have a special position that also requires a special regulation. Therefore, the question is raised whether a permit for permanent residence issued on the basis of the challenged Act can have equal legal effect as a permit for permanent resident issued to foreigners.
 
18. When a foreigner fulfills the conditions determined by statute he or she can acquire appropriate legal status in the Republic of Slovenia by acquiring a permit for permanent residence as well as other residence permits. Thus, e.g., a foreigner can acquire a permit for permanent residence when he or she has uninterruptedly lived in the Republic of Slovenia for eight years, and fulfilled other conditions determined by statute (Art. 41.1 of ZTuj-1). It is completely logical that in such a case a permit for permanent residence has a constitutive effect, as it establishes (constitutes) a new legal relation that did not exist before. It entails a constitutive decision which has legal effect from the issuance onwards (ex nunc).
 
19. In a similar manner as the special position of citizens of other Republics dictated the special regulation of their permanent residence status, also a permit for permanent residence issued to a citizen of some other Republic cannot have equal legal effect as a permit for permanent residence issued to some other foreigner. Their special legal position arises from these persons already having had permanent resident status in the Republic of Slovenia, which they formally lost due to the unconstitutional gap in the law established in Constitutional Court Decision No. U-I-284/94, although they had not changed their permanent residence but continued to live in the territory of the Republic of Slovenia. In this case a permit for permanent residence does not constitute a new legal position for these persons, but, concerning the existing state of facts, only establishes the legal position which had already existed and should have existed also on the basis of the Act itself. Therefore, in view of the actual position of these persons, ZUSDDD should have given permits for permanent residence the effect of declaratory decisions. Declaratory decisions have legal effect from the time when those facts occur which are, in accordance with statute, important for the creation of a legal relation (ex tunc). Their retroactive legal effect is substantiated by the nature of things, as the matter entails the establishment of a legal relation that occurred prior to the reaching of the declaratory decision.[6] Permits for permanent residence for citizens of other Republics whose permanent resident status was removed from the register of residents, by their nature only establish their legal status or their permanent resident status and cannot establish such anew.
 
20. As reasoned above, the legislature should not have regulated the issue of the time effect of the legal regulation differently than that the mentioned persons who had acquired a permit for permanent residence be retroactively recognized permanent resident status. Therefore, the Constitutional Court has decided to determine the implementation of this Decision in a manner such that by permits for permanent residence which have already been issued to citizens of other Republics, permanent resident status is established retroactively, i.e. from the day of their removal from the register of permanent residents, 26 February 1992 (Para. 8 of the operative provisions). In order for the mentioned citizens to have proof of their permanent resident status also retroactively, the Court imposes on the Ministry of the Interior the obligation to issue as an official duty supplementary decisions establishing permanent resident status from 26 February 1992 onwards, to all those citizens of other Republics who were on 26 February 1992 removed from the register of permanent residents, and who have already acquired a permit for permanent residence (Art. 220 of the General Administrative Procedure Act, Official Gazette RS, No. 80/99 et seq. – ZUP).
 
21. As certain citizens of other Republics who had lost their permanent resident status on the basis of its removal from the register on the basis of the then applying ZTuj or on the basis of the presently applying ZTuj, succeeded in acquiring a permit for permanent residence even prior to the adoption of the challenged Act, also these permits need to be considered as such declaratory decisions [with retroactive effect].
 
B. – III.
 
22. Due to their unrecognized permanent resident status from the day when their legal status was, following the gaining of independence by the Republic of Slovenia, changed into the [different] status of a foreigner, citizens of other Republics were not able to assert certain rights that they would have otherwise been entitled to as foreigners permanently residing in the Republic of Slovenia. The petitioners did not explicitly define such, however, from the decisions of the Constitutional Court it follows that these in particular concerned the right to the advance payment of a military pension, the right to social security benefits and the inability to change one's driver's license. Concerning the latter, by Decision No. U-I-119/99, dated 23 May 2002 (Official Gazette RS, No. 54/02 and DecCC XI, 88) the Constitutional Court imposed on the legislature the obligation to remedy the established unconstitutionality in the Road Traffic Safety Act (Official Gazette RS, No. 39/98 et seq. – ZVCP), which stemmed from the fact that it did not regulate the changing of one's driver's licenses for those who were citizens of other Republics who had been registered until 25 June 1991 in the territory of the Republic of Slovenia as permanent residents and had actually resided there from that date onwards. The Amendment to the Road Traffic Safety Act (Official Gazette RS, No. 67/02 – ZVCP-C) granted such persons the opportunity to change their (valid or invalid) driver's license within a certain time period.
 
23. The citizens of other Republics to whom this Decision applies (Para. 13 of the reasoning), who could not assert certain rights due to their unregulated legal position, will be able to assert these rights retroactively by means of the restoration of their permanent resident status, in conformity with the regulations dealing with particular fields of law.
 
B. – IV.
 
24. In Para. 20 of the reasoning of Decision U-I-284/99, the Constitutional Court described the position in which citizens of other Republics were from 26 February 1992 onwards, when the then existing ZTuj began to apply to them. It established that, according to the then existing ZTuj, there is a probability that for various reasons certain citizens of other Republics could not acquire either a permit for temporary residence or permanent residence and thus lived in the territory of the Republic of Slovenia without a legal basis. Pursuant to Art. 28 of the then applying ZTuj, for foreigners residing in the Republic of Slovenia without an appropriate resident permit the measure of the forcible removal of a foreigner could be pronounced. So that this measure not be pronounced for citizens of other Republics, the Constitutional Court banned its application to the mentioned persons by prohibiting its pronouncement in Para. 4 of the operative provisions of Decision No. U-I-284/94. Therein it only banned the application of this measure to citizens of other Republics, however, this measure could still be applied to other foreigners whose legal position was regulated by ZTuj. If the legal position of citizens of other Republics had been legally regulated already from 26 February 1992, such a measure could not have been pronounced concerning them at all.
 
25. As follows from the report of the Ministry of the Interior, the then applying ZTuj did not prescribe the keeping of a record of instances when the measure of the removal of a foreigner was pronounced. Furthermore, if such a record existed, it would be necessary to separately establish whether such a measure was pronounced for such a citizen of some former Yugoslav Republic, or if it concerned the removal of a foreigner who was unlawfully present in the territory of the Republic of Slovenia. Cases in which the measure of forcible removal was pronounced for a citizen of some other Republic require a special legal regulation. The legislature will have to regulate the restoration of their legal position after studying all the actual situations in which such persons found themselves due to the pronounced measure. As the Act did not regulate the possibility of acquiring a permit for permanent residence by citizens of other Republics for whom the mentioned measure had been pronounced, it is inconsistent with the Constitution. The principles of a State governed by the rule of law require that also the legal status of these persons be regulated if they were prevented from regulating such due to the mentioned measure (Para. 2 of the operative provisions).
 
B. – V.
 
26. One of the petitioners challenged Art. 1 of ZUSDDD in the part in which it requires uninterrupted actual presence in the territory of the Republic of Slovenia as one of the conditions for the issuance of a permit for permanent residence.[7] He asserted that for fear of forcible deportation he fled to another State and had lived there for four years as a refugee. He opined that that time should not be considered as interrupting his residence in the territory of the Republic of Slovenia, and that his application for the issuance of a permit for permanent resident should not be rejected for this reason.
 
27. As follows from the report of the Ministry of the Interior, on 26 February 1992, 18,305 citizens of other Republics were removed from the register of permanent residents. Concerning the number of applications filed, it is estimated that approximately 4,300 citizens of other Republics did not file an application for the issuance of a permit for permanent residence. These citizens of other Republics might still be present in the Republic of Slovenia, or might have left Slovenia for various reasons already prior to the removal from the register of permanent residents, or subsequently. The Constitutional Court does not exclude the possibility that certain citizens of other Republics left the Republic of Slovenia also for fear of the pronouncement of the measure of the forcible removal of a foreigner from the State in accordance with Art. 28 of ZTuj, although these measures have rarely been pronounced and the unregulated presence of citizens of other Republics has been tolerated as a rule. Some attempted to resolve their unregulated legal position by leaving the country for a certain time to find a job or due to other reasons (e.g. to acquire the status of a refugee), and have occasionally returned to Slovenia. Some returned after a certain time and are now again residing in the Republic of Slovenia.
 
28. Art. 1 of ZUSDDD determines as a condition for acquiring a permit for permanent residence actual presence during the period after the removal from the register of residents, without more precisely determining the content of this condition. This entails an indefinite legal concept whose meaning the competent administrative body needs to establish in each case separately concerning the actual circumstances of the case. The fact is that two thirds of the citizens of other Republics (of the 18,305 erased) have fulfilled the condition of actual presence in the Republic of Slovenia and acquired a permit for permanent residence on the basis of ZUSDDD. Despite this fact, regarding the different actual positions of the persons mentioned in the previous paragraph of the reasoning, the issue is raised whether the condition of actual presence in the Republic of Slovenia can be defined clearly only by interpreting this indefinite legal concept, or whether the position of citizens of other Republics after the revocation of their permanent resident status requires a more precise definition of this concept and its adjustment to the described factual situations.
 
29. The concept of actual presence concerning citizens of other Republics was used in Art. 13 of the Constitutional Act for the Implementation of the Basic Constitutional Charter on the Sovereignty and Independence of the Republic of Slovenia (Official Gazette RS, No. 1/91 – hereinafter UZITUL). Pursuant to that article, Art. 40 of ZDrž determined actual presence in the territory of the Republic of Slovenia as one of the conditions for acquiring citizenship of the Republic of Slovenia. As regards the establishment of whether a citizen of some other Republic fulfills the condition of actual presence to acquire citizenship, extensive (administrative and judicial) case law has been established. Concerning the interpretation of this indefinite concept as a condition for the acquisition of citizenship of the Republic of Slovenia, the Supreme Court has taken relevant positions. In proceedings dealing with a constitutional complaint, the Constitutional Court discussed the interpretation of the condition of actual presence particularly from the viewpoint of violating the right to the equal protection of rights (See Constitutional Court Decisions No. Up-38/93 dated 6 July 1995, DecCC IV, 130, No. Up-77/94, dated 16 September 1997, DecCC VI, 188, No. Up-73/95, dated 27 February 1998, DecCC VII, 100).[8] The Court has no data on what positions concerning the interpretation of actual presence the Ministry of the Interior took in deciding on the basis of ZUSDDD, and whether any case law was established in connection with the interpretation of this concept on the basis of this Act.
 
30. Indefinite legal concepts by which statutory states of facts may be defined are applied particularly in cases in which all factual situations that the legislature wants to regulate cannot be envisaged in advance (see Constitutional Court Decision No. Up-84/94, dated 11 July 1996, DecCC V, 184). In the case at issue ZUSDDD prescribed the indefinite legal concept of actual presence as a condition for acquiring a permit for permanent residence after seven years from the removal of the permanent resident status of citizens of other Republics from the register of permanent residents and after various statuses of these persons who did not acquire citizenship of the Republic of Slovenia became determinable. The fulfillment of this condition is retroactively – from the day of the removal – established by administrative bodies in concrete procedures. From the view of the principles of a State governed by the rule of law and the special status of these persons, the Act should have defined what actual presence means according to ZUSDDD, in particular it should have determined the duration of absence following which the condition of actual presence is no longer fulfilled. Concerning the fulfillment of this condition, the status of citizens of other Republics should not have been worse than the status of those persons who had had the status of foreigner already prior to the Republic of Slovenia gaining its independence. In Decision No. U-I-284/94 the Constitutional Court established that the omission of the legal regulation of these persons in comparison with the legal status of foreigners also violated the principle of equality under Art. 14.2 of the Constitution (Para. 18 of the reasoning). Therefore, from the view of the principle of equality, absence of up to one year should not have meant that the condition of actual presence was not fulfilled. ZTuj, which applied when such permanent resident status was removed from the register of permanent residents, determined in Art. 20 that a foreigner's permanent residence permit expires if he or she emigrates or remains abroad for more than one year, and does not inform the competent body of such. The same provision is also contained in Art. 45.2.6 of ZTuj-1. Concerning their special position, the Act should have determined what interrupting actual presence is considered to be, when a citizen of some other Republic is considered to have emigrated, and other possible peculiarities which the legislature will have to establish and evaluate. The interpretation of the condition of actual presence should in no manner be stricter than the interpretation that was established in the case law of the courts in relation to acquiring citizenship. Because the citizens of other Republics found themselves in various positions, due to the loss of permanent resident status in the Republic of Slovenia and due to their legal position being unregulated for a longer time, measures (the framework) should be prescribed for establishing the fulfillment of the condition of actual presence for acquiring a permit for permanent residence. As the legislature did not act in such a manner, ZUSDDD is inconsistent with Art. 2 of the Constitution.
 
31. Furthermore, Art. 1 of ZUSDDD is in this part inconsistent with Art. 120.2 of the Constitution. In Art. 120.2 the Constitution provides that administrative bodies perform their work independently within the framework and on the basis of the Constitution and laws. The principle of administrative bodies being bound by the framework of the Constitution and laws (the principle of legality) stems from basic constitutional principles (the principle of a State governed by the rule of law, the principle of democracy). The principle of legality does not only determine the framework and basis for the operation of administrative bodies, but also ensures that such operation become transparent and foreseeable, which increases legal certainty. At the same time this principle is important for the effective protection of an individual's rights and legal interests, including effective control of the constitutionality and legality of individual administrative acts (see Constitutional Court Decision No. U-I-73/94, dated 25 May 1995, Official Gazette RS, No. 37/95 and DecCC IV, 51). Within the determined time limit of six months the legislature will have to supplement the challenged Act and determine a new time limit for possible new applications for a permit for permanent residence (Para. 3 of the operative provisions).
 
B. – VI.
 
32. The petitioners also challenged Art. 2.1 and Art. 2.2 of ZUSDDD in the part in which it determines the preclusive time limit of three months for filing an application for the issuance of a permit for permanent residence. They asserted that this period was too short.
 
33. The question is raised whether the time limit of three months enabled the citizens of other Republics to file applications for the issuance of a permit for permanent residence on time without any great difficulties. A regulation that does not prescribe an appropriate time period for citizens of other Republics to regulate their legal status, or that without a justified reason prescribed a very short time period, is inconsistent with the principles of a State governed by the rule of law, under Art. 2 of the Constitution. Concerning the data obtained from the Ministry of the Interior, 79 applications were rejected due to their not meeting the time limit.
 
34.The purpose of ZUSDDD was to "give citizens of other Republics, in a certain, relatively short period of three months, the possibility" to acquire a permit for permanent residence and in such a manner regulate their legal status in the Republic of Slovenia. So that the citizens of other Republics would have sufficient time to become acquainted with ZUSDDD, it determined in Art. 8 that it was to come into force on the sixtieth day after its publication in the Official Gazette of the Republic of Slovenia (National Assembly Reporter, No. 18/99, EPA 749 – II – first reading). From the above-mentioned it follows that the legislature had already considered at the adoption of the mentioned Act the possibility that citizens of other Republics would not in such a short time become acquainted with the content of the Act, and thus reasonably determined that it would come into force after a longer period of time [as compared to the normal 15 days]. Despite the mentioned extended time period for the coming into force of ZUSDDD, the time limit of three months for filing an application for the issuance of a permit for permanent residence was extraordinarily short. In determining the time limit, especially such a preclusive one, the legislature should also have considered personal and other circumstances that could impede the timely filing of an application by entitled persons (Constitutional Court Decision No. U-I-14/00, dated 7 December 2000, Official Gazette RS, No. 1/01 and DecCC IX, 2). It should have considered that due to the fact that their legal position was unregulated for a long period of time, citizens of other Republics could not have expected that such a short time limit would be prescribed for the regulation of their status. In particular, they could not have envisaged that not applying within such a short period would result in a loss of the right to acquire a permit for permanent residence. They reasonably expected that a longer time limit would be determined for regulating their unregulated legal status. Furthermore, the determination of a longer time limit would not have not impeded the "fast" resolution of applications filed, as an open time limit does not mean that already filed applications cannot be resolved. The purpose of the mentioned Act was not only that citizens of other Republics be given the possibility to regulate their status, but it was also in the interest of the State that persons with unregulated legal status do not dwell in its territory in such a vast number (see the reasons for the adoption of the Act, National Assembly Reporter, No. 18, p. 78). Given the mentioned reasons, the legislature should have determined a longer (more appropriate) time limit and thus enabled every citizen of other Republics who fulfilled the necessary conditions to acquire a permit for permanent residence. As the legislature did not have justified reasons for determining such a short time limit for filing an application for the issuance of a permit for permanent residence, the Constitutional Court annulled the challenged Art. 2.1 and Art. 2.2 in the part in which a time limit of three months was determined. The annulment means that the applications which have not yet been resolved may not be rejected for reason of being late, and that entitled persons may re-file those applications that were rejected for reason of being late. Furthermore, all applications which are filed after the publication of this Decision in the Official Gazette, until the expiry of the possible newly prescribed time limit, must be considered as filed in time.
 
35. Furthermore, the petitioners challenged Art. 2.4, which requires that an application for the issuance of a permit for permanent residence be filed on a form that the Minister of the Interior prescribes. They opined that the requirement of filing an application on the prescribed form impeded their filing of such applications and that competent administrative bodies did not want to accept applications which were not filed on such a form.
 
36. The purpose of the form prescribed by the Rules on Determining the Form of an Application for the Issuance of a Permit for Permanent Residence (Official Gazette RS, No. 76/99) was undoubtedly that the filing of applications for the issuance of a permit for permanent residence would be alleviated, and that these applications would contain the data necessary for the competent administrative body to decide. The prescribed form for filing such application did not mean that an application for the issuance of a permit for permanent residence could not also be filed in manners determined by Art. 63 of the General Administrative Procedure Act (Official Gazette RS, Nos. 80/99 and 70/2000 – hereinafter ZUP). Thereby, applications – demands, forms, motions, entries, requests, appeals, objections and other acts by which individuals, legal entities or organizations communicate with decision-making bodies – may be filed in writing or submitted orally; a written application is as a rule directly submitted to such a body or sent by mail or fax. The body that is competent to receive the application is obliged to accept every application submitted or to put every oral communication on record and, upon the applicant's request, to confirm its receipt. If the application is incomplete or incomprehensible, the administrative body may not reject it only for this reason, but must require that the applicant remedy the deficiencies by a certain time (Art. 67.1 of ZUP). The mentioned provisions enabled citizens of other Republics to file applications also in other ways, if they possibly could not file them on the prescribed form. The Ministry of the Interior asserted that it did not reject any application only due to the fact that it was not filed on the prescribed form. In reviewing the challenged provision, the Constitutional Court cannot review the petitioner's assertions that the competent body refused to accept his application and that thereby he missed the time limit for filing his request. Such activities can only be a subject of review in concrete proceedings. The applicant had the possibility to demand that his application be accepted and the issuance of an appropriate confirmation; he could have also sent his application by mail.
 
37. As the petition for the commencement of proceedings for the review of the constitutionality of Art. 2.4 of ZUSDDD is evidently unfounded, the Constitutional Court dismissed it.
 
38. Furthermore, the petitioners challenged Art. 3, which determines that the Ministry of the Interior may refuse to issue a permit for permanent residence if a foreigner has been convicted by a final judgment to a certain sentence of imprisonment (three or five years of imprisonment) or has been convicted of certain criminal offenses. Art. 3 of ZUSDDD has already been the subject of constitutional review. In Decision No. U-I-295/99 the Constitutional Court took the position that stricter conditions for acquiring a permit for permanent residence should not apply to citizens of other Republics than were determined for the revocation of the permanent resident status of a foreigner on the basis of ZTuj, which applied at the time of their legally unregulated presence in the Republic of Slovenia. Thus, it partially annulled Art. 3 of ZUSDDD and imposed on the legislature the duty to remedy the established unconstitutionality within a certain time period, which it did by the Act on the Amendment to ZUSDDD (Official Gazette RS, No. 64/01 – ZUSDDD-A). Even if the legal status of citizens of other Republics had been legally regulated on 26 February 1992 such that their registered permanent resident status in the territory of Slovenia was considered to be a permit for continuing permanent residence, their permanent resident status could have been revoked (Art. 24 of ZTuj). Those regulations that regulate the position of foreigners in the Republic of Slovenia apply to citizens of other Republics that have acquired a permit for permanent residence, and not some other special regulations. The petitioners' assertions that the challenged Act should not have determined any reasons for denying the issuance of their permit for permanent residence are evidently unsubstantiated. Therefore, the Constitutional Court dismissed the petition in this part.
 
39. Art. 7.3.12 of ZUSDDD determines that the records on received applications [should] also include data on proof of actual uninterrupted presence. As follows from the petition, the petitioners opined that they challenged the mentioned provision because it requires that "all possible evidence and bills for the period of ten years" be enclosed with applications for the issuance of a permit for permanent residence, as evidence of uninterrupted presence. As was already reasoned, for citizens of other Republics whose permanent residence status terminated on 26 February 1992 it is required that such an applicant filing an application demonstrates his or her actual presence in the Republic of Slovenia and not his or her uninterrupted actual presence. The condition of actual presence in the territory of the Republic of Slovenia is one of the essential conditions for acquiring a permit for permanent residence on the basis of ZUSDDD. Therefore, it is completely understandable that the applicant must demonstrate that he or she fulfills this condition. The challenged Act does not determine by which evidence the applicant should prove the fulfillment of this condition. Therefore, in the procedure to issue such a permit, the ZUP provisions on proof (Arts. 164 to 204) applied. As such, Art. 164.2 determines that everything that is appropriate for establishing a state of affairs and which corresponds to a particular case, in particular documents, witnesses, parties' statements, experts and examinations, can be used as evidence. The official competent for deciding in the administrative procedure decides which facts are considered proved according to his or her conviction on the basis of a conscientious and careful examination of every piece of evidence separately and all the evidence together, as well as and on the basis of the result of the entire procedure (Art. 10 of ZUP – the principle of the free evaluation of evidence). The challenged provision prescribes only that evidence be put on record by which the applicant proved the fulfillment of the conditions for acquiring a permit for permanent residence in the territory of the Republic of Slovenia, and therefore does not determine by which evidence the filer of an application must prove such, as the petitioners erroneously opined. Therefore, the petition for the commencement of proceedings for the review of the constitutionality of Art. 7.3.12 of ZUSDDD is evidently unfounded, and the Constitutional Court dismissed it.
 
C.
 
40. The Constitutional Court reached this Decision on the basis of Art. 25, Art. 26.2, Art. 43, Art. 40.2 and Art. 48 of ZUstS, and Art. 52.5 of the Rules of Procedure of the Constitutional Court of the Republic of Slovenia (Official Gazette RS, No. 49/98 and 30/02) composed of: Dr. Dragica Wedam Lukić, President, and Judges Dr. Janez Čebulj, Dr. Zvonko Fišer, Lojze Janko, Marija Krisper Kramberger, LL. M., Milojka Modrijan, Dr. Ciril Ribičič, Dr. Mirjam Šrk and Jože Tratnik. The Decision was reached unanimously. Judge Ribičič gave his concurring opinion.
 
 
President
dr. Dragica Wedam Lukić
 
 
Notes:
[1] By Decision No. U-I-295/99, dated 18 May 2000 (Official Gazette RS, No. 54/2000, DecCC IX, 113), the Constitutional Court annulled certain ZUSDDD provisions, as they determined too strict conditions for the acquisition of a permit for permanent residence on the basis of this Act.
[2] It reached a similar decision in Case No. Up-333/96, dated 1 July 1999 (DecCC VIII, 286).
By Decision Up-20/97, dated 18 November 1999 (DecCC VIII, 300), the Constitutional Court set aside the decisions of the courts as they did not recognize the complainant the right to the advance payment of a military pension as he did not have permanent resident status in the territory of the Republic of Slovenia. It reached a similar decision also in Case No. Up-153/97, dated 16 December 1999 (DecCC VIII, 302).
[3] From the reasoning of the mentioned amendment: "Modern legally and democratically regulated countries should not allow that in their territory there live persons without regulated legal status, at least not in such a vast number as is typical of our country. The fact is that such persons are to a great extent prevented from exercising numerous human rights and freedoms, which is not acceptable for a democratic country such as the Republic of Slovenia. The Human Rights Ombudsman has already pointed out this state of affairs and to the need for its regulation. These issues in particular have also been exposed by the experts of the European Union, the High Commissariat of the United Nations for Refugees, and certain other non-governmental organizations …"
[4] Marijan Pavčnik, Argumentacija v pravu [Argumentation in Law], Cankarjeva založba, Ljubljana 1991. The author states that making a conclusion through the "nature of things" has a typological character, undividedly connected with the type – with what is typical, i.e. with what is the "mean between a legal idea and the actual concrete state of facts, on which all legal thinking focuses after all: the mean between normative and factual justice" (See pp. 119 to 122, in particular p. 121).
[5] In Para. 14 of the Report, the National Assembly required the Government to submit as soon as possible its proposals for resolving these issues in ZUSDDD, or for resolving them in some other manner, regarding possible consequences for the rights of individuals due to the erasure of citizens of other State Successors to the SFRY from the register of permanent residents of the Republic of Slovenia after 26 February 1991 (correctly 1992).
[6] Vilko Androjna, Upravni postopek in upravni spor [Administrative Procedure and the Judicial Review of Administrative Acts], ČZ Uradni list SR Slovenije, Ljubljana 1985, pp. 176-77.
[7] The Constitutional Court explained in Para. 13 of the reasoning that the condition of uninterrupted actual presence does not refer to the citizens of other Republics who were on the day of 23 December 1990 registered in the territory of the Republic of Slovenia as permanent residents and whose permanent resident status was on 26 February 1992 removed from the register of permanent residents.
[8] Thus, in Decision No. Up-73/95, it established that the right to the equal protection of rights was violated by the unlawful interpretation of the indefinite legal concept "is actually present in Slovenia", in the position holding that only "the lengthy interruption of the actual presence of plaintiffs in the Republic of Slovenia … was essential" for deciding on actual presence, "not their inability to return to the Republic of Slovenia due to war conditions, as asserted in their action …" In Decision Up-77/94 the Court established that the same right was violated as the complainant's departure from the Republic of Slovenia together with the [departing] Yugoslav Army was already by itself considered as interrupting actual presence. Finally, according to the Court, the same right was violated in Decision No. Up-199/95 as the complainant's assertion that the reasons for his absence of more than one year did not stem from his conduct, was not considered among the decisive circumstances for the definition of this concept.

The Concurring Opinion of Judge Dr. Ribičič 
 
1. We can justifiably list Slovenia among those new States which were aware of the significance of regulating relations between the [Yugoslav] nations in the period of the dissolution of the former Yugoslav federation. In pre-independence documents adopted by the Assembly of the Republic of Slovenia, Slovenia's desire to gain independence peacefully was especially emphasized, which included both [a] the principle that Slovenia recognize all the nations the same rights it asserted for itself on the basis of the right of the Slovenian nation to self-determination, and [b] the efforts to not deprive any person of their status regardless his or her national affiliation due to the gaining of independence. Furthermore, Slovenia is a positive example as regards how it took care on gaining independence to preserve the same level (at least) of protection of minority national communities as existed before, concerning both the collective rights of the Italian and Hungarian national communities and the individual rights of their members. Equally important was the pre-independence decision of Slovenia to make the acquisition of citizenship by all citizens of other Republics of the former federation as simple as possible.
 
2. Thus, the Agreement reached on the plebiscite by all parliamentary political parties, signed on 6 December 1990, ensured members of other Yugoslav nations having permanent resident status in Slovenia the possibility to acquire Republic of Slovenia citizenship if they wanted such. Such a promise was also contained in the Letter of Good Intentions of the Assembly of the Republic of Slovenia issued at the calling of the plebiscite. The Constitutional Act for the Implementation of the Basic Constitutional Charter of June 1991 went even further in recognizing all persons who had permanent residence status in Slovenia on the day of the plebiscite equal rights and duties as pertained to citizens of the Republic of Slovenia, for a transitional period (until acquiring citizenship). Therefore, on the basis of Art. 40 of the Citizenship Act adopted prior to the gaining of independence and the adoption of the Constitution, every person who applied for citizenship of the Republic of Slovenia could acquire such if he or she fulfilled only one condition (that of permanently residing in Slovenia on the day of 23 December 1990, i.e. on the day of the plebiscite, in which all residents of Slovenia could cast their vote regardless their Republic citizenship).[1]
 
3. Slovenia has kept this promise that it made when gaining independence, and a parliamentary majority and the Constitutional Court have prevented certain attempts at departing by means of legislative change or statutory referendum from the described, truly liberal regulation of acquiring citizenship (The only subsequently determined, however logical, restriction applied to those persons who had actively acted against Slovenia gaining its independence). I opine that departing from such a promise would destroy the foundations on which the statehood of the Republic of Slovenia and its reputation in the international community is based. It is no secret that Slovenia became a member of the UN, the Council of Europe and an associated member of the EU so quickly and without difficulties in part due to its relationships with the Italian and Hungarian national communities and citizens of other Republics. This was clearly justified: on the basis of Art. 40 of the Citizenship Act, more than 175,000 citizens of other Republics of the former Yugoslav federation, which represents just under 9% of the entire population of Slovenia, have acquired Slovenian citizenship.
 
4. Thus far everything went as necessary and even better than in the other newly established States. Unfortunately, soon after gaining independence, i.e. in 1992 (which was revealed much later), measures were taken that left a dark stain and cast a dark shadow on the described success story. A relatively low percentage of the individuals who remained in the Republic of Slovenia after independence, perhaps 10%, decided not to apply for citizenship. Among them were certainly those who voted against independence at the plebiscite or who did not believe in the possibility of Slovenia becoming an independent, sovereign State capable of successful development, those who remained bound by the citizenship of their home Republic, or those who wanted to postpone their decision on acquiring new citizenship to a future time. By their own decision they more or less consciously chose for themselves the status of foreigner in the Republic of Slovenia. They could expect that due to such a decision they would no longer be equal in rights and duties with the citizens of the Republic of Slovenia, as they had been in the transitional period. But none of them could have expected that the State in which they had lived for a very long time would take revenge so as to deprive them of their permanent resident status, thereby pushing them "underground" and causing them various other problems. This was done by the executive bodies of the State without having a basis for such in the Constitution, legislation or any other decisions of the legislative branch, which the Constitutional Court established by decision in 1999, even prior to the adoption of the Act on the Regulation of the Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia.
 
5. This action (i.e. depriving such erased persons of their permanent resident status) as well as attempts at hiding and minimizing the error made, and the hesitation in redressing the injustice done to the necessary extent (the return of permanent resident status retroactively, i.e. from the day when it was revoked), caused the affected persons many injustices and difficulties and severely damaged the reputation of the Republic of Slovenia. The State bodies of Slovenia have acted in an unethical, incorrect, and, in particular, unlawful and unconstitutional manner, thereby causing such erased persons to face extensive negative consequences, both social and others. It is in the Slovenian national interest to clear this immoral stain from its post-independence direction as rapidly and thoroughly as possible.
 
6. At the time when I was not yet a member of the Constitutional Court, it tried to change the State's approach to all those who had unlawfully lost their permanent resident status, however it was only half successful. Thus, the repeated decision-making of the Constitutional Court is of particular significance, as it has to strive not only for a just solution but also for its decision to not possibly be interpreted differently again and circumvented in practice by any means. I generally consider as unsubstantiated those concerns asserting that the return of permanent resident status might be too broad in scope. Why? Because such erased persons include those persons who in 1992 unlawfully lost their permanent resident status, and not those officers of the former Yugoslav People's Army (YPA) who left the territory of the Republic of Slovenia together with the YPA (i.e. far earlier than the permanent resident status was erased).
 
7. I was among those judges who opined that a so-called interpretative decision would be the best solution for many reasons. Such a decision would read as follows: "The Act on the Regulation of the Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia is not inconsistent with the Constitution, if it is interpreted in a manner such that by a permit for permanent residence issued on the basis of this Act, the permanent resident status of citizens of other Republics of the former SFRY in the Republic of Slovenia whose status was removed on 26 February 1992 from the central register of permanent residents, is established from the day of the erasure onwards." Such a decision would mean that any interpretation which does not recognize the erased persons the acquisition of permanent residence status without restrictions and retroactively is excluded as unconstitutional from the legal system of the Republic of Slovenia.
 
8. The interpretative decision would at the same time mean that the Act should have been interpreted in such a manner already from its adoption onwards, as the Constitutional Court had resolved the disputed issues prior to the adoption of the Act. It would clearly indicate that the interpretation of the Act and the understanding of the already issued Constitutional Court decisions were erroneous in so far as they did not entail the recognition of such resident status retroactively. Such a decision would be the direct basis for the erased to more rapidly achieve retroactive redress for injustices than in the case of the annulment of the Act. Such interpretative decision would most effectively save the honor of the Constitution and the legislative branch, as it would, without interfering with the Constitution and annulling the Act, prevent unconstitutional conduct by State administration bodies and courts and encourage the redress of injustices. It is well known that an interpretative decision is applied when the Constitutional Court does not want to come into conflict with the legislature, but [would rather address] the operation of the executive branch and (ordinary) courts.[2] Such interpretative decision would be the most effective interference that would foster the redress of injustices without any unnecessary delay in adopting a new statutory regulation. The Constitutional Court decided not to reach such an interpretative decision, but to establish the inconsistency of the Act with the Constitution, in so far as it does not recognize permanent residence status from 26 February 1992 onwards.
 
9. Why did I not stubbornly persist with my proposal for an interpretative decision, and why did I decide to vote for a declaratory decision and be satisfied with only issuing a concurring opinion? Firstly, due to the fact that, in my opinion, the decision reached also sufficiently emphasizes the unconstitutionality of the hitherto existing regulation and practice relating to the erased persons, and it solves or at least encourages the rapid resolution of the problems resulting from the unlawful erasure. The decision is formed in a manner such that it can be the basis for a true change in the approach to resolving the problem of the erased persons. Additionally, the decision was reached unanimously, which gives it a special weight and moral strength. Secondly, due to a restrained approach of constitutional theory to interpretative decisions (I should mention here the Master's theses of Borut Šinkovec, LL.M. and Sebastian Nerad, LL.M., which have recently been written in the framework of postgraduate Constitutional Law studies at the Law Faculty of the University of Ljubljana), for which there is no explicit basis in the Constitution. And thirdly, due to the fact that the National Assembly, as the opposing party, sent to the Constitutional Court a position, in a letter signed by its president, which in my opinion the Constitutional Court should have declared unconstitutional by an interpretative decision. I must agree with the objection that it is hard to insist on an interpretative decision in a case in which such an interpretation of a statute is not supported even by the legislature itself.
 
 
dr. Ciril Ribičič
 
Notes:
[1] See more in C. Ribičič, Ustavnopravni vidiki osamosvajanja Slovenije [The Constitutional Aspects of the Gaining of Independence by Slovenia], Uradni list RS, Ljubljana 1992, p. 27 et seq.
[2] See F. Testen, Interpretativna odločba [Interpretative Decision], in Komentar Ustave Republike Slovenije (L. Šturm ed.), FPDŠ, Ljubljana 2002, p. 1131 et seq.
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute
Applicant:
Society of Erased Residents of Slovenia, Ptuj, and others
Date of application:
12. 5. 2002
Date of Decision:
3. 4. 2003
Type of decision adopted:
decision
Outcome of proceedings:
establishment – it is inconsistent with the Constitution/statute
Published:
Official Gazette RS, No. 36/2003 and OdlUS XII, 24
Document:
AN02758

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