[Publisher's Note: The full text of this Decision/Order is available only in Slovene. The text published below is a summary prepared for the annual report.]
Recalculation of Pensions
In case No. Up-195/13, U-I-67/16 (Decision dated 26 January 2017, Official Gazette RS, No. 9/17), the Constitutional Court decided on the constitutional complaint of a retiree with regard to whom it became clear after his pension had already been determined with legal finality that its calculation did not take into account the differences in his salary from 1995 until 1997 as acknowledged by a Labour Court Judgment. The Pension and Disability Insurance Institute rejected his request for a recalculation of his pension and this decision was also affirmed by all of the courts, including the Supreme Court, that decided in the ensuing judicial proceedings. Their decisions proceeded from the position that the complainant cannot succeed with his request for a recalculation of his pension, as neither the Pension and Disability Insurance Act (PDIA-1) nor the General Administrative Procedure Act regulate a special legal remedy that would enable an error in the calculation of a pension to be remedied. As a result, an error that occurred during the calculation of a pension cannot be remedied. During the consideration of the constitutional complaint the question arose whether, in light of the nature of the right to a pension (the first paragraph of Article 50 of the Constitution), which, as a general rule, is exercised over a long period of time, it is admissible that the PDIA-1 did not determine any mechanisms for remedying errors in the calculation of a pension with ex nunc effect. Therefore, the Constitutional Court initiated proceedings to review its constitutionality.
On the basis of the first paragraph of Article 50 of the Constitution, citizens have the right to social security, including the right to a pension, under the conditions provided by law. It explicitly follows from the Constitution (the second paragraph of Article 15) that, as part of the statutory regulation of the right to a pension, the legislature must also regulate the manner of its exercise. The framework of the constitutionally imposed regulation of the manner of exercise of the right to a pension also includes regulation of the procedure for granting this right, which must include establishment of the facts that constitute the basis of a concrete decision that is intended to enable the beneficiary to exercise his or her right to a pension.
In contrast to the PDIA/92, which was in force before the PDIA-1, and the PDIA-2, which succeeded the PDIA-1 and is currently in force, the PDIA-1 did not enable errors that occurred during the procedure for calculating a pension to be remedied with ex nunc effect. While the PDIA-1 was in force, once a decision on the calculation of a pension attained legal finality, a recalculation of the pension was excluded in all instances that did not fulfil the conditions for the lodging of an extraordinary legal remedy in accordance with the general procedural rules, regardless of the gravity of the error at issue. Such a regulation did not take into consideration the particularities of the exercise of the right to a pension.
The Constitutional Court frequently emphasises the importance of respect for the principle of legal finality. A right granted by an individual act shall no longer be interfered with, as such would weaken trust in the legal order. However, the amendment of a decision concerning the calculation of a pension in order to remedy errors and thus benefit the affected individual does not collide with any other personal interest. As a result, such a procedural possibility would not weaken trust in the legal order, but, on the contrary, it would reinforce it. Nevertheless, under the PDIA-1 the risk stemming from potential errors in the calculation of a pension had to be borne solely by the beneficiary throughout the entire time he or she was receiving the pension.
The specific characteristic of the right to a pension, i.e. the fact that it is exercised over a long period of time, substantiates the need for a specific legal remedy that enables errors to be remedied also after legal finality. As such a legal remedy already existed under the law previously in force (the PDIA/92) and the legislature reintroduced it with the PDIA-2, the Constitutional Court held that when enacting the PDIA-1 the legislature did not have any reasonable grounds for omitting this specific legal remedy. It therefore decided that the PDIA-1 was inconsistent with the first paragraph of Article 50 of the Constitution. Consequently, the Constitutional Court granted the constitutional complaint, abrogated the judgments of the courts, and remanded the case for new adjudication.