The Ombudsman is very strict when deciding on requests to file for a review of constitutionality. When making
such decisions, we determine whether a direct violation of human rights is involved, whether the affected
persons are able to file the complaint themselves, and if the problem has wider significance. Due to the large
number of complainants and the assessment of the number of affected citizens, we assessed that it was
not appropriate to expect that they would meet the demanding condition of legal interest required by the
Constitutional Court, since in this case they would first have to retire and then apply all the available legal
remedies. For this reason, we filed a request for a review of the constitutionality of paragraph four of Article 27,
paragraphs one and two of Article 38 and paragraphs one and two of Article 391 of the Pension and Disability
Insurance Act in July 2015. Below, we summarise only a section of the justification of the request, which is
published in full on our website:
Many complainants contacted the Ombudsman because they had purchased pensionable service for the
period when they were students or doing military service in order to be able to retire early, i.e. on the basis
of conditions of the Act applicable at the time of their purchase, i.e. the ZPIZ/92 or the ZPIZ-1. This purchase
was done by an administrative procedure with a decision of the Pension and Disability Insurance Institute of
the Republic of Slovenia (ZPIZ) on the basis of which the pensionable service that was purchased was entered
in the employment booklet, subject to the payment of the determined contribution, and recorded in the civil
register. On the basis of such a final decision, the purchased pensionable service applied as per the ZPIZ/92
to the same extent, the same manner and with the same effects as the remaining pensionable service, and
according to the ZPIZ-1, also to a greater extent than as per the applicable arrangements of the ZPIZ-2.
2.11 PENSION AND DISABILITY INSURANCE
The ZPIZ-2 encroached on the rights of those who purchased pensionable service on the basis of provisions
of the ZPIZ/92 and the ZPIZ-1. The conditions for obtaining old-age pension deteriorated for those who
purchased pensionable service after the passage of the ZPIZ-2 in a similar way as for insured persons who
had not purchased pensionable service. Whereby, it was not observed that the purchased pensionable service
was granted on the basis of a special legal provision with a purchase or direct personal payment of a sum
determined by the ZPIZ on the basis of the Act, and that the purchase of pensionable service was determined
in a final decision issued by the ZPIZ. Even worse consequences for complainants are attributed to paragraph
four of Article 27 of the ZPIZ-2, which states: “Irrespective of the provision of paragraph one of this Article,
an insured person (man or woman) who is 60 years old and has 40 years of pensionable service without the
purchase of pensionable service shall obtain the right to old-age pension.” With this provision, the ZPIZ-2 has
severely encroached on the right to purchased pensionable service and on the constitutional rights of those
who made such a purchase.
The lowering of pensions is a measure with long-term negative consequences for retired persons, but it is
even worse if people are unable to obtain their pensions under the conditions prescribed explicitly for their
cases and also approved with final decisions. This not only encroaches on entitlements based on the purchase
of pensionable service, but also completely disregards them. In this case, it is impossible to justify the
encroachment on the position of complainants with the argument that purchased pensionable service must be
treated the same as pensionable service obtained on other legal bases, since this constitutes severely unequal
treatment of purchased pensionable service and those insured persons who purchased it.
We are pleased to note that the problem of the pensions of public employees in former federal authorities, which
was discussed in the 2014 annual report, has been resolved. The Government acted on the Ombudsman’s proposal
and settled open issues with the Act Regulating the Settlement of the Liabilities of the Republic of Slovenia Arising
from Pension and Disability Insurance, which was passed by the National Assembly in January 2016.
2.11.3 Disability insurance
We received several complaints relating to the activities of various disabled people’s organisations, where
certain individuals in leading positions allegedly violated their members’ rights. Associations, like civil society
organisations, are not subject to the Ombudsman’s supervision except in cases when they have public
authorisations. While certain irregularities or even violations of members’ rights were established in most
complaints, we were unable to instigate procedures, and merely informed complainants of ways enforce their
rights. The statutes of individual societies could anticipate a prompt and efficient manner of resolving disputed
relations (e.g. mediation), since judicial proceedings are not appropriate in most disputes between members
of associations.
Most of the complaints concerning disability insurance still refer to dissatisfaction with the work of disability
commissions, which complainants claim work too slowly and are particularly impersonal and unfriendly.
Similar complaints concerning the enforcement of rights have already been discussed in previous annual
reports, and we thus repeat our proposal to the Pension and Disability Insurance Institute to dedicate more
attention to the communication of disability commissions with insured persons.
Unfortunately, it is necessary to mention in every annual report the delays of executive bodies when issuing
executive acts. An act, the implementation of which anticipates the adoption of executive acts, is incomplete
because it cannot be fully implemented, although it is valid and should be implemented in full. This is contrary
to Article 2 of the Constitution of the Republic of Slovenia, and since the Government proposes most legislation,
it should ensure that the acts not come into force until all the executive acts needed to implement a new
arrangement are passed. The transitional application of repealed acts resolves this issue formally and legally;
however, old acts are usually difficult to apply in new conditions, which causes dissatisfaction and mistrust in
the rule of law.
The aforementioned arises from the current situation and was highlighted several times. In Article 403, the
Pension and Disability Insurance Act (ZPIZ-2) determines that the Ministry of Health in agreement with the
ministry responsible for the disabled people define the types and levels of physical impairments, which would
serve as the basis for enforcing rights to disability insurance within two years after the entry into force of the
Act (i.e. by 1 January 2015). The Ministry of Health has not yet issued an executive act, and the Self-governing
Agreement on the List of Physical Impairments (Samoupravni sporazum o seznamu telesnih okvar) from 1983
is still in force. The obsolescence of an act enacted 33 years ago needs no further clarification, and the legal
extension of applicability of a regulation devised by the former state after more than 20 years of independence
(the Act was passed in 2012) is certainly unsuitable and unprecedented for a state governed by the rule of law.
Following the latest reminder, the Ministry of Health ensured that the regulation would be drafted by the end
of June 2016.
The Constitutional Court informed us that the Ombudsman’s request would be discussed according to the
order of other previously filed complaints or requests, which meant that the Ombudsman’s request would not
be treated with priority.
We had already received the opinions of the Government of the Republic of Slovenia and the National Assembly
of the Republic of Slovenia, which believed that the Ombudsman’s request was unfounded. We hope that a
decision on the matter will be made this year.
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ANNUAL REPORT OF THE HUMAN RIGHTS OMBUDSMAN OF THE REPUBLIC OF SLOVENIA FOR 2015
ANNUAL REPORT OF THE HUMAN RIGHTS OMBUDSMAN OF THE REPUBLIC OF SLOVENIA FOR 2015
125
2.11 PENSION AND DISABILITY INSURANCE
reimbursement of funds with which they purchased the insurance period from the Pension and Disability
Insurance Institute of the Republic of Slovenia and which cannot be utilised for the expected purposes because
of the new law. Because they would first have to exhaust all legal remedies before filing a constitutional
complaint or request for a constitutional review of the disputable legal provisions, they expected the
Ombudsman to do this as per Article 24 of the Constitutional Court Act.
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