The Human Rights Ombudsman of the Republic of Slovenia (hereinafter: the Ombudsman) has been monitoring the issue of the implementation of the Fiscal Balance Act (hereinafter: the ZUJF) since its entry into force; in this period, we have received more than 260 various initiatives, complaints and appeals, in particular concerning the provisions under Article 143. Consequently, in mid-July 2012, the Ombudsman filed a request for the review of its constitutionality; the Constitutional Court, by way of decision U-I-186/12-34 of 14 March 2013, upheld the Ombudsman’s arguments establishing that the second, the third and the fourth paragraphs of Article 143 of the ZUJF were in contravention of the Constitution of the Republic of Slovenia and set aside the contested paragraphs. The court imposed on the Pension and Disability Insurance Institute of the Republic of Slovenia (hereinafter: the PDII) to immediately issue new decisions to all affected beneficiaries of pensions.

With regard to the elimination of the ZUJF’s unconstitutionality, the Ombudsman submitted on 26 March 2013 a letter to the Ministry of Labour, Family, Social Affairs and Equal Opportunities (hereinafter: the Ministry) and the PDII.

The relevant legal regulation (Articles 43 and 44 of the Constitutional Court Act, Uradni list RS (Official Gazette of the Republic of Slovenia), No. 64/07) does not provide for the payment of the due pension difference to all affected pensioners but only to those beneficiaries who are subject to pending legal proceedings. To those individuals who failed to file a complaint against the PDII decision or against its second-instance decision, the PDII will not pay the outstanding difference in pensions since there is no legal basis for amending the (already adopted) final decision. We believe that such a regulation is unfair and discriminatory, as it creates new injustices. Therefore, we have proposed to the Ministry to prepare expert groundwork as soon as possible in order to enable the implementation of the relevant legal basis for eliminating all unconstitutional consequences of the ZUJF, which the decision of the Constitutional Court has not fully eliminated.

The Ombudsman expects the Ministry to adopt such measures as entail that the individuals who trusted the correctness of the decision made by the Government and the legislator will not be affected in comparison with those who protected their rights through legal proceedings. We also stress that a large majority of affected citizens have already been affected during years when, because of the lack of legal knowledge and the fear of facing costs, they have rarely decided to claim their rights through legal proceedings. Recipients of pensions thus reasonably expect that the state will remedy the consequences of the unconstitutional regulation in the same manner as it was adopted.

As assured by the PDII, new decisions will be issued to the beneficiaries in April, while the outstanding difference in pensions should be received by the end of June, although it has not yet been decided how the difference will be paid (in several instalments and with or without interest).

In her letter to the Ministry, the Ombudsman, therefore, considers that a published statement from the Ministry of how it intends to resolve the issue concerned would considerably rectify the dissatisfaction of those pensioners who may have a hard time understanding that the requirements imposed by the rule of law (compliance with legal regulation) in fact prevent them from implementing the requirements of the same rule of law (compliance with the principle of equality). Hence, a straightforward announcement of the manner in which the negative consequences of the ZUJF will be eliminated would also facilitate the work of state authorities that are involved in addressing this issue in different ways. In this context, we should not overlook the costs incurred by individuals undergoing legal proceedings and by the competent authorities that must apply the statutory procedure with respect to each request.

The Ombudsman has also suggested that, with a view to avoiding misunderstandings and questions raised by individuals, the PDII should publish on their websites such information as may assist the beneficiaries in any further proceedings.

The Ombudsman’s website, www.varuh-rs.si, has also opened a special ZUJF section providing all information regarding the Ombudsman’s activities in this area.