14.04.2003

Decision No. U-I-246/02 - Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia

Ljubljana, 10th April 2003

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

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