Text file: 1214.txt
author: dadal
downvotes: 4
end consideration date: 2010-12-10
id: '1214'
number comments: 46
number views: 12930
proposal type: Competent authority response
response: "Response by the Ministry of Labour, Family and Social Affairs\nA petition\
  \ to initiate a procedure to review the constitutionality of Article 128 of the\
  \ Inheritance Act has been submitted in the past. In assessing the admissibility\
  \ of the interference with the constitutional right to private property and inheritance,\
  \ the Constitutional Court relied on the so-called strict proportionality test under\
  \ Article 15 of the Constitution. It therefore assessed the justification for the\
  \ interference by the legislator with the right to private property and inheritance\
  \ (Article 33 of the Constitution of the Republic of Slovenia) in order to protect\
  \ the right to social security of other citizens (Article 50(1) of the Constitution\
  \ of the Republic of Slovenia). In order to achieve that objective, it considered\
  \ that the interference with the right under Article 33 of the Constitution was\
  \ permissible, necessary and appropriate, but not proportionate. However, the proportionality\
  \ of the interference with the constitutionally protected right to private property\
  \ and inheritance was also established by the Law on Amendments and Additions to\
  \ the Law on Inheritance (ZD-B - Official Gazette of the Republic of Slovenia, No\
  \ 67/2001), in accordance with the decision of the Constitutional Court. The RS,\
  \ as a welfare state (Article 2 of the Constitution), is obliged, on the basis of\
  \ the right to social security, to provide adequate assistance to individuals in\
  \ need and may not jeopardise this right by unjustifiably impoverishing the funds\
  \ for the provision of such assistance. In the present case, the protection of the\
  \ individual's right to social security requires that the State recover the aid\
  \ received by persons who, although they had assets at the time they received the\
  \ aid, needed them for their own use and those assets did not in themselves generate\
  \ income. In such a case, it is constitutionally permissible for the State, after\
  \ the person no longer needs the assistance, to repay the person from his or her\
  \ assets that would otherwise have gone to the heirs. Otherwise, the State would\
  \ be unjustifiably reducing the resources available to provide assistance to others\
  \ who need it because they have no other adequate means of subsistence. The Constitutional\
  \ Court has held that the right to private property and inheritance (Article 33\
  \ of the Constitution) does not entitle an heir to inherit the property of the deceased\
  \ without at the same time being prepared to accept any obligations that may be\
  \ entailed by the inheritance of the deceased's property. These certainly include\
  \ the obligation to reimburse the value of the social assistance given to the deceased\
  \ by the State. This assistance was used to preserve the value of the assets subject\
  \ to inheritance after the deceased's death during the deceased's lifetime. According\
  \ to the Constitutional Court, it is essential that the heirs have a completely\
  \ autonomous choice whether to reimburse the assistance received and inherit the\
  \ entire estate or to allow the exclusion of part of the estate in favour of the\
  \ grantor (the Republic or the municipality). Otherwise, the State would be unjustifiably\
  \ reducing the resources available to provide assistance to others who need it because\
  \ they have no other adequate means of subsistence. Article 213 of the General Administrative\
  \ Procedure Act provides that the authority shall, in the operative part of the\
  \ decision, decide on the subject-matter of the proceedings and on all the claims\
  \ of the parties. The statement of reasons for the decision contains the reasons\
  \ for the individual decision - the operative part. A party submits an application\
  \ for financial social assistance, which means that in the case of an application\
  \ for financial social assistance, the subject of the procedure is the decision\
  \ on entitlement to financial social assistance, and therefore the operative part\
  \ of the decision on financial social assistance contains the decision on entitlement\
  \ to financial social assistance (whether the assistance is granted, in what amount,\
  \ for what period, for whom, etc.), and the statement of reasons explains the operative\
  \ part. The reimbursement of the financial social assistance which the recipient\
  \ has rightly received during his or her lifetime is a matter for the court in probate\
  \ proceedings, which means that it is not a matter for administrative proceedings\
  \ but for judicial proceedings, and the CSD is not obliged to refer to it in the\
  \ decisions on financial social assistance, nor is there any legal basis for doing\
  \ so. The Court of Succession, in its decision on succession, decides on all claims\
  \ of the parties to the succession proceedings, which constitutes the legal basis\
  \ - or rather the enforcement title - for the heirs or the RS to acquire the right\
  \ of ownership. At the same time, we would also like to clarify that, pursuant to\
  \ Article 154 of the Constitution of the Republic of Slovenia, the regulations of\
  \ the Republic of Slovenia are published in the State Gazette and must be published\
  \ before they enter into force. Unless otherwise provided for in the regulation,\
  \ a regulation shall enter into force on the fifteenth day following its publication.\
  \ The Constitution of the Republic of Slovenia thus makes it possible for the population\
  \ to be acquainted with all the regulations in force in the territory of the country,\
  \ which is why there is a presumption that published general acts are known to all,\
  \ irrespective of their educational background, and that they apply equally to all.\
  \ Accordingly, free legal aid is also provided for socially disadvantaged residents\
  \ and citizens, and the State makes it available to all on equal terms. The mere\
  \ fact of whether or not an individual has familiarised himself with the legal rules\
  \ does not affect the application of the legal rules in a particular case, since\
  \ an individual cannot successfully plead ignorance of the law in legal proceedings\
  \ (reasoning from case-law www.sodisce.si/znanje/sodna_praksa/http://www.sodisce.si/znanje/sodna_praksa/visje_del_in_soc_sodisce/\
  \ Case-law No VDS Order Pdp 411/2007 ). In the light of the position of the Constitutional\
  \ Court, we consider that the current regime is appropriate. The question of the\
  \ reimbursement of the value of the aid given could also be regulated in the social\
  \ assistance regulations.  However, in the placement of these provisions, legal\
  \ experts decided that a regulation which regulates the issue of the reimbursement\
  \ of the value of social assistance in one place (in the Succession Act), in one\
  \ regulation and in a uniform manner, is more appropriate, instead of a partial\
  \ normative system, according to which there could be different regulation of this\
  \ issue depending on the type of regulation which would regulate certain rights.\
  \ At the same time, the current regime allows repayment to be made as soon as inheritance\
  \ is established, which undoubtedly contributes to more effective protection of\
  \ the social rights of others.   We would also like to clarify that in practice,\
  \ the Ministry of Labour, Family and Social Affairs and the social work centres\
  \ have not noticed that the public is not aware of the provisions of the Law on\
  \ Succession. As soon as it became apparent that there was a need to provide additional\
  \ information to the public, the Ministry forwarded information related to the implementation\
  \ of Article 128 of the Law on Succession to the Social Work Centres and the media\
  \ and published it on its website in an appropriate manner. Similarly, the new application\
  \ under the Act on the Assertion of Rights from Public Funds, which will apply from\
  \ 1 June 2011, will contain a notice that the RS may, in accordance with Article\
  \ 128 of the Inheritance Act, assert in the inheritance proceedings the limitation\
  \ of inheritance of the property of a person who has received assistance under the\
  \ social welfare rules.  We believe that informing citizens about the provisions\
  \ of Article 128 of the Succession Act already on the application by which the individual\
  \ will claim the right under the social welfare legislation will be more effective,\
  \ since in case of disagreement with the legal consequences provided for in Article\
  \ 128 of the Succession Act, the individual may not claim the right. Therefore,\
  \ if only the reasoning of the decision had contained an explanation - a warning\
  \ - of the content of Article 128 of the Law on Succession, the party would not\
  \ have been informed of this until after the administrative procedure had been carried\
  \ out. However, pursuant to Article 134 of the General Administrative Procedure\
  \ Act, a party may withdraw its request (an application to claim a right under the\
  \ social welfare legislation) at any time during the proceedings at first instance,\
  \ until the decision has been served, during the appeal period and during the proceedings\
  \ at second instance, until the decision has been served.  In cases where the knowledge\
  \ of the provisions of Article 128 of the Law on Succession would influence an individual\
  \ not to claim a particular right, the administrative procedure on the entitlement\
  \ to the right would be conducted in vain. The authority would therefore incur only\
  \ costs in conducting the procedure (material costs of the authority, costs for\
  \ the work of officials), the reimbursement of which, despite the withdrawal of\
  \ the claim, cannot be claimed from the parties by the authority in accordance with\
  \ the provisions of the Law on General Administrative Procedure.   \nResponse from\
  \ the Ministry of Justice\nWith regard to the Ministry of Justice's portfolio concerning\
  \ the recovery of social assistance after the death of the recipient, we would like\
  \ to clarify that Articles 128 and 129 of the Law on Inheritance (hereinafter 'the\
  \ Law on Inheritance') regulate the limitation of the inheritance of the property\
  \ of a person who has benefited from assistance under the social welfare rules.\
  \  Article 128(1) of the Civil Code provides that the inheritance of the property\
  \ of a person who has received assistance under the social welfare rules is limited\
  \ to the amount of the value of the assistance received. This limitation is implemented\
  \ in such a way that the part of the deceased's property corresponding to the value\
  \ of the aid received becomes the property of the Republic of Slovenia, if the aid\
  \ was financed from the budget of the Republic of Slovenia, or the property of the\
  \ municipality, if the aid was financed from the budget of the municipality. However,\
  \ in the third paragraph of the same Article, the IR leaves the heirs the option\
  \ of inheriting all of the deceased's property, provided that they undertake to\
  \ reimburse the value of the aid granted to the Republic of Slovenia and the municipality\
  \ respectively. In this case, the fourth paragraph of the same Article provides\
  \ that the Republic of Slovenia or the municipality from whose budget the aid was\
  \ financed shall have a legal lien on the assets of the estate as security for its\
  \ claim to reimbursement in full. If the heirs do not opt for the option to reimburse\
  \ the value of the aid, their inheritance shall be limited to the value of the aid\
  \ received by the deceased, thereby enabling the grantor to become a co-owner of\
  \ the deceased's property.   For the sake of clarity, Article 128(5) of the Social\
  \ Welfare Act provides that, for the purposes of the social welfare legislation,\
  \ assistance shall be deemed to be anything received by the deceased in cash or\
  \ in the form of an exemption on account of the deceased's poor financial situation,\
  \ either by virtue of a law or a general municipal act.  The legislator has also\
  \ provided for a social corrective to Article 128 ZD, which is embedded in Article\
  \ 129 ZD. This allows the State and the municipality not to assert their claims\
  \ against socially weak debtors, as it provides that the Republic of Slovenia or\
  \ the municipality from whose budget the assistance to the deceased under the social\
  \ welfare rules was financed may, until the end of the succession proceedings, waive\
  \ the right to reimbursement of this assistance if the deceased's heirs are his\
  \ spouse or children who are themselves in need of assistance. In the light of the\
  \ current legal regime described above, we would like to clarify that, after the\
  \ death of a person who has received assistance under the social welfare legislation,\
  \ the children and the partner, i.e. the heirs of the recipient of the assistance,\
  \ do not have to repay the amount of the assistance received by the deceased during\
  \ his/her lifetime as social assistance, but the part of the deceased's estate corresponding\
  \ to the value of the assistance received becomes the property of the Republic of\
  \ Slovenia or the municipality. However, if the deceased's heirs wish to inherit\
  \ all of the deceased's property, they may, on the basis of Article 128(3) ZD, voluntarily\
  \ undertake to reimburse the value of the aid given to the deceased by the Republic\
  \ of Slovenia or the municipality, as the case may be, and thereby acquire the right\
  \ to inherit the deceased's entire property. The claim which the Republic of Slovenia\
  \ or the municipality acquires against the heirs in this case is, however, secured\
  \ by a legal pledge on the assets of the estate under Article 128(4) ZD until the\
  \ full repayment. It is also possible, of course, that the conditions laid down\
  \ in Article 129 ZD are fulfilled at the time of the death of the recipient of social\
  \ assistance and that the State or the municipality does not assert its claim. With\
  \ regard to the proposed amendment to Article 128 of the Social Welfare Act, we\
  \ would like to further clarify that on 30 November 2000, the Constitutional Court\
  \ of the Republic of Slovenia, in its decision U-I-330/97-28, partially annulled\
  \ the then applicable Article 128 of the Social Welfare Act, while at the same time\
  \ finding that the statutory regulation concerning the limitation of the inheritance\
  \ of the property of a person who has received assistance under the social welfare\
  \ regulations is conceptually adequate, and that the provisions of Article 128 of\
  \ the Social Welfare Act are not invalid. In the present case, the legislator interfered\
  \ with the right to private property and inheritance (Article 33 of the Constitution)\
  \ in order to protect the right to social security of other citizens (Article 50(1)\
  \ of the Constitution). In order to achieve that objective, the interference with\
  \ the right under Article 33 of the Constitution was necessary. Under Article 50(1)\
  \ of the Constitution, citizens have the right to social security under the conditions\
  \ laid down by law. The welfare State (Article 2 of the Constitution) is obliged,\
  \ on the basis of the right to social security, to provide adequate assistance to\
  \ individuals in need and may not jeopardise that right by unduly impoverishing\
  \ the funds for the provision of that assistance. In the present case, the protection\
  \ of the individual's right to social security requires that the State recover the\
  \ aid received by persons who, although they had assets at the time they received\
  \ the aid, needed them for their own use and those assets did not in themselves\
  \ generate income. In such a case, it is constitutionally permissible for the State,\
  \ after the person no longer needs the assistance, to repay the person from his\
  \ or her assets that would otherwise have gone to the heirs. Otherwise, the State\
  \ would be unjustifiably reducing the means of providing assistance to others who\
  \ need it because they have no other adequate means of subsistence.\" We would like\
  \ to emphasise that the heirs, i.e. the children and the partner of the recipient\
  \ of social assistance, are not in any case burdened with the repayment of this\
  \ inheritance, since, according to the Social Security Act, the State or the municipality\
  \ may, within the limitation of inheritance from a deceased recipient of social\
  \ assistance, repay up to a maximum of the value of the entire estate of the recipient\
  \ of social assistance, even if it is established that the deceased had received\
  \ more in the way of assistance than the value of the estate. In the light of the\
  \ above, we consider that the current arrangements for limiting the inheritance\
  \ of the estate of a person who has received assistance under the rules governing\
  \ social welfare are appropriate and that no amendment to Article 128 ZD is necessary.\
  \  "
response date: 2011-01-11
response due date: null
sent date: 2010-11-10
title: SOCIAL ASSISTANCE - CREDIT - MISLEADING
upvotes: 17
url: https://predlagam.vladi.si/predlog/1214
