Text file: 2189.txt
author: lipi
downvotes: 10
end consideration date: 2011-12-22
id: '2189'
number comments: 12
number views: 3624
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.\nThe 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.\nArticle 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\
  \ 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.\nAt 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 that an individual has or has not 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 in 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 ).\nIn the light of the position of the Constitutional\
  \ Court, we consider that the current regulation 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 general place (in the Law on Succession),\
  \ in one regulation and in a uniform manner, is more appropriate, instead of a partial\
  \ standardisation, 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.\nWe 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 additional information needed to\
  \ be provided 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 Law 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.\nWe 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.\n \nResponse from\
  \ the Ministry of Justice\nWith regard to 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 in accordance with the social welfare rules. Article 128(1) 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 shall be 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 paragraph 3 of the same\
  \ Article, the law leaves the heirs with the option of inheriting all of the deceased's\
  \ property, provided that they undertake to reimburse the value of the aid given\
  \ 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 co-owner of the assets of the deceased's\
  \ estate.\nFor the sake of clarity, Article 128(5) provides that, for the purposes\
  \ of the social welfare rules, anything received by the deceased in cash or in the\
  \ form of an exemption on account of his or her poor financial situation by virtue\
  \ of a law or a general act of the municipality is to be regarded as assistance.\
  \ The Ministry of Labour, Family and Social Affairs is responsible for interpreting\
  \ the social welfare rules in more detail, although it should be stressed that in\
  \ specific cases the law is interpreted by the courts.\nThe legislator has also\
  \ provided for a social corrective to Article 128 of the Social Welfare Act, which\
  \ is embedded in Article 129 of the Social Welfare Act. This allows the State not\
  \ to assert its claim against socially weak debtors, as it provides that the Republic\
  \ of Slovenia or the municipality from whose budget the assistance to the deceased\
  \ was financed in accordance with the social welfare regulations 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. An exception is therefore made to the principle that the property\
  \ corresponding to the value of the assistance becomes the property of the State\
  \ or the municipality.   The burden of repaying the social assistance is therefore\
  \ not transferred to the heirs under the current legal regime.  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 resources available to provide assistance\
  \ to others who need it because they have no other adequate means of subsistence.\"\
  \nIn its decision No U-I-223/08 of 8 April 2010 rejecting the petition, the Constitutional\
  \ Court of the Republic of Slovenia, when reassessing the constitutionality of Article\
  \ 128 of the Civil Code in 2010, stated that the ratio legis of the restriction\
  \ under Article 128 of the Civil Code was to prevent the inheritance of that part\
  \ (or all) of the deceased's estate which had been created or preserved by the assistance\
  \ given to the deceased by the company, without there being any grounds for which\
  \ the company was obliged to provide assistance. If the person who received the\
  \ assistance has left assets from which he could previously have met his subsistence\
  \ needs, it may reasonably be concluded that he was not in social distress. The\
  \ restriction under Article 128 ZD is based primarily on the requirement that assets\
  \ existing as a result of social assistance should be returned to the community,\
  \ not that they should go to the heirs.  With regard to the claim that social transfers\
  \ are intended to ensure the social security of citizens, we would like to clarify\
  \ that budgetary, i.e. State, resources are given to those who are in real need\
  \ of such assistance, i.e. those who do not have adequate income or assets (e.g.\
  \ immovable property). If a beneficiary of permanent cash social assistance or a\
  \ beneficiary who has received cash social assistance at least twenty-four times\
  \ in the three years preceding the application is the owner of immovable property,\
  \ the decision on eligibility for cash social assistance prohibits him/her from\
  \ alienating or encumbering the immovable property of which he/she is the owner,\
  \ in favour of the Republic of Slovenia. The prohibition to alienate or encumber\
  \ immovable property for the benefit of the Republic of Slovenia shall be decided\
  \ by the social work centre in the operative part of the decision on entitlement\
  \ to social assistance (Article 36). Article 53 of the same Act also provides that\
  \ if the beneficiary of a protection allowance is the owner of immovable property,\
  \ he shall be prohibited from alienating or encumbering the immovable property of\
  \ which he is the owner for the benefit of the Republic of Slovenia by the decision\
  \ on entitlement to a protection allowance.   In this connection, we would like\
  \ to point out that the Social Security Act in no way imposes any additional burden\
  \ on the heirs of a recipient of social assistance with regard to the repayment\
  \ of such assistance, which would force the heirs to take out a loan for its repayment,\
  \ since, even if it is established that the deceased received more assistance than\
  \ the value of the estate, the State or the municipality may, within the limits\
  \ of the succession of the deceased recipient of social assistance, reimburse the\
  \ deceased to a maximum of the total value of the estate of the recipient of such\
  \ assistance.\nIn the light of the above, the Ministry of Justice emphasises that\
  \ the burden of reimbursement of social assistance is not shifted to the heirs under\
  \ the current legal regime and that the current regime in Article 128 of the Law\
  \ on Social Assistance is in line with the Constitution of the Republic of Slovenia."
response date: 2012-01-18
response due date: null
sent date: 2011-11-23
title: I propose to abolish the possibility for the State or a local community to
  opt in after death
upvotes: 20
url: https://predlagam.vladi.si/predlog/2189
