Text file: 5873.txt
author: ju_rom
downvotes: 5
end consideration date: 2014-06-05
id: '5873'
number comments: 29
number views: 3404
proposal type: Competent authority response
response: "Response from the Ministry of Justice\nRegulation in the Criminal Code:\n\
  The Ministry of Justice explains that the Criminal Code (hereinafter: CC-1) provides\
  \ the legal basis for the offence of violation of fundamental rights of workers\
  \ (Article 196 CC-1) and the offence of violation of social security rights (Article\
  \ 202 CC-1). On the basis of the above, the CC-1 criminalises both non-payment of\
  \ social security contributions and non-payment of pension and invalidity insurance\
  \ contributions.\nV 196. Article 196 of the CC-1 provides that whoever knowingly\
  \ fails to comply with the regulations on the conclusion of an employment contract\
  \ and the termination of an employment relationship, wages and other benefits from\
  \ the employment relationship, working hours, breaks, rest periods, annual leave\
  \ or absence from work, protection of women, youth and the disabled, the protection\
  \ of workers due to pregnancy and parenthood, the protection of older workers, the\
  \ prohibition of overtime or night work or the payment of the prescribed contributions,\
  \ and thereby deprives or restricts a worker or jobseeker of a right to which he\
  \ or she is entitled, shall be liable to a fine or to imprisonment for a term not\
  \ exceeding one year. If the act referred to in the preceding paragraph results\
  \ in the unlawful termination of the employment relationship, the unjustified non-payment\
  \ of three consecutive wages or the loss of a right deriving from unpaid contributions,\
  \ the offender shall be liable to a term of imprisonment not exceeding three years.\
  \ Article 202 of the CC-1 provides that whoever knowingly fails to comply with the\
  \ social security regulations and thereby deprives or restricts a person of an entitlement\
  \ to which he or she is entitled, shall be liable to a fine or to imprisonment for\
  \ a term not exceeding one year.\nChapter 7 of the CC-1 provides for the confiscation\
  \ of the proceeds of crime. A fundamental principle of criminal law is laid down\
  \ in Article 74 of the CC-1, which provides that no one may retain a financial gain\
  \ obtained through or as a result of a criminal offence. Further provisions of the\
  \ CC-1 (Articles 75 to 77c of the CC-1) provide a legal basis for the forfeiture\
  \ of the entire proceeds of crime, even if these assets have been transferred to\
  \ other persons.\n Concept and regulation of criminal sanctions:\nThe fundamental\
  \ principle of the system of criminal sanctions in Slovenian criminal law is the\
  \ principle of legality. Only the penalty prescribed for a particular offence before\
  \ it was committed may be imposed for that offence. The second principle is the\
  \ principle of proportionality, which is embodied in the institute of individualisation\
  \ of criminal sanctions and stipulates that the punishment must be proportionate\
  \ to the gravity of the offence and the culpability of the perpetrator. The above\
  \ also follows from the fundamental principle of the Constitution of the Republic\
  \ of Slovenia, which provides in Article 2 that the Republic of Slovenia is a State\
  \ governed by the rule of law. It is a general requirement of the rule of law that\
  \ only a sanction which is proportionate to the gravity of the offence is permissible.\
  \ It follows that the State may not impose disproportionately long sentences for\
  \ individual offences, as this infringes the human rights of the individual (e.g.\
  \ the right to freedom of movement). It is for the State as a community to strike\
  \ the right balance between the fundamental purpose of criminal sanctions, which\
  \ is to provide protection against crime, and the rights of the individual.  We\
  \ would add that the European Convention on Human Rights also states, in Protocol\
  \ No 4 to Article 5 of the European Convention on Human Rights, in the chapter on\
  \ liberty and security of the person, that no one shall be deprived of his liberty\
  \ solely because he is unable to fulfil his contractual obligations. The Constitutional\
  \ Court of the Republic of Slovenia has also taken a position on the prohibition\
  \ of imprisonment in civil proceedings, stating in Decision No U-I-145/03 of 23\
  \ June 2005 that the regulation of punishment in the Civil Procedure Act, in particular\
  \ with regard to the imprisonment sentence, clearly reaches a level that would justify\
  \ the conclusion that the decision is a decision on a criminal charge (which should\
  \ be subject to all procedural and substantive guarantees with regard to criminal\
  \ proceedings and criminal offences). It is clear that the rules governing sentencing\
  \ - not in themselves, but because of the level of the penalties imposed in the\
  \ context of the proceedings - do not comply with the requirements of Article 23(1)\
  \ of the Constitution (right to a fair trial) and Article 6 of the European Convention\
  \ for the Protection of Human Rights and Fundamental Freedoms (right to a fair trial)\
  \ and with the safeguards in criminal proceedings. It is incompatible with the Constitution\
  \ of the Republic of Slovenia in that it provides for such high penalties, which\
  \ dictate the conclusion that it is a decision on a criminal charge, and therefore\
  \ all procedural guarantees relating to criminal proceedings should also be complied\
  \ with under Article 29 of the Constitution (legal safeguards in criminal proceedings).\
  \  In addition, we would like to draw attention to the judgment of the European\
  \ Court of Human Rights in the case of Alenka Pe\u010Dnik v. Slovenia (Application\
  \ no. 44901/05), which also ruled on the above-mentioned case, which has already\
  \ been decided by the Constitutional Court of the Republic of Slovenia.\n Relevant\
  \ provisions of civil law - the institution of enforcement in relation to criminal\
  \ law:\nWith regard to the petitioner's allegations concerning the use of enforcement\
  \ proceedings, we would like to clarify that this area is governed by the Law on\
  \ Enforcement and Security (hereinafter: the Law on Enforcement and Security), so\
  \ that the institution of enforcement is intended for cases of non-payment. Anyone\
  \ (creditor) may submit a request for enforcement (on the basis of a writ of execution\
  \ or a authentic instrument), on the basis of which enforcement proceedings are\
  \ initiated and the creditor is repaid in accordance with the legal order. It is\
  \ not permissible for a creditor to take the right into his own hands and to seek\
  \ to recover his claim on his own initiative, as this would violate Slovenia's constitutional\
  \ right as a State governed by the rule of law. One of the fundamental principles\
  \ of criminal law is the so-called ultima ratio principle, which states that criminal\
  \ law intervention is the last resort of the state. It follows from Article 16 of\
  \ the Criminal Code that a criminal offence is a human wrongful act which, in order\
  \ to protect legal values, the law defines as a criminal offence and, at the same\
  \ time, establishes its elements and the punishment of the guilty perpetrator. It\
  \ should also be recalled that the constitutional principle of proportionality provides\
  \ that a measure must be necessary, appropriate and proportionate in the strict\
  \ sense. On the basis of the foregoing, we would add that the proposed measure (imprisonment\
  \ without a trial, only enforcement proceedings, on the basis of a statement of\
  \ the contributions paid, and the executing judge merely following the law) would\
  \ be completely contrary to the provisions of the Constitution of the Republic of\
  \ Slovenia on the right to an adversarial procedure, the right to a defence, and\
  \ also contrary to the constitutional prohibition on the establishment of extraordinary\
  \ courts (2. Article 126(2)), and consequently the provision on imprisonment as\
  \ the last resort (ultima ratio) laid down in the law would also be violated.\n\
  The Ministry of Justice will continue to analyse all proposals that would further\
  \ increase the efficiency of the conduct of criminal proceedings, while respecting\
  \ all constitutionally guaranteed rights of the accused and observing criminal law\
  \ standards.\n "
response date: 2014-06-30
response due date: null
sent date: 2014-05-07
title: Sanctioning non-payers of social security contributions
upvotes: 22
url: https://predlagam.vladi.si/predlog/5873
