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					Comparing Access to Justice in Asian and European Transitional Countries Bogor, Indonesia, 27-28 June

International Workshop on "Comparing Access to Justice in Asian and European Transitional Countries" Bogor, Indonesia, 27-28 June 2005 Individual Access to Constitutional Courts in European Transition Countries
by

DRAFT ONLY. Not for Citation and Circulation

Dr. Schnutz Rudolf Dürr1 Introduction ............................................................................................... 1 Why constitutional review / constitutional justice? .................................... 1 Who – ordinary judiciary vs. specialised constitutional court? .................. 2 How can a constitutional court protect human rights even without individual access....................................................................................... 2 What types of litigation? ............................................................................ 2 How can the individual access the Constitutional Court? ......................... 3 Which acts can be reviewed? ................................................................... 4 What are the consequences of a finding of unconstitutionality? ............... 4 Conclusion ................................................................................................ 4 Bibliography .............................................................................................. 5 Cases (extracted from www.CODICES.CoE.int)....................................... 5

Introduction
    Different notions of justice – large (fairness, equity) / narrow sense (access to courts) Bulk of access provided by ordinary civil, criminal, administrative court (efficiency, trust, legal aid) Spreading of specialised constitutional courts in European transition countries, 2nd wave (Germany, Italy, Spain Portugal) and 3 rd wave (Central and Eastern Europe except Estonia) Access to constitutional justice seen as a means for credible and legitimate institution for human rights protection

Why constitutional review / constitutional justice?
Remedy against application of unconstitutional norms Need to make Constitution and rights deriving from it directly applicable

1

The speaker is Head of the Constitutional Justice Division at the Secretariat of the Venice Commission of the Council of Europe (www.Venice.CoE.int). The opinions expressed in this paper do not necessarily represent the position of the Venice Commission. Session 1A: Guaranteeing Access to Justice through Constitutinal and Legal Reforms: How could the vestiges of the past be addressed?

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Comparing Access to Justice in Asian and European Transitional Countries Bogor, Indonesia, 27-28 June

Who – ordinary judiciary vs. specialised constitutional court?
Ordinary courts / diffuse system of constitutional review: Advantage: wide application Drawbacks: Ambiguity about validity of legislation until highest court has decided. In practice, depending on position of judge in society (previous 'telephone justice' vs 'judge made law' in common law countries) ordinary courts may prefer application of law rather than direct application of constitution => unconstitutional legislation stays in force Specialised constitutional court: Kelsen 1920 Austrian constitution – specialised body deciding only on constitutionality; composition of court to reflect composition of society (ethnic, linguistic, religious etc.) Today about 90 constitutional courts world-wide, many in Europe but also in Asian countries, e.g. Indonesia, South Korea, Mongolia, Thailand. Advantages:  specialisation on constitutional issues, less reluctance to strike down legislation because this is very purpose of court  due to special composition high legitimacy for annulling acts of Parliament, which is the representative of the sovereign people  legal certainty as only one body can decide on the constitutionality of legislation

How can a constitutional court protect human rights even without individual access
Human rights protection can also emanate from requests from public authorities invoking the unconstitutionality of legislation:  President  Parliament – majority / minority  Government  Federal or regional entities – e.g. Belgium  Municipalities (right to local administration)  Political parties – often electoral rights

What types of litigation?
     Human Rights litigation Distribution of powers between state organs Distribution of powers in federal or regional state (horizontally or vertically). Powers of local authorities Electoral jurisdiction – relations with ordinary courts have to be defined

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

Repressive litigation – political parties; impeachment: recent examples Lithuania; South Korea

a priori vs. a posteriori control

How can the individual access the Constitutional Court?
Indirectly:  Ordinary courts – preliminary request (e.g. Italy, Germany, Romania, Bulgaria, Lithuania), can be proposed by party but decision typically remains with court; important means of access to constitutional justice but sometimes reluctance to submit  Ombudsman / Human Rights Commission can refer cases (e.g. Poland) Advantages: number of cases remains manageable better quality of requests Directly: constitutional complaints 'full' (including amparo, e.g. Spain) / 'normative' actio popularis – no interest required (widest access) Advantages Human rights protection improved; Higher numbers of cases -> reduction of number of unconstitutional laws

Problem: high number of cases but often only few cases admissible (e.g. 2 to 3 per cent Germany) to be decided on the merits Solution - filters: standing / interest, exhaustion of remedies (exceptions possible); time limit, obligation of representation by lawyer; costs for frivolous cases; court staff prepares cases; small chambers to decide on admissibility. ‘Full' constitutional complaint against final decisions of ordinary judiciary or final administrative acts if no appeal to ordinary court available (e.g. Germany, Hungary, Slovenia, Czech Republic). 'Full' complaint brings about considerably more cases – relations with other courts can become problem ‘Normative’ constitutional complaint against normative (general) acts only fewer cases; ordinary judiciary deals with unconstitutional individual acts (e.g. Latvia, Russia). Danger: if ordinary courts do not directly apply the constitution unconstitutional acts remains in force Problem of addressing unconstitutional general 'practices' or unwritten law if they are not considered being normative acts.

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Which acts can be reviewed?
Normative acts:  Treaties – safer before ratification à priori  Constitutional amendments according to basic principles (e.g. South Africa: principles from Interim Constitution; Austria fundamental principles)  Organic laws – between constitution and ordinary laws  Laws – statutes (as interpreted in practice legge vivente Italy)  Decrees of the executive (head of state, government, minister, administration) question whether task for ordinary or constitutional court  Norms of federal or regional entities (regional constitutions laws) as compared to national constitution  Individual acts of state bodies in disputes of competencies between state organs or between Federation and entities Individual acts:  (final) court and administrative decisions – individual complaint

What are the consequences of a finding of unconstitutionality?
Final and binding decisions – binding for all State organs (obiter dictum ?) Constitutionality dependent on specific interpretation (judicial restraint) Annulment of individual and/or general act – can have effect ex tunc, ex nunc ab futuro, e.g. 1 year as from day of decision (blocking other cases); often court can define effects Possible problem of ex tunc effect - effects on other, decided cases e.g. marriages; Re-opening / retrial of current case Re-opening / retrial of other decided cases (e.g. retrial or release of prisoners) Respect by other state bodies – execution can be problematic (e.g. Albania)

Conclusion
1. Constitutional review is important to make the Constitution a document, which is not only declared but applied in practice, especially in the field of human rights – Access to the constitution is access to justice. 2. The bulk of human rights protection has to be delivered by administration and ordinary judiciary. 3. Individual access to the Constitutional Court is a subsidiary but effective means of ensuring human rights.

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4. Constitutional courts are well placed to offer constitutional protection in countries in transition, where ordinary courts still may have to overcome problems from the past.

Bibliography
Steinberger, Helmut: Models of Constitutional Jurisdiction, Science and Technique of Democracy, no. 2, Strasbourg (1993) Venice Commission, The Protection of Fundamental Rights by the Constitutional Court, Science and Technique of Democracy, no. 15, Strasbourg (1996) Venice Commission, Descriptions of Constitutional Courts, special issue of the Bulletin on Constitutional Case-Law (available also via www.CODICES.CoE.int) Links to reports on individual complaint (available at www.Venice.CoE.int):
CDL-JU(2004)030 International Legal Training Workshop "Improving Examination Methods of individual Complaints, Effective Case Management, Effective Decision Drafting" (Baku, 26-27 February 2004): Report on “Consequences within the Constitutional Court of Latvia of the introduction of individual complaints” (D. Pededze) CDL-JU(2004)029 International Legal Training Workshop "Improving Examination Methods of individual Complaints, Effective Case Management, Effective Decision Drafting" (Baku, 26-27 February 2004): Report on “The Constitutional Complaint” (A. Mavcic) English 26/03/04 - Public CDL-JU(2004)027 International Legal Training Workshop "Improving Examination Methods of individual Complaints, Effective Case Management, Effective Decision Drafting" (Baku, 26-27 February 2004): Report on “Dealing with individual Complaints: Experience of the Russian Constitutional Court” (B. Tuzmukhamedov) English 26/03/04 - Public CDL-JU(2004)026 International Legal Training Workshop "Improving Examination Methods of individual Complaints Effective Case Management Effective Decision Drafting" (Baku, 26-27 February 2004): Report on “Administrative assistance in dealing with proceedings before the Federal Constitutional Court (Bundesverfassungsgericht), with particular reference to constitutional complaint proceedings” (E. Barnstedt) English 26/03/04 - Public CDL-JU(2000)025 Workshop on "the Constitutional Court as a protector of individual rights and freedoms" – Report on: Individual Constitutional Complaints in the Practice of the Constitutional Court of Spain (I. Borrajo Iniesta) English 14/04/00 - Public CDL-JU(2000)023 Workshop on "the Constitutional Court as a protector of individual rights and freedoms" Report on: "The protection of Human Rights by the Constitutional Court of Italy" (C. Pinelli) English 10/04/00 – Public

Cases (extracted from www.CODICES.CoE.int)
HUN-1995-1-001 a) Hungary / b) Constitutional Court / c) / d) 08-02-1995 / e) 1/1995 / f) / g) Magyar Közlöny (Official Gazette), 10/1995 / h) . Keywords of the Systematic Thesaurus: 1.6.5.5 5.2 5.3.5.1 Constitutional Justice - Effects - Temporal effect - Postponement of temporal effect. Fundamental Rights - Equality. Fundamental Rights - Civil and political rights - Individual liberty - Deprivation of liberty.

Keywords of the alphabetical index:

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Human dignity / Compensation, past injustice. Headnotes: The Constitution requires that, when regulating the question of compensation for those wrongfully deprived of their life and liberty for political reasons, the law should specify the group of persons entitled to such compensation, respecting the equal dignity of each person. Summary: Act 32 of 1992 regulated the question of compensation for those wrongfully deprived of their life and liberty due to political reasons. Several petitioners challenged the law, especially because they claimed that the law specified in an arbitrary and discriminatory way those who were entitled to compensation. The present case differed from all previous compensation cases introduced before the Court because it did not concern compensation for property losses or material damage, but compensation for personal injury. The issue was complicated further because the violations in question occurred under different political regimes. On a very broad generalisation, one previous regime perpetrated these violations on the ground of racism and nationalism, while the next regime followed mostly ideological and political motives. A further difficulty lies in the question how deprivation of life and liberty could be measured in money. The Constitutional Court declared that this type of compensation is not based on a legal obligation emanating from the time before the transition; the Government compensates according to equity, thus nobody has a subjective right to compensation. Therefore, the Constitutional Court upheld the constitutionality of the general principles of the compensation process, including the fact that the legislature passes different compensation laws periodically. However, the Court revealed an omission on the part of the government and the legislature. The law provided for an additional legislative act that would cover those persons who did not fall under the previous law, and this obliged the government to present the draft as early as in 1992. The government did not comply with this obligation, thus creating an unconstitutional discrimination to the detriment of those who did not fall within the compensation law. The main concern of the petitioners was that the law restricted the possibility of compensation to those whose rights were arbitrarily violated in connection with a formal criminal procedure. Such a provision excluded from compensation those who were killed by Hungarian authorities without any formal judicial procedure (e.g. shot, or killed in forced labour camps). In order to redress this omission, the Court obliged the legislature to pass a further compensation law before the end of September 1995. The Constitutional Court declared unconstitutional and annulled some specific provisions of the law. The law originally considered deportation as a mere form of deprivation of liberty. According to the Court, deportation during the Second World War meant far more, being an expulsion from the country by force, when Hungarian authorities, on racial, religious or political grounds, handed their own citizens to foreign authorities, who carried them off to concentration camps. Leaving these historical circumstances out of consideration violates the constitutional requirement of treating everybody with equal dignity. Deported people form a clearly defined specific group that the legislature has to respect. Therefore, the provisions whereby deportation to Germany and to the Soviet Union were regarded as mere deprivation of liberty were declared unconstitutional. Another provision of the law differentiated between people compelled to undergo forced labour service - a form of unarmed military service for those pursued by the regime during the Second World War. The criterion for the difference in treatment was whether the forced labour camps belonged to combat force units or not. The Constitutional Court held arbitrary, and thus unconstitutional, the discrimination between those who had served in combat and in non-combat forces, because those belonging to non-combat forces were compelled to live in closed camps and were deprived of their liberty. The remaining provisions challenged by the petitioners were upheld by the Court. Supplementary information: The Constitutional Court had previously examined various questions on compensation for past injustices in six cases. In the present case, despite the abovementioned differences, the Court confirmed the principles laid down in its earlier judgments, e.g. the treatment of persons with equal dignity. Languages: Hungarian. LAT-1999-1-001 a) Latvia / b) Constitutional Court / c) / d) 20-04-1999 / e) 04-01(99) / f) Conformity of regulations on the procedure for repayment in cash for former landed property in rural areas with the Constitution, the Law on land privatisation and the Law on the determination of the status of politically repressed persons / g) Latvijas Vestnesis (Official Gazette), 121, 21.04.1999 / h) CODICES (English, Latvian). Keywords of the Systematic Thesaurus: 2.1.2.2 2.3.6 2.3.8 2.3.9 3.23 5.2 5.3.16 5.3.38.1 5.3.38.4 Sources of Constitutional Law - Categories - Unwritten rules - General principles of law. Sources of Constitutional Law - Techniques of review - Historical interpretation. Sources of Constitutional Law - Techniques of review - Systematic interpretation. Sources of Constitutional Law - Techniques of review - Teleological interpretation. General Principles - Equity. Fundamental Rights - Equality. Fundamental Rights - Civil and political rights - Right to compensation for damage caused by the State. Fundamental Rights - Civil and political rights - Right to property - Expropriation. Fundamental Rights - Civil and political rights - Right to property - Privatisation.

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Keywords of the alphabetical index: Injustice, past, compensation / Victim of political repression / Compensation certificates. Headnotes: The main purpose of the law is to ensure equity. In this case, the objective of the law is restitution of equitable property rights to persons who suffered repression under the communist and Nazi regimes. The regulations issued by the executive could not limit the time for granting restitution of property rights because there are still persons who will be granted the status of politically repressed persons and all the guarantees mentioned in the law shall apply to them. Summary: The case was initiated by the State Human Rights Bureau, which requested the annulment of paragraph 29 of the Regulations of the Cabinet of Ministers concerning the procedure for the repayment in cash for compensation certificates (vouchers) for former landed property in rural areas claiming that it is not in conformity with the Constitution (Satversme) or with the Law on land privatisation in rural regions or the Law on the determination of the status of politically repressed persons who suffered under communist and Nazi regimes. The Constitutional Court held that the issue of receiving compensation for vouchers in cash in this case refers to a certain group of persons, politically repressed persons. The relevant provision of the Law on the determination of the status of politically repressed persons is: "The state shall ensure restoration of politically repressed persons' rights in the area of civil, economic and social rights according to the law". Interpreting the law in its historical context, the Constitutional Court took into consideration the facts that made the legislator determine the obligation of the state to ensure restoration of politically repressed persons' rights. Already in the Declaration of the Supreme Soviet on the renewal of the independence of the Republic of Latvia (1990) it was pointed out that events in 1940 should be classified as international crimes which resulted in the occupation of Latvia and the liquidation of its statehood. The Parliament's Declaration on the occupation of Latvia (1996) stressed that "during the whole period of occupation, the USSR purposefully carried out genocide against the Latvian nation. The occupying regime annihilated innocent people, repeatedly organised mass deportations, inflicted cruel penalties on those who participated in armed struggle or otherwise struggled for restoration of independence of Latvia, and illegally and without compensation expropriated property". In the Law on the determination of the status of politically repressed persons (1995) it was determined that the State should take responsibility for guaranteeing politically repressed persons' rights. The legislator had taken into consideration moral damage and damage to property committed by the communist and Nazi regimes. When interpreting the Law on the determination of the status of politically repressed persons, the Constitutional Court referred to the following: 1. Article 1 of the Constitution, which provides that Latvia is an independent, democratic Republic. The principle of a State based on the rule of law and the principles of justice and confidence in the law result from this. Politically repressed persons trusted that no special date for being granted the status of a politically repressed person would be fixed. They believed that offence and injustice would be compensated in accordance with the law; 2. the Law on land privatisation in rural regions, which establishes that former landowners who had requested compensation or land before 31 December 1992 and have not been able to receive the land because of restrictions envisaged by law have the right to receive compensation in cash. The Law did not envisage a fixed term (date) for exercising the above right as regards the persons who have been granted the status of a politically repressed person; 3. the regulations issued by the Cabinet of Ministers on 16 February 1999 on the procedure for the payment of compensation for the vouchers granted to participants of the national resistance movement for the former landed property in rural districts, which determines that participants of the national resistance movement shall submit requests for receipt of compensation for land-related certificates (vouchers) before 30 June 1999, in contrast to politically repressed persons who according to the disputed norm had to do so before 30 September 1997. Taking these texts into account, the Constitutional Court considered that the Law on the determination of the status of politically repressed persons has never been directed towards limiting the exercise of rights by politically repressed persons. Thus the disputed norm is at variance with the Law on the determination of the status of politically repressed persons. Determination by the Cabinet of Ministers of a fixed date for politically repressed persons to submit requests for the receipt of compensation for vouchers could be justified during the transition period to the new economic routine. However, the date had to be reasonable and just. The fact that in accordance with the Law on privatisation certificates, vouchers as negotiable instruments must be used before 31 December 1999 cannot serve as a basis for considering that 30 September 1997 is a reasonable and just term for ceasing to accept requests from the politically repressed persons. Before 30 September 1997 a number of politically repressed persons did not have the necessary documents which would certify that they belong to the above group, but this does not change the real status of a politically repressed person and cannot serve as a reason for limiting their rights. The Constitutional Court held that the statement made by the claimant that the disputed norm is in conflict with Articles 91 and 105 of the Constitution and Article 1 of the Law on land privatisation in rural regions is unfounded. All former landowners or their heirs have the right to receive property compensation certificates (vouchers), but only some categories of the former landowners or their heirs (politically repressed persons) have been granted the additional advantage of receiving compensation for vouchers in cash.

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The Constitutional Court decided to declare paragraph 29 of the 20 May 1997 Regulations no. 187 by the Cabinet of Ministers on the procedure for the repayment in cash for compensation certificates (vouchers) for former landed property in rural areas as regards persons mentioned in the second part of Article 12 of the Law on the land privatisation in rural regions, if they have the status of politically repressed persons, as contrary to Article 9 of the Law on the determination of the status of politically repressed persons who suffered during the communist and Nazi regimes and null and void from the moment of its adoption. Languages: Latvian, English (translation by the Court). SLO-1998-3-008 a) Slovenia / b) Constitutional Court / c) / d) 23-09-1998 / e) U-I-371/96 / f) / g) Uradni list RS (Official Gazette), 68/98; Odlocbe in sklepi ustavnega sodisca (Official Digest), VII, 1998 / h) Pravna Praksa, Ljubljana, Slovenia (abstract); CODICES (English, Slovene). Keywords of the Systematic Thesaurus: 5.2.2.3 5.3.16 Fundamental Rights - Equality - Criteria of distinction - National or ethnic origin. Fundamental Rights - Civil and political rights - Right to compensation for damage caused by the State.

Keywords of the alphabetical index: National origin, expression / Injustice, redress. Headnotes: The legislature decided to give the opportunity to assert the status of former political prisoner to persons who had been convicted by the courts of other republics or the former Yugoslav federation. By ensuring this right it must not discriminate against such persons on the basis of their personal circumstances. The provision of the Redress of Injustices Act, which grants certain rights only to «persons of Slovenian national origin», thereby excluding other potential claimants merely on the basis of their national origin, is therefore unconstitutional. Summary: The Redress of Injustices Act (ZPKri) regulates the rights to compensation and pension insurance of former political prisoners and the close relatives of persons killed after World War II (Article 1 ZPKri). All persons who were, between 15 May 1945 and 2 July 1990, on the territory of the present Republic of Slovenia, unjustly and in a manner contrary to the principles and regulations of a State governed by the rule of law, sentenced in court or administrative proceedings to imprisonment, or who were arrested in the course of these proceedings on the basis of the regulations cited in Article 3 ZPKri or other regulations, are considered to be former political prisoners if the statute was violated in the manner described above (Article 2.1 ZPKri). On the same conditions, persons of Slovenian national origin who were convicted by the courts of other republics or the former Yugoslav federation, if they resided at the time of the Redress of Injustices Act coming into force on the territory of the present Republic of Slovenia and are Slovenian citizens, are also considered to be former political prisoners (Article 2.3 ZPKri). The Redress of Injustices Act also determines special conditions and a procedure for altering a final criminal judgement (a special revision; Articles 1.2, 21 to 35 ZPKri), which supplements the provisions of the Code of Criminal Procedure on extraordinary legal remedies. A person affected has thus two possibilities for the redress of injustices, which are not necessarily alternatives: they could either assert the status of political prisoner or/and, according to the Code of Criminal Procedure and the Redress of Injustices Act, file an extraordinary legal remedy with the court. Revision according to the Redress of Injustices Act may be requested only against judgements rendered on the territory of the present Republic of Slovenia (Article 22.1 ZPKri). If the judgement is based on the application of the penal provisions explicitly stated in Article 3 ZPKri, revision may be requested regardless of the fact of whether the persons were recognised as having the status of former political prisoner - that is, even if they do not request the recognition of this status (Article 22.2 ZPKri). However, if the judgement is based on the application of any other penal provisions, revision according to the Redress of Injustices Act may only be requested insofar as the violation of penal provisions cannot be remedied by other extraordinary legal remedies according to Article 35.1 of the Code of Criminal Procedure. The consequences of a decision altered in revision proceedings according to the Redress of Injustices Act are the same as those altered in the Code of Criminal Procedure proceedings (Article 35.1 ZPKri). Furthermore, Article 35.2 ZPKri excludes the claim for compensation on the basis of a positive decision on revision (that is compensation on the basis of the provisions of Section XXXII of the Code of Criminal Procedure, not also other rights), if the convict has already been compensated as a person entitled under the Redress of Injustices Act, that is as a former political prisoner. Insofar as the persons convicted on the territory of the present Republic of Slovenia are concerned, there is no difference as to the possibility to request the redress of injustices according to the Redress of Injustices Act or the Code of Criminal Procedure. Neither national origin, citizenship, nor residence are determined as conditions. The Code of Criminal Procedure also extends the possibility to file extraordinary legal remedies against the judgement of military courts having jurisdiction in any of the republics of the former Yugoslavia, and grants this right to convicts «who are or who have at any time been Slovenian citizens according to the regulations applied until 25 June 1991». However, the Redress of Injustices Act extends the possibility of the recognition of the status of former political prisoner to persons who have been convicted by any courts (not only military) of other republics or the former Yugoslav federation. But, in addition, the requirements to have Slovenian citizenship and residence on the territory of the Republic of Slovenia on 26 October 1996, one must also be of Slovenian national origin. Slovenia is a State comprised of all its citizens (Article 3 of the Constitution). On its own territory, Slovenia protects human rights and basic freedoms (Article 5.1 of the Constitution). In Slovenia each individual is guaranteed equal human rights and

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basic freedoms irrespective of national origin (Article 14.1 of the Constitution), and every individual is entitled to freely express affiliation with their nation or national community (Article 61 of the Constitution). The Constitutional Court already established in Decision no. U-I-46/96 (OdlUS VI, 93) that the drawing of a distinction between persons who have been convicted on the territory of the present Republic of Slovenia and persons who have been convicted by the bodies of other republics or the former Yugoslav federation, was not contrary to the constitutional provision on equality before the law (Article 14.2 of the Constitution). But as the legislature has also granted the opportunity to assert the status of former political prisoner to persons convicted by the courts of other republics or the former Yugoslav federation, it should not have made any differences as to the personal circumstances of such persons (Article 14.1 of the Constitution). The part of Article 2.3 ZPKri which grants certain rights only to the «persons of Slovenian national origin» is thus unconstitutional. The Constitutional Court decided to only abrogate the unconstitutional part of this provision, which means that the entire part of the provision does not lose its meaning and application. This provision should be interpreted as granting the right to assert the status of political prisoner to all Slovenian citizens equally if they have residence in Slovenia, irrespective of their national origin, provided that these persons fulfil other conditions prescribed by statute. Also, this right equally pertains to the «persons of Slovenian national origin» who had been convicted by the courts of other republics or the former Yugoslav federation, and ensures them the same rights as persons convicted by the courts of the former Republic of Slovenia. By abrogating the unconstitutional part of the provision, the objective of the disputed provision is achieved. Supplementary information: Legal norms referred to: Articles 3, 5, 14 and 61 of the Constitution; Articles 26 and 43 of the Constitutional Court Act (ZUstS).

Cross-references: In the reasoning of its decision the Constitutional Court refers to its Decision no. U-I-46/96 (OdlUS VI, 93). Languages: Slovene, English (translation by the Court). MKD-1999-1-003 a) "The former Yugoslav Republic of Macedonia" / b) Constitutional Court / c) / d) 10-03-1999 / e) U.br.120/98 / f) / g) Sluzben vesnik na Republika Makedonija (Official Gazette), 18/99) / h) . Keywords of the Systematic Thesaurus: 3.17 3.18 4.10.8.1 5.2.2 5.3.32.2 5.3.37 5.3.38.4 5.4.6 General Principles - Weighing of interests. General Principles - General interest. Institutions - Public finances - State assets - Privatisation. Fundamental Rights - Equality - Criteria of distinction. Fundamental Rights - Civil and political rights - Right to family life - Succession. Fundamental Rights - Civil and political rights - Non-retrospective effect of law. Fundamental Rights - Civil and political rights - Right to property - Privatisation. Fundamental Rights - Economic, social and cultural rights - Commercial and industrial freedom.

Keywords of the alphabetical index: Compensation / Denationalisation, rectifying injustice / Discrimination, indirect / Property, transformation / Property, protection, procedure / Ius utendi. Headnotes: The new constitutional order and the society that arises from it are based and built upon the principle of private ownership. The right to ownership of property is one of the essential economic human rights. Denationalisation is a process of recovery of ownership of property or allowance of compensation for property of which a person was deprived in the interests of the State. The legislature considers the property within the framework of social property transformation, i.e. privatisation, thus protecting the rights of former owners, directly or indirectly. In passing the Law on Denationalisation, the State has fulfilled its constitutional obligation to endorse the right of ownership of former owners. Summary: The Association for the Protection of the Interests of Owners of Confiscated Property lodged a petition with the Court challenging the Law on Denationalisation as being in conflict with the constitutional provisions that lay down the principle of equality, the right to ownership and the prohibition of retroactive effect. The Court has rejected several statutory provisions as discordant with the constitutional principle of legal protection of property and equality of citizens before the Constitution and laws. In particular, the law states that the subject of denationalisation would be property confiscated after 2 August 1944 pursuant to several (but not all) so-called "compulsory regulations". Such a selective definition of "compulsory regulations" on the basis of which the confiscation occurred, the Court found, could put citizens in unequal positions by classifying them into two groups: those who get the property back, and those who do not.

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Comparing Access to Justice in Asian and European Transitional Countries Bogor, Indonesia, 27-28 June
As regards the statutory provision according to which the property given by the State in concession and property used by public health institutions and institutions for social and child care and public education (hospitals, ambulances and schools) will not be returned, but compensation will be given in lieu, the Court found that it does not include the requirement of a prior determination of the public interest; or that it defines the public interest widely, thus exceeding its constitutionally established dimensions. The public interest is closely connected with the general interest and it assumes a clear determination of the corpus of objects over which such a relation could be constituted, as well as the grounds on which a matter may be considered to affect the public interest. The stipulation according to which a request for denationalisation can be submitted not only by the former owner, but also by persons who on the day of entry into force of the law are the inheritors of the former owner, excludes those inheritors who acquire such a status after the law has entered into force, which violates the right of inheritance. According to Article 22.2 of the Law, when the subject of denationalisation is agricultural land, forests, forest land, pastures or fallow fields, the former owner acquires joint ownership over the land with the State. This stipulation means the creation of a category of joint ownership without obtaining the consent of the owner and without prior determination of the public interest, which could restrict the rights derived from the ownership. The law also introduces a category of persons holding the ius utendi (right of use) in a residential building or owned flat as a new right including obligation elements but not civil ones. A precondition for the existence of the right of use or right of lease is the existence of the right of ownership. By the newly created right of use, as a remnant of the rights of tenants, a right arises that damages the right of ownership and that protects the interests of persons who used that property on different bases. According to Article 28 of the Law, when the transformation of a socially owned enterprise has not been completed, real estate or other property for which a request for denationalisation has been lodged will be returned to the former owner if this does not infringe the structural, technical and technological integrity of the enterprise. The Court found that this definition implicitly establishes this integrity as a public interest that may entail the deprivation or restriction of ownership rights. A refusal to return confiscated property that belongs to a bankrupt company or property that was deemed to have belonged to a company which had gone bankrupt, although the company did not in fact own the property and could not enter into a bankrupt estate, would restrict ownership rights and introduce a retroactive effect, disadvantaging citizens. The Law prescribes that bonds are calculated in German marks, on which interest is not calculated. Furthermore, if the payment is in class "B" bonds, the compensation will be calculated as 60% of the specified amount, not exceeding the amount of 100.000 German marks in denar counter-value. Taking into consideration that interest is an accessory right in the obligations and as a capital price it is a financial instrument for fulfilment of the principal, i.e. ownership relation, the Court found that it cannot be excluded from this amount. Limitation of the compensation in percentage terms and to a maximum amount puts citizens interested in the return of confiscated property in a disadvantaged position compared with those to whom the compensation has been paid or would be paid without limitations. Languages: Macedonian.

Session 1A: Guaranteeing Access to Justice through Constitutinal and Legal Reforms: How could the vestiges of the past be addressed?

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