REPUBLIKA SLOVENIJA
USTAVNO SODIŠČE
Up-119/94
3.4.1997
DECISION
At a session held on 3 April 1997, in proceedings for deciding on the constitutional appeal of H.L. from
L., represented by M.J., attorney in L, the Constitutional Court
reached the following decision:
The constitutional appeal of H.L. against judgement of the Supreme Court of the Republic of Slovenia
no. II Ips-943/93 of 13.10.1994 in connection with judgement of the High Court in Ljubljana no. I Cp832/93 of 15.9.1993 and judgement of the Basic Court in Ljubljana, Ljubljana Unit, no. II P-7/92 of
9.3.1993 is rejected.
Reasoning
A.
1. The appellant impugns the judgement of the Supreme Court, in which it reviews the court decisions
of the first and second degree, according to which accommodation awarded by decision of the
Command of the YLA Ljubljana garrison of 19.8.1991 must be vacated, was rejected as unfounded.
2. The first judgement and the impugned judgement of the Supreme Court are based on the legal
standpoint that the provision of the third paragraph of point I of the Enabling Statute for Implementing
the Basic Constitutional Charter on the Sovereignty and Independence of the Republic of Slovenia
and the provision of the first paragraph of article 9 of the Implementation Act for this basic
constitutional charter (Official Gazette RS, no. 1/91) by which organs of SFRY in the Republic of
Slovenia no longer had rights and jurisdictions which had formerly been transferred to it by the
Constitution RS and the Constitution SFRY, applied on 19.8.1991; assets formerly administered by
federal organs and commands, units and institutes of the YLA were at the critical time under the
administration of the Republic of Slovenia.
3. The appellant reproaches the impugned judgement(s) for a mistaken interpretation of the content of
the Brioni Joint Declaration (Official Gazette RS, no. 5/91), whereby Slovenia halted further
implementation of its constitutional acts on independence for 90 days. She believes that it is also
necessary to take into account the provisions of the second paragraph of article 9 of the Constitutional
Law which speaks of the gradual taking over of the assets of the YLA, and the fact that the Republic of
Slovenia would only take over the administration of accommodation from the army housing fund in
March 1992. The former SFRY, or YLA, is claimed to have been the owner of the disputed
accommodation right up to the land register transfer by the Decree on the land register implementation
of the transfer of the assets of the former SFRY to the Republic of Slovenia.
This is claimed to have meant that at the time of the moratorium, the appellant legitimately obtained
housing rights to the disputed accommodation from the YLA.
4. The appellant reproaches the impugned judgement for a violation of the right to equality before the
law (article 14 of the Constitution). This violation is seen in that eviction notices were served only
against those citizens who moved into army housing after 25.6.1991. She impugns nothing about the
decision on the award of accommodation but believes that she cannot bear the responsibility and
consequences of having moved into accommodation on the basis of a decision which, in her
conviction, was legally issued by a legitimate organ. The eviction is claimed also to have violated the
right of the appellant to social security (article 50 of the Constitution) and the right to suitable
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accommodation (article 78 of the Constitution). She proposes that the Constitutional Court change the
judgement and reject the demand to vacate the accommodation.
B.
5. By resolution of 31.1.1997, the Constitutional Court consented to hear the constitutional appeal on
the basis of the fourth paragraph of article 55 of the Constitutional Court Act (Official Gazette RS, no.
15/94 - hereinafter: ZUstS) when three judges declared in favour of this.
6. The appellant sensibly reproaches the impugned judgement above all for a mistaken use of material
law. The Constitutional Court is not one of the instances of the regular judiciary and an asserted
improper use of material law cannot in itself be the subject of constitutional appeal.
7. Because of the large number of court cases such as the case being heard, because of the social
importance and sensitivity of its content, and because the courts use legal norms in them with
constitutional validity, and for reasons under point 5 of this reasoning, the Constitutional Court also
decided exceptionally in the case of this constitutional appeal (the first constitutional appeal of this
type was decided by decision no. Up-65/94 of 12.12.1996), that it will deal with the content of the
claimed reasons for the mistaken use of material law.
8. The Constitutional Court finds that the Basic Constitutional Charter and its Implementing Act allow
no other interpretation than that which is clarified in the impugned judgement: that the provisions of the
first paragraph of article 9 of the Implementation Act of the Basic Constitutional Charter on the
Sovereignty and Independence of RS, transferred to the Republic of Slovenia from the day of
validation of this law legal authority over all assets under this paragraph, and that the adoption of the
Brioni Joint Declaration did not change such a legal position in relation to army housing. This means
that the disposal of housing by military organs after that time - although during the period of the
temporary deferment of further implementation also of the cited law - was illegal.
9. The reason that the Republic of Slovenia did not already with the implementation of the
Implementation Act of the Basic Constitutional Charter on Sovereignty and Independence under the
first paragraph of article 9 of this law, take legal authority of assets which had until then been
administered by commands, units and institutes of the YLA, but only decided with the provisions of this
first paragraph that it will do this later and gradually, by the end of 1993, has no support in an analysis
of the text itself of article 9.
This article speaks in the first paragraph about assets which cited subjects of the YLA administered up
to the implementation of this law, so until administration was transferred to the RS on the basis of this
constitutional-statutory norm. In the third paragraph, too, which does not talk of the legal transfer of
assets to the RS but about the gradual and regulated taking over of these assets by subjects of the
Territorial Defence, there is no word about assets which are or will be administered by subjects of the
YLA up to the taking over, but about assets which these had administered until the introduction of the
Constitutional Law.
If the provisions of article 9 in relation to assets under the second and third paragraphs were to mean
only that these assets would sometime in the future be transferred to the RS, the main part of the first
paragraph would be excessive, while in the remaining part of the content, that is in relation to assets
which had been administered by federal bodies until the introduction of the law, there was no provision
in the law on when they would be transferred to the RS, which is certainly a matter for such a
constitutional implementation act.
10. Above all, such a reasoning of the content would be unacceptable. Instead of the state, a the very
moment of the independence, at least legally protecting sovereignty over the assets of the former
federation on its territory, (when these assets are at the time for the most part in the hands of the army
of a foreign state), to which also international law recognises the justice (see the Vienna Convention
on the Succession of States in relation to state assets, archives and debts, 8 April 1983), it would, in
conflict with its own constitutional documents, indirectly announce that these assets are not theirs, but
that they only intend to obtain them gradually and by pieces, insofar as they come actually into the
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hands of its own subjects. It would thus have allowed foreign subjects on its territory to treat assets
sovereignly, e.g., validly estrange or destroy them without legal consequences, and would only have
announced that it would become the owner of what subjects of the YLA in the end actually left. It is not
possible to ascribe such to a constitutional law for implementing a constitutional charter whereby RS
immediately took to itself all rights and also all responsibilities of the former federation.
It is worth further stressing this from the aspect of internal law - and the case being heard belongs to it
- since it refers to relations between a new state and its citizens. The reasons discussed would among
other things mean that at the critical time of its creation, it would not even have legal recourse against
its own citizens in relation to assets under article 9 of the Constitutional Law.
11. During the hearing of this constitutional appeal, the question was also raised with respect to the
agreement concluded on 18.10.1991 between a delegation RS and a delegation of the Federal
Secretariat for People's defence on the final withdrawal of the army from RS. The Constitutional Court
believes that this agreement cannot be used in clarification of the constitutional text. The Constitutional
Court is bound to interpret constitutional norms from (the Constitution) itself, and to assess all other
acts only in relation to their compliance with the Constitution or constitutional law.
12. There was clearly no violation of the right to equality before the law under the first paragraph of
article 14 of the Constitution. The appellant could not obtain housing rights by decision of an organ of
the YLA on 19.8.1991, and occupies the disputed apartment without valid legal title. So her actual and
legal position cannot be compared with those who obtained housing rights with valid legal title prior to
25.6.1991.
13. Anyone may exercise social and other rights to the award of housing simultaneously and on an
equal footing with others in the framework of the housing policy of the Republic of Slovenia. The clear
consequences of the independence process and events within it was precisely the award of the
disputed apartment to the appellant: this and a number of other such awards could occur precisely
because of the departure of the YLA from Slovene territory, which released the army housing fund.
Because of the impugned judgement, the appellant was only denied an improvement in
accommodation conditions which had been promised in connection with the exceptional
circumstances and events, but was not realised because there was no statutory basis for it. In view of
what has been stated, there was no violation in the case being heard, iof the right to social security
under article 50 of the Constitution or the right to suitable accommodation under article 78 of the
Constitution.
14 Since there was clearly no violation of human rights and freedoms, as claimed, the Constitutional
Court rejected the constitutional appeal as unfounded.
15. The Constitutional Court has already decided by resolution U-I-130/93 of 10.2.1994 (OdlUS III, 15)
on the compliance of the Order on the land register implementation of the transfer of assets of the
former SFRY to the Republic of Slovenia (Official Gazette RS, no. 61/92) with the Constitution.
C.
The Constitutional Court adopted this resolution on the basis of the first paragraph of article 59 of
ZUstS, composed of: president Dr. Tone Jerovšek and judges Dr. Peter Jambrek, Mag. Matevž Krivic,
Mag. Janez Snoj, Dr. Janez Šinkovec, Dr. Lovro Šturm, Franc Testen, Dr. Lojze Ude and Dr. Boštjan
M. Zupančič. The resolution was adopted by seven votes against two. Judges Krivic (who gave a
dissenting opinion) and Šinkovec voted against.
President
Dr. Tone Jerovšek