SLOVENIA

A. Mavcic

Head of the Legal Information Center
of the Constitutional Court
of the Republic of Slovenia

Economical and social rights, regulation and practice in Slovenia

     System of Protection
     A. National System

The Slovenian constitutional order is based on the protection of human rights and freedoms (the Preamble of the Constitution). On its own territory, Slovenia shall protect human rights and basic freedoms (Para. 1 of Article 5 of the Constitution).

1. Judicial Protection

1.1. Human rights and basic freedoms shall be protected by judicial protection (e.g. civil law, penal law, constitutional law, administrative law). Moreover, this protection shall include the right to obtain redress for the abuse of such rights and freedoms (Para. 4 of Article 15 of the Constitution).

1.2. Specialized Courts

The specialized courts have jurisdiction only in their respective legal field. Under the Labor and Social Courts Act, such courts are as follows:

– Labor Courts: are empowered to decide on individual labor disputes (concerning e.g. gaining employment, termination of employment, economic and other individual rights which are based on employment, among employers and workers concerning inventions and other intelectual property rights, contracts for work and labor, grants etc.) and collective labor disputes (concerning collective agreements, the legality of strikes, the participation of workers in management, the powers of trade unions as regards employment, the representative character of trade unions, etc.).

– Social Courts; the Social Court of first instance is empowered to decide on disputes concerning pension and disability insurance, health insurance, unemployment insurance, as well as family and social support benefits. As regards the mentioned cases the social court is empowered to decide on disputes concerning damage settlements owed to an insured person by an insurance institution, or concerning damage settlements to an insurance institution in connection with an insurance policy. The higher labor and social courts (decided by three judges) shall decide matters relating to complaints against decisions decided by the labor courts and the social court of the first instance.

2. Administrative-Penal Protection (Offences)

If no other legal redress is provided, courts of competent jurisdiction shall also be empowered to decide upon the legal validity of individual activities and acts which infringe the constitutional rights of the individual (Para. 2 of Article 157 of the Constitution).

The right to the judicial review of the acts and decisions of all administrative bodies and statutory authorities which affect the rights and legal entitlements of individuals or organizations shall be guaranteed (Para. 3 of Article 120 of the Constitution).

3. Constitutional Complaint (Subpara. 6 of Para. 1 of Article 160 of the Constitution; Article 50 through 60 of the Constitutional Court Act)

The provisions of the Slovenian Constitution of 1991 that regulate the constitutional complaint in detail are relatively modest (Articles 160 and 161 of the Constitution). However, the Constitution itself (Para. 3 of Article 160 of the Constitution) envisages a special regulation (the provisions of Articles 50 through 60 of the Constitutional Court Act).

The Constitutional Court decides cases of constitutional complaints alleging violations of human rights and basic freedoms (Item 6 of Para. 1 of Article 160 of the Constitution). The protection thus embraces all constitutionally guaranteed basic human rights and freedoms2 including those adopted through the international agreements that have become part of the national law through ratification.

Any legal entity or individual may file a constitutional complaint (Para. 1 of Article 50 of the Constitutional Court Act), as may the Ombudsman if directly connected with a particular case he is concerned with (Para. 2 of Article 50 of the Constitutional Court Act), although subject to the agreement of those whose human rights and basic freedoms he is protecting in an individual case (Para. 2 of Article 52 of the Constitutional Court Act). The subject-matter of a constitutional complaint is an individual act of a government body, a body of local self-government, or public authority allegedly violating human rights or basic freedoms (Para. 1 of Article 50 of the Constitutional Court Act).

The precondition for lodging a constitutional complaint is the prior exhaustion of all possible legal remedies (Para. 3 of Article 160 of the Constitution; Para. 1 of Article 51 of the Constitutional Court Act). As an exception to this condition the Constitutional Court may hear a constitutional complaint even before all legal remedies have been exhausted in cases if the alleged violation is obvious and if the carrying out of the individual act would have irreparable consequences for the petitioner (Para. 2 of Article 51 of the Constitutional Court Act).

A constitutional complaint may be lodged within sixty days of the adoption of the individual act (Para. 1 of Article 52 of the Constitutional Court Act), though in individual cases with good grounds, the Constitutional Court may decide on a constitutional complaint after the expiry of this time limit (Para. 3 of Article 52 of the Constitutional Court Act). The complaint must cite the disputed individual act, the facts on which the complaint is based, and the suspected violation of human rights and basic freedoms (Para. 1 of Article 53 of the Constitutional Court Act). It shall be made in writing and a copy of the respective act and appropriate documentation shall be attached to the complaint (Para. 2 of Article 53 and Para. 3 of Article 53 of the Constitutional Court Act).

In a panel of three judges (Para. 3 of Article 162 of the Constitution; Para. 1 of Article 54 of the Constitutional Court Act) the Constitutional Court decides whether it will accept or reject the constitutional complaint for review (or its allowability) at a closed session. The Constitutional Court may establish a number of senates depending on the need. The ruling of the Constitutional Court on the allowability of a constitutional complaint (Para. 3 of Article 55 of the Constitutional Court Act) is final. The constitutional complaint may be communicated to the opposing party for response, either prior to or after acceptance (Article 56 of the Constitutional Court Act). The Constitutional Court normally deals with a constitutional complaint in a closed session but it may also call a public hearing (Article 57 of the Constitutional Court Act). The Constitutional Court may suspend the implementation of an individual act, or even suspend the implementation of a statute and other regulation or general act on the grounds of which the disputed individual act was adopted (Article 58 of the Constitutional Court Act).

The decision in merito of the Constitutional Court may:

- deny the complaint as being unfounded (Para. 1 of Article 59 of the Constitutional Court Act);

- partially or in entirety annul or invalidate the disputed (individual) act or return the case to the body having jurisdiction for retrial (Para. 1 of Article 59 of the Constitutional Court Act);

- annul or invalidate (ex officio) unconstitutional regulations or general acts issued for the exercise of public authority if the Constitutional Court finds that the annulled individual act is based on such a regulation or general act (Para. 2 of Article 161 of the Constitution; Para. 2 of Article 59 of the Constitutional Court Act);

- in case it annuls or invalidates a disputed individual act it also decides on the disputed rights or freedoms if this is necessary to remove the consequences that have already been caused by the annulled or invalidated individual act, or if so required by the nature of the constitutional right or freedom, and if it is possible to so decide on the basis of data in the documentation (Para. 1 of Article 60 of the Constitutional Court Act). Such an order is executed by the body having jurisdiction for the implementation of the respective act which was retroactively abrogated by the Constitutional Court and replaced by the Court's decision on the same. If there is no such body having jurisdiction according to currently valid regulations, the Constitutional Court shall appoint one (Para. 2 of Article 60 of the Constitutional Court Act).

4. Ombudsman3

The Ombudsman is an institution for out of court and informal protection of human rights and basic freedoms. According to the Constitution, its function is to protect human rights and basic freedoms in matters involving state bodies, local government bodies and statutory authorities (Para. 1 of Article 159 of the Constitution).

The Ombudsman is empowered to submit proposals, opinions, critiques or recommendations to state bodies, local government bodies and statutory authorities which these bodies are obliged to discuss and answer to within the term determined by the Ombudsman (Article 7 of the Ombudsman Act). The Ombudsman may submit initiatives for amendments of statutes and other legal acts to the National Assembly and the Government (Para. 1 of Article 45 of the Constitutional Court Act), and provides opinions from the viewpoint of the protection of human rights and basic freedoms on the issue dealt with to all other bodies (Article 25 of the Ombudsman Act). The Ombudsman may enter any premise and may perform a so-called inspection also in jails and other premises with limited freedom of movement (Article 42 of the Ombudsman Act). The Ombudsman is also authorized to discuss broader questions important for the protection of human rights and basic freedoms as well as for the legal protection of citizens in the Republic of Slovenia (Para. 2 of Article 9 of the Ombudsman Act). Under Para. 2 of Article 50 of the Constitutional Court Act, the Ombudsman is empowered to lodge a constitutional complaint before the Constitutional Court.

Special ombudsmen may be empowered by statute to make determinations on particular subjects (Para. 2 of Article 159 o the Constitution).

B. International System

Slovenia shall be bound by the constitutional provision which determines that statutes and other regulations shall comply with generally accepted principles of international law and shall accord with treaties which bind Slovenia from time to time. Proclaimed treaties to which Slovenia adheres shall take immediate effect; that means with ratification and publication they become a part of Slovenian internal legal order (Article 8 of the Constitution).

Under the Constitution, the principles of international law and ratified treaties have an important position within the hierarchy of legal acts. The Constitution makes a distinction between treaties ratified by the National Assembly (statutes must conform with them; Article 213 of the Rules of Procedure of the National Assembly), and treaties ratified by the government (regulations and other legislative measures must conform with them). The Constitution gives to ratified treaties the character and position of legal source. The mentioned matters are specified by Article 153 of the Constitution: Statutes must conform with generally accepted principles of international law and with treaties currently in force and adopted by the National Assembly, and regulations and other legislative measures must also conform with other ratified treaties. On the proposal of the President of the Republic, of the Government or a third of the Deputies of the National Assembly, the Constitutional Court issues an opinion as to the conformity of a treaty in the process of ratifying, with the Constitution. The National Assembly is bound by the opinion of the Constitutional Court (Para. 2 of Article 160 of the Constitution; Article 70 of the Constitutional Court Act).

As a member of the United Nations as well as a member of the Council of Europe Slovenia shall take into consideration the corresponding documents which impose obligations on States also as regards economic and social rights:

1. United Nations4

– the Charter of the United Nations, 26 June 1945,

– the Universal Declaration of Human Rights, 10 December 1948,

– the International Pact on Citizenship and Political Rights of 19 December 1966,

– the International Pact on Economic, Social and Cultural Rights of 19 December 1966,

– the Facultative Protocol of the General Assembly of the UN to the International Pact on Citizenship and Political Rights of 19 December 1966 (Resolution No. 2000 A (XXI).

2. Council of Europe

• The European Convention for the Protection of Human Rights and Basic Freedoms of 4 November 1950 incl. the 11 Protocols.5

The exercising of human rights and freedoms is limited directly by the Constitution, but only the manner of such exercising or implementation can be regulated by statute. The rights and freedoms of an individual shall only be limited by the equal rights and freedoms of other individuals in such cases as are determined by the Constitution, i.e. a person deprived of his liberty (Para. 2 of Article 19 of the Constitution); the exceptions concerning the Public Nature of Court Proceedings (Article 24 of the Constitution); the limitation of the Freedom of Movement (Para. 2 of Article 32 of the Constitution); the exceptions concerning the Inviolability of Dwellings (Article 36 of the Constitution) as well as concerning the Privacy of Correspondence and other Means of Communication (Para. 2 of Article 37 of the Constitution); the limitations to the Right of Assembly and Association (Para. 3 of Article 42 of the Constitution); the abrogation and limitation of the Rights and Duties of Parents (Para. 1 of Article 54 of the Constitution) - but only to the extent required by the Constitution itself in so far as the Constitution prescribes reasons for limitations (in the interest of public order, national security, public safety or the protection of the public). An interference with the rights of other individuals also signifies the abuse of certain rights, i.e. a situation when certain rights have been exercised excessively, crossing the line which gives also some other individual the opportunity to exercise his/her own constitutional right to the same extent of quality.

The Constitution stipulates the following:

– the principle of constitutionally directly guaranteed human rights and basic freedoms which are exercised directly under the Constitution (Para. 1 of Article 15 of the Constitution);

– the principle and/or the right of protection against arbitrariness or the unconstitutionality of any which could constitute the revocation, violation or restriction of human rights and basic freedoms (irrespective of the person who takes such a measure) (Para. 5 of Article 15 of the Constitution);

– the legal remedies for the protection of human rights and basic freedoms (Article 25 of the Constitution):

– judicial protection: under civil procedure, under criminal law, under administrative procedure (Para. 4 of Article 15 of the Constitution);

– the administrative criminal protection (offences) (Para. 3 of Article 120 of the Constitution);

– the constitutional complaint (Subpara. 6 of Para. 1 of Article 160 of the Constitution; Articles 50 through 60 of the Constitutional Court Act);

– the protection by the Ombudsman (Article 159 of the Constitution);

– other forms of legal protection (the Social Legal Office, the police, the monitoring by inspections);

– protection under international law (the Charter of the United Nations, the Universal Declaration of Human Rights, the European Convention for the Protection of Human Rights and Basic Freedoms, the International Pact on Citizenship and Political Rights, the International Pact on Economic, Social and Cultural Rights).

With the intention to promote the exercise of rights and freedoms, the Constitution guarantees the judicial protection of human rights and basic freedoms as well as the right to obtain redress for the abuse of such rights and freedoms (Para. 4 of Article 15 of the Constitution) (in connection with many other constitutional provisions on principles and the exercising of judicial protection). The Republic of Slovenia accepted by signing and ratifying the European Convention for the Protection of Human Rights and Basic Freedoms of 4 November 1950 incl. the 11 Protocols, also the international monitoring of violations of human rights and basic freedoms. In other words, the individual is entitled besides national judicial protection to request also protection before the European Court for Human Rights. It is necessary to bear in mind, that statutes, regulations and other legislative measures must conform with generally accepted principles of international law and with treaties currently in force and ratified by the National Assembly (Para. 2 of Article 153 of the Constitution). In addition, under the Constitution, the treaties shall take immediate effect (Article 8 of the Constitution). The mentioned provisions are linked with another constitutional provision, that it shall not be permissible to restrict any human right or basic freedom exercisable by act which would otherwise be legal in Slovenia, even if this Constitution does not specifically recognize that right or freedom or only recognizes it to a limited extent (Para. 5 of Article 15 of the Constitution).

C. Temporary Revocation or Restriction of Rights

It is permissible to temporarily or revoke or restrict the human rights and basic freedoms guaranteed by the Constitution, but only in exceptional circumstances of war or a State of emergency. Human rights and fundamental freedoms provided by this Constitution may exceptionally be temporarily suspended or restricted during a war and state of emergency. Human rights and fundamental freedoms may be suspended or restricted only for the duration of the war or state of emergency, but only to the extent required by such circumstances and inasmuch as the measures adopted do not create inequality based solely on race, national origin, sex, language, religion, political or other conviction, material standing, birth, education, social status or any other personal circumstance (Para. 1 of Article 16 of the Constitution). The provision of the preceding paragraph does not allow any temporary suspension or restriction of the rights provided by Articles 17, 18, 21, 28, 29 and 41 (Para. 2 of Article 16 of the Constitution).

Concerning its essence, the regulation of these situations can be comparable with the provisions of Article 4 of the International Pact on Citizenship and Political Rights.8

The exceptional and temporary revocation and restriction of rights, defined by the Constitution, can be relevant only in explicitly and restrictively determined situations - e.g. in circumstances of war or a State of Emergency. A State of Emergency shall be proclaimed if the existence of the State is threatened by a great and general danger. The proclamation of a State of War or a State of Emergency, and the introduction and repeal of measures necessitated by such proclamation, shall be effected by the National Assembly on the proposal of the Government. In the event that the National Assembly is unable to convene, the mentioned matters may be effected by the President of the State (Article 92 of the Constitution). It shall be permissible to temporarily revoke or restrict the human rights and basic freedoms guaranteed by the Constitution, but only in exceptional circumstances of a State of War or a State of Emergency (Para 2 of Article 108 of the Constitution), but only to the extent required by the same and only inasmuch as the revocation or restriction does not create inequality of treatment based only on national origin, sex, language, religion, political or other conviction, material standing, birth, education, social status or any other personal circumstance (Para. 1 of Article 16 of the Constitution). However, the Constitution determines, that there shall be no temporary revocation or restriction of the following constitutional rights and freedoms and/or constitutional principles: the Inviolability of Human Life (Article 17 of the Constitution), the Prohibition against Torture (Article 18 of the Constitution), the Protection of Human Personality and Dignity (Article 21 of the Constitution), the Presumption of Innocence (Article 27 of the Constitution), the Principle of Legality in the Criminal Law (Article 28 of the Constitution), the Legal Guarantees in Criminal Proceedings (Article 29 of the Constitution) as well as the Freedom of Conscience (Article 41 of the Constitution).

Social Rights - Historical Outline9

The Slovenian constitutional systems before 1991 declared the priority of the social and economic rights as an essential part of the former systems. Beside classical political and economic rights also some constitutional rights more typical of the former social systems were declared, e.g. the right to self-government as one of the basic human and citizens' rights in the former so-called socialist society. In current constitutional systems in force such as the Slovenian system, we can see the renaissance of classical rights as well as the gradual discontinuation of constitutional regulation of social and economic rights to a great extent.

The contents of the constitutional provisions concerning part II Human Rights and Basic Freedoms as well as the Part III. Economic and Social Relations, shows that all rights which are a part of a general complex of human rights are there included. The system also includes two international protective measures:

– Article 8 of the Constitution which declares that statutes and other legislative measures shall comply with generally accepted principles of international law and shall be in accord with international agreements which bind Slovenia from time to time, and

– the provision of Para. 5 of Article 15 of the Constitution, which prescribes that it shall not be permissible to restrict any human right or basic freedom exercisable by acts which would otherwise be legal in Slovenia, on the basis that this Constitution does not recognize that right or freedom or only recognizes it to a limited extent, as arises from some international legal acts concerning human rights.

The most important constitutional provisions are as follows:

– the protection of human rights against different possible repressive interventions of the State as well as against abuse of power (see Articles 16, 17, 18 through 31, 34 through 38 of the Constitution);

– the economic, social and cultural rights (in general, the III. Part of the Constitution);

– legal and other mechanisms for efficient human rights protection (Articles 15, 129, 130, 131, 132, 133, 134,155, 156, 157, 158, 159 of the Constitution).

Particular Economic and Social Rights10

Under the Constitution in force, the economic and social rights guaranteed are as follows:

The Slovenian constitutions adopted after World War II contained many social and economic rights. The Constitution of 1991, however, is based on the concept that the current Constitution shall contain only a minimal number or extent of economic and social rights.

A. The Right to Own and Inherit Property

The right to private property and inheritance shall be guaranteed (Article 33 of the Constitution).

The Constitution explicitly underlines the extended social function of property. In addition, the Constitution declares the economic and environmental function. In such mode the Constitution essentially limits the power of private (and some other) owners who shall while acquiring and enjoying immovable and movable property, respect the objective wider interests of the community or society. Limitations of the right to property are specified by the Constitution in Article 68 (the Property Rights of Foreigners), Article 69 (the Compulsory Acquisition - the Expropriation), Article 70 (the National Assets and National Resources) and in Article 71 (the Protection of Land). The inheritance shall be regulated in detail by statute: the Inheritance Act; the Inheritance of Inheritance of Farmsteads Act. However, foreigners can under certain conditions acquire the right to property affixed to land (Article 68 of the Constitution). The Constitution guarantees by Article 33 the right to own and inherit property, but in Article 67 provides for the economic, social and environmental function of property (which determine the obligations and limitations to ownership while acquiring and enjoying property). The result is that the Constitution has moved from the liberal understanding of private property. The conditions under which property is acquired and enjoyed are regulated by statute so as to assure the economic, social and environmental benefit of such property (Para. 1 of Article 67 of the Constitution). The way in which property may be inherited, as well as the conditions under which it may be inherited, shall be determined by statute (Para. 2 of Article 67 of the Constitution).

The basic constitutional provision declares that the right to private property shall be guaranteed. Private property is the predominating form of property. However, the right to own property can be expropriated or limited in the public interest. Land and property affixed to land may be compulsorily acquired, or ownership thereof may be limited by the State in the public interest and subject to a right to such compensation in kind or monetary compensation from the State as shall be determined by statute (Article 69 of the Constitution).

The Constitution defines that the right to property affixed to land may be expropriated or limited on the basis of monetary compensation or compensation in kind. Such a formulation is a peculiarity of the Slovenian constitutional system, but it is reasonable as regards the expropriation of land.11

Furthermore, the Constitution regulates beside private property also public property (State property and the property of local self-government bodies). The Constitution also regulates special modes of acquisition, enjoyment and disposal: e.g. special conditions for land use - Article 71; the special protection of land - Article 71; special conditions governing the exploitation of natural sources - Article 70; the protection of the natural and cultural heritage - Article 73. Concerning acquisition, besides classical forms of the acquisition of property, it is necessary to take into consideration also statutes which regulate the procedure of the transformation of (former) so-called social ownership into ownership with so-called known title holder. The economic function of property involves property as a basis for acquiring economic benefits as well as a basis for business, good husbandry, production, income and profit making. But the exercising of the economic function of property is limited by the public interest. On the other hand, the social function of property is limited by the phenomena of the social welfare state (Article 2 of the Constitution) - by the aspiration to insure the existential minimum quality of life level for all citizens. The environmental function of property is connected with the protection of a healthy living environment.

Denationalization is not based on optional norms but on norms of a forced character (ius cogens). Denationalization claimants obtain rights on the basis of decisions of state bodies.12

2. The Constitutional Court of the Republic of Slovenia, Decision No. U-I-25/92, 4 March 1993, Official Gazette RS No. 13/93, OdlUS II, 23. Unequal treatment of natural persons and legal entities with respect to the right to denationalisation property violates the constitutional Principle of Equality before the Law (Article 14 of the Constitution).

The nature of the legal entity status of the Catholic Church organisations and foundations is judged according to national regulations. The statute of limitations for submitting the denationalization requests must be the same for all rightful claimants, and, therefore, this time limit for legal entities who are rightful claimants, according to the decision of the Constitutional Court, must begin on the day on which this decision takes effect.

3. The Constitutional Court of the Republic of Slovenia, Decision No. U-I-122/91, 10 September 1992, Official Gazette RS No. 46/92, OdlUS I, 56. The legal provisions which in a general way restrict or deny the right of ownership over farmland are considered by the Court to be in conflict with those provisions of the Constitution which ensure the right to personal property and inheritance, specify the ways of acquiring and enjoying the property and determine the revocation or restricting of property rights for the public good with compensation in kind or remuneration as are stipulated by the statute. The Constitution does not restrict ownership rights but only makes it possible for the ways of acquiring and enjoying property to be regulated by statute in such a way as to ensure its economic, social and ecological functions, and makes it possible for ownership rights to be taken away or to be restricted only for the public benefit under such conditions as are stipulated by statute.

4. The Constitutional Court of the Republic of Slovenia, Decision No. U-I-57/92, 3 November 1994, Official Gazette RS No. 76/94, OdlUS III, 117. It is not contrary to the Constitution for special rules concerning the inheriting of farmland and private farms to be prescribed by statute, for thereby the commitment of Slovenia to the Social Welfare State (Article 2 of the Constitution) is observed, and special social and economic functions of medium-sized farms are defined (Articles 67 and 71 of the Constitution). The restricting of the freedom of testator and the right to inherit farmland by statute does not infringe upon the Principle of Equality before the Law (Article 14 of the Constitution), this differentiation is introduced by statute on the basis of generally acknowledged specificities of the state of facts. To restrict the right to inherit and the right to own property is contrary to the principles of a State governed by the Rule of Law if the criteria prescribed by statute are not identified or at least identifiable.

The Protection of Land: The State shall regulate land use by statute (Para. 1 of Article 71 of the Constitution). Agricultural land shall be afforded special protection by statute (Para. 2 of Article 71 of the Constitution). The State shall have a special responsibility to foster the economic, cultural and social advancement of those members of the population living in mountainous areas (Para. 3 of Article 71 of the Constitution). The provisions of this programme are reasonable because of the nature of the Slovenian territory as well as because of the social structure of the inhabitants of Slovenia.

The Protection of the Natural and Cultural Heritage means that each person shall be obliged, in accordance with statute, to protect rare and precious natural areas, as well as structures and objects forming part of the national and cultural heritage. State and local government bodies shall be responsible for the preservation of the natural and cultural heritage (Article 73 of the Constitution). These constitutional provisions of the programme are connected with some other constitutional provisions (e.g. Articles 67, 70 and 71 of the Constitution).

The Provision of Proper Housing means that the State shall create the conditions necessary to enable each citizen to obtain proper housing (Article 78 of the Constitution).This constitutional provisions has a programmatic character and takes the form of instructions to the Legislature concerning the regulation of matters connected to work as well as incomes and the standard of living.

B. Property Rights of Foreigners

Under the former constitutional regulation of 1991, foreigners were entitled only to acquire title to property affixed to land under such conditions as were determined by statute (Para. 1 of Article 68 of the Constitution). Foreigners was not entitled to acquire title to land except by inheritance in circumstances where the reciprocity of such rights of acquisition were recognized (Para. 2 of Article 68 of the Constitution).

As regards the European Agreement Establishing an Association between the Republic of Slovenia, of the One Part, and the European Communities (hereinafter: Community) and their Member States, Acting within the Framework of the European Union, of the Other Part of 9 June 1996, it was necessary before the ratification of the respective Agreement to adapt the provision of Article 68 of the Constitution to the EEC standards of the<normative regulation of the respective matters (the Constitutional Law on the Amendment of Article 68 of the Constitution of the Republic of Slovenia, Official Gazette RS, No. 42/97). Under the amended constitutional provision, foreigners can acquire title to property affixed to land under such conditions as are determined by statute or as are determined by treaty ratified by the National Assembly, in circumstances where the reciprocity of such rights of acquisition are recognized. The mentioned statute and the treaty must be passed by the National Assembly by two-thirds majority of all elected deputies casting their votes in favor of the same.13

On June 5, 1997 the Government of Slovenia commenced proceedings to review the constitutionality of the European Agreement Establishing an Association between the Republic of Slovenia, of the One Part, and the European Communities (hereinafter: Community) and their Member States, Acting within the Framework of the European Union, of the Other Part (hereinafter: ESP). The Constitutional Court, according to Para. 2 of Article 160 of the Constitution and Article 70 of the Constitutional Court Act (Official Gazette RS, No. 15/94), provided the opinion:

On the Government's proposal concerning the process of the ESP establishing an association between the Republic of Slovenia and the European Union, the Constitutional Court provided an opinion regarding the conformity of Article 45, Items 7.b and 7.c of the ESP, and Annex XIII in conjunction with Article 64, Para. 2 of the ESP, with the Constitution of Slovenia.

Article 45, Item 7b of the ESP provides that subsidiaries of Community companies shall have the same rights enjoyed by Slovenian nationals and companies to acquire and sell real property, including, natural resources, agricultural land and forestry, when these rights are necessary for conducting their economic activities. The Court held that it is constitutional for an established, registered Community company acting according to Slovenian laws in the Slovenian territory to possess these rights.

Article 45, Item 7c of the ESP, requires that Slovenia grant foreigners the same rights as Slovenian nationals and companies to acquire and sell real property including natural resources, agricultural land and forestry, when it is necessary for conducting their economic activities. The Court held that Article 45, Item 7c of the ESP conflicts with Para. 2 of Article 68 of the Constitution of Slovenia, which provides that foreigners can not acquire land, except by inheritance in circumstances where the reciprocity of such rights of acquisition are recognized.

Item 1 of Annex XIII to the ESP, compels Slovenia to take measures necessary to allow the citizens of the Member States of the European Union, upon a reciprocal basis, the right to purchase real property in Slovenia on a non-discriminatory and reciprocal basis. This is in conflict with Para. 2 of Article 68 of the Constitution of Slovenia, which provides that foreigners can not acquire land, except by inheritance in circumstances where reciprocity of such rights of acquisition are recognized.

Item II of Annex XIII to the ESP requires, on a reciprocal basis, that Slovenia grant to citizens of EU Member States who have resided in the territory of Slovenia for a period of three years the right to purchase real property. This requirement conflicts with Para. 2 of Article 68 of the Constitution of Slovenia, which provides that foreigners can not acquire land, except by inheritance in circumstances where reciprocity of such rights of acquisition are recognized.

Item II of Annex XIII to the ESP is consistent with Article 13 of the Constitution of Slovenia. Article 13 can be interpreted in a manner that allows citizens of member States of the European Union the right to purchase real estate in Slovenia under the same conditions as apply to citizens of the Republic of Slovenia. Article 13 provides that foreigners shall, in accordance with international agreements, enjoy all those rights, which are guaranteed by this Constitution and by the law. Except rights which only citizens of Slovenia may enjoy pursuant to the Constitution and law. Such laws must respect Para. 1 of Article 14 of the Constitution of Slovenia, which provides that in Slovenia each individual shall be guaranteed equal human rights and basic freedoms regardless of national origin, race, birth, sex, language, religion, political or other beliefs, financial status, birth, education, social status or any other personal circumstance.

A competent State body must not bind the Republic of Slovenia to an international agreement that would violate the Constitution. An obligation imposed by the international agreement would be unconstitutional if the international agreement coming into force creates directly applicable unconstitutional norms, or if the international agreement binds the State to adopt an unconstitutional law. Ratification of the ESP would bind the Republic of Slovenia to adopt legal acts implementing the rights contained in the ESP provisions referred to in Items III, IV, and V of this opinion. Most significantly the Republic of Slovenia would force itself to amend Para. 2 of Article 68 of the Constitution of Slovenia, according to which foreigners may not acquire title to land.

C. Rights to Utilize National Assets and National Resources

Special rights to utilize national assets may be acquired subject to such conditions as are determined by statute (Para. 1 of Article 70 of the Constitution). The conditions governing the exploitation of natural resources shall be determined by statute (Para. 2 of Article 70 of the Constitution).

"National assets" signify the real estate which may be utilized by each person as regards the character of the good itself or as regards its intention, specified by statute14.

The particular kind of natural resources (e.g. mineral sources, flora, fauna, land, forests, water etc.) and form of protection shall be determined by statute - the Natural and Cultural Heritage Act.

This special right to utilize national assets shall be determined by statute for real estate designed for public unionization as regards the nature of the good itself or as regards the intention specified by regulations and concerning the rules of utilization. A special group of provisions regulate the protection of goods, but at the same time determine duties and conditions of protection as a form of limitation of property. The protection of the natural and cultural heritage is (Article 73 of the Constitution) determined by statutes and other regulations (e.g. municipal ordinances).

D. Rights of Foreigners to Exploit Natural Resources

The rights of foreigners to exploit natural resources, and the conditions under which any such exploitation may take place, may only be determined by statute (Para. 3 of Article 70 of the Constitution).

E. Right to a Healthy Living Environment

Everyone has the right in accordance with the law to a healthy living environment (Para. 1 of Article 72 of the Constitution). The state shall promote a healthy living environment. To this end, the conditions and manner in which economic and other activities are pursued shall be established by law (Para. 2 of Article 72 of the Constitution). The law shall establish under which conditions and to what extent a person who has damaged the living environment is obliged to provide compensation (Para. 3 of Article 72 of the Constitution).This constitutional provision concerning the responsibility of the State to assure a healthy living environment has a programme character.

F. Free Enterprise (The Business Sector)

Free economic initiative shall be guaranteed (Para.1 of Article 74 of the Constitution). The conditions for establishing commercial organisations shall be established by law. Commercial activities may not be pursued in a manner contrary to the public interest (Para. 2 of Article 74 of the Constitution). Unfair competition practices and practices which restrict competition in a manner contrary to the law are prohibited (Para. 3 of Article 74 of the Constitution).

Such provisions are required for the system of a market economy. Furthermore, the protection of free competition is one of the fundamental state functions in such a system. The above mentioned constitutional provision is the legal basis for the statutory regulation of the organisational forms of companies (Companies Act).

The Constitution in force assigns the regulation of the whole economic field to statute, which shall follow the constitutional provisions. However, the Constitution declares that free enterprise shall be guaranteed (Article 74). The constitutional provision on free enterprise was embodied in a concrete form by the Companies Act:

- each natural person shall have the legal opportunity to establish a company irrespective of his physical or social characteristics;

- the above mentioned broadly defined legal right can be limited by statute;

- the statutory prohibition on establishing companies must be sufficiently clear and specified irrespective of the regulation by which it is regulated, e.g. Articles 3 and 5 of the amended Foreign Trade Act .

G. Participation in Management

Employees shall participate in the management of commercial organisations and institutions in a manner and under conditions provided by statute (Article 75 of the Constitution).

The Worker's Participation in Management Act determines the manner and conditions as regards worker's participation in the management of companies (unless a special statute determines otherwise) as well as enterprises carrying out economic public services, banks, insurance companies and institutions (Article 1 of the Worker's Participation in Management Act). Worker's participation in management is evidenced:

- by the right to make initiatives and by the right to receive a reply to such initiatives;

- by the right to be informed;

- by the right to submit opinions and proposals as well as the right to reply to them;

- by the opportunity or obligatory exercising of common consultation with employer;

- by the right to take part in decision-making;

- by the right to suspend the consequences of decisions made by the employer;

- by other forms of participation which shall be specified by an agreement concluded between the employer and the workers' council (Article 2 of the Worker's Participation in Management Act).

The listed rights shall be exercised by individual workers or collectively by the workers' council or the workers' trustee, by the workers' assembly, or by the workers' representatives in company bodies (Article 3 of the Worker's Participation in Management Act). Workers' participation in management of the company shall be exercised as follows:

- they shall be informed directly; in addition, they can submit proposals and opinions directly;

• they shall be informed through the workers' trustee or the workers' council; in addition, they can submit proposals and opinions through the workers' trustee or the workers' council; they can request a common consultation with the employer; they can participate in the decision-making process on particular matters specified by statute; they also can request the suspension of the consequences of particular decisions of employers until a final decision is taken by the empowered body (Article 85 of the Worker Participation in Management Act).

H. Freedom of Trade Unions

The freedom to establish, operate and join trade unions shall be guaranteed (Article 76 of the Constitution).

Only employees can exercise the above-mentioned freedom. On the other hand, trade unions shall not act contrary to the legal order in force. With such a formulation, the Constitution wishes to emphasize the Freedom of Trade Unions as an essential element of the economic system. The provision of Article 76 of the Constitution is connected to Article 42 of the Constitution (the Right of Assembly and Association).

I. Right to Strike

Employees have the right to strike (Para. 1 of Article 77 of the Constitution). Where required by the public interest, the right to strike may be restricted by law, with due consideration given to the type and nature of activity involved (Para. 2 of Article 77 of the Constitution).

Strikes shall be governed by such rules as are valid for legal strikes, i.e. within the scope of statutory regulation (the Strike Act) and the Strike Rules. The strike may be limited by statute, considering the type and nature of a certain field of activity (particular social activities, the economic infrastructure, the police, customs), or where such a restriction is in the public interest (e.g., if the strike can threaten human life, or if it can result in damages in tort).15

J. Freedom of Work

Freedom of work shall be guaranteed (Para. 1 of Article 49 of the Constitution). Everyone shall choose his employment freely (Para. 1 of Article 49 of the Constitution). Everyone shall have access under equal conditions to any position of employment (Para. 3 of Article 49 of the Constitution). Forced labour shall be prohibited (Para 4 of Article 49 of the Constitution).

The above constitutional provision provides the programme principle and at the same time instructs the National Assembly when it decides on economic or other policies of the State.

The present right does not entail a subjective right to a respective position or job. On the other hand, some statutes impose concrete duties and obligations on employers and the State (the protection of workers against illegal acts of employers, compulsory social insurance for employees, protection of disabled persons etc.). The freedom of work involves three elements: the free choice of employment, the equal availability of work opportunities under equal conditions to each person, as well as the prohibition of forced labor.

The security of employment means that the state shall create opportunities for employment and work, and shall ensure the protection of both by law (Article 66 of the Constitution).

Under the above constitutional provision, the State creates possibilities for employment and work as well as insures the respective legal protection. To recognize the freedom of work (first of all, the freedom of the availability of work) and to insure the respective judicial protection, it would be unreal and would mean the introduction of declaratory provisions into such a legal act as the Constitution is. The same is relevant as regards the obligation of the State that it shall create the conditions necessary to enable each citizen to obtain proper housing (Article 78 of the Constitution).

The inspectorate for work carries out the supervisory control of the implementation of statutes, other regulations, collective agreements and general acts regulating employment, salaries and other incomes arising from the employment of workers in Slovenia and abroad, workers' participation in management, strikes and safety at work (Article 1 of the Labor Inspection Act). The inspectorate shall be established as a body (with its organisatorial units) within the Ministry of Labor (Article 2 of the Labor Inspection Act). The inspectorate shall provide for the implementation of policies and measures of labor inspection, cooperate with the Ministry of Labor concerning the preparation of regulations in its field of activity (Article 3 of the Labor Inspection Act). In addition, the inspectorate shall prepare reports on its activity for the parent Ministry (Para. 1 of Article 5 of the Labor Inspection Act). The Government must submit the respective report to the National Assembly. After approval, the report must be sent to the International Labor Office (Para. 2 of Article 5 of the Labor Inspection Act). During the exercising of their duties, the inspectors are empowered to make all respective arrangements (Articles 12 through 23 of the Labor Inspection Act).

The right to equitable payment (salary):

Under the Basic Rights Arising from Labour Relations Act (a former federal law, beside Slovenian statutes, and partially still legal source, which is in general not incompatible with the Slovenian legal system in force; published in the Official Gazette SFRY, Nos. 60/89, 42/90), a worker has a right to personal income (payment, salary), in conformity with a respective general act, adjusted in accordance with the collective agreement and statute. Under the general act and/or the collective agreement, workers are entitled to such a share of personal income that corresponds to the firms income or profit, in proportion to the worker's participation in profit making. Statute also declares the right of workers to personal income in proportion to profit making due to their exceptional participation based on innovation, rationalization or other forms of creativity related to work. The mentioned statutory provisions are not bound by some special compulsory measures. Statute determines the sanction (penalty) for a concrete case if the employer doesn't pay an employee his salary at least once in a month.

The General Collective Agreement for the Commercial Sector and the Collective Agreement for Non-Commercial Activities specify the obligatory minimal standards and grounds for the determination of the contents of collective agreements in particular activities and organisations as regards personal incomes and other supporting benefits. The starting personal incomes shall be valorized concerning the particular increase clause taken into consideration the increase in the costs of living. The collective agreements for sectors can not determine lower starting personal incomes, unless such payments could threaten the operation of the organization and/or the employer, but only taking into consideration the respective criteria and with a maximum deccase of 20%. The mentioned collective agreements also include provisions on allowances and their amounts which are due to workers because of difficult and harsh working conditions, inconvenient organisation of working hours, etc. Salary continuances are separately determined in the event of allowed absenteeism (illness, education, holidays with pay) as well as some other special benefits of employees: e.g. the holiday cash grant, jubilee awards, retirement benefits. The following are regulated separately: the personal income of trainees as well as the payment for the work of students in the case of their compulsory practical work as a part of a schooling programme. The personal income of trainees is determined in proportion to the personal income of other workers (70%), the payment for the compulsory practical work of students is determined with reference to the average personal income in the business sector, with a relatively low minimum share of 15%; but these persons are entitled to such additional benefits as other workers.

Irrespective of the provisions of the collective agreements the worker has the right at least to the minimum wage. The minimum wage is regulated by the Minimum Wage Act (Official Gazette RS, No. 48/90). Under this statute the minimum wage is set for each worker who works full time and fulfills work obligations, it is at least an amount which assures material and social security. Workers who work part time are entitled to receive a proportional share of such personal income. The minimum wage is determined by the Government after hearing the preliminary opinion of the Chamber of Commerce. At this determination the Government shall consider the value of the basic necessarities of life, the variation and level of personal incomes in the business sector of the State as well as the achieved level of labor productivity in the business sector of the State.

The statutes and collective agreements don't contain provisions, which could - regarding the right to salary - express discrimination based on sex.17

K. Special Rights of Foreigners Employed in Slovenia

Aliens employed in Slovenia and members of their families have special rights provided by law (Article 79 of the Constitution).

L. Right to Social Security

Citizens have the right to social security under conditions provided by law (Para. 1 of Article 50 of the Constitution). The state shall regulate compulsory health, pension, disability and other social insurance, and shall ensure its proper functioning (Para. 2 of Article 50 of the Constitution). Special protection in accordance with the law shall be guaranteed to war veterans and victims of war (Para. 3 of Article 50 of the Constitution).

The national social security system is based on the principle of national solidarity; this means that each citizen shall contribute from his/her personal income in order to cover dues within the scope of social security. As regards social security, first of all the principles of mutuality and solidarity shall be taken into consideration 1. The legal system which used to be in force in Slovenia before 1991 is still in the process of being changed and adapted. On the basis of the new Constitution, legislation was passed which stated the following goals:18

- first of all the Constitution declares of the rights to social security, to health care as well as special protection models for certain individuals included in the basic human rights;

- the intention of the new legislation it is to adapt the system of social security to the new social circumstances, first of all to introduce by law the opportunities for additional voluntary insurance as well as for private initiatives concerning health care services, social welfare and child welfare;

- to assure by the new system the possible continuaity with the former system of social security as regards the scope of entitled persons as well as the list or extent of available rights;

- the harmonization of the system with current international standards concerning the regulation of social security as well as harmonization with European systems of social welfare;

- that under the prevailing point of view it would be not possible to introduce some short-term extreme change in the system of social security, but only during a certain longer period. By means of a long-term successive introduction of changes, the violation of vested rights and expected rights of individuals can be prevented.

The new statutes regulating the social insurance preserved the starting point that with the public system offering support benefits (salary continuances and pensions) the lost salary will still be replaced to a great extent. Furthermore, the system provides opportunities for additional voluntary insurance, especially for higher income arising from pension insurance as well as for totally free health service. For persons without earned incomes or receipts from social insurance, the right to financial assistance within the social welfare system is guaranteed.

The constitutional provisions of Article 50 are very general and instructive. The Constitution guarantees the right to social security to all citizens. In addition, it is necessary to consider also the provisions of Article 79 of the Constitution, which determines that foreigners employed in Slovenia, together with their family members, shall enjoy such special rights as determined by statute. The formulation of Para. 2 of Article 50 of the Constitution provides for compulsory and voluntary insurance as a novelty within the Slovenian system of health and pension insurance. On the other hand, under Para. 3 of Article 50 of the Constitution, war veterans and civilian casualties of war shall be guaranteed special benefits as provided by statute; it concerns especially the regulation of their own rights as regards their social insurance and social welfare.19

The right to social security has to be included beside the right to work and the right to adequate payment among these human rights which are the basis for the achievement of two basic universally recognized values, human dignity and human economic security.20

The new statutes by which the constitutional right to social security has been exercised, regulate in the field of the social insurance the following branches: pension and disability insurance, health protection and insurance as well as unemployment insurance21.

Social support is regulated by the Social Welfare Act (Official Gazette RS, Nos. 54/92, 56/92). In addition, the special protection of children and the family are regulated by the Child Welfare Act (Official Gazette RS, Nos. 35/79, 8/90 ).

The statutes on security regulate the health care and payments determined by the Convention of ILA No. 102, which also applies to Slovenia. The particular support benefits (pensions, salary continuances as well as other support benefits) are assessed as a percentage of earlier salaries. These percentages concerning the assessment of support benefits exceed the minimum level as defined by the Convention of ILA No. 102. Under the Health Care and Health Insurance Act, each person shall have the right to the highest level of health but he/she shall be obliged to take care of his/her health. Health care and particular support benefits concerning motherhood as well as financial assistance for children, are regulated by the Child Welfare Act.

It is characteristic for the system of social insurance that a wide circle of entitled persons is included in the uniform system of pension and disability insurance as well as health insurance. The circle of entitled persons includes beside regular employees and their family members, also independent professionals, farmers and their family members and some other categories of active persons. Health insurance has been nearing universality, because into the system are included beside actively employed inhabitants also all Slovenian citizens with residence in Slovenia. Unemployment insurance shall be compulsory for those regularly employed.

The Social Welfare Act defines the system of social services and the institutionalized protection of needy individuals as well as the rights to support benefits from social welfare. The mentioned Act is based on some new starting points as regards entitled persons, who are not only some socially handicapped groups of inhabitants as has been the case, but a current entitled person can be any person who is in material or social need and needs help. The entitled persons to support benefits are older persons and disabled persons who do not have sufficient life resources and under the new system also persons able to work who are not able to assure the sufficient resources for their own survival as well as for the survival of their dependent relatives. With the extension of the circle of entitled persons to persons able to work, it is guaranteed that all unemployed socially handicapped persons are entitled to receive minimum support benefits. In addition, there was introduced the universal protection of citizens with residence in Slovenia and foreigners with permission for residence, if they are socially handicapped.

The support benefits and services under Article 1 of the Social Welfare Act have the character of rights. Some conditions for the acquisition of a right are defined by law, but other conditions are dependent on a discretional evaluation by an organisation of public power, which is empowered to evaluate entitlements.

The system of social insurance and social welfare also includes the status of jobseekers, which is important in the circumstances of relatively high unemployment in Slovenia. People who have lost their jobs and become unemployed, shall acquire the right to support benefits within the scope of the system of unemployment insurance. People who don't have any rights arising from insurance can acquire the respective support benefits within the system of social welfare. All unemployed persons who are Slovenian citizens with residence in Slovenia have the right to health care. Citizens without sufficient resources for their survival have the right to support benefits as well as the right to health care.

The protection of child, mother and family is specially regulated by the Child Welfare Act and by the Family Support Benefits Act (Official Gazette RS, Nos. 65/93, 71/94, 73/95). Until the present, the protection of children and the family was oriented first of all to the protection of families' interests with both employed parents as well as families with the lowest incomes. The statute guarantees a universal child allowance and a universal parental allowance for parents who are not entitled to receive parental pay benefits. So the statute fulfills to a higher degree the rights of individuals and obligations of the State than those under the European Social Charter.

A general characteristic of the new statutory regulation of rights within the system of social security is the tendency towards the reduction of rights within the public compulsory system of social insurance as well as the tendency towards the concurrent legalisation of additional private insurance, as well as private initiatives in health care, child welfare and in social welfare. At the same time the rights to social benefits in the field of social welfare have been extending, especially as regards the circle of entitled persons and the right to support benefits in the field of the protection of children and the family.22

M. Right to Health Care

Everyone has the right to health care under conditions provided by law (Para. 1 of Article 51 of the Constitution). The rights to health care from public funds shall be provided by law (Para. 2 of Article 51 of the Constitution). No one may be compelled to undergo medical treatment except in cases provided by law (Para. 3 of Article 51 of the Constitution).

Health care has to be considered as a system of social, collective and individual measures for strengthening, preserving and restoring health. These measures and who health caretakers are, beside each individual, are determined by statute. Along with the right to the health care, the Constitution adds the right to health insurance, as determined in Article 50 of the Constitution. As regards the principle that the right to health care is enjoyed to each person, the Health Care and Health Insurance Act (Article 7) determines that the Republic of Slovenia provide from the State budget also the resources for the emergency health care of persons without residence, of foreigners from countries with which Slovenia has not concluded treaties as well as foreigners and Slovenian citizens with permanent residence abroad who are staying in the Republic of Slovenia or who are traveling through Slovenia, but for whom it is not possible to guarantee the respective resources for payment of costs of their health service.23

The Constitution explicitly refers to the statutory regulation of rights arising from health care, which are financed out of public revenue. The obligation to take care of ones own health and the prohibition against threatening the health of others are in Slovenia the object of statutory regulation. The Constitution determines only that no person shall be compelled to undergo medical treatment except in such cases as are determined by statute (Para. 3 of Article 51 of the Constitution). The mentioned constitutional provision also guarantees personal integrity of person.

While exercising the above mentioned constitutional right, concerning Article 14 and /or Article 51 of the Constitution, it is a question whether each person could have equal right to health care, regardless of their financial circumstances in a concrete case. In addition, Article 51 of the Constitution determines that the conditions for the exercising of the right to health care shall be regulated by statute. But according to Article 14 of the Constitution (the principle of equality before law) the statute could not regulate such conditions which could entail unequal rights, among others also concerning financial circumstances. The Health Care and Health Insurance Act (Article 23 of the Act, Official Gazette RS, Nos. 9/92, 13/93, 9/96) established the basis for the relatively high level of participation of individuals in the costs of health care concerning some kinds of services or in certain circumstances (medical treatment of non-occupational injuries); but despite some exceptions determined by statute, which are not determined in detail, this obligatory participation can prevent an individual who has financial difficulties from exercising the right to health care, because he/she is not able to help pay for the medical treatment costs.24

N. Rights of the Disabled

Disabled persons shall be guaranteed protection and worktraining in accordance with the law (Para. 1 of Article 52 of the Constitution). Physically or mentally handicapped children and other severely disabled persons have the right to education and training for an active life in society (Para. 2 of Article 52 of the Constitution). The education and training referred to in the preceding paragraph shall be financed from public funds (Para. 3 of Article 52 of the Constitution).

The Constitution includes in Article 52 the generally implemented term: the disabled, which includes two categories of persons, disabled workers and disabled persons. Among the different rights, which by statute belong to disabled persons, the Constitution determines in Para. 2 and 3 of Article 52 explicitly only the right of mentally and physically handicapped children and other severely disabled persons to education and worktraining in order that they may lead an active life in society. The education and worktraining shall be financed out of public revenue. The special protection of war veterans and civilian casualties of war are guaranteed by the constitutional provision on the right to social security (Para. 3 of Article 50 of the Constitution).25

O. Marriage and the Family

Marriage is based on the equality of spouses. Marriages shall be solemnized before an empowered state authority (Para. 1 of Article 53 of the Constitution). Marriage and the legal relations within it and the family, as well as those within an extramarital union, shall be regulated by law (Para. 2 of Article 53 of the Constitution). The state shall protect the family, motherhood, fatherhood, children and young people and shall create the necessary conditions for such protection (Para. 3 of Article 53 of the Constitution).

From the point of view of the Constitution only marriage between man and woman is important, which must be performed in conformity with statute (civil marriage), but not necessary under rules of religious communities. On the other hand, the Constitution refers to the statute, which regulates marriage and the legal rights and obligations within marriage, within the family, as well as within common law marriage. Marriage is based on the equality between spouses, which denotes the implementation of the general principle of equality before law as well as equality with regard to sex. A common law marriage is the equivalent to marriage only as regards the legal consequences, which are determined for spouses by the Marriage and Family Relations Act. The statute does not deal with the children born out of wedlock. If a common law marriage has any consequences, and the kind of consequences it has in certain fields is regulated by other statutes, they are determined by these statutes (the second section of Article 12 of the Marriage and Family Relations Act). In such a way the equalization of a common law marriage partner with spouse is determined e.g. by the Inheritance Act. The State shall protect the family, motherhood, fatherhood, children and young people (Para. 3 of Article 53 of the Constitution). This constitutional provision is valid for the whole legal system. Therefore it does not concern only protection under family law, but also other forms of protection: e.g. services and support benefits of social welfare, social security, health care, the preschool and school system, as well as protection under the labor law. Under the Constitution, the State shall provide proper conditions for effecting such protection.26

The protection of the family by the State means first of all the protection of the benefits of children also within the family. The relations between parents and children are regulated by law (first of all the Marriage and Family Relations Act).

P. Rights and Obligations of Parents

Parents have the right and duty to maintain, educate and raise their children (Para. 1 of Article 54 of the Constitution). This right and duty may be revoked or restricted only for such reasons as are provided by law in order to protect the child's interests (Para. 2 of Article 54 of the Constitution). Children born out of wedlock have the same rights as children born within it (Para. 3 of Article 54 of the Constitution).

The provision of Para. 1 of Article 54 of the Constitution provides the constitutional ground for the so-called parental right, which is under statute (Para. 2 of Article 4 of the Marriage and Family Relations Act) composed of the rights and obligations of parents to maintain, educate, guide as well as to protect the rights and benefits of children. The parental right desists from the child's majority; At that time the obligation of parents to represent the child also desists. Under the Constitution, the State could or must intervene in the exercising of the parental right with measures, which are carried out by first of all by the social welfare system. Children born out of wedlock shall have the same rights as children born within marriage.27

R. Freedom of Choice in Childbearing

Everyone shall be free to decide whether to bear children (Para 1 of Article 55 of the Constitution). The state shall guarantee the opportunities for exercising this freedom and shall create such conditions as will enable parents to decide to bear children (Para. 2 of Article 55 of the Constitution).

The State creates opportunities for the exercising of this freedom. Under the Health Measures on the Implementation of the Freedom of Choice in Childbearing, the health service shall assure the manners and methods which can serve the people to, at their will, prevent or freely choose to bear children. The freedom of choice in childbearing could pose difficulties for the health service by refusing cooperation as regards birth control measures, in the form of the right of conscientious objection guaranteed by the Constitution and statute (Article 46 of the Constitution and Article 56 of the Health Services Act). As a limitation of the freedom of choice in childbearing the compulsory partial participation in bearing the costs of respective health service could be considered (Subpara. 1 of Item 3 of Para. 1 of Article 23 of the Health Care and Health Insurance Act ).28

S. Rights of Children

Children shall enjoy special protection and care. Children shall enjoy human rights and fundamental freedoms consistent with their age and maturity (Para. 1 of Article 56 of the Constitution). Children shall be guaranteed special protection from economic, social, physical, mental or other exploitation and abuse. Such protection shall be regulated by law (Para. 2 of Article 56 of the Constitution). Children and minors who are not cared for by their parents, who have no parents or who are without proper family care shall enjoy the special protection of the state (Para. 3 of Article 56 of the Constitution). Their position shall be regulated by law (Para. 4 of Article 56 of the Constitution).

The Constitution declares the special protection of children from economic, social, physical, mental and other exploitation and maltreatment (Para. 3 of Article 53). The attitude to children and minors is regulated by statute: the Marriage and Family Relations Act guarantees two forms of protection: fostering (Article 8 of the Marriage and Family Relations Act) and tutorship (Para. 1 of Article 9 of the Marriage and Family Relations Act). Under the Marriage and Family Relations Act, adult persons are entitled to special tutorial protection if they are not able to care for themselves (Para. 2 of Article 9 of the Marriage and Family Relations Act). Children have also special rights guaranteed by the Convention on Children Rights; but the Constitution does not mention these special rights.29

T. Temporary Asylum

The Chapter on refugees in the Foreigners Act can not be applied to temporary refugees because it regulates the status and other matters of persons who left their mother country (usually for a long duration) owing to persecution because of political belief, cultural or scientific activity or national origin, race and /or religion and they requested in the Republic of Slovenia recognition as refugee under the Convention of UN on refugees of 1951 and the Protocol of UN on refugees of 1967.

The Temporary Asylum Act determined the temporary refugees as a legal category, with precisely determined proceedings for the acquisition of the status as well as with rights and obligations arising from the status.

The Republic of Slovenia has been guaranteeing temporary asylum under such conditions and in the manner determined by the statute (Article 1 of the Temporary Asylum Act). If the Government ascertains that in the neighboring country such circumstances have arisen such as a war or similar circumstances, occupation, mass violation of human rights or similar, the Government shall guarantee temporary asylum to persons coming from the respective country (Para. 1 of Article 2 of the Temporary Asylum Act). Considering the economic and other possibilities in Slovenia, the issues of national security, public order and peace etc., the National Assembly, on the proposal of the Government, determines the number of persons, whom the Republic of Slovenia will guarantee temporary asylum and the conditions; the determined number can be exceeded (Para. 2 of Article 2 of the Temporary Asylum Act). Statute regulates the conditions for the acquisition of the status of temporary asylum (Articles 3 and 4 of the Temporary Asylum Act) as well as the conditions of its cessation (Article 5 of the Temporary Asylum Act). The statute specifies details when temporary asylum can be deprived (Article 6 of the Temporary Asylum Act). Persons with temporary asylum have the following rights:

- to residence and sustenance during the period of the temporary asylum, within the range of possibility;

- to health care;

- to education;

- to work;

- to receiving humanitarian help;

- to personal help as well as help as regards the exercising of these rights (Article 20 of the Temporary Asylum Act).

When the circumstances ceases due to which the temporary asylum was granted (Article 2 of the Temporary Asylum Act), the Government determines a term of six months for leaving the State (Article 26 of the Temporary Asylum Act).

A foreigner with the recognized status of refugee shall be guaranteed necessary premises, subsistence and health care until departure to another country or until the concerned person is able to make a living, but two years at longest from the answer to a petition for the recognition of the status of refugee (Para. 1 of Article 39 of the Foreigners Act). This time limitation is irrelevant as regards the foreigner to whom the status of refugee was recognized, but who is unable to make a living (Para. 2 of Article 39 of the Foreigners Act). The subsistence and the lodging of foreigners with the recognized status of the refugee shall be financed out of public budget (Para. 3 of Article 39 of the Foreigners Act).

Some Benefits Under the Legislation

The personal income tax shall not be paid on support benefits awards and social admissions, allowances and receipts paid to war veterans, support benefits under the regulations on the rights of war disabled and military disabled as well as civil casualties of war, support benefits arising from work during work-training, support benefits for periodical or temporary nursing and/or help of invalids, jubilee awards, compensation for dismissal and salary continuances paid out under the regulations on employment and unemployment insurance support benefits arising from social security (supplementary pension, financial assistance for unemployment, child allowances etc.), support benefits arising from fostering, support benefits arising from a disability benefit, allowances for help and nursing, support benefits from the periodical work of disabled persons and students and grants (Article 17 of the Personal Income Tax Act). The mentioned support benefits are under the Tax Administration Act, also excluded from the compulsory withholding (Article 49 of the Tax Administration Act). The Personal Income Tax Act guarantees also income tax relief for dependent family members (children, adoptees, grandchildren, spouse and parents and/or adopter of the obliged, who are supported by the obliged, if they do not have their own means (Para. 1 of Article 9 of the Personal Income Tax Act). The municipal council can under the explained proposal of the tax authority, allow the obliged to remiss totally or partially his/her tax load, if the exaction could threaten the vital minimum standard of living of the obliged and maintenance of his/her family members (Article 107 of the Personal Income Tax Act). The tax authority can permit the deferral of the payment of one's tax load to a maximum of six monthly installments or it can permit the obliged to remiss totally or partially his/her tax load, if the exaction could threaten the vital standard of living of the obliged and maintenance of his/her family members (Para. 1 of Article 118 of the Personal Income Tax Act; the Tax Administration Act also contains a similar provision - Article 89 of the Tax Administration Act).

With the compulsory exaction, only one third of the personal income can be affected. The pension of farmers, support benefits arising from movable property and life annuities as well as the support benefits of a life insurance policy can be affected with the exaction, if these support benefits exceed the amount of financial support as the only source of income under the regulations on social welfare (Article 32 of the Amended Tax Act). Salary, salary continuance, other support benefits arising from employment (if they are not excluded from the compulsory exaction) as well as a pension can be affected by the compulsory exaction only to one third of the net amount of the respective support benefits (Para. 1 of Article 50 of the Tax Administration Act). The mentioned support benefits can not be an object of compulsory exaction if they do not exceed the amount of financial support as the only source of living under the regulations on social welfare (Para. 2 of Article 50 of the Tax Administration Act).

The support benefits arising from social welfare rights ,which have been paid out of public revenue, have been brought into line with the movement of the minimum wage (Article 10 of the Budget Act).

Under the Family Support Benefits Act, the child allowance is paid out to one of the parents who has the right to the child allowance (Para. 1 of Article 42 of the Family Support benefits Act). For a child in a certain institution where he is provided accommodation free of charge, the child allowance can be not recognized for the period of stay in the institution. The same has to be taken into consideration as regards the child during military service. A child has the right to the child allowance on the basis of international agreements (Article 34 of the Family Support benefits Act).

Under the Employment and Unemployment Insurance Act, also the dependents of insured people if they don't have own source of income, are insured (Article 23 of the Act).

The statute (Article 11 of the Social Welfare Act) provides for the following special services by which social needs and emergencies can be eliminated: the first social support, personal help, family support, the institutionalized protection, guidance, protection and employment under special conditions, the help to workers employed in enterprises, institutions and other employers). The first social support under this statute includes help concerning the determination of social need and problem, the evaluation of possible solutions as well as the informing of the entitled person of all possible forms of social welfare services and support benefits which he can take advantage of, and of obligations (Article 12 of the Social Welfare Act). Public service in the field of social welfare includes the social prevention, the first social support, personal help, family help for housekeeping, institutionalized protection as well as guidance and protection and employment under special conditions (Para. 1 of Article 42 of the Social Welfare Act). Public service can be carried out by public social welfare institutions (e.g. Centers for the social welfare - Article 49 of the Social Welfare Act), but under concession, also by private persons (Para. 2 of Article 42 of the Social Welfare Act). The State guarantees the public service of a social prevention network (Para. 1 of Article 43 of the Social Welfare Act), and the municipality guarantees the public service of a personal help network as well as a network of family help at home (Para. 2 of Article 43 of the Social Welfare Act). Social welfare activity shall be financed out of the budget of the Republic of Slovenia (Article 98 of the Social Welfare Act). Entitled persons are obliged to pay for services, except the services of social prevention, the first social support and institutionalized protection in social welfare institutions for worktraining. The recipients of financial support as the only source of income and the recipients of the disability benefit are exempted from payment of these services (Article 100 of the Social Welfare Act).

The State and municipalities are obliged by statute to assure the treatment and emergency provision of the inhabitants who are because of acts of god or some other disaster without a home and a source of income and who are residing out of their permanent residence because of threat of danger (Para. 1 of Article 62 of the Protection Against Acts of God Act). The mayor can exceptionally order that the owners and users of flats are obliged to offer temporarily lodging to such evacuated and threatened persons, if there is no possible way to assure such lodging in some other way (Para. 2 of Article 62 of the Protection Against Acts of God Act).

Because of the assurance of social security, persons entitled to a pension annuity, disability pension, as well as dependents' pension with a permanent residence in the Republic of Slovenia whose pension does not reach the level of the minimal pension of the full pensionable allowance, have the right to a hardship allowance if they together with family members don't have other incomes which would be sufficient for survival (Article 23 of the Amended Pension and Disabled Persons Insurance Act).

Under the Health Care and Health Insurance Act, as an insured persons the following categories are treated: beside employed persons and pensioners, also the unemployed who have been receiving a salary continuance and/or financial support through the employment register office; persons with permanent residence in the Republic of Slovenia who are entitled to the disability benefits under the laws on war veterans, support benefits under the regulations on the rights of war disabled and military disabled as well as civil casualties of war; persons with permanent residence in the Republic of Slovenia who have been receiving a salary continuance under the Social Protection of Mentally and Physically Disabled Adult Persons Act, if they are not insured in virtue of some other purpose; persons with permanent residence in the Republic of Slovenia who have been receiving permanent financial support as their source of income under the laws on the social welfare etc. (Article 15 of the Health Care and Health Insurance Act).

Men serving in the national service and the Army Reserve, have during the performance of the national service the right to health care free of charge, to financial support benefits as well as to the compensation of expenses resulting from military service. Members of the standing army have during the period of military service the right to emergency medical treatment free of charge (Para. 1 of Article 53 of the Defense Act). The costs of the health care and the health insurance are covered by the State, if for men in the national service the insurance has not been assured on some other grounds (Para. 2 of Article 53 of the Defense Act). Dependents of members of the Slovenian Army have after the proclamation of a State of War the right to financial support until that member returns from the military service (Para. 4 of Article 53 of the Defense Act).

The military disabled have the right to the compensation for transportation expenses also as regards travel to work-training in some other place, in case of a permanent transport, if this person is not assured free transportation with the public transportation under any other rule (Para. 1 of Article 55 of the War Disabled Act).

The rights of war veterans are as follows: the right to the veteran allowance, the allowance for help and nursing, health care, health resorts and climatic medical treatment, free transport, etc. (Article 17 of the War Veterans Act), funeral expenses and the acknowledgement of pensionable service (Article 5 of the War Veteran Act).

The Government prescribes the cases and conditions for the free granting of licences as regards national resources in demographically threatened areas (management, usage and exploitation) (Article 21 of the Environment Protection Act).

The proceedings before the Ombudsman are informal and for parties free of charge (Article 9 of the Ombudsman Act).

A voluntary fireman has the right to salary continuance during an intervention as well as during worktraining. The salary continuance has been paid out by the employer (Para. 1 of Article 25 of the Fire Fighting Act). In case of an intervention, which is longer than three hours, the participants are entitled to a free meal (Para. 2 of Article 25 of the Fire Fighting Act). Because of participation in an intervention or a worktraining, a voluntary firemen can't be dismissed, transferred to some other post or be curtailed in any other way by an employer (Para. 3 of Article 25 of the Fire Fighting Act).

Under the Primary School Act, a student with a residence a certain distance from the school has the right to free transportation. Furthermore, a student attending their first year has the right to free transportation irrespective of the distance of their residence from the primary school, but students attending other years only if the body competent for preventive measures relating to road traffic determines that the security of the student can be threatened on the way to school (Para. 1 of Article 56 of the Primary Schools Act). Children with special needs have the right to free transport irrespective of the distance of their residence from the primary school, if so specified by statute (Para. 4 of Article 56 of the Primary School Act).

Those required to pay a holiday cash grant, are legal entities and natural persons who employ employees in the Republic of Slovenia (Para. 1 of Article 2 of the Implementation of the Social Agreement for 1996 Act). The provisions concerning the minimum wage are applicable to all employers who employ workers in the Republic of Slovenia (Para. 2 of Article 2 of the Implementation of the Social Agreement for 1996 Act).

The Resolution Concerning the Basis for the Creation of Family Policies in the Republic of Slovenia specifies that it is necessary to exceed the current priority of the residual model of social policies, and also the industrial model of social policies, where social security had been provided first of all to the actively employed segment of the population (employees). At the same time it is necessary at least in the long term to strive for the formation of a model of social policies which can assure social security to as wide a circle of people as possible, and influence the improvement of the quality of life of all people. It is also necessary to exercise the fundamental starting points of the social policies. The social policies cannot be based any more on full employment and/or the status of regular employment, nor on the family model, designed once and for all. Under the new model of social policies, the social security of every human shall be based on the status of citizenship as well as on the status of employment. At the same time the mentioned model shall take into consideration also the plurality of the family forms and needs of the people. The Resolution specifies the following measures: in the economic-fiscal field, the direct awarding of payments/benefits to families, which shall complement or replace their incomes; the allocation of income in favour of families within the scope of the tax policy as well as the special credit policy. In the field of the education, health care, consulting agencies, help in favour of the aged, help in favour of mentally or physically handicapped persons; the respective services shall support the functioning of the family; measures in the field of employment; measures in support of the reconciliation of the family and professional obligations of both parents as well as with other benefits connected with the manual labor market; measures in the field of housing with specific programmes for housing development as well as other possible forms of help in favour of families.

Under the Housing Act, citizens of the Republic of Slovenia who's total family income doesn't exceed the level specified by the rules on social welfare for the right to a financial allowance, are entitled to obtain social housing on lease (Para. 1 of Article 100 of the Housing Act). Assistance as regards the enjoyment of housing has been offered under the rules regulating social welfare rights (Para. 2 of Article 100 of the Housing Act).

The Constitutional Court of the Republic of Slovenia, Decision No. U-I-135/92, 30 June 1994, Official Gazette RS No. 44/94, OdlUS III, 84 decided as follows: The fact that the Deputies Act grants to deputies of the National Assembly more favourable opportunities for acquiring and asserting rights arising from old-age insurance is not unconstitutional itself. For such benefits not to be contrary to the constitutional provision concerning Slovenia as a State governed by the Rule of Law and a Social State, they should be based not only on the fact of deputy mandate, but primarily on the specificities and duration of such a mandate; they should be proportionate to these factors and may depart from the rules of the general insurance system only to the degree mentioned, also taking into consideration general social circumstances. The principles according to which Slovenia is a democratic republic and a State governed by the Rule of Law require that proposals concerning special benefits for deputies of the National Assembly have to be justified and accessible to the public, together with the reasons given, throughout the procedure in which such proposals are decided by the National Assembly.