In his opening lecture at the 5th Pension and Disability Insurance Conference in Portorož on 12 September, Ombudsman Peter Svetina focused on the deliberative principle in a democratic system of government, the role of the addressees of legislation in the legislative process, and the role of the parties in decision-making processes on their rights. He stressed the importance of cooperation, networking and proper communication in planning for the future, which certainly includes long-term care and its financing in the pension and disability insurance system, which is the theme of the two-day conference.
The Ombudsman pointed out, among other things, that throughout history, the processes of democracy have given birth to the maxim of democratic decision-making, which is Nothing about us without us. "This principle has introduced a type of two-way decision-making into the legislative process, which prevents the subject of decision-making from becoming exclusively the object of decision-making. I consider this to be an important development in modern legislative processes, since rules adopted in compliance with the above principle are substantively better than those which do not comply with it," the Ombudsman stressed.
"Unfortunately, my colleagues and I have noticed that the legislator often fails to hear the voices of interest groups or others who point out inadequacies or incomplete solutions, including those of us at the Ombudsman. As a result, in many areas we are living with legislative solutions from the past," said Ombudsman Svetina. He illustrated this with two examples. The first concerns the regulation of deinstitutionalisation in the draft Long-Term Care Act, and the second concerns the outdated view of the legislator that some disabled persons are less disabled than others.
In this case, the Ombudsman was reminded of the repeatedly expressed wishes of the users to be provided with a home environment for the longest possible period of time. Despite the orientation towards de-institutionalisation in the introductory part of the draft law, the law does not pay sufficient attention to this issue. "We could not see from the Bill that it provides for any new forms of assistance that may enable individuals to stay longer in their home environment. Nor did we see any intention in the Bill to adapt the environment to the needs of the beneficiary rather than the other way around, which is the essence of the internationally-legally based social model of disability," the Ombudsman warned in regard to some of the outstanding issues.
In the second case, the Ombudsman's institution found that persons with disabilities under the Act on Employment Rehabilitation and Employment of Persons with Disabilities (ZZRZI) are indeed in a worse situation than persons with disabilities under the Act on Social Integration of Persons with Disabilities (ZSVI), for which there are no justifiable reasons stemming from the different situations of the two groups. The Ombudsman has also found indirect discrimination against persons with mental health disabilities. "This stems from the surviving stigma that persons with mental health problems are not really disabled and that they are somehow to blame for their condition," warned Ombudsman Svetina.
The examples were intended to remind the conference participants that a broader consideration of the issues and a broader involvement of different stakeholders in the legislative process can make an important contribution to legislative solutions. Legislation drafted in this way can enjoy greater support among those affected by it, according to the Ombudsman. However, it is also essential to pay particular attention to communication when adopting regulations. In a two-way dialogue, decision-makers can receive feedback on people's rights, the assessment and application of which can have a significant feedback effect on the life of someone who has brought their problems to the attention of the authorities, the Ombudsman stressed. Thus, in the context of the consideration of the Long-Term Care Act, the Ombudsman drew the attention of the then Minister of Health not only to substantive but also to nomotechnical shortcomings that had been overlooked by the persons preparing the Act. The Ombudsman regretted that the comments on the Act had been ignored. The Ombudsman also drew attention to the violations of the administrative procedure, stressing that procedural violations exclude the individual from the decision-making process and that the individual becomes the sole object of such decision-making, deprived of his or her voice and dignity.
"If your communication is governed by legal rules, stick to them. The rules of democratic decision-making; the rules governing the legislative process and participation in it; the rules governing the procedural rights of litigants are not there to make our lives harder. They are there because historical experience tells us that this is the best and fairest way to deliberate on a given right. Above all, these are not guidelines, but rules to be followed if we are to be a just society founded on the principles of democracy and the rule of law. It is only by respecting the conditions encompassed by these two principles that we can design the society of the future. And I believe that we all want it to be bright for all," added Ombudsman Peter Svetina.