The Human Rights Ombudsman of the Republic of Slovenia believes that, when dealing with the issue of meeting the conditions to obtain the right to an old-age pension, the Pension and Disability Insurance Institute of the Republic of Slovenia (ZPIZ) should interpret the provision of Article 28 of the Pension and Disability Insurance Act (ZPIZ-2) in such a way that, with regard to the relevant right, the parents whose child dies before they were one year old are equivalent to adoptive and biological parents whose child was adopted before they were one year old; otherwise, the right to equality before the law would be encroached upon. The ZPIZ failed to accept the Ombudsman’s position; however, the Ministry of Labour, Family, Social Affairs and Equal Opportunities (MDDSZ), which is the appeal body in the decision-making of the ZPIZ, shares the opinion of the Ombudsman.
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The Human Rights Ombudsman of the Republic of Slovenia (Ombudsman) discussed the issue of meeting the conditions to obtain the right to old-age pension as per the provision of Article 28 of the Pension and Disability Insurance Act (ZPIZ-2). The complainant gave birth to three children, two of whom died before they were one year old. The ZPIZ interprets the Act in such a way that "a child must be one year old in order to be claimed on taxes."
The Ombudsman believes that the main argument for the rigid opinion of the ZPIZ lies in the same legal provision in which the same right by its content is recognised for adoptive parents. In the nature of things, it is exceptionally unlikely that adoptive parents will take care of a child from birth.
Understandably the position of adoptive parents is somewhat different from the position of "regular" parents who were originally considered by the Act, which according to the Ombudsman also justifies a somewhat different situation of adoptive parents. However, the Ombudsman believes that the situation of persons whose children do not live until their first birthday must also be understood as somewhat different in relation to the relevant right. The situation of parents whose children die before they are one year old should be considered by the ZPIZ comparably to the way it considers adoptive parents.
The ZPIZ explained that the predominance of exercising the right to parental leave and relevant benefits are considered when a child is adopted in their first year, which means that those who exploited the substantial proportion of parental leave are entitled to a reduction in the age-limit as per indent one of paragraph one in connection with paragraph two of Article 28 or to an additional percentage as per paragraph ten of Article 37 (e.g. an adoptive parent is entitled to this in the event of the adoption of a child aged four months and a biological parent is entitled to this in the event of an adoption of a 10-month old child). When a child is adopted after their first year, the adoptive parent is not entitled to the reduction in the age-limit as per Article 28 of the ZPIZ-2 nor to the additional percentage as per paragraph ten of Article 37 of the ZPIZ-2, but the biological parent is entitled to this.
Relating to the relevant right, the Ombudsman insists that parents whose children died in their first year of life are equivalent to adoptive and biological parents whose child was adopted before their first year of life. We believe that, in compliance with the position of the ZPIZ when clarifying the regulation applicable to adoptive and biological parents of children who are later adopted, the parents whose children die in their first year of life should be granted the same principle of predominance; otherwise, the right to equality before the law would be encroached upon.
The position of the ZPIZ, stating that adoptive parents cannot be considered comparably to the parents whose children die before the age of one or in a manner as proposed by the Ombudsman since the adopted children reached the age of one, is unfounded in the Ombudsman’s opinion. The relevant right is, specifically, not the right of a child to be considered from the aspect of circumstances on the side of the child. The comparability of the situation must take into account the circumstances of the beneficiaries. When recognising the right under Article 28 of the ZPIZ-2, the Ombudsman believes that it is merely necessary to compare the positions of the parents who took care of the child, for example, for seven months because they adopted them when they were five months old, the parents who took care of the child for seven months because they went for adoption at seven months, and the parents who took care of the child for seven months because the child died at seven months. The positions of all three parents are comparable at best; however, a question may arise at this point as to whether the positions of the parents whose child was perhaps placed in foster care at birth and was, for example, adopted only after reaching the age of one are actually comparable, and on the other hand, the parents whose child died at seven months, which points to a high probability of possible prior problems due to which the care of such parents for a child was even more intense.
The Ombudsman also presented its position to the MDDSZ, which agreed with it. The complainant was informed of the opinion of the MDDSZ, which was also forwarded to the ZPIZ. In the case of decision-making of the ZPIZ, the MDDSZ is the appeal body. We expect that at the least, by resorting to legal remedies, the complainant will obtain a suitable interpretation of the legal text.
