(UN)CONSTITUTIONALITY OF SETTLEMENT OF DAMAGES CAUSED BY ERRORS OF PENSION AND DISABILITY INSURANCE FUNDS

Abstract

This paper examines the constitutional and procedural legal aspects of settlement of damages caused by errors of pension and disability insurance funds in Bosnia and Herzegovina, with special reference to the practice of the Republika Srpska Pension and Disability Insurance Fund. The focus of the research is the issue of fair distribution of the burden of responsibility when the illegality of the final administrative acts is subsequently determined, most often due to incorrect application of the rules on real and local jurisdiction. The right to a pension is one of the basic social rights, the realization of which must be based on the principles of legality, legal certainty and the protection of legitimate expectations of the parties. Special attention is paid to the specifics of the administrative procedure in the field of pension and disability insurance, where the fragmented normative framework creates an increased risk of procedural errors. The paper indicates that in practice it often happens that the competent PIO Fund initially recognizes the right to an old-age pension and starts the payment, only to then, ex officio or on the occasion of a legal remedy, annul its own decision due to subsequently established incompetence. The consequence of such action is the initiation of a recourse procedure against the user in order to recover the "unreasonably" paid amounts. The authors critically analyze the legal formulation that enables the return of funds without examining the existence of subjective responsibility of the user, assessing that such a solution calls into question the principles of fairness and proportionality. The analysis of the decisions of the Constitutional Court of Bosnia and Herzegovina is of particular importance in the paper, which in several decisions took the position that the mistakes of public authorities cannot be corrected at the expense of citizens, especially when they did not contribute to the creation of an illegal payment. This practice is linked to the standards of the European Court of Human Rights in cases related to the protection of property rights and the peaceful enjoyment of acquired social rights. In the final considerations, it is proposed to specify normatively the institution of annulment and repeal of administrative acts, as well as a clearer distinction of situations in which the burden of adverse consequences should be borne by the public authority, from those in which the user of the right bears responsibility.