Published on 29 January 2024
FIRST SECTION
Applications nos. 18184/23 and 25424/23
Aleš COKAN against Slovenia
and Luka JUKIČ against Slovenia
lodged on 25 April 2023 and 16 June 2023 respectively
communicated on 11 January 2024
SUBJECT MATTER OF THE CASE
The applications concern the Bank of Slovenia’s (hereinafter “the Central Bank”) decisions implementing emergency measures allegedly aimed at preserving the stability of the financial system. The decisions were taken against several banks, including Nova KBM bank, in which the applicants held shares. For the background see Pintar and Others v. Slovenia, nos. 49969/14 and 4 others, §§ 6-20, 14 September 2021.
In 2013, by way of the Central Bank’s decision (which was classified as “highly confidential”), the applicants’ shares in Nova KBM bank were cancelled without any compensation. On 19 October 2016 the Constitutional Court of Slovenia reviewed the impugned legislation allowing for the above emergency measures to be put in place (decision no. U-I-295/13) and found that the legal framework within which the holders of the cancelled bonds and shares could claim compensation did not sufficiently safeguard their interests. In response to the Constitutional Court’s decision, the National Assembly, on 22 November 2019, adopted the Act on Judicial Protection Procedure for Former Holders of Eligible Liabilities of Banks (“the 2020 Remedy Act”). However, further to the Bank of Slovenia’s request for the review of constitutionality of almost all provisions of the 2020 Remedy Act and section 350a of the Banking Act, the Constitutional Court, on 5 March 2020, suspended the implementation of the 2020 Remedy Act, pending the review of its constitutionality. On 28 January 2021, the Constitutional Court made a request for preliminary ruling to the Court of Justice of the European Union (CJEU). Further to the CJEU’s judgment of 13 September 2022 (Banka Slovenije, C-45/21, EU:C:2020:461), the Constitutional Court revoked the 2020 Remedy Act on 16 February 2023 (decision no. U-I-4/20). It ordered that the legislator adopt a new law with a view to ensuring judicial protection of the rights of the holders of the cancelled bonds and shares while observing the principle of the Central Bank’s independence. The new law has so far not been adopted.
In the meantime, on 14 September 2021, the Court found a violation of Article 1 of Protocol No. 1 to the Convention with respect to a number of applicants, who had held shares or bonds which had been cancelled pursuant to the above-mentioned emergency measures (see Pintar and Others, cited above). The Court found that those applicants did not have a reasonable opportunity to challenge the Central Bank’s impugned decisions and/or seek compensation. It concluded that the interference with their possessions had not been accompanied by sufficient procedural guarantees against arbitrariness and had thus not been lawful within the meaning of Article 1 of Protocol No. 1 (§§ 100-110). Under Article 46 of the Convention, the Court noted that it was essential that the former holders of cancelled shares or bonds had access to a legal avenue enabling them to effectively challenge the interference with their right to property as soon as possible. It also noted that thousands of former holders of the cancelled shares and bonds were affected by the measure in question (§§113 and 114).
The applicants complain of a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 alone and in conjunction with Article 13 of the Convention. They argue that their right of protection of property was violated by the Central Bank’s decision putting in place emergency measures, which unjustifiably divested them of their shares. Moreover, they allege that despite the Court’s judgment in Pintar and Others, they continue to have no effective access to court and no effective remedy to challenge the interference in question. Furthermore, Mr. Jukič, who was involved in the above mentioned Pintar and Others case, referring to Article 46 of the Convention, argues that the respondent State has failed to comply with that judgment.
QUESTIONS TO THE PARTIES
1. Has the interference with the applicants’ rights enshrined in Article 1 of Protocol No. 1 to the Convention on account of the Central Bank’s decision on emergency measures affecting the applicants’ shares been justified within the meaning of Article 1 of Protocol No. 1 (compare Mamatas and Others v. Greece, nos. 63066/14 and 2 others, §§ 90-120, 21 July 2016)?
In particular, has the interference been lawful (see Pintar and Others v. Slovenia, nos. 49969/14 and 4 others, §§ 100-110, 14 September 2021) and proportionate, regard being had to the circumstances in which it took place and the alleged absence of safeguards and mechanism for ensuring that the fair balance was struck between the competing interests? In this connection, the Government are requested to provide all available evidence, including copies of any relevant domestic decisions (given by public prosecutors, courts or any other relevant authority), pertaining to the question of whether the Central Bank’s decisions putting in place the emergency measures against several banks in 2013 were made in good faith and were justified.
2. Having regard to the continuous absence of legal avenue for challenging the aforementioned interference, as established by the Constitutional Court in its decisions of 19 October 2016 and 16 February 2023 and the Court in its judgment in Pintar and Others v. Slovenia (§§ 100‑110, cited above), have the applicants been deprived of access to court guaranteed by Article 6 § 1 of the Convention and/or of effective domestic remedy for their complaints under Article 1 of Protocol No. 1 guaranteed by Article 13 of the Convention?