KOTNIK AND JUKIČ v. SLOVENIA

FIRST SECTION

DECISION

Applications nos. 56605/19 and 25424/23
Tadej KOTNIK against Slovenia
and Luka JUKIČ against Slovenia

The European Court of Human Rights (First Section), sitting on 11 February 2025 as a Chamber composed of:

 Ivana Jelić, President,
 Erik Wennerström,
 Marko Bošnjak,
 Alena Poláčková,
 Georgios A. Serghides,
 Raffaele Sabato,
 Alain Chablais, judges,
and Ilse Freiwirth, Section Registrar,

Having regard to the above applications lodged on 24 October 2019 and 16 June 2023 respectively,

Having regard to the comments regarding the admissibility of the applications submitted by the respondent Government and the comments in reply submitted by the applicants,

Having deliberated, decides as follows:

INTRODUCTION

1.  The case concerns extraordinary measures taken in 2013 and 2014 by the Bank of Slovenia in respect of the major Slovenian banks which resulted in the cancellation of all shares or subordinated bonds held in those banks. The applicants complained that they continued to have no effective possibility to challenge the interference with their right to property because of the Slovenian authorities’ failure to implement the judgment in the case of Pintar and Others v. Slovenia, nos. 49969/14 and 4 others, 14 September 2021. There are thousands of individuals and entities in a similar situation to that of the applicants.

THE FACTS

2.  The applicant in the first case, Mr Tadej Kotnik (hereinafter “the first applicant”), is a Slovenian national who was born in 1972 and lives in Ljubljana. He was represented before the Court by Mr A. Kaluža, a lawyer practising in Ljubljana.

3.  The applicant in the second case, Mr Luka Jukič (hereinafter “the second applicant”), is a Slovenian national who was born in 1974 and lives in Žužemberk. He was represented before the Court by Mr M. Štamcar, a lawyer practising in Novo Mesto.

4.  The Slovenian Government (“the Government”) were represented by their Agent, Mrs J. Morela, Senior State Attorney.

5.  The facts of the case, as submitted by the parties, may be summarised as follows.

6.  The applications pertain to decisions made by the Bank of Slovenia (the Slovenian Central Bank) in 2013 and 2014, which implemented emergency measures purportedly aimed at safeguarding the stability of the financial system (hereinafter “the emergency measures”). These decisions were taken in respect of several major Slovenian banks, including Celje Bank and Nova KBM bank – in which the applicants held subordinated bonds (hereinafter “bonds”) and shares, respectively. As a result of these measures, the applicants’ bonds and shares, respectively, were cancelled without any compensation being afforded. For further background information regarding the emergency measures in question, see Pintar and Others, cited above, §§ 6-20.

7.  On 19 October 2016 the Constitutional Court of Slovenia reviewed the impugned legislation that enabled the above-mentioned emergency measures to be put in place (namely the Banking Act, see Pintar and Others, cited above, § 55) and found (by its decision no. U-I-295/13) that the legal framework within which the holders of the cancelled bonds and shares could claim compensation did not sufficiently safeguard their interests (see Pintar and Others, cited above, §§ 38-44). In response to the Constitutional Court’s decision, the National Assembly, on 22 November 2019, enacted the Act on the Judicial Protection Procedure for Former Holders of Eligible Liabilities of Banks (“the 2020 Remedy Act”, Official Gazette no. 65/2019). This act came into force on 19 December 2019 (see Pintar and Others, cited above, §§ 47-48). However – further to a request lodged by the Bank of Slovenia for a review of the constitutionality of almost all of the provisions of the 2020 Remedy Act and of section 350a of the Banking Act (see Pintar and Others, cited above, § 59) – the Constitutional Court on 5 March 2020 suspended the implementation of the 2020 Remedy Act, pending a review of its constitutionality. On 28 January 2021, the Constitutional Court lodged a request for a preliminary ruling with the Court of Justice of the European Union (CJEU) (see Pintar and Others, cited above, §§ 50-52). Further to a judgment of 13 September 2022 delivered by the CJEU (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 legislature enact a new law with a view to ensuring judicial protection of the rights of the former holders of the cancelled bonds and shares (hereinafter also referred to as “former holders”), while observing the principle of the Central Bank’s independence.

8.  In the meantime, on 14 September 2021, the Court found in Pintar and Others (cited above) a violation of Article 1 of Protocol No. 1 to the Convention with respect to a number of former holders, including the present applicants, who had held shares or bonds that had been cancelled pursuant to the above-mentioned emergency measures. As regards the situation pertaining at the relevant time (see paragraph 7 above), the Court found as follows:

“109.  In view of the foregoing, the Court finds that neither the compensatory remedy nor any of the other remedies that were tried by some applicants have provided for a reasonable opportunity to challenge the Bank of Slovenia’s impugned decisions and/or seek compensation. Given this finding, the Court will not address specific elements of the remedy provided by [the] 2020 Remedy Act ..., even more so since the review of this Act is currently pending before the Constitutional Court.

110.  In the light of the foregoing, the Court concludes that the interference with the applicants’ possessions was not accompanied by sufficient procedural guarantees against arbitrariness and was thus not lawful within the meaning of Article 1 of Protocol No. 1. It is thus neither necessary nor, due to the lack of relevant information, possible for the Court to ascertain whether the other requirements of that provision have been complied with. The Court accordingly refrains from expressing any opinion as to whether the extraordinary measures (as a result of which the applicants’ shares and bonds were cancelled) were in the general interest and, if so, whether a fair balance has been struck between the demands of the general interest of the community, and the protection of the applicants’ right to peaceful enjoyment of their possessions (see, mutatis mutandis, Project‑Trade d.o.o., cited above, § 87).”

9.  Referring to Article 46 of the Convention, the Court noted that it was essential for the former holders of cancelled bonds or shares to have access as soon as possible to a legal avenue enabling them to effectively challenge the interference with their right of property. It also noted that thousands of former holders were affected by the measures in question (§§ 113 and 114).

10.  On 27 June 2024, the Slovenian Government submitted an action report to the Committee of Ministers regarding the execution of the Court’s judgment in the case of Pintar and Others (cited above). They confirmed that the amount awarded to the applicants had been duly paid (including default interest prompted by a slight delay in payment). Regarding general measures, the Government emphasised that Parliament had enacted a law on 23 May 2024 aimed at securing the former holders’ right to an effective remedy (see paragraph 11 below). This law, in their view, fulfilled their obligations under Article 46 of the Convention. At the time of the adoption of the Court’s present decision, the procedure for supervising the execution of the Pintar and Others judgment is still pending before the Committee of Ministers.

11.  On 23 May 2024 the Act on the Judicial Protection Procedure for Former Holders of Eligible Liabilities of Banks was enacted (hereinafter “the 2024 Remedy Act”). The 2024 Remedy Act was published on 31 May 2024 and came into force on 15 June 2024. Its most relevant provisions are outlined in paragraphs 21 to 36 below. The Maribor District Court has exclusive jurisdiction to decide in proceedings conducted under the 2024 Remedy Act. All announcements of the Maribor District Court regarding actions brought by former holders are published on its website.

12.  On 17 October 2024 the first applicant and thirteen other former holders lodged an application to initiate proceedings for the review of the constitutionality and legality of the 2024 Remedy Act aimed at challenging (in particular) sections 3 (1) and (3), 33, 41, and 48 of that Act (see paragraphs 22, 32, 35 and 36 below). They argued that they would have been better off if section 3 (1) and (3) and section 48 of the 2024 Remedy Act were to be abrogated, which would allow for their related claims against commercial banks and the Bank of Slovenia to be examined together, more quickly and efficiently, and at a lower cost. They also argued that the State should not be obliged to act as an intervening party on behalf of the Bank of Slovenia (as stipulated in section 33 of the 2024 Remedy Act), as this implied that the State would be acting as an adversary to the former holders – thus exacerbating the inequality between the two parties to the dispute. Lastly, they challenged section 41 of the 2024 Remedy Act, arguing that if the general provisions of civil law had been applied to their case, they would have been entitled to a significantly higher level of default interest. The petitioners relied on the constitutional provisions guaranteeing equality before the law, equal protection of rights, the right to judicial protection, and the prohibition on the retroactive application of law. They also proposed that the implementation of sections 3 (3) and 48 (1) of the 2024 Remedy Act be suspended and that their claims be afforded absolute priority treatment.

13.  On 5 December 2024, the Constitutional Court accepted the application for consideration. It found that the petitioners could exceptionally be considered to have the required legal interest – despite the absence of any specific decision affecting them and despite the fact that the relevant usual remedies had not been exhausted. It referred in this connection to the significant passage of time since the cancellation of eligible bank liabilities and emphasised the public interest in addressing the constitutionality of the 2024 Remedy Act. However, it dismissed the petitioners’ proposal (aimed at preventing the disjoinder of cases against the Bank of Slovenia and commercial banks) for the suspension of the implementation of sections 3 (3) and 48 (1). The Constitutional Court reasoned that granting such a proposal would necessitate suspending the implementation of the entire act. The Constitutional Court distinguished the current application from the earlier case no. U-I-4/20 (see paragraph 7 above), noting that the latter also concerned data-protection issues and that, in addition, the present case did not seem to require a preliminary ruling from the CJEU. Referring to the Court’s judgment in Pintar and Others (cited above), the Constitutional Court concluded that the harm caused by suspending the contested provisions would outweigh the alleged harm resulting from their continued implementation. Lastly, the Constitutional Court decided to treat the application in question with absolute priority.

14.  In the meantime, several steps have been taken by the domestic authorities in respect of the implementation of the 2024 Remedy Act, including the following:

- On 29 June 2024, the Bank of Slovenia published on its website the relevant documentation, as required by sections 8 and 47 (2) of the 2024 Remedy Act (see paragraph 23 below).

- On 12 August 2024 the Government lodged a proposal with the Maribor District Court for the appointment of two members of the Expert Committee (see paragraphs 27 and 28 below). On 6 September 2024 the Maribor District Court issued a decision to initiate the procedure for the preparation of a preliminary opinion, and to this end called on the Bank of Slovenia and non‑profit representative associations (see paragraph 27 below) to propose persons to be appointed as the remaining members of the Expert Committee within thirty days. According to the Government, on 4 September 2024 the Bank of Slovenia submitted a proposal to the aforementioned court for the appointment of one member of the Expert Committee.

- On 2 October 2024 the Regulation on determining the rewarding and reimbursement of expenses of members of the Expert Committee was published in Official Gazette No. 84/24. It entered into force on 17 October 2024.

- On 16 September 2024 the Ministry of Finance set up separate virtual data rooms for each bank that was subject to the Bank of Slovenia’s extraordinary measures, in compliance with the time-limit set out in sections 9 and 52 of the 2024 Remedy Act; that is, within three months of the entry into force of the 2024 Remedy Act – see paragraphs 23 and 24 below). Instructions for accessing virtual data rooms were published on the central website of the State administration.

15.  The first applicant owned 18 BCE11 bonds (subordinated bonds with non-fixed maturity) and 3,347 BCE16 bonds (subordinated bonds with a fixed maturity) in Celje Bank. Pursuant to the Bank of Slovenia’s decision of 16 December 2014 (hereinafter “the 2014 Decision”), his bonds were cancelled. He complained about that cancellation in the application that was decided by the judgment in Pintar and Others (cited above, §§ 23-25).

16.  The first applicant’s present application concerns a refusal to grant him interest payments on his BCE16 bonds (known as “coupon payments”) before those bonds were cancelled by the 2014 Decision (see paragraph 15 above).

17.  On 27 November 2014 the first applicant requested that Celje Bank pay him the coupon rate that had fallen due on 26 November 2014 (the coupon payment date) and which amounted to 26,776 euros. An enforcement order was issued in the applicant’s favour on the same day but was annulled on 8 January 2015, following an objection lodged by Celje Bank. On 3 April 2017 the Celje District Court dismissed a claim lodged by the first applicant for the issuance of the coupon payment in question. The first applicant appealed, arguing that the interest payment in question no longer pertained to the bond itself, as it had become independent and separated from that bond on a date (namely, the coupon payment date) that fell prior to the maturity date. He also argued that the relevant provision in the 2014 Decision did not explicitly state that the cancelation also applied to the interest that had already accrued in respect of coupon payments, which, in his view, constituted a restrictive interpretation of the provision in question. The Celje Higher Court, on 12 April 2018, upheld the lower court’s judgment. On 25 October 2018 an application lodged by the first applicant for leave to appeal was rejected by the Supreme Court. He subsequently lodged a constitutional complaint, which the Constitutional Court decided not to accept for consideration on 19 April 2019.

18.  The Celje District Court and the Celje Higher Court, in examining the matter on the merits, referred to an order on special supervisory measures issued by the Bank of Slovenia on 19 November 2014. That order required Celje Bank to suspend the payments of, inter alia, interest on BCE16 bonds. The two courts further referred to the 2014 Decision (see paragraph 15 above), which contained the provision that, in addition to interest on the BCE16 bonds, interest that had accrued on those bonds up to the date of that decision should be likewise cancelled. In particular, they noted that the 2014 Decision concerned not only the bonds but also the related interest. The courts deemed that the suspension and subsequent cancellation of Celje Bank’s obligation to pay the coupon rate in question had been lawful and justified.

19.  Mr Jukič owned 4,850 shares of the Nova KBM Bank (symbol KBMR), which were cancelled – pursuant to the Bank of Slovenia’s decision of 17 December 2013 (hereinafter “the 2013 Decision” – see Pintar and Others, cited above, §§ 26-28). With respect to the 2013 Decision, the Court found, in Pintar and Others (cited above), a violation of Article 1 Protocol No. 1 to the Convention because, inter alios, the second applicant had not had a reasonable opportunity to challenge the Bank of Slovenia’s impugned decisions and/or to seek compensation (see paragraph 8 above). The second applicant, who lodged his application one year and nine months after the delivery of the judgment in Pintar and Others (cited above), alleged (in respect of the instant case) that, even after the Court’s judgment in Pintar and Others, the respondent State had continued to fail to adopt appropriate measures to secure the rights of the former holders of cancelled bonds and shares, who had therefore remained unable to challenge the 2013 Decision and ensuing related actions taken against them.

RELEVANT LEGAL FRAMEWORK

20.  The 2024 Remedy Act (the Act on the Judicial Protection Procedure for Former Holders of Eligible Liabilities of Banks – Zakon o postopku sodnega varstva nekdanjih imetnikov kvalificiranih obveznosti bank, Official Gazette no. 44/24) was enacted on 23 May 2024 and entered into force on 15 June 2024 (see paragraph 11 above). The following provisions are most relevant to the examination of the present applications.

21.  Section 1 sets out the purpose of the 2024 Remedy Act as follows:

“This Act regulates:

- the legal basis for compensation for damage, the jurisdiction of courts, and special procedural rules that enable former shareholders or creditors of a bank, whose shares or ... liabilities have been cancelled in whole or in part, or other persons whose rights have been impacted owing to the effects of the decision of the Bank of Slovenia to impose the extraordinary measures of cancelling eligible bank liabilities, pursuant to sections 253.a and 261.a of the Banking Act ... (hereinafter “former holders”) – to obtain effective judicial protection;

- access to documents and data that the Bank of Slovenia considered or should have considered when imposing the extraordinary measures of cancelling eligible bank liabilities, which were imposed pursuant to sections 253.a and 261.a of the Banking Act (hereinafter “the extraordinary measures”);

- the publication of decisions of the Bank of Slovenia that imposed the extraordinary measures (hereinafter “the Bank of Slovenia’s decisions”), and the manner of providing documents and data relating to the extraordinary measures.”

22.  Section 3 sets out the situations to which the 2024 Remedy Act applies, and reads as follows:

“(1) A former holder may only claim compensation for the effects of the [respective] decision [taken by the Bank of Slovenia] in accordance with the procedure prescribed by this Act.

(2) This Act shall not apply if a final court decision has established that a criminal offense was committed in connection with the [respective] Bank of Slovenia’s decision and the former holder claims that the damage was caused as a result of this criminal offence.

(3) This Act does not apply to a claim by which the former holder asserts violations of the commercial bank’s explanatory duty, nor to other claims [by which the claimants] do not seek compensation under the first paragraph of this section.

(4) A person who is a former shareholder or creditor of a bank, whose bank shares or [bonds] have ceased in whole or in part based on the [respective] Bank of Slovenia’s decision, is not considered a former holder under this Act if this person has asserted a claim against the commercial bank for a violation of the explanatory duty, and a final court decision has established the nullity of the contractual relationship regarding the sale of financial instruments that constituted the bank’s eligible liabilities.”

23.  The 2024 Remedy Act provides that the Bank of Slovenia should, within fifteen days of its entry into force, publish a number of documents – namely, its decisions on extraordinary measures, documents relating to the contractual relationship between the Bank of Slovenia and those carrying out assessments of the value of the banks’ assets, asset-quality reviews, stress tests and real estate evaluations, and stress test reports and summaries of certain documents that are to be published in the “virtual data room[s]”(section 8). A special “virtual data room” is to be set up in respect of each of the banks affected by the extraordinary measures, within three months of the entry into force of the 2024 Remedy Act (sections 9 and 47, see paragraph 11 above).

24.  The virtual data rooms are meant to allow, inter alios, former holders of bonds or shares cancelled by the Bank of Slovenia’s 2013 and 2014 decisions (“former holders”) secure access to the documents and information (in respect of each bank) specified in section 20 – inter alia, decisions taken by the Bank of Slovenia (with any attachments); documents showing the content of the contractual relationship between the Bank of Slovenia and the person who prepared the valuation of the bank’s assets; the valuation of the bank’s assets; documents showing the content of the contractual relationship between the Bank of Slovenia and the person or persons who performed the asset-quality review and the stress test; the asset-quality review report; documents relating to the implementation of the bank’s capital increase; the stress test report; minutes and material of the steering committee that directed and supervised the due diligence audit of the bank in 2013; and other documents on which the respective Bank of Slovenia’s decision was based.

25.  Pursuant to section 21, a person entering the virtual data room shall electronically sign a confidentiality statement. Documents and data in the virtual data room that are marked as confidential – and any “business secrets” uncovered in the virtual data room – may be used only for the purpose of the proceedings under the 2024 Remedy Act. Under section 22 of the 2024 Remedy Act, for the purposes of proceedings under the 2024 Remedy Act and notwithstanding the provisions of any other laws, a former holder has the right to obtain from the Bank of Slovenia any information or document relating to the extraordinary measures.

26.  In any proceedings initiated by means of bringing a legal action (see paragraphs 30-36 below), the plaintiff may request the competent court (that is the Maribor District Court, see paragraph 11 above) to order the public institutions (such as the Bank of Slovenia, the data room manager, the Court of Audit and the National Bureau of Investigation – as well as a bank that is subject to the extraordinary measure, or a third party) to submit a document which the plaintiff alleges to be in their possession or to disclose information known to them – regardless of whether that document or information is marked as confidential, personal data, or a business secret. A similar request may be made by the Bank of Slovenia or an intervening party. If such a request is allowed, the document or information in question must be published in the virtual data room, unless the court decides that the protection of the rights of third parties requires that it should be made available only to the experts (sections 36 and 37).

27.  A preliminary opinion (predhodno mnenje) is a preliminary step in the judicial protection procedure provided by the 2024 Remedy Act (sections 23‑25). This serves – before the formal judicial process begins – as an initial, non-binding evaluation of the loss (if any) incurred by the former holders as a result of the Bank of Slovenia’s extraordinary measures. A preliminary opinion is to be prepared by a group of independent experts (hereinafter “the Expert Committee”) appointed by the court upon the proposal of the government, the Bank of Slovenia, or a non-profit representative association acting in the best interest of former holders (hereinafter “representative association”); a proposal for appointment of experts may be submitted no later than two months after the entry into force of the 2024 Remedy Act. The Committee is composed of seven members: two proposed by the government, one by the Bank of Slovenia, and three by the representative association; one (who is also the chairperson of the Committee) is appointed directly by the court. Decisions are to be taken by a majority vote.

28.  Once a proposal for the formation of the Expert Committee is made by one of the eligible participants (that is, the government, the Bank of Slovenia or the representative association), the court shall issue a decision to start the preliminary opinion procedure and publish a call for other eligible participants to suggest committee members within thirty days. If other eligible participants submit candidates within the deadline, the court shall set a further deadline of fifteen days for any exchange of comments on the proposed candidates. The court shall also announce its intended committee chairperson and seek comments on this appointment. If no candidates are put forward within the deadline, the court shall appoint the members on its own initiative within a further fifteen days. The court’s decision on appointing the Expert Committee shall be published in the virtual data room, on the court’s notice board, and on its website. Within the following six months the Expert Committee must prepare a draft opinion. The court shall forward that opinion to the participants for comments and amendments, which they must submit within thirty days. The draft opinion shall also be published in the virtual data room, and former holders shall be able to submit comments to the court within thirty days of its publication. The Expert Committee must prepare the final preliminary opinion within three months of the period for comments ending. It must include the data and methods used, the Committee’s findings, and the responses to any comments. The court shall publish the final preliminary opinion in the virtual data room and its summary on its website on the same day. The deadline for bringing legal actions under the 2024 Remedy Act shall be suspended from the start of the preliminary opinion procedure until the summary is published. If the summary of the preliminary opinion is not published within twelve months of the Expert Committee being appointed, the deadline for lodging a legal action shall resume (section 23).

29.  If the preliminary opinion finds that the former holders incurred losses as a result of the extraordinary measures (that is to say that the former holders’ situation was worse than it would have been if those measures had not been taken), the government should – (by means of issuing a governmental regulation), within three months of the publication of the preliminary opinion – establish a compensation scheme. Such a scheme should set out the process and schedule for calculating and paying compensation and ensure that it reflects budgetary limitations. The compensation scheme should apply to different classes of the eligible liabilities of individual banks, with payments covering 60% of the damage caused, plus interest. Funds for these payments are to be provided from the budget of the Republic of Slovenia (sections 26 and 51). Once the former holders receive payment in full or the first instalment of the payment, their status as former holders shall end, and they will lose the right to claim further compensation for the cancellation of their respective shares or bonds.

30.  In the absence of a settlement, the former holders may claim compensation in court proceedings against the Bank of Slovenia for the alleged loss incurred owing to the extraordinary measures (section 27). Any damages awarded are to be paid by the State (section 42).

31.  Legal actions under the 2024 Remedy Act are to be afforded priority treatment (section 27). They may be joined with a view to conducting a pilot procedure (vzorčni postopek) (section 32). Plaintiffs whose claims arise from the same decision of the Bank of Slovenia may bring a collective legal action. Any call for a collective action is to be published on the Maribor District Court’s website and noticeboard (section 28). Individual actions and collective actions must be brought, respectively within nine and six months of the publication of the notice of the establishment of the virtual data rooms (see paragraph 23 above) (section 29). After the expiry of the aforementioned time-limits, the Bank of Slovenia shall have six months to reply to the legal actions (sections 30 and 31).

32.  Under section 33 of the 2024 Remedy Act, the State should participate in the proceedings as an intervening party on the side of the Bank of Slovenia.

33.  Under section 34 of the 2024 Remedy Act the burden of proof shall rest with the Bank of Slovenia – except as regards claims aimed at establishing that the plaintiff is the “former holder”, claims aimed at gaining access to certain information or documents, or any claim pursued by the State against the Bank of Slovenia for failure to exercise due diligence (which is regulated in more details by section 43 of the 2024 Remedy Act).

34.  In the court proceedings, the preliminary opinion (see paragraph 28 above) can be considered to constitute evidence. However, the court may also seek further expertise and appoint experts (section 38). If, following the proceedings, the court finds that the grounds for legal action are well founded, it must determine in the judgment on liability (sodba o temelju) the extent to which the State is liable for damage with respect to each class of eligible liabilities (section 39). Within a month of the serving of such a judgment, the plaintiffs must set out the amount claimed in damages (if they have not already done so). The Bank of Slovenia will be given a deadline of between thirty and sixty days to reply (section 40).

35.  As regards the interest in respect of damages awarded, section 41 provides as follows:

“Compensation shall accrue interest from the day on which the Bank of Slovenia’s [respective] decision was issued until payment. Compensation shall accrue interest at the interest rate applied by the European Central Bank to its main refinancing operations at the time that the interest was accruing [v času teka obresti]. Should the Republic of Slovenia fail to pay the compensation to the claimant by the [set] deadline ..., the compensation shall accrue interest from the first day following the expiration of this deadline at the default interest rate.”

36.  Section 48 of the 2024 Remedy Act provides that a court which is dealing with legal actions against the Bank of Slovenia or the Republic of Slovenia concerning the effect of one of the Bank of Slovenia’s decisions, but which no longer has jurisdiction to deal with the matter in question pursuant to the 2024 Remedy Act (hereinafter “the original court”), should within two months of the Act’s entry into force declare its lack of jurisdiction and transfer the case in question to the court that does (under the 2024 Remedy Act) have jurisdiction to adjudicate it (namely, the Maribor District Court, see paragraph 11 above). If the legal action encompasses multiple claims and the original court has declared its lack of jurisdiction only with respect to certain of those claims, the original court shall send a copy of the legal action to the relevant court (that is the Maribor District Court) and continue proceedings in respect of the claims over which it does retain jurisdiction.

37.  Under the Constitutional Court Act (enacted on February 28, 1994, Official Gazette No. 15/94, with subsequent amendments), a review of constitutionality in Slovenia can be initiated by lodging either a request (zahteva za oceno ustavnosti) or an application (pobuda). A request may only be lodged by specific entities, such as the government, the National Assembly, the Ombudsman, or the Bank of Slovenia. The Constitutional Court is obliged to decide on all such requests. By contrast, an application may be lodged by anyone who asserts a legal interest in the matter, but the Constitutional Court is not obliged to review it. The decision on whether or not to examine the application is at the Constitutional Court’s discretion and will first depend on whether the petitioner has demonstrated a legal interest in the matter to be considered.

COMPLAINTS

38.  Both applicants complained that their property rights had been violated by the Bank of Slovenia’s decisions to put in place emergency measures; they also complained of the continuous lack of an effective remedy or procedure by which to challenge the measures in question and to seek compensation. They invoked Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention. In this connection, the first applicant complained that his right to interest payments on his BCE16 bonds, which constituted an existing possession, had been retroactively revoked in violation of Article 1 of Protocol No. 1. Both applicants submitted that the respondent State had failed to comply with the Court’s judgment in Pintar and Others (cited above).

THE LAW

39.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

40.  As regards the first applicant, the Government argued that his application was substantially the same as application no. 20530/16, which the first applicant had previously lodged together with another applicant. The Government maintained in this connection that the interest whose payment the first applicant had sought in the domestic civil proceedings concerned the cancelled bonds addressed in application no. 20530/16, which had been decided by the judgment in Pintar and Others v. Slovenia (nos. 49969/14 and 4 others, 14 September 2021). In the alternative, the Government argued that the first applicant could no longer claim to be a victim of the alleged violation, since the Court had already ruled in his favour in Pintar and Others (cited above) and had awarded him just satisfaction, which he had already received.

41.  The Government further contended that the payment of interest, such as the coupon rate, was intrinsically linked to the issue of bond cancellation and had been addressed by the same 2014 Decision. In the Government’s submission, the cancellation of interest could not be said to have a retroactive effect, but it was indeed affected by the same violation identified in Pintar and Others (cited above). In this regard they pointed out that a new law – the 2024 Remedy Act – had been enacted and argued that that law now provided the applicants with an effective remedy. The Government also submitted that should a domestic court establish during the proceedings envisaged in the 2024 Remedy Act that a cancellation of bonds or shares was unjustified, it would have to decide also on the related interest cancelled by the same Bank of Slovenia’s decision.

42.  The Government argued that both applications should be rejected for failure to exhaust the available domestic remedies. In their view, the applicants should make use of the new remedy provided by the 2024 Remedy Act and present any objections concerning the justifiability of the emergency measures in question in the domestic proceedings that were now available to them. They argued that the 2024 Remedy Act gave the former holders of cancelled shares or bonds effective access to all relevant documents and information and provided for an effective and fair procedure – which, among other things, allowed former holders to engage in collective litigation and to embark upon a pilot procedure.

43.  The Government submitted that the 2024 Remedy Act was fully in force, noting that the applications lodged by the first applicant and other petitioners for the suspension of some its provision had been dismissed by the Constitutional Court (see paragraphs 12 and 13 above). They also pointed out that (at the time of their submissions) the Expert Committee had been in the process of being set up. They also submitted that other domestic courts in which the proceedings had in the past been initiated by the former holders were referring those cases to the Maribor District Court (see paragraph 11 above).

44.  Lastly, the Government submitted that should the Court decide not to dismiss the cases on the grounds of the non-exhaustion of domestic remedies, it should strike them out of its list of cases, given that the matter had now been resolved.

45.  The first applicant argued that the interest payments (that is, the coupon rate) in question had been due at the coupon payment date and since then had been “legally independent” of the bonds. He submitted that Celje Bank had been under an obligation to make the interest payments in question and had had the funds to make such payments but had been instructed by the Bank of Slovenia to halt them. When the 2014 Decision had been issued, Celje Bank had already been in three-week arrears with the payment of the interest in question. In the first applicant’s opinion, his interest payments had not been covered by the 2014 Decision and the subject matter of the application which he had lodged, and which had been decided in the case of Pintar and others (cited above) had been different from his present one. That, in his view, was confirmed by the fact that the claim for the interest payment in question had been examined in a separate set of civil proceedings. He also disputed the decisions delivered by the domestic courts in the impugned proceedings, arguing that, unlike him, certain insurance companies had been successful with similar claims lodged with civil courts seeking the payment of interest due on bonds.

46.  In the first applicant’s submission, the 2024 Remedy Act did not address the particular situation regarding the interest payments that had fallen due before the cancellation of related bonds; in any case, the first applicant argued, it did not constitute an effective remedy for the former holders. In this connection the first applicant criticised the 2024 Remedy Act for excluding the application of the (usual) statutory default interest rate (section 41) and for requiring the intervention of the Republic of Slovenia as a third party on the side of the Bank of Slovenia (section 33). He also criticised sections 3 (1) and (3) and 48 (1), arguing that it was not acceptable to limit the possibility for the former holders to claim compensation for the effects of the Bank of Slovenia’s decisions only by way of the special procedure prescribed by this Act, as this entailed the separation of related sets of legal proceedings and the weakening of the former holders’ position. Lastly, the first applicant also submitted that the Constitutional Court’s decision of 5 December 2024 (see paragraph 13 above), by which his application had been accepted for consideration, added weight to his arguments about the unconstitutionality of certain provisions of the 2024 Remedy Act.

47.  The second applicant disputed the Government’s arguments and maintained that the 2024 Remedy Act did not necessarily provide for an effective remedy, since similar laws had been enacted in the past and then revoked by the Constitutional Court.

48.  The Court at the outset observes that the applicants raised their complaints under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention (see paragraph 38 above). Being the master of the characterisation to be given in law to the facts of the case (see Radomilja and others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018), the Court considers that the applicants’ complaints should be examined from the standpoint of Article 1 of Protocol No. 1 to the Convention (compare, mutatis mutandis, Pintar and Others, cited above, §§ 68 and 69), which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

49.  The Court notes that the Government raised several preliminary objections, which will be addressed in turn.

50.  The Court must first consider the Government’s objection that the first applicant’s application, which predates the delivery of the judgment in Pintar and Others, was substantially the same as his application no. 20530/16, which was decided in that judgment (see paragraph 40 above). An application will generally fall foul of the first limb of Article 35 § 2 (b) where an applicant has previously brought an application which related essentially to the same person, the same facts and raised the same complaints (see Vojnovic v. Croatia (dec.), no. 4819/10, § 28, 26 June 2012; Anthony Aquilina v. Malta, no. 3851/12, § 34, 11 December 2014; and X. v. Slovenia (dec.), no. 4473/14, § 40, 12 May 2015). It is insufficient for an applicant to put forward relevant new information where he or she has merely sought to support his or her past complaints with new legal argument (see, for example, I.J.L. v. the United Kingdom (dec.), no. 39029/97, 6 July 1999; Kafkaris v. Cyprus (dec.), no. 9644/09, § 68, 21 June 2011; and Harkins v. the United Kingdom (dec.) [GC], no. 71537/14, § 42, 15 June 2017).

51.  The Court observes that in his present application the first applicant challenged the rejection of his claim for a coupon payment, whereas in his application no. 20530/16 he had contested the cancellation of the BCE16 bonds to which the coupon in question was related (see paragraphs 15 and 16 above). While there is an undeniable connection between the bonds and the interest payment (that is, the coupon rate), the Court accepts that the two matters – which were subject to separate sets of proceedings at the domestic level and may involve distinct legal arguments (such as the first applicant’s assertion that the interest payment in question should have been paid, irrespective of the cancellation of the BCE16 bonds, see paragraph 17 above) – are not substantially the same for the purposes of Article 35 § 2 (b) of the Convention. For the same reasons, and bearing in mind that he has also raised the issue of the respondent State’s ongoing failure to provide an effective remedy (see paragraphs 38 and 46 above), the first applicant cannot be precluded from asserting that he has been a victim of the alleged violation (see paragraph 40 above). These objections of the Government must therefore be dismissed. Having said that, the Court would emphasise that its finding regarding the above-noted objections is without any prejudice to the outcome of any future domestic proceedings concerning the first applicant’s claims relating to the BCE16 bonds and/or any related coupon payment.

2. Objections concerning both applicants

52.  The Government further argued that, that in view of the recent domestic legal developments, the applications should be rejected for non‑exhaustion of domestic remedies or, alternatively, should be struck out of the Court’s list of cases because the matter in dispute had been resolved (see paragraphs 41-44 above). They pointed out that on 23 May 2024 an Act had been passed by the Slovenian Parliament that set out the judicial‑protection procedure in respect of former holders of eligible liabilities of banks – namely, the 2024 Remedy Act (see paragraphs 11, 41 and 42 above) – and submitted that the applicants were now in a position to secure the protection of their property rights at the domestic level.

(a)   General principles

53.  It is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It should not take on the role of Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level (see Communauté genevoise d’action syndicale (CGAS) v. Switzerland [GC], no. 21881/20, § 138, 27 November 2023). The rule of exhaustion of domestic remedies is based on the assumption – reflected in Article 13 of the Convention, with which it has close affinity – that there is an effective remedy available in respect of the alleged violation. The rule is therefore an indispensable part of the functioning of this system of protection (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 69, 25 March 2014).

54.  States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, among many authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996-IV). It should be emphasised that the Court is not a court of first instance; it does not have the capacity (and nor is it appropriate to its function as an international court) to adjudicate on large numbers of cases which require the finding of basic facts or the calculation of monetary compensation – both of which should, as a matter of principle and effective practice, be the domain of domestic jurisdictions (see Vučković and Others, cited above, § 70, and Hodžić v. Slovenia (dec.), no. 3461/08, § 17, 4 April 2017)

55.  Nevertheless, the only remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and which at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see Communauté genevoise d’action syndicale (CGAS), cited above, § 139; Akdivar and Others, cited above, § 66; and Dalia v. France, 19 February 1998, § 38, Reports 1998‑I). In addition, in accordance with the “generally recognised principles of international law”, there may be special circumstances that absolve the applicant from the obligation to exhaust the domestic remedies at his or her disposal (see Selmouni v. France [GC], no. 25803/94, § 75, ECHR 1999‑V). However, the Court points out that the existence of mere doubts as to the prospects of success of a particular remedy that is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Communauté genevoise d’action syndicale (CGAS), cited above, § 142; Brusco v. Italy (dec.), no. 69789/01, ECHR 2001-IX; and Grzinčič v. Slovenia, no. 26867/02, § 84, 3 May 2007).

56.  An assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court. However, as the Court has held on many occasions, this rule is subject to exceptions, which may be justified by the particular circumstances of each case. Among such exceptions are situations where, following a pilot judgment on the merits in which the Court found a systemic violation of the Convention, the respondent State has made available a specific remedy to redress at the domestic level grievances of persons in a similar situation (see Hodžić, cited above, § 19, and Muratović v. Serbia (dec.), no. 41698/06, § 16, 21 March 2017).

57.  As regards the burden of proof, it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective under the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Communauté genevoise d’action syndicale (CGAS), cited above, § 143, and Vučković and Others, cited above, § 77).

(b)   Application of the above-noted principles to the present case

58.  The Court notes that in 2016, the Slovenian Constitutional Court found that the Banking Act (which was valid at the time of the events in question) did not provide effective judicial protection to former holders of the bonds or shares cancelled by the Bank of Slovenia’s 2013 and 2014 decisions (see paragraph 6 above) and ordered the legislature to create an appropriate legal framework (see paragraph 7 above). For this purpose, in 2019, the 2020 Remedy Act was enacted. However, the 2020 Remedy Act was never implemented, as it was suspended less than three months after it had entered into force; it was subsequently, in 2023, revoked by the Constitutional Court following a successful constitutional challenge lodged by the Bank of Slovenia and the delivery of the relevant judgment of the CJEU (see paragraph 7 above). It was with respect to the failure of the respondent State to create an effective legal remedy for the former holders that the Court found, in 2021, a violation of Article 1 of Protocol No. 1 to the Convention in Pintar and Others (cited above) (see paragraphs 8 and 9 above). The latter judgment was delivered after the suspension of the 2020 Remedy Act and prior to its revocation.

59.  The applicants lodged their applications in 2019 and 2023, during a period when domestic law (as indicated above) did not provide an effective solution for their respective situations. However, in June 2024, a new law – namely, the 2024 Remedy Act – came into force (see paragraph 11 above). It allows former holders to bring legal actions against the Bank of Slovenia and provides that the Republic of Slovenia shall be liable for any damages awarded. The 2024 Remedy Act also establishes the right of former holders to access documentation relating to the Bank of Slovenia’s 2013 and 2014 decisions. Information and relevant material – much of which has been of a confidential nature and has not previously been accessible (ibid., § 107) – should be made available through “virtual data rooms”, which former holders and their authorised representatives should be able to access (see paragraphs 23-26 above). Additionally, the law provides for the potential creation of a settlement scheme through which former holders may recover 60% of their established financial losses. Any such scheme would be contingent on a preliminary assessment conducted by the Expert Committee finding that the former holders had suffered losses owing to the extraordinary measures. Accepting such repayment under the compensation scheme is voluntary, and a former holder will be able to refuse payment under the scheme and seek full compensation in court proceedings in which the burden of proof regarding, inter alia, the justifiability of the emergency measures would rest on the government. The law also provides for the possibility of collective legal actions and a pilot procedure aimed at rendering the process more effective and accessible for the former holders (see paragraphs 20-36 above).

60.  The Court notes that the process of establishing liability for any financial losses incurred by the former holders appears to be a complex one, involving multiple procedural steps (as stipulated in the 2024 Remedy Act and summarised in paragraphs 23-36 above). It further observes that the steps required to be taken by the authorities have so far been followed within the stipulated time frame: for instance, the virtual data rooms have been set up and the members of the Expert Committee have been proposed by the Government and the Bank of Slovenia (see paragraphs 14, 23, 27 and 28 above). The Court finds important the fact that the 2024 Remedy Act sets strict deadlines for the formation of the Expert Committee and the preparation of the preliminary opinion. It also stipulates that if the summary of the preliminary opinion is not published within twelve months of the Expert Committee’s appointment, the deadline for initiating legal action shall resume. Other key procedural steps are also subject to time-limits, and legal actions brought under the 2024 Remedy Act are to be afforded priority treatment (see paragraphs 23, 27, 28, 29, 31 and 36 above). This time constraint, along with other elements of the proceedings (such as access to relevant data and the reversal of the burden of proof – see paragraphs 23-26 and 33 above), suggests that the proceedings could, in principle, serve as an effective legal avenue for the former holders.

61.  The Court takes note of the fact that the first applicant, together with thirteen other former holders, lodged an application for a review of constitutionality of sections of 3 (1) and (3), 33, 41, and 48 of 2024 Remedy Act (see paragraphs 12, 22, 32, 35 and 36 above above). It is not for the Court to speculate about the outcome of these proceedings before the Constitutional Court. It will confine itself to observing that the 2024 Remedy Act (i) was enacted following extended scrutiny by the Constitutional Court and the CJEU of the previous laws governing the issue (see paragraph 7 above), (ii) has been in force since 15 June 2024, and (iii) is currently being implemented, as explained above (see paragraph 60 above). Moreover, the first applicant and other petitioners had lodged an application that concerned only a few provisions of the 2024 Remedy Act and their request for the suspension of the implementation of some of these provisions had been dismissed by the Constitutional Court (see paragraph 13 above). In this connection, the Constitutional Court referred to, inter alia, the differences between this constitutional challenge (concerning the 2024 Remedy Act) and the earlier constitutional challenge (which had led to the suspension, and ultimately revocation, of the 2020 Remedy Act – see paragraphs 7, 12 and 13 above).

62.  As regards the first applicant’s arguments concerning the provisions of the 2024 Remedy Act on the domestic courts’ jurisdiction and related consequences, the question of interest rates, and the intervention of the State as a third party (see paragraph 46 above), the Court must have due regard to the principle of subsidiarity and the relevant margin of appreciation left to the domestic authorities in respect of the implementation of a pilot judgment (see mutatis mutatis, Hodžić, cited above, § 13, and Anastasov and Others v. Slovenia (dec.), no. 65020/13, §§ 68, 71 and 75, 18 October 2016). The Court reiterates in this respect that where an applicant challenges a provision of a statute or regulation as being in itself contrary to the Convention, a remedy recommended under national law to review the compatibility of legislation with provisions of superior legal force constitutes a domestic remedy that must be exhausted, provided that it is directly accessible to the litigants concerned and provided that the court applied to has jurisdiction, in theory and in practice, to abrogate a provision of a statute or of regulations that it considers contrary to a provision having superior legal force (see Communauté genevoise d’action syndicale (CGAS), cited above, § 145). In the present case, the first applicant (together with other petitioners), considering certain provisions of the 2024 Remedy Act to be inconsistent with the Slovenian Constitution, brought the matter before the Constitutional Court (see paragraphs 12 and 13 above) and thereby acted in accordance with the above-stated requirement. It is undisputed that the Constitutional Court has jurisdiction to adjudicate the issue and, if it concurs with the petitioners’ arguments, has the authority to abrogate all or some of the challenged provisions (see, for illustrative purposes, Zeljković v Slovenia, [Committee], no. 33805/17, § 18, 5 September 2017). Currently the Constitutional Court’s proceedings regarding this matter are still pending, and any complaint related to it must be considered to be premature.

63.  In view of the foregoing and without prejudice to the Constitutional Court’s consideration of the application of 17 October 2024 (see paragraphs 12 and 13 above), the Court considers that in order to comply with Article 35 § 1 of the Convention the applicants and other former holders should in principle exhaust the remedy provided in the 2024 Remedy Act and any directly related accessible and effective remedies before the Constitutional Court. Having said that, in relation to the present case, the Court finds it necessary to address two additional issues.

64.  Firstly, as regards the first applicant, the subject matter of his complaint is not the cancellation of his bonds as such but the refusal of his claim for the payment of the coupon interest that accrued before the cancellation of these bonds. However, the first applicant has not pointed to any provisions in the 2024 Remedy Act that would prevent him from claiming damages relating to the coupon interest within the proceedings outlined in the Act. In fact, pursuant to its section 3, the 2024 Remedy Act applies to former holders’ claims for compensation that arose from the effects of the respective decision taken by the Bank of Slovenia (see paragraph 22 above). Given the position of the domestic courts that the applicant’s coupon interest (along with the bonds in question) was cancelled as a result of the Bank of Slovenia’s 2014 decision (see paragraphs 17 and 18 above), it is – as things currently stand – reasonable to assume that any such claim would fall under the scope of the 2024 Remedy Act. The first applicant indeed did not demonstrate otherwise.

65.  Secondly, at the time when they lodged their present applications with the Court, the applicants had no effective remedy available in Slovenian law in respect of the impugned cancellation of their respective coupon interest payments and shares (see paragraphs 58 and 59 above). However, the Court finds that, in this case, several factors justify an exception to the general rule linking the assessment of the exhaustion of domestic remedies to the date on which the applications were lodged with the Court (see the case-law referred to in paragraph 55 above). It notes that, as found in the judgment in Pintar and Others (cited above), the alleged violation of Article 1 of Protocol No. 1 stemming from the cancellation of shares and bonds in 2013 and 2014 affected many people and entities – namely, thousands of former holders of these financial instruments. By virtue of that judgment, the Slovenian State was bound to provide, as soon as possible, a legal avenue enabling the former holders to effectively challenge the interference with their right of property (ibid., § 114). The purpose of the remedies introduced by the 2024 Remedy Act is precisely to provide such a legal avenue (see paragraph 21 above).

66.  The Court has already decided on several occasions – when Contracting Parties have enacted legislative measures in order to make available a specific remedy to redress at the domestic level grievances of persons affected by a systemic violation of the Convention – that the applicants should exhaust such remedies notwithstanding the fact that their applications had been lodged with the Court prior to the enactment of the legislation in question (see Korenjak v. Slovenia (dec.) no. 463/03, §§ 71-76, 15 May 2007, and Hodžić, cited above, §§ 19 and 20). Consequently, the Court finds it justified to apply the exception to the principle regarding the exhaustion of domestic remedies to the present applicants, to whom it is open to initiate proceedings under the 2024 Remedy Act.

67.  In view of the above-noted considerations, in so far as the present applications relate to the lack of an effective legal avenue for challenging the interference with the applicants’ property rights, they should be dismissed for failure to exhaust domestic remedies. The same conclusion applies to their complaint regarding the substantive justifications for the interference with their right under Article 1 of Protocol No. 1, which was left open in Pintar and Others (cited above, § 110). Assessing this issue – together with the expertise required and the confidentiality concerns involved – is central to the proceedings established by the 2024 Remedy Act. In line with the principle that primary responsibility for implementing the Convention lies with domestic authorities, this issue should, in the first instance, be addressed by the competent domestic courts.

68.  The Court emphasises that should the applicants be ultimately unsuccessful with their applications for remedies in Slovenia, it will be open to them to lodge a fresh application with the Court within a period of four months after the exhaustion of all effective domestic remedies. The Court’s approach as to the potential effectiveness of the remedy in question will be altered should the conduct of the proceedings under the 2024 Remedy Act and the domestic case-law suggest that the remedy falls short of the requirements of the Convention or if excessive delays occur in the implementation of the 2024 Remedy Act. The Court would emphasise in particular that the former holders’ claims should be determined in a speedy manner – a factor that, given the time that has elapsed since the impugned measures were taken, remains of particular importance (ibid., § 114).

69.  In view of the foregoing considerations, the applications must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. Consequently, it is unnecessary to examine the Government’s remaining submission that the case should be struck out of the list of cases (see paragraphs 44 and 52 above).

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 6 March 2025.

 Ilse Freiwirth Ivana Jelić
 Section Registrar President