Communicated on 18 October 2018
FOURTH SECTION
Application no. 49969/14
Jože PINTAR against Slovenia
and 7 other applications
(see list appended)
SUBJECT MATTER OF THE CASE
The applications listed in the appendix concern the Bank of Slovenia’s (hereinafter “the Central Bank”) emergency measures against several banks, in which the applicants held either shares or subordinated bonds (podrejene obveznice, hereinafter “bonds”). By way of the Central Bank’s decrees implementing the aforementioned emergency measures (which were classified as “highly confidential”) and the changes made accordingly to the Court Register, the applicants’ shares or bonds (for details see the attached table) were cancelled without any compensation. Most of the applicants were not directly informed of these measures.
On 19 October 2016 the Constitutional Court of Slovenia reviewed the impugned legislation allowing for the above emergency measures to be taken (decision no. U-I-295/13). It noted that the relevant domestic law required the measures in question to comply with “no creditor worse off” principle. This principle allows for the measures to be taken only when the creditor does not suffer a loss greater than the one he or she would have suffered in the absence of such a measure.
The Constitutional Court further accepted that in principle the holders of the cancelled bonds and shares could claim compensation in civil proceedings. However, it found that the current legal framework within which such proceedings were to take place did not sufficiently safeguard their interests because, inter alia, the claimants did not have access to crucial information on the basis of which the emergency measures had been taken and they lacked the expertise necessary to demonstrate that the damage done by the measure in question had been higher than the damage which would have occurred in the absence of such measure. Such expertise was clearly within the Central Bank’s domain. In the Constitutional Court’s opinion the imbalance between the parties - the holders of the cancelled bonds/shares, on the one hand, and the State (the Central Bank), on the other - would thus need to be addressed by special procedural rules, such as the shifting of the burden on the Central Bank to prove that the emergency measures were justified.
The Constitutional Court ordered the legislator to adopt the necessary legislation, which would allow for an effective judicial determination of pending and future claims concerning the disputed emergency measures, within six months. It ordered that all pending or new proceedings concerning this subject-matter be suspended pending the adoption of the aforementioned legislation.
To date, the Constitution Court’s decision of 19 October 2016 has not been implemented.
The applicants in cases nos. 49969/14, 20530/16, 4713/17 and 52397/17 complain about a violation of Article 1 of Protocol No. 1. because the emergency measures divesting them of their shares or bonds, without compensation, had been unjustified. All the applicants complain about the lack of an effective remedy/procedure to challenge the emergency measures in question; most of them point out that the legislator has failed to implement the Constitutional Court’s decision of 19 October 2016 (Article 1 of Protocol No. 1 (procedural limb) alone or in conjunction with Article 13 of the Convention).
QUESTIONS tO THE PARTIES
1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, having regard to the delay in the implementation of the Constitutional Court’s decision of 19 October 2016, can a compensation claim be considered an effective remedy within the meaning of this provision in respect of the applicants’ complaints under Article 1 of Protocol No. 1?
2. Has there been an interference with the applicants’ rights under Article 1 of Protocol No. 1, on account of the Central Bank’s emergency measures affecting the applicants’ shares or bonds?
If so, has the interference been justified within the meaning of Article 1 of Protocol No. 1 (compare Mamatas and Others v. Greece, nos. 63066/14 and 2 others, §§ 96-120, 21 July 2016)?
3. Could the continuous failure to implement the Constitutional Court’s decision of 19 October 2016 be justified under Article 1 of Protocol No. 1, in particular as regards its procedural aspect (see Kotov v. Russia [GC], no. 54522/00, § 114, 3 April 2012, and Malysh and Others v. Russia, no. 30280/03, §§ 81-86, 11 February 2010)?
Moreover, in view of the aforementioned lack of implementation of the Constitutional Court’s decision, have the applicants been deprived of an effective domestic remedy for their complaints under Article 1 of Protocol No. 1, as required by Article 13 of the Convention?
No.
Application no.
Applicant
Date of birth
Place of residence
Shares/bonds subject of emergency measures
Emergency measure
49969/14
Lodged on
07/07/2014
Jože PINTAR
03/01/1967
Škofja Loka
Shares in Bank NKBM (KBMR)
Decree on emergency measures of the Bank of Slovenia regarding Bank NKBM, issued on 17 December 2013
20530/16
Lodged on
08/04/2016
Tadej KOTNIK
26/02/1972
Ljubljana
Jožko PETERLIN
06/06/1966
Portorož
Kotnik Tadej: bonds of Bank Celje
Peterlin Jožko: shares in Bank Celje
Decree on emergency measures of the Bank of Slovenia regarding Bank Celje, issued on 16 December 2014
4713/17
Lodged on
10/01/2017
Luka JUKIČ
13/07/1974
Črnomelj
Shares in Bank NKBM (KBMR)
Decree on emergency measures of the Bank of Slovenia regarding Bank NKBM, issued on 17 December 2013
52397/17
Lodged on
06/07/2017
Marijan BUNC
25/03/1953
Dornberk
Shares in Bank NKBM (KBMR)
Decree on emergency measures of the Bank of Slovenia regarding Bank NKBM, issued on 17 December 2013
62795/17
Lodged on
22/08/2017
Igor KARLOVŠEK
09/12/1958
Celje
Represented by
Simon
KARLOVŠEK
Bonds of Bank Celje
Decree on emergency measures of the Bank of Slovenia regarding Bank Celje, issued on 16 December 2014
62830/17
Lodged on
22/08/2017
Marija KARLOVŠEK
26/05/1959
Celje
Represented by
Igor KARLOVŠEK
Bonds of Bank Celje
Decree on emergency measures of the Bank of Slovenia regarding Bank Celje, issued on 16 December 2014
13244/18
Lodged on
12/03/2018
Milena LOGAR
07/10/1953
Trebnje
Represented by
Miha KUNIČ
Shares in Bank NLB
Decree on emergency measures of the Bank of Slovenia regarding Bank NLB, issued on 17 December 2013
16311/18
Lodged on
04/04/2018
Andrej
JESENKO
13/01/1953
Ljubljana
Irena
JESENKO
18/12/1956
Ljubljana
Bonds of Bank NLB
Decree on emergency measures of the Bank of Slovenia regarding Bank NLB, issued on 17 December 2013
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