Information Note on the Court’s case-law 246

December 2020

Slovenia v. Croatia (dec.) [GC] - 54155/16

Decision 18.11.2020 [GC]

Article 33

Inter-State application

Lack of jurisdiction to examine inter-State application vindicating the rights of a legal entity which does not qualify as “non-governmental”

Article 34

Victim

Lack of jurisdiction to examine inter-State application vindicating the rights of a legal entity which does not qualify as “non-governmental”

Facts – The Ljubljana Bank ( Ljubljanska Banka ) is a legal entity which was nationalised by the Slovenian State. It was not able to collect debts owed by debtors in Croatia, allegedly due to inaction on the part of the Croatian courts and other authorities, and through the imposition of various other legal obstacles.

In the earlier case of Ljubljanska Banka D.D. v. Croatia (dec.), the Court found that the bank in question was not a “non-governmental” organisation under Article 34 and therefore had no standing to lodge an individual complaint with the Court. The Slovenian Government subsequently lodged an inter-State application against Croatia with regard to the bank’s inability to collect debts, comp laining of multiple violations of the Convention.

Law – Article 33:

(a) Whether the Court may examine an objection concerning compatibility with Article 33 at the admissibility stage

On the one hand, an inter-State application could be rejected as inadmissible pursuant to Article 35 only for a failure to exhaust domestic remedies and to comply with the six-month time-limit: the other admissibility criteria were reserved for the post-admissibility stage to be examined on the merits of the case. On the other hand, the wording of Articles 33 and 35 could not be construed as preventing the Court from establishing already at the admissibility stage, under general principles governing the exercise of jurisdic tion by international tribunals, whether it had any competence at all to deal with the matter laid before it. In other words, the Court could reject an inter-State application without declaring it admissible if it was clear, from the outset, that it was wh olly unsubstantiated or otherwise lacked the requirements of a genuine allegation in the sense of Article 33 of the Convention. Such an approach was also consistent with the principle of procedural economy.

In the present case, the key preliminary issue r aised – whether the Court might examine an inter-State application vindicating the rights of a legal entity which was prima facie not “non-governmental” – fell outside the scope of any of the admissibility criteria set out in Article 35. Firstly, the quest ion could not be equated with the criterion of the compatibility of the application ratione personae . The Slovenian government was undoubtedly entitled to submit an inter-State application under Article 33; moreover, they did not have to be in any way – ev en indirectly – aggrieved by the alleged violations. It had also never been asserted that these alleged violations had not been attributable to the authorities of the respondent High Contracting Party. Furthermore, even if the key preliminary question rais ed by the case was directly linked to the subject-matter of the application, it could not be equated with the issue of compatibility ratione materiae either, since this admissibility criterion had always been understood as exclusively referring to the material contents of the rights guaranteed by the Convention and its Protocols.

The key issue was therefore a matter which went to the Court’s jurisdict ion within the meaning of Article 32, rather than a question of admissibility in the narrow sense of that term.  In fact, the question whether the Convention as a human rights treaty can create fundamental rights for State-owned and State-run entities went beyond the boundaries of the Convention mechanism and touched upon a general issue of international law, especially in the light of the universally recognised specific nature of human rights treaties.

In sum, there was a genuine dispute as to the Court’s jurisdiction within the meaning of Article 32 § 2, which could be adjudicated at any stage of the proceedings. The Court did not need to declare the present case admissible in order to be able to consider that key issue.

(b) Whether Article 33 allows an ap plicant government to vindicate the rights of an organisation which is not “non-governmental” for the purposes of Article 34

The applicant Government had suggested that different criteria should apply to individual and inter-State applications and that the only legal entities excluded from the benefit of the inter-State mechanism under Article 33 would be State institutions in the narrow sense of the word, forming a constituent part of the respective State and exercising public power on its behalf. Other le gal entities which would not qualify as “non-governmental” under Article 34 would still be able to have their rights vindicated by a Contracting State by means of an inter-State application.

The Court was not persuaded by this approach for three reasons:

1. It was a well-established principle of interpretation of the Convention that it must be read as a whole and that its Articles should be construed in a way to promote internal consistency and harmony between its provisions. This applied not just to the s ubstantive provisions of the Convention, but also to the jurisdictional and procedural provisions – in this case, to Articles 1, 33 and 34.

2. The Court took into account the specific nature of the Convention as an instrument for the effective protection of human rights, expressed in both Article 1 and the Convention’s Preamble and universally recognised in international law. The logic of a human rights treaty was that the contracting states did not have any interest of their own and did not pursue their i ndividual advantages. According to the very nature of the Convention, even in an inter-State case, it was always the individual, and not the State, who was directly or indirectly and primarily “injured” by a violation. In other words, only individuals, gro ups of individuals and legal entities which qualified as “non-governmental organisations” within the meaning of Article 34 could be rights-bearers under the Convention, but not a Contracting State or any other legal entity which had to be regarded as a gov ernmental organisation.

3. Turning to the specific purpose of Article 33, there were two basic categories of inter-State complaints: those pertaining to general issues with a view to protecting the public order of Europe, and those where the applicant Sta te denounced violations by another Contracting Party of the basic human rights of one or more clearly identified or identifiable persons. The present application -  aimed at protecting the interests of one concrete legal entity in precisely circumscribed s ets of legal proceedings, and claiming just satisfaction on its behalf – belonged to the latter category. However, if just satisfaction was afforded in an inter-State case, it should always be for the benefit of individual victims and not for the benefit o f the State. If the Court were to find a violation in a case brought by a State under Article 33 on behalf of an entity lacking sufficient institutional and operational independence from it, and awarded a sum of money as just satisfaction, then the eventua l final beneficiary of the Court’s judgment would be that same State and no one else.

The Court also recalled that the conditions of admissibility of various complaints before the Court might differ from those applicable before the European Union Courts. Therefore, the applicant Government’s reference to their judgments could not have a dispositive bearing on the interpretation of Article 34.

In light of the foregoing, Article 33 did not allow an applicant Government to vindicate the rights of a legal ent ity which would not qualify as a “non-governmental organisation” and therefore would not be entitled to lodge an individual application under Article 34.

(c) Whether the Court may examine the application on the basis of Article 33

Concerning the bank’s st atus under Article 34, the Court saw no reason to depart from its findings in Ljubljanska Banka D.D. v Croatia (dec.).

Even if Ljubljana Bank was a separate legal entity which did not participate in the exercise of governmental powers, it was owned by the Slovenian Sate, which had disposed of its assets as it had seen fit, and was controlled by a Slovenian government agency. It had neither customers nor active shareholders other than the State. Moreover, in Ališić and Others v. Bosnia and Herzegovina et al , the Court had held the Slovenian State responsible for the debt of the respective local branch of the Ljubljana Bank towards two of the applicants. Although those findings had been made in a different context, that was an important criterion in the contex t of determining whether a legal entity might be considered “non-governmental”.

Ljubljana Bank did not enjoy sufficient institutional and operational independence from the State and was therefore not a “non-governmental organisation” for the purposes of Ar ticle 34. As such, it had no standing to lodge an individual application. Accordingly, Article 33 did not empower the Court to examine an inter-State application alleging a violation of any Convention right in respect of that legal entity.

Conclusion: la ck of jurisdiction to take cognisance of the application.

(See also Cyprus v. Turkey (Just Satisfaction) [GC], 25781/94, 12 May 2014, Information Note 174 ; AliÅ¡ić and Others v. Bosnia and Herzegovin a, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], 60642/08, 16 July 2014, Information Note 176 ; Ljubljanska Banka D.D. v. Croatia (dec.), 29003/07 , 12 May 2015)

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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