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 20 16 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 complai nts 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

Å kofja 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

ÄŒrnomelj

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 KARLOVÅ EK

09/12/1958

Celje

Represented by

Simon

KARLOVÅ EK

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 KARLOVÅ EK

26/05/1959

Celje

Represented by

Igor KARLOVÅ EK

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