Published on 23 May 2022

FIRST SECTION

Application no. 56605/19 Tadej KOTNIK against Slovenia lodged on 24 October 2019 communicated on 3 May 2022

SUBJECT MATTER OF THE CASE

The application concerns the retroactive cancellation of interest which had been due to be paid to the applicant before his subordinated bonds were cancelled by the Bank of Slovenia’s decision on extraordinary measures (see Pintar and Others v. Slovenia , nos. 49969/14 and 4 others, § 16, 14 September 2021, which also included the present applicant (application no. 20530/16)). In 2016, the Constitutional Court found that the legal framework did not provide for effective proceedings in which the holders of, inter alia , cancelled subordinated bonds could challenge the Bank of Slovenia’s measures and seek compensation. It would appear that this Constitutional Court’s decision concerned also the interest related to the cancelled subordinated bonds. On 22 November 2019 the National Assembly adopted the Act on Judicial Protection Procedure for Former Holders of Eligible Liabilities of Banks (“the 2020 Remedy Act”). Following a motion to review its compliance with the Constitution, the 2020 Remedy Act’s implementation was stayed by the Constitutional Court.

On 28 January 2021, the Constitutional Court referred several questions with regard to the interpretation of the European Union law to the Court of Justice of the European Union and suspended the proceedings before the Constitutional Court. To date no decision has been taken by the Constitutional Court regarding the 2020 Remedy Act. The applicant consequently remains without a remedy that would allow him to challenge the Bank of Slovenia’s measures and seek compensation.

The Court found in Pintar and Others , cited above, that the cancellation of the applicant’s subordinated bonds 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 to the Convention. It did not specifically address the cancellation of interest which had been due before the cancellation of the bonds in question.

The applicant complains under Article 1 of Protocol No. 1 to the Convention that the Bank of Slovenia’s decision divesting him of the interest which related to his cancelled subordinated bonds, without compensation, had been arbitrary and disproportionate. He furthermore complains under Articles 6 and 13 of the Convention about the lack of an effective remedy or procedure to challenge the measure in question and to seek compensation. He points out that the legislation that would provide for an effective remedy for the protection of his property rights remains non-operational.

QUESTIONS TO THE PARTIES

1. Having regard to the judgment in Pintar and Others v. Slovenia (nos. 49969/14 and 4 others, §§ 23-25 and 109-10, 14 September 2021), does the applicant comply with Article 35 § 2 (b) of the Convention, namely its admissibility requirement that the application should not be substantially the same as a matter that has already been examined by the Court?

2. Has the interference with the applicant’s possessions, namely the retroactive cancellation of the interest related to the applicant’s cancelled subordinated bonds, been in compliance with the requirements of Article 1 of Protocol No. 1 to the Convention? Has the interference been accompanied by sufficient procedural guarantees against arbitrariness as required by Article 1 of Protocol No. 1 (see Pintar and Others , cited above, §§ 109-10)?