On 15 September 2016 the Government of Slovenia lodged an inter-State application against the Republic of Croatia before the European Court of Human Rights (ECtHR), related to the claims of Ljubljanska banka towards Croatian companies. Pursuant to Article 33 of the European Convention on Human Rights and Fundamental Freedoms (ECHR), the Republic of Slovenia informed the Court that the Republic of Croatia had violated the provisions of the Convention when the latter’s judicial and executive authorities systematically undertook actions to unlawfully deny Ljubljanska banka the right to property. For a period of 25 years the bank has not been able to recover its claims from Croatian companies. The application states that this has allowed the debtors of Ljubljanska banka in Croatia to avoid repaying their debt – currently estimated to be 360 million Euro. This amount is very similar to the one Slovenian taxpayers were requested to pay after the Grand Chamber delivered its decision in Ališić two years ago, one of the largest cases in ECtHR’s history considering its massive financial implications for Slovenia’s two million population. Although one might say that the Slovenian government timed its application so as for the recent Croatian elections to pass, the date of the application was in fact more closely related to the latest decision of the Croatian Constitutional Court on the subject-matter which was adopted in March this year.
A wider legal audience, which may otherwise not be interested in Yugoslav succession issues, might nevertheless show an interest in the present case since it presents the first inter-State case before the ECtHR between two EU Member States, and also because it raises the question of potential concurrence of jurisdiction between the ECtHR and the CJEU (a topic much debated under the EU’s accession to the ECHR negotiations). Although current EU Member States have in the past been involved in mutual disputes before the ECtHR, both contracting parties have never been EU Member States at the time of those proceedings (application by Austria v. Italy was lodged in 1960 (No. 788/60); Denmark and Sweden filed an application against Greece in 1967 (No. 3321/67 and 3323/67); while two cases of Ireland v. UK date back to 1971 and 1972 (No. 5310/71 and 5451/72)).
The application of Slovenia’s Government against Croatia is also of importance as it is an unusual case in the sense that Article 33 ECHR is being applied for the protection of interests of a legal, rather than a natural, person (e.g. the case of Georgia v. Russia (I) (No. 13255/07) concerned the alleged collective expulsion of Georgian nationals from the Russian Federation). The general public of Slovenia has for this reason responded to the news of the application with doubts as to whether legal persons could in fact be considered to have “human” rights. However, despite the fact that only Article 1 of the First Protocol to the ECHR on the protection of property expressly recognizes legal persons as recipients of fundamental rights, several other human rights in the ECHR are also granted to them. Apart from the recent application of Ukraine v. Russia, which partly attempts to protect the rights of legal persons, all other inter-State actions before the ECtHR have concerned natural persons.
As the long journey towards ECtHR’s decision in the case at hand has only just begun, this post shortly describes the background of the case.