REPUBLIKA SLOVENIJA

USTAVNO SODIŠČE

U-I-60/98

16.7.1998

D E C I S I O N

At the meeting of 16 July 1998 concerning the proceedings for the evaluation of constitutionality

commenced on the initiative of Janez Rozman from Ljubljana and Dr. Ksenija Rozman from Ljubljana,

represented by her authorized representative Janez Rozman, of Dr. Rajko Turk, Dr. Josip Turk and

Milica Abram from Ljubljana represented by Igor Dernovšek, layer in Ljubljana, of Dr. Johannes

Attems from Vienna, represented by Rok Fink, lawyer in Celje, of Cecilija Pavlin, Amalija Murn and

Hinko Kirn from Ljubljana, represented by Irena Polak - Remškar, lawyer in Ljubljana, of Amalija Likar

and Peter Bedjanič from Ljubljana represented by their authorized representative Novica Novaković

from Ljubljana, of Franc Gerden from Trebnje, represented by Hranislav S. Đurković, lawyer in Koper,

and Stanko Prijatelj, lawyer in Ljubljana, of Julija Zaletel, Olga Zaletel and Magdalena Betetto from

Ljubljana represented by Irena Polšak - Remškar, lawyer in Ljubljana, of Tom Knez from Ljubljana,

represented by Nataša Vidovič, lawyer in ljubljana, of Dr. Aleksander Majdič from Bled, represented by

Nataša Vidovič, layer in Ljubljana, of Dr. Ljubo Sirc from Kranj, represented by Nataša Vidovič, layer in

Ljubljana, of Dr. Igor Levstek from Ljubljana, represented by Nataša Vidovič, lawyer in Ljubljana, of

Jure Filipčič and Mladen Terčelja from Ljubljana, Miha Jemc from Zug, Switzerland, represented by

Aleš Rojs, lawyer in ljubljana, of Alojzija Farič, Anica Cimperc, Alojzija Osvald and Mirko Lemež jun.,

all from Maribor and represented by their authorized representative Igor Osvald from Maribor, and of

Franc Zdolšek from Maribor, Milan Zdolšek from Dobje pri Planini, Marko Zdolšek from Šentjurje,

Terezija Zdolšek from Šentjurje, Marija Rep from Maribor and Emilija Zdolšek from Šentjurje, all

represented by Dušan Pungartnik, lawyer in Šentjurje, the Constitutional Court

made the following decision:

1. Articles 145. a and 145. c of Punitive Sanctions Enforcement Act (Official Gazette of SRS, Nos.

17/87, 23/82, 41/87, 32/89 and 8/90); Official Gazette of RS, Nos. 12/92, 58//93, 71/94, 29/95 and

10/98) are not in conflict with the Constitution.

2. Provision 5 of article 145. b of the same statute is not in conformity with the Constitution in so far as

failing to set a time limit by which a special law on the issuance of bonds should be passed.

3. Article 3 of the Act on Amendments and Supplements to Punitive Sanctions Enforcement Act

(Official Gazette of RS, No. 10/98) is not in conformity with the Constitution in so far as failing to

stipulate that unjustly convicted persons, or their heirs, who have initiated proceedings for the return of

property or the payment of compensation prior to its coming into force shall have the right to the

remuneration of the costs of proceeding also with respect to that part of the claim which, having regard

to article 3 of the Act, cannot be successful.

4. The identified non-conformity mentioned in sections 2 and 3 of this disposition shall be eliminated

by the legislator not later in than six months from the day of the publication of this Decision in the

Official Gazette of the Republic of Slovenia.

5. The initiative for the evaluation of constitutionality of paragraph 3 of article 145. and article 145. č of

Punitive Sanctions Enforcement Act is rejected.

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R e a s o n s :

A.

1. The petitioners mentioned in the introductory part of this Decision dispute Punitive Sanctions

Enforcement Act (Official Gazette of RS, No. 10/98 - hereinafter: the revised ZIKS) in its entirety or just

with respect to individual provisions (Janez Rozman and Dr. Ksenija Rozman, Dr. Rajko Turk, Dr.

Josip Turk and Milica Abram, Cecilija Pavlin, Amalija Murn and Hinko Kirn). The petitioners claim that

provisions of articles 2, 3, 8, 14, 15, 22, 26, 30, 33, 153 and 155 of the Constitution have beeb

violated. All the petitioners claim that the principle of equality has been violated and point out that the

disputed amendments to Punitive Sanctions Enforcement Act (hereinafter: the ZIKS) obviously treat

discriminatorily the citizens which were unjustly convicted prior to 1958 in comparison with those

convicted subsequently, as well as in comparison with those to whom material compensation for

confiscated property was adjudged by final decision even though they had been convicted prior to

1958.

2. All the petitioners propose also that the Constitutional Court should stay the implementation of the

disputed provisions. They justify their proposals by the occurrence of such consequences as would be

hard to repair, namely:

- unnecessary work of the courts which are under a heavy burden already and additional financial

costs - on the basis of the amended substantive law, courts would supposedly start to issue decisions

on the rejecting of claims, to appoint new experts for the assessment of property on the basis of the

ZDen and secondary legislation;

- the petitioners and other rightful claimants would supposedly incur great costs by filing their claims

and actions for which no compensation is envisaged by the disputed statute, and rightful claimants

would supposedly even have to pay the costs of litigation to the Republic of Slovenia as defending

party in the case of the rejecting of their claims;

- rejection of claims would supposedly imply, assuming that the Constitutional Court would annul

retrospective effect (article 3), further delays in the solving of these cases in courts and thus constitute

a violation of the right to due process of law under article 23 of the Constitution, which has already

been violated by lengthy procedures and moratoriums;

- in the case of abrogation of the disputed provisions, even greater confusion, additional costs and

problems would supposedly occur in courts.

3. Individual petitioners in their claims also assert the following:

- The petitioners Janez and Dr. Ksenija Rozman consider that the ZIKS is a law which has been in

force already since 1978 and that it guarantees the constitutional right to rehabilitation of unjustly

convicted persons. Any associating of the ZIKS with the ZDen is in the opinions of the petitioners

inadmissible and without a legal basis, for each regulates its own legal field.

They further state that the Parliament intentionally violated the Constitution, because by the disputed

statute it reintroduced a system which the Constitutional Court had already abrogated by its decision

U-I-10/92. The reasons for passing the disputed statute are in the opinion of the petitioners in conflict

with the principle of law-governed state, for it is supposedly evident from legislative materials that, for

the legislator, anticipated revenue is a value which is superior to the compliance with the Constitution.

- The petitioners Dr. Rajko Turk, Dr. Josip Turk and Milica Abram state that in the extrajudicial

proceeding no. Nz 394/94 it was already decided that Ljubljana Urban Municipality was obliged to pay

to the petitioners compensation in the amount of SIT 5,225,035 for confiscated property. The said

decision, however, is not final yet, for the opposite party filed an appeal, and this has not been decided

yet. On the basis of article 3 of the revised ZIKS, this proceeding, which was brought to an end already

two years ago at first-instance level, should have been returned to the first-instance level, and their

request would supposedly be considered in accordance with the ZDen, by which smaller rights are

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granted to petitioners. In the opinion of the petitioners, such conditions as are determined in paragraph

2 of article 155 of the Constitution concerning retrospective effect of legislation do not exist, which is

why, by determining that the revised ZIKS should be applied in the case of all proceedings where final

decision has not been reached yet, the legislator has interfered retrospectively with relations in

violation of article 155 of the Constitution. - The petitioner Johannes Attems states that the amending

of the ZIKS is in disagreement with the principle of law-governed state, for the state cannot change a

law for its benefit after many parties have already been successful in their claims and have gained

back the confiscated property. To the petitioner himself 1400 hectares of forests have already been

returned through denationalization proceeding, but he has withdrawn his claim and has requested that

the return be effected in accordance with the ZIKS then in force. The petitioner also asks who will

refund the huge costs of experts which must be covered in the denationalization proceeding by the

obligor and in extrajudicial proceeding by the petitioner himself. In the supplement to his initiative, the

petitioner considers that by passing the disputed law the state has again imposed upon him the

sanction of confiscation of property such as is not envisaged in any statute whatsoever.

- The petitioners Cecilija Pavlin, Amalija Murn and Hinko Kirn state that on 27.3.1997 they filed an

action in which they requested that they be paid compensation for the loss of profit incurred as the

result of confiscation of property of their legal ancestor. Without a logical and material reason, the

legislator is claimed to have denied the right to compensation for damage precisely to the persons

convicted and punished most rigorously during the period of the greatest revolutionary euphoria, and

for acts which they had never committed. They draw attention to the very high costs which rightful

claimants have already incurred in the filing of their actions (taxes and costs of layers).

- The petitioners Anamarija Likar and Peter Bedjanič as legal successors to the late Dr. Hermina

Bedjanič state that the redress of wrongs done to the unjustly convicted persons should not be based

on the ZDen, for unjustified sentencing was a violation of basic human rights resulting in great

distress, humiliation and degradation in society. Claimed to be in disagreement with articles 28 and

155 of the Constitution is article 3 of the disputed statute, for it determines a new procedure, manner

and scope of the returning of unjustly confiscated property with retrospective effect.

- The petitioner Franc Gerden filed two initiatives, in which he states that the right to compensation for

damage arose at the moment when the sentence of confiscation of property has been annulled by

final decision, and that he was at that time on the basis of the ZKP entitled to full compensation for

damage, that is, also to compensation for the loss of profit.

- The petitioners Julija Zaletel, Olga Zaletel and Magdalena Betetto state that the competent court with

its resolution of 15.5.1995 already decided that the Republic of Slovenia should pay to the heirs to

Franc Zaletel compensation amounting to SIT 54,768.160, and that the decision is not final yet. They

consider that with the passing of the disputed amendments they are no longer entitled to the return of

the actual value of confiscated property; in fact, that they are no longer entitled to anything

whatsoever, for the disputed provisions only provide for the passing of a special law which should

regulate the issuance of bonds used for the payment of compensation. Such regulating of the rights

that have been recognized already would supposedly cause legal uncertainty, for nobody knows when

the said special law will in fact be passed, and it is also an unconstitutional way of regulation, of which

the legislator makes use more and more frequently. In the opinion of the petitioners the burdening of

national economy does not justify the violation of the rights guaranteed by the Constitution. They point

out that, taking into consideration the legal system in force and the decision of the Constitutional Court

U-I-10/92, they decided to enforce their claims on the basis of the ZIKS and thus took upon

themselves the high costs of experts and the lawyer.

- The petitioner Tomo Knez in his initiative states that the disputed amendments and supplements

mean a returning to the time prior to the passing of the constitutional amendment XCVI and the

abandoning of the principles of article 29 of the Universal Declaration of Human Rights. He points out

that the disputed provisions interfere with final court decisions and the accrued rights and that they

create discrimination in the treatment of unjustly convicted persons.

- The petitioner Dr. Aleksander Majdič in his initiative states that the disputed provisions of the ZIKS

alter his position in these proceedings. He points out that amendment XCVI to the Constitution of the

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Socialist Republic of Slovenia established equality in the treatment of unjustly convicted persons and

thus did away with the ideological barrier to the redress of wrongs done to victims of postwar

conditions.

- The petitioner Dr. Ljubo Sirc claims also that the European Convention on the Protection of Human

Rights in connection with the resolution 1096 of 27.6.1996 of the Parliamentary Assembly of the

Council of Europe has been violated. He thinks that the right to compensation for damage arises at the

moment when an unjustified sentence has been annulled, and not as late as on the occasion of a final

decision on the return of property, as stated in the reasons for the proposed text of the disputed law. In

the opinion of the petitioner, the assertions in the reasons for the proposed text of the disputed law to

the effect that "wrongs cannot be remedied entirely, that the burdening of economy would be too

great, that Slovenia is a social state, that new wrongs should not be committed" do not justify why the

legislator should not return the confiscated property in its entirety or give for it " fair material

compensation". The petitioner further points out that in reference with retrospective effect of the

disputed provisions the legislator is not justified in invoking public interest. In the opinion of the

petitioner, it is precisely public interest and the principle of social state which require that property be

returned as soon as possible to those who are capable of managing it and producing greater effects.

He warns that the aim of confiscation in criminal proceedings had not been solely to take away

property but to bring shame on entrepreneurs, and that those proceedings cannot be compared with

nationalization proceedings. However, he considers that it would nevertheless be necessary to

equalize the return of property to all rightful claimants. It would be necessary to apply the principles of

the law on compensation, and the return should comprise the market value of confiscated property,

and not the value established on the basis of laws and regulations. This is why the petitioner has also

filed an initiative for the evaluation of constitutionality of the ZDen. The Constitutional Court has

excluded this initiative and will consider it as an independent case no. U-I-137/98.

- The petitioner Dr. Igor Levstek states that the disputed amendments to the ZIKS are a return to the

time prior to the passing of the constitutional amendment XCVI and a departure from the principles of

article 26 of the Universal Declaration of Human Rights. As the disputed provisions no longer

recognize the right to the return of the profit lost, they supposedly reestablish the inequality which the

Constitutional Court already abolished by abrogating article 92 of the ZDen. - The petitioners Jure

Filipič and Mladen Terčelj state that the disputed law reestablishes the system which applied prior to

the passing of the constitutional amendment XCVI. This supposedly constitutes a departure from the

principles contained in article 29 of the Universal Declaration of Human Rights, and is justified by a

facile conclusion that we are in the phase of transition, which should supposedly allow less rigorous

abiding by constitutional and statutory provisions. They consider that the ZIKS, as a piece of

legislation which regulates the execution of penal sanctions and is a sort of "professional " law, cannot

interfere with provisions of article 13, paragraph 2 of article 539 and article 540 of the ZKP.

- The petitioner Miha Jemec disputes article 145.c, for it no longer makes him entitled to full

compensation for confiscated property as determined by Criminal Proceedings Act and Bonded

Relations Act. He thinks that the modified arrangement is in conflict with article 30 of the Constitution

and that, because of budgetary problems and the principle of social state, the legislator should not

have interfered with the right of unjustly convicted persons to full compensation as recognized by all

civilized nations.

- The petitioners Alojzija Farič, Anica Cimperc, Alojzija Osvald and Mirko Lemež jun. in addition to

articles 145.a and 145.c also dispute paragraph 3 of article 145 and article 145.č. In their initiative they

also make reference to article 15 of the Constitution. They think that the disputed provisions hinder the

exercising of the rights granted in articles 26 and 30 of the Constitution and deny the right to the

elimination of the consequences of the violation of human rights and fundamental freedoms

(paragraphs 1 and 4 of article 15 of the Constitution). They think that the legislator did not have any

grounds which would allow, in accordance with paragraph 3 of article 15 of the Constitution and the

positions of the Constitutional Court, the limiting of the rights grated by articles 26 and 30 of the

Constitution. The rights of others, which the disputed provisions supposedly protect (the right of

citizens to a certain state service which is financed from the budget or any other right) are not "of the

same rank" as the rights under articles 26 and 30 of the Constitution. They point out that interference

with the rights under articles 26 and 30 is not indispensable and appropriate. The state should cover

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by other measures, in particular by reducing its expenditure and more efficient control, the increase in

the costs resulting from the payment of compensation amounts.

- Franc Zdolšek, Milan Zdolšek, Marko Zdolšek, Terezija Zdolšek, Marija Rep and Emilija Zdolšek

think that the provision of article 145.a is in fact the provision of article 92 of the ZDen which the

Constitutional Court has annulled, and that the legislator does not have any grounds for making their

position equal to the position of denationalization claimants. The petitioners stress that their claim is

exclusively a claim under civil law of compensation and that it is in no way connected with the

nationalization of private property and subsequent denationalization. In the case of unlawful penal

sanction of confiscation what is involved is unlawful acting on the part of a state body or a concrete

judge, for which in relation to the injured party the responsibility lies with the state. They propose that

the disputed provisions be annulled ab initio.

4. The National Assembly (reply of the Secretariat for Legislative and Legal Matters of 21.5.1998,

following the discussion at the Committee for Internal Policy and Judicature) considers that the

disputed arrangement does not constitute a violation of the Constitution. In the case of the disputed

arrangement, the legislator has taken into account the principle of the social state and the principle of

equality of all persons whose property has been confiscated or nationalized after WW2, and the

capacity of the community to fulfil all the obligations arising from the return of confiscated property. As

the first major reason in reference with the evaluation one should take into account the fact that, with

the disputed amendments relating to the return of confiscated property, the legislator has established

equality between all the injured parties. He has taken account of the fact that the property of the

injured parties would, in the case if there had not been any criminal sentence, become state property

on the basis of some other legal provision. The other important reason, which supposedly justified the

disputed arrangement, is the principle of the social state, which demands that the general financial

situation in the state be taken into consideration. The state must act so that because of individual

interests public interest will not be affected, and must consequently regulate the repairing of special

damages according to the principle of proportional balancing of burdens, such as is appropriate for a

social state, between the state and tax-payers. Special arrangement is also justified by the fact that

more than 40 years have passed from the damage causing events and that during that period many

changes of and instances of actual interference with confiscated property have occurred. Moreover,

the explanation gives the information about the number and amounts of claims which, although

incomplete, draws attention to the danger of insolvency of the state. The excluding of claims for the

return of the profit lost was dictated also by the nature of this instrument of the law of compensation,

which admits the return of benefit which the injured party would enjoy in normal circumstances and on

the basis of reasonable and justifiable expectations. As of the period 1945-1958 one cannot say that

normal circumstances had been in existence and that they had involved the normally anticipated

benefits of the injured party, the amount of the profit lost becomes questionable, for what is involved is

the return of damage caused in quite specific circumstances. The assertions of the petitioners, that the

disputed provisions interfere with accrued rights, are in the opinion of the opposite party unjustified.

The legal basis for a claim for damage is established only after the annulling of the sentence of

confiscation of property, which, however, does not imply that in this way one has acquired the right to

a certain amount of compensation. The said right is acquired only on the basis of a final court decision,

and this is why the disputed amendments and supplements do not interfere with the accrued rights of

the injured parties.

5. The explanations of the opposite party was sent by the Constitutional Court to the petitioners, who

on 7.5.1998 filed their initiatives for the evaluation of the disputed statute. In their replies, the

petitioners stick to their initiatives, they repeat and supplement the statements in their initiatives and

reply to the positions and reasons provided by the opposite party. The Constitutional Court sums up

just those statements of the petitioners by which they reply to the positions and reasons provided by

the opposite party. From the replies it is evident that for the petitioners the positions of the opposite

party are unacceptable, or, they consider them to be in disagreement with the principle of law-

governed state. In reference with the position, that the disputed amendments make equal the position

of all persons from whom property has been confiscated after WW2, they point out that the state had

considered the injured parties to be criminals and had confiscated their entire property, all of which

had taken place prior to agrarian reforms and nationalization. In reference with the position, that the

property of the injured persons would have been nationalized also in the absence of criminal

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sentence, so that they would be entitled to request that the return be carried out on the basis of the

ZDen, the petitioners point out that in many cases such finding is not true, in particular in the case of

those who had owned small business plants, for these could no have been nationalized on the basis

of Private Industrial Enterprises Nationalization Act (Julijana Zaletel, Olga Zaletel and Magdalena

Betetto as well as Cecilija Pavlin, Amalija Murn and Hinko Kirn). They consider that the opposite party

cannot invoke the principle of equality, for it the amendments themselves that have created inequality

between those to whom confiscated property has already been returned on the basis of the ZIKS and

those to whom it has not been returned yet. In the opinion of the petitioners the invoking of the

principle of social state is also unfounded. The National Assembly took into consideration incorrect

data, for the amounts actually requested are not that high, and the difference between the

compensation amounts paid on the basis of the ZIKS and the ZDen is not so blatant. The amounts

requested in actions (for damages), by which the opposite party justifies its insolvency, do not yet

imply such damage amounts as are awarded, and it is inadmissible to use them in justifying the

concern for social state.The consequences of the return of confiscated property should be dealt with

by the state by different legal solutions, and not by abolishing the right to full compensation (Dr. Igor

Levstek, Tomo Knez, Dr. Aleksander Majdič and Dr. Ljubo Sirc). In connection with the position, that

the disputed provisions do not have retrospective effect, the petitioners in their replies insist that they

acquired the right to compensation for damage on the basis of the legislation in force at the moment

when they filed against the state actions for damages and petitions in the framework of nonjudicial

proceedings, and that the disputed provision of article 3 interferes with their accrued rights. They point

out that any amending of the ZIKS and equalizing of the same with the ZDen is a violation of article

155 of the Constitution, for the rights of the unjustly convicted persons are being reduced.

B. - I.

6. The Constitutional Court in addition to the information specified in the legislative materials also took

into consideration the information provided by the Supreme Court and the Ministry of Justice.

7. From the report of the Supreme Court the following is evident:

- that the Supreme Court does not keep special records concerning the reopening of criminal

proceedings which had been decided by final decisions prior to 31.12.1958, in which the sentence of

confiscation of property had been pronounced, so that information could only be collected by

examining more than 1000 files;

- that in the period 1989 - 1994 (subsequent to 1.1.1995, the Supreme Court is no longer competent to

decide concerning the reopening of proceedings - article 557 of the ZKP), it adjudicated concerning

the reopening of 9 requests for reopening criminal proceedings and allowed the reopening to take

place for the benefit of 29 convicted persons (in 7 cases, confiscation of property was pronounced as

the sentence);

- that in the period 1990 - 1996, in reference with requests for the protection of legality (383 were filed

during that period) it decided in favour of 774 convicted persons and that, having regard to the

legislation then in force, which prescribed as mandatory the pronouncement of the sentence of

confiscation of property, it is reasonable to conclude that the sentence of confiscation of property had

been pronounced also in the case of a large number of convicted persons who were acquitted of all

charges by the Supreme Court or where the same annulled the disputed sentence ab initio, this being

the reason why it did not specifically decide concerning the sentence of confiscation of property;

- that in 1997 three requests were filed for the protection of legality against final sentences dating prior

to 31.12.1958 in which confiscation of property had been pronounced. All the requests were filed by

the State Prosecutor's Office of the Republic of Slovenia, and the deadline for filing such requests by

convicted persons and their relatives has already expired (article 559 of the ZKP);

- that in 1997, it accepted requests for the protection of legality in 18 cases, in which the confiscation

of property had been pronounced - in 5 cases it annulled the disputed sentences ab initio, in 10 cases

a sentence of acquittal was pronounced and in 2 cases the sentence was changed, while in one case

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the criminal proceeding was stopped; among these cases there were also such as concerned several

convicted persons.

8. The Ministry of Justice informs that no information exists concerning the number of criminal

sentences in which confiscation of property had been pronounced in the years 1945 and 1946. The

information about subsequent years are as follows: year 1947 - 870, year 1948 - 496, year 1949 - 730,

year 1950 - 351, year 1951 - 90, year 1952 - 19, year 1953 - 3, year 1954 - 0, year 1955 - 8, year

1956 - 0, year 1957 - 2, year 1958 - 0.

The Ministry further informs that the court should examine all the files, to be able to determine the

number of reopenings which were decided by courts of first instance in which the sentence of

confiscation of property was pronounced. By way of example, the Ministry states that at the circuit

court in Ljubljana, in the period between 1.1.1990 and 31.12.1997, 214 requests were filed for

reopening the cases and that 111 requests were accepted. The Ministry also states that at the end of

1997 approximately 387 extrajudicial proceedings were in progress concerning the return of

confiscated property and that in individual cases claims for compensation amounts were extremely

high. Concerning the requests for compensation for the profit lost the Ministry also provides the

information that the amount of claims sought by action, which was at the level of SIT 31 billion during

the legislative procedure, has increased, for action has also been instituted in reference with the loss

of profit in the amount of SIT 11 billion.

9. The Constitutional Court for reasons of joint consideration and adjudication joined the initiatives

mentioned in section A of this Decision. All the petitioners satisfy the requirement of standing for

disputing the revised ZIKS. From the initiatives and appended materials it is evident that all the

petitioners demand before competent courts the return of confiscated property or the payment of

compensation, and that court proceedings have not been brought to an end yet. In the case of the

petitioner Dr. Aleksander Majdič, the Constitutional Court found that he satisfied the requirement of

standing for disputing the revised ZIKS, for, on the basis of the decision of the Constitutional Court U-I-

249/96 of 12.3.1998 (Official Gazette of RS, No. 29/98), also those whose property had been

confiscated on the basis of article 28 of the Act on Confiscation of Property and Execution of

Confiscation (Official Gazette of DFY, No. 40/45) shall be entitled to lodge a request for reopening the

proceeding in accordance with provision of article 416 of the ZKP, and will be entitled, if successful in

the said proceeding, to request the return of the property in accordance with provisions of the ZIKS.

10. With conditions specified in paragraph 4 of article 26 of Constitutional Court Act (Official Gazette of

RS, No. 15/94 - hereinafter: "the ZUstS") fulfilled, the Constitutional Court accepted the initiatives and

immediately proceeded to decide on the merits of the case. However, it dismissed the initiatives of

Alojzija Farič. Anica Cimperc, Alojzija Osvald and Mirko Lemež jun. in the part where they dispute the

provisions of paragraph 3 of article 145 and article 145.č of the ZIKS.

11. Bearing in mind that the return of confiscated property has already been stayed twice by statute,

and these are questions which should be resolved as soon as possible, the Constitutional Court at its

meeting of 12.3.1998 resolved not to decide separately on proposals for staying the implementation

and to consider the case as one with priority.

B. - II.

Review of articles 145.a and 145.c of the ZIKS

12. Article 30 of the Constitution provides that any person unjustly convicted of a criminal offence or

arrested without due cause shall be entitled to rehabilitation, to compensation for damage and to such

other rights as are afforded by statute. The said constitutional provision determines strict liability of the

state for the damage in the case where, for any reason whatsoever (because of guilt or lack of it,

lawful or unlawful reason), one was unjustly convicted or arrested without due cause. The right to the

return of property which was confiscated by the pronouncement of the sentence of confiscation of

property is not a special right but makes part of a single constitutional right granted in article 30 of the

Constitution. Although the return of confiscated property under article 145 of the ZIKS by its substance

does not constitute "the return of property" in the sense of rules governing the law of compensation but

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means a special manner of regulating the institute of unjustified acquisition1, this right is

constitutionally protected in the framework of article 30 of the Constitution, which grants to those

persons who have been unjustly convicted of a criminal offence a universal right to the return of all

damages. The said assumption was also used as the starting point by the legislator, which is evident

from reasons given for the proposed text of the revised ZIKS, as well as from the provisions of

paragraph 4 of article 145, which mentions "compensation" in the case where the return of confiscated

property or individual parts of it is actually or legally no longer possible.

13. The right to compensation for damage resulting from unjustified sentence is the constitutional right

of such person as has been injured by the consequences of an unjustified criminal sentence. What is

involved is a special personal right, which can only be enforced by the unjustly convicted person. If,

after his death, a person has been found to have been unjustly convicted, his heirs shall succeed to

the right to compensation for damage in accordance with provisions of the ZKP and the general

principles of the law of compensation2. The right of heirs to compensation for damage due to

unjustified sentencing of their ancestor does not arise from article 30 of the Constitution but is

constitutionally protected under articles 33 and 67 of the Constitution.

14. The sentences of confiscation of property had been pronounced by military courts already during

the war on the basis of ordinances, decrees and instructions issued by military authorities and later on

the basis of the Decree on Military Courts of 24.5.1944 (Gazette of the Headquarters of the National

Liberation Army and Territorial Committees of Slovenia, no. 6/44). Confiscation of property was

defined as the so called preservative injunction (article 16 of the Decree) and used to be pronounced

in addition to the punishment. With the Act on the Types of Sentences (Official Gazette of DFY, No.

48/45 and Official Gazette of FPRY, No. 66/46), confiscation of property was defined as one of the

sentences which could be pronounced by military and civil courts (article 1). It could be pronounce as

the main sentence and as secondary sentence, and in just those cases where it had been expressly

prescribed by statute. The court had to pronounce the sentence of confiscation of "all property" if it had

pronounced a judgement of loss of citizenship. It implied compulsory seizure of all or part of property

of a person for the benefit of the state and without the possibility of return. It was expressly provided

that the sentence of confiscation of property could be pronounced against natural and legal persons

(article 14 of the Decree). The sentence of confiscation of property as secondary sentence was

prescribed by substantive criminal law until the adoption of the Penal Code of the Republic of Slovenia

(Official Gazette of RS, No. 63/94), which no longer contains the sentence of confiscation of property.

15. The right to the return of confiscated property in the case of annulment of the sentence of

confiscation of property was in the former legal system recognized already before the recognizing of

the special right to rehabilitation and compensation for damage of the unjustly convicted persons

(section 25 of this reasoned opinion), namely in the Act on the Execution of Sentence, Security

Measures and Reformatory Measures (Official Gazette of FPRY, No. 47/51). The statute in article 91

contained substantially the same provision as is contained in the still applicable article 145 of the ZIKS

and is, in accordance with the latest revision of the ZIKS, applied for the purpose of returning the

confiscated property, if the (annulled) sentence of confiscation of property had been pronounced

subsequent to 31.12.1958. The said statute and the subsequent Punitive Sanctions Enforcement Act

(Official Gazette of SFRY, No. 3/70 - rectified text - came into effect on 1 July 1968) in their transitional

provisions also did not exclude the return of confiscated property, if the sentence of confiscation of

property was pronounced by a final criminal sentence prior to 1.1.1954 and was subsequently

annulled.

16. By its content, article 145 of the ZIKS is a provision of substantive law which provides that

confiscated property shall be returned to the convicted person or his heirs; if the return of confiscated

property or individual parts of it is actually or legally no longer possible, the rightful claimants shall be

entitled to "compensation"3, which shall represent the actual value of the confiscated property as per

the time of the issuance of the decision on the return of property and in accordance with the situation

obtaining at the time of confiscation. The provision of article 145 of the ZIKS, then, excludes the

application of provisions of Bonded Relations Act (hereinafter: "the ZOR") on unjustified acquisition,

which in the case where return is no longer possible grant just the possibility of compensation for the

value of the benefit achieved, and it independently regulates the scope and manner of the return of

9

confiscated property after the sentence of confiscation of property has been annulled by a final

decision.

17. The disputed article 145.a provides that in the cases where the sentence of confiscation of

property pronounced prior to 31.12.1958 has been annulled on the basis of extraordinary legal

remedies, concerning the forms and scope of the return, concerning the restrictions relating to the

return and concerning the valuation of property, the general provisions of article 145 of the ZIKS on

return of confiscated property shall not apply, and that the provisions of Chapter III of the ZDen, which

contain special criteria regarding the valuation of property (article 44), restrictions regarding the return

in kind (articles 19 and 27) and the excluding (as a rule) of the payment of damages - material

compensation (articles 42, 43, 45, 46, 47, 48 and 50) shall be used on mutatis mutandis basis.

18. The disputed article 145.c excludes the recognition of "claims for damages arising from the

impossibility of use or management and arising from the maintenance of real property, as well as

those arising from any other claims relating to the loss of profit in accordance with the rules of the law

of compensation", and thus excludes the application of general rules of the law of compensation,

which grant, within the scope of compensation for ordinary damages, also the right to compensation

for the profit lost. The claims arising therefrom are based on provisions of Chapter XXXII of the ZKP,

which, with regard to compensation for damage due to unjustified sentencing, does not contain any

special provisions, so that the general rules o the law of compensation on compensation of damages

are used. This means that the unjustly convicted person is entitled to request the return of the entire

material damage - the ordinary damage and the loss of profit. A similar provision as that of article

145.c of the ZIKS is also contained in the ZDen, in paragraph 2 of article 72, which also does not

admit claims for damages arising from the impossibility to use or manage property and those arising

from the maintenance of real property in the period from nationalization until the coming into force of

the ZDen. The disputed article 145.c, then, represents a special regulation concerning the return of

material damage in reference with the return of confiscated property (exception), which means that the

general provision concerning the compensation for damage due to unjustified sentencing as

determined in the ZKP and the ZOR are not to be applied.

19. As in the case of both of the disputed provisions what is involved is an independent, special

manner of regulation of the question of the return of the property unjustly confiscated in the period until

1.12.1958, the assertions of the petitioners to the effect that they are not in conformity with the ZKP

and that the ZIKS in so far as "implementing law" should not regulate the return of confiscated

property, are unfounded, which is why the Constitutional Court did not take them into consideration.

20. As is evident, the disputed provisions interfere to a certain extent with the constitutionally protected

right to compensation for the damage due to unjustified conviction (article 30 of the Constitution); as

for the cases where the return of confiscated property and compensation for material damage in the

form of the profit lost in connection with confiscated property are enforced by heirs to the unjustly

convicted person, the disputed provisions interfere with the right to own and inherit property (articles

33 and 67 of the Constitution).

21. The right to compensation for damage under article 30 of the Constitution is a right set in the

Constitution without any statutory reservation. On the basis of paragraph 3 of article 15 of the

Constitution, it may only be limited when this is necessary for the protection of the rights of others. The

right to own and inherit property is in general guaranteed in article 33; paragraph 1 of article 67 then

adds that the manner in which property is acquired and enjoyed shall be regulated by statute so as to

ensure the economic, social and environmental benefits of such property, and paragraph 2 of the

same article adds that the manner in which property may be inherited, as well as the conditions under

which it may be inherited, shall be determined by statute.

22. The constitutionally guaranteed right to own property as a human right grants the individual the

liberty in the field of property. Property is a basic human right, which is closely linked with the

protection of personal liberty. Its function is to protect the freedom of action of the individual in the field

of property, thus making it possible for everybody to freely and responsibly shape his life. As such it is

a constituent part of the constitutions of democratic countries. According to the Universal UN

Declaration of Human Rights as the first international codification of human rights, each person shall

10

have the right to own property either himself or together with others. The Convention on the Protection

of Human Rights and Fundamental Freedoms (Official Gazette of RS, International Treaties, no. 7/94)

- "the EKČP"), which determines a minimum common denominator for the protection of human rights

in Europe, guarantees to each natural and legal person the right to the respect for his property (article

1 of the first Protocol).

23. The constitutional guarantee of property presupposes the existence of property as a legal

institution. The subject of private property and the property entitlements which are protected are

determined by the legal system by taking into consideration economic and social circumstances in

general. In this connection this system must conform to the aim of the constitutional protection of

property, that is, the ensuring and the realizing of personal liberty. That an essential component of

such liberty is the disposing with things and rights associated with property has been decided already

by the European Court for Human Rights (decision in the case Marckx versus Belgium of 13.6.1979),

Publications, A.31, p. 27). The content of the property as legal institution depends at the same time on

the functions assigned to it by the legal system. The fact that the individual is not unrestricted in his

exercise of his property entitlements but must take into consideration also the interests of other

members of the community and of the community as such already comes within the concept of

property right according to the Roman law.4 The definition of property according to the Slovenian

Constitution includes the social, economic and environmental functions of property (paragraph 1 of

article 67). In determining the manner of acquisition and enjoyment of property and the conditions

relating to the inheriting of the same, the legislator is thus obliged to balance the individual and

community aspects of property.

24. In several decisions already, the Constitutional Court has adopted the position that interference

with constitutional rights is subject to rigorous constitutional review in accordance with the so called

test of proportionality. According to the latter, interference is admissible only in the case of being

indispensable (unavoidable) in the protection of other human rights; neither may such interference be

excessive, which means that only the most mild from among the possible forms of interference, which

can ensure the constitutionally admissible and desired aim - the protecting of the equally important

rights of others, is admissible. The legislator must prove that he cannot entirely protect the said right

because by doing so he would interfere with other human rights. Even in the case where the

Constitutional Court leaves it to statute to determine the manner of regulating a certain constitutional

right (within the meaning of the provision of paragraph 2 of article 15 of the Constitution, or on the

basis of the constitutional provision which specifically provides that the manner of exercising a right

shall be regulated by statute), this does not mean that the legislator is not restricted in this connection.

The principle of law-governed state (article 2 of the Constitution) requires that in this connection the

legislator should act in conformity with the principle of proportionality. The legislator is in particular

bound to act in such a manner where with a view to protecting other rights he restricts human rights

and fundamental freedoms. Also, the legislator must always observe the principle of equality under

article 14 of the Constitution and should in determining the manner of exercising, or in restricting

individual human rights and freedoms not act in discriminatory manner.

25. In the case under consideration, the Constitutional Court first had to assess whether with regard to

the limiting of the right to compensation for damage - to the excluding of the return of the loss of profit

having occurred as the result of the confiscation of property, and with regard to the limiting of the right

to the return of the actual value of confiscated property - indispensable (unavoidable) conditions were

in existence. In the course of such assessment it took into consideration the reasons stated in

legislative materials, and it also based its evaluation on other reasons as derived from individual

historic sources and information of the Supreme Court and the Ministry of Justice.

26. From legislative materials (EPA 367 - II - expedited procedure, Journal, No. 5, of 20 January 1998)

it is evident that the legislator interfered with the said constitutional rights due to the fact that, because

of the extremely great number of annulled sentences of confiscation of property as pronounced in the

early postwar years, full scope of compensation in reference with the confiscated property "is from the

viewpoint of the burdening of national economy unacceptable", and that the principle of the social

state dictates that a balance be established between parties entitled to the return of confiscated

property an/or payment of compensation and those who will be under the obligation to fulfil the

obligations arising from the right to the return of confiscated property and/or payment of compensation.

11

The legislator took as his starting point the assumption that also court proceedings, which had been

based on criminal legislation and the sentencing policy of that time, were a means used in

nationalizing the means of production. For this reason it is in connection with the redress of wrongs not

decisive whether property had been nationalized on the basis of administrative or court (criminal)

proceeding. The wrongs done through unjustified confiscations should thus be redressed in the

context of redressing the wrongs of the past period, that is, according to identical criteria applying to all

from whom property had been confiscated in any way whatsoever on the part of the state. For this

reason to all those who had been sentenced to confiscation by final sentence pronounced in the

period up till 1958 and subsequently annulled, property should be returned just in the framework of

provisions of the ZDen, which uniformly regulates the redress of wrongs from the past.The legislative

materials also provide the information of State Attorney's Office about the amount of the claims

resulting from the impossibility of the return in kind (in 253 cases in total amounting to approx. SIT 37

billion), as well as about the amount of the claims arising from the profit lost (in 253 cases in total

amounting to approx. SIT 31 billion). Further, the legislative materials also draw attention to the great

number of pronounced sentences of confiscation of property, in particular in the early postwar years

(year 1947 - 870, year 1949 - 731), that confiscations included about 200 greater and smaller

businesses and that confiscations resulted in the nationalization of approx. 41,000 hectares of

agricultural land, 51,000 hectares of forests, 837 residential buildings and 874 business premises. It is

also pointed out that former criminal legislation did not recognize the right to compensation for damage

to persons unjustly convicted prior to 1.1.1954. Those persons have only acquired this right on the

basis of the constitutional amendment XCVI to the Constitution of the Republic of Slovenia.

27. The Constitutional Court finds that the right to compensation for damage in the past used to be

regulated differently and that the right to full compensation for damage in conformity with rules of the

law of compensation was only admitted in the period when criminal legislation was made to include the

basic principles of criminal law which guaranteed the legality of criminal proceedings (principle of

legality, presumption of innocence) and which prevented the abuse of human rights and fundamental

freedoms.5

28. The right to compensation for damage was recognized in reference with unjustly convicted

persons by Criminal Proceeding Code passed on 10 September 1953 (Official Gazette of FPRY, No.

40/53 - hereinafter: "the ZKP/54"). The unjustly convicted persons had the right just to the return of

material loss. After the death of the rightful claimant, the compensation for damage was allowed to be

requested by his/her spouse and relatives whom the unjustly convicted person had been obliged to

maintain, but just to the extent of their suffering deprivation as regards their maintenance. In article 7

of the Introductory statute to the ZKP/54, the right to compensation for damage was recognized only to

those who had been unjustly convicted prior to 1 January 1954. On the basis of article 6 of the

Introductory statute, for reopening the proceedings decided by final sentence prior to 1.1.1954

provisions of ZKP/48 were applied, which, however, allowed the reopening just on the basis of a

proposal by the Public Prosecutor of the Republic and Federal Public Prosecutor.6 The Constitution of

FPRY of 1963 (Official Gazette of SFRY, No. 14/63) defined the rights to rehabilitation and

compensation for damage as a human right. In paragraph 6 of article 50 it provided that the person

who has been unjustly convicted for a criminal offence or who has been deprived of his liberty without

a justified reason shall have the right to obtain compensation from public funds for the damage done

to him.

29. The right to compensation for damage within such scope as is determined by the present

provisions - the return of material and non-material damage - was admitted to the unjustly convicted

persons as well as to those who were deprived of their liberty without justified reason by the

Constitution of SFRY of 1974. In paragraph 4 of article 181, it provided that unjustly convicted persons

and those who were deprived of their liberty without justified reason shall have the right to

rehabilitation and compensation for damage from public funds and other rights determined by statute.

30. This provision was followed by Criminal Proceedings Act of 1977 (Official Gazette of SFRY, Nos.

4/77, 14/85, 74/85, 74/87, 57/89 and 3/90 - hereinafter: "the ZKP/77"), which in provisions concerning

compensation for damage for unjustly convicted persons not only extended this right also to non-

material damage but also extended the right of heirs. Inheritability of the right to compensation for

material damages was no longer limited only to the married pairs and relatives whom the person was

12

obliged to maintain and in so far as they suffered deprivation as the consequence of unjustified

sentence. As obligational right it was after the death of the injured party inherited by all heirs without

any restrictions. The ZKP/77 still did not recognize to persons unjustly convicted prior to 1.1.1954 the

right to compensation for damage, and the renewing of proceedings decided by final sentence prior to

1954 was only possible on the basis of a proposal by the public prosecutor of the republic or federal

public prosecutor. In articles 561 and 562, it extended the applicability of articles 6 and 7 of the

Introductory statute to the ZKP/54.

31. These two provisions (the exclusion of the right to compensation for damage and prohibition of

renewal) were in force right to the time of the passing of the constitutional amendment XCVI to the

Constitution of the SR of Slovenia of 4.10.1990 (Official Gazette of RS, No. 37/90), which provided

that in the Republic of Slovenia the provisions of articles 561 and 562 of the ZKP/77 shall no longer be

applied. In this way all the unjustly convicted persons acquired the right to compensation for damage,

regardless of he date of their unjustified sentencing, and the right to demand renewal was no longer

within the exclusive competence of public prosecutor, for renewal could also be proposed by the

convicted person, his counsel, and after the death of the convicted person also by his close relatives.

32. After the adoption of the Constitution, in the Republic of Slovenia the ZKP/77 was applied in so far

as it did not disagree with the legal system of the Republic of Slovenia and in so far as not determined

otherwise by the Enabling Statute for the Implementation of the Basic Constitutional Charter on the

Independence and Sovereignty of the Republic of Slovenia - until the passing of Criminal Proceeding

Code (Official Gazette of RS, No. 63/94, hereinafter: "the ZKP"). The provisions on compensation for

damage for unjustly convicted persons have not been changed by the ZKP, and they have remained

the same as former provisions. By extending the right of filing a request for the protection of legality

also to the convicted person and his counsel, and after the convicted persons' death also to his close

relatives (article 421 of the ZKP), it has indirectly also extended the circle of persons who are entitled

by extraordinary remedies to achieve that a particular sentence issued prior to 1.1.1954 be found

unjustified. On the basis of the transitional provision of article 559, a special time limit has been set for

these persons as regards the filing of the request for the protection of legality against a decision which

became final prior to the coming into force of the ZKP, and against any court proceeding going on prior

to such final decision, namely two years after the coming into force of the ZKP. The ZKP has granted

the right to request compensation for damage also to all those persons who were unjustly convicted

prior to 1 January 1954 and who, because of the expiration of the period of three years under the

statute of limitations could no longer enforce their right to compensation for damage. In article 562 it

has provided that the time period for filing a claim shall start to run on the date of the coming into force

of the ZKP, that is, on 1 January 1995.

33. From the foregoing it is evident that the ZKP guarantees the greatest possibilities also for all

persons unjustly convicted in the postwar period to be (morally) rehabilitated and, due to unjustified

sentence, to demand also the compensation for material and non-material damage, and for their heirs

to demand compensation for material damage if those conditions set in articles 538 to 541 of the ZKP

have been fulfilled.

34. In connection with the return of confiscated property, or with remuneration, if it is no longer

possible to return the confiscated property in kind, the legislator has adopted a position already at the

time of passing the ZDen, that in reference with the return of property confiscated through criminal

proceedings decided by final sentence by 31.12.1958 provisions of the ZDen (article 92) should be

applied. From legislative materials - proposal for passing the Denationalization Act together with draft

law - ESA 299, Gazette No. 7/91 of 19.2.1991, it is evident that the legislator already at that time

considered that confiscations of property, regardless of the authority which had pronounced them

(courts in criminal and extrajudicial proceedings, special commissions of People's Committees) had

been the initial form of nationalization of property and that other measures - nationalization, agrarian

reform - had been no less repressive, even though named otherwise. From the materials it is evident

that the legislator did not have at his disposal the information on the number of confiscations of

property, and in particular not the information referring to the confiscating of property by criminal

proceedings. With its decision U-I-10/92 of 5.11.1992, the Constitutional Court annulled article 92 of

the ZDen for violation of the right under article 30 of the Constitution and because of prohibition of

retrospective effect of legislation in accordance with article 155 of the Constitution. As from the

13

decision the reasons which led the Constitutional Court to the said decision are not clearly evident, the

Constitutional Court on the basis of the information contained in case-file finds that both at the time of

passing the ZDen and of making its decision the Constitutional Court was not yet acquainted with the

entire range of confiscations pronounced in criminal proceedings ending with the rehabilitation on the

basis of extraordinary legal remedies, and thus with the scope of financial liability of the state. Also in

that proceeding, the Constitutional Court obtained from the Supreme Court and the Ministry of Justice

information from which it was evident that only a minor number of confiscations based on criminal

proceedings were involved. Thus, the Ministry of Justice advised that only 29 sentences, by which

confiscation of property had been pronounced, were annulled on the basis of reopening of criminal

proceedings. The Supreme Court among other things pointed out to the incongruity of article 92 of the

ZDen, which provided for the return of confiscated property under provisions of the ZDen only in the

case where the sentence of confiscation of property was annulled on the basis of reopening of criminal

proceeding, but not also on the basis of a request for the protection of legality, which created

inequality between rightful claimants. Also in the opinion of the then Legislative and Legal Commission

of the Assembly of the Republic of Slovenia (no. 720 -01/91 - 3/37 -1 of 30.6.1992), the provision of

article 92 of the ZDen (concerning the scope and form of compensation for damage) did not

correspond to the right to compensation for damage guaranteed to the unjustly convicted person by

article 30 of the Constitution. The decision of the Constitutional Court, to which the petitioners also

make reference in their initiatives, was the result of the acquaintance with the circumstances and

information at the time when the rightful claimants did not yet file at the court their requests for the

payment of compensation for confiscated property and for the return of the profits lost. The

Constitutional Court in its decision U-I-107/96 of 4.12.1996, in which it reviewed the Act on Temporary

and Partial Staying of the Return of Property, advised the legislator to reexamine the return of property

on the basis of article 145 of the ZIKS and that, if taking into consideration a most rigorous

constitutional review, some other manner of regulating the state's liability to pay damages might be

contemplated. It asked the legislator to assess whether it is justifiable to differentiate between the

doing away with the consequences due to the confiscation of property by courts and the doing away

with the consequences due to the confiscation of property by administrative authorities. At the same

time, it also draw the legislator's attention to the evaluation of financial capabilities of the Republic of

Slovenia with regard to total redress of wrongs, which also includes the return of the profit lost due to

the confiscation of property.

35. The disputed provisions, then, represent a new regulation which should, based on new information

concerning the number and the scope of confiscations of property and reexamination of the question

of the return of confiscated property, ensure fair redress of postwar wrongs, and would at the same

time reduce great financial obligations of the state with regard to the redress of all postwar wrongs. In

this way, a certain balance would supposedly be reached between the redress of wrongs with

retrospective effect, without the endangering or injuring of the rights of others which have their basis in

the constitutional definition of Slovenia as a social state (article 2 of the Constitution).

36. The Constitutional Court considers that the reasons which dictated the disputed new regulation in

reference with the return of property confiscated in the period until 31.12.1958 are indispensable -

unavoidably required. In addition to the available information on the number of confiscations based on

criminal proceedings and actions filed in reference with claims concerning the profit lost the

Constitutional Court took into account as the decisive reason the information which unequivocally

shows that the sentence of confiscation of property used to be pronounced massively in the period

until 1954 and that confiscation as sentence used to be a means of the initial nationalization, which is

in historic literature referred to as "patriotic nationalization". It is a historically acknowledged fact that

the authorities of that period had used the judiciary branch for its political objectives7. The passing of

the ZKP in 1954, which determined statutorily the basic legal institutions of criminal procedural law for

the ensuring of greater legality of criminal proceedings, it was which marked the end of the conducting

of criminal proceedings on the basis of revolutionary laws and regulations which had been passed

during the war or after it and on the basis of which in the period until 1954 a great number of criminal

sentences had been pronounced and the basis principles of substantive and procedural criminal law

had been violated massively, which is confirmed by the number of persons who had been unjustly

convicted. The Constitution and the Criminal Proceeding Code (general part) of 1947 had not known

of the principle of legality, and the criminal proceeding until 1948 had not been regulated, the

exception being individual organizational regulations. The numerous violations on the part of criminal

14

courts at that time are also confirmed by the number of the reopenings admitted in recent years and

the number of proceedings initiated based on requests for the protection of legality.

37. The political situation described and the information that through confiscations already by the end

of 1946 more than 70% of the capital invested in industry had been transferred to state ownership and

that 50% of all land had been transferred to land reserves on the basis of confiscations8, imply that

confiscations of property based on criminal proceedings together with agrarian reform and

nationalizations had represented a process of acquisition of property by the state. It is precisely the

described aspect - where on the basis of confiscations more than half of the nationalized property had

become the property of the state - which comprises the said indispensable reason for the state to

restrict its own strict responsibility for unjustified confiscations of property. The Constitutional Court

also took into consideration that the provisions on compensation for damage due to unjustified

sentencing, which ensure the compensation for damage on the basis of strict responsibility of the state

in the widest scope possible were adopted simultaneously with the excluding of the return in the case

of the annulment of criminal sentences pronounced prior to 1.1.1954. The realization that massive

wrongs caused by the political regime of that time by confiscations of property based on criminal

proceedings cannot be redressed by measures envisaged for the case where an unjustified criminal

sentence has exceptionally been pronounced is now, with the entire scope of this issue known, quite

understandable. This fact was not taken into account by the legislator on the occasion of adopting the

constitutional amendment in 1990, and neither was the Constitutional Court aware of this fact at the

time of annulling article 92 of the ZDen, as has already been explained in section 34 of this reasoned

opinion. The majority of former communist countries, also, have adopted statutory measures for the

redress of massive wrongs and have restricted the payment of compensation for nationalized

property.9

38. With the disputed provisions of article 145.a and 145.c, the legislator has to a certain extent

interfered with the constitutional rights of unjustly convicted persons and with the constitutional rights

of their legal heirs. The Constitutional Court estimates that the equalization of the position of unjustly

convicted persons with the position of all persons regarding the redress of postwar wrongs is an

appropriate means, and that the legislator could not have achieved his aim by a milder measures. In

this case, the Constitutional Court finds that the principle of the social state gives the legislator the

right, with due consideration paid to the right of all citizens to social security, to attend to financial

capabilities of the state and, in cases which are constitutionally admissible, also to limit the rights for

this reason. The limiting is also dictated by the principle of equality. For it is from the initiatives

themselves and from supplements thereto evident that, having regard to the considerable period of

time passed since confiscations based on criminal proceedings, the return of confiscated property and

compensation for damage due to the profit lost in connection with confiscated property is demanded

mainly by relatives of the unjustly convicted persons, who were not the persons directly injured by

unjustified criminal sentencing and whose position is not different from the position of the persons

whose property had been taken away from them by some other form of nationalization.

39. The process of nationalization which had been carried out through the pronouncement of the

sentence of confiscation of property through criminal proceedings had in many cases been more brutal

than the nationalization and agrarian reforms and administrative confiscations, for in addition to

material damage the injured persons could also have suffered even greater moral damage and pain,

which is quite rightly pointed out by many petitioners. Having regard to the claims of the petitioners

concerning the harm, fear and other consequences suffered by them as the result of unjustified

sentencing, the Constitutional Court stresses that the disputed provisions do not interfere with other

rights guaranteed on the basis of articles 30 and 33 of the Constitution by the ZKP to those persons

who have been affected by unjustified criminal sentence - the right to rehabilitation, to compensation

for any other possible material damage and to compensation for immaterial damage, in the case if the

person is still alive or if the compensation has been awarded to him already at the time when he was

still alive. For the disputed provision of article 145.c only excludes compensation for the profit loss

caused by the pronouncement of the penal sanction of confiscation of property.

40. The Constitutional Court on the basis of the foregoing reasons concludes that, by passing articles

145.a and 145.c of the ZIKS, the legislator has restricted the right to compensation for damage and

the right to compensation for confiscated property in accordance with the principle of proportionality

15

and that the claims concerning the violation of articles 2, 3, 14, 15, 30 and 33 of the Constitution are

unfounded. Also unfounded are the claims concerning the violation of international acts. Paragraph 6

of article 14 of the International Covenant on Civil and Political Rights (Official Gazette of SFRY, No.

7/91, and Official Gazette of RS, No. 35/92) only imposes the duty of compensation for damage in the

case of a person who has served a sentence on the basis of unjustified criminal sentencing. Article 3

of the Protocol no. 7 to the Convention on the Protection of Human Rights and Fundamental

Freedoms (Official Gazette of RS, no. 33/94), also, in the case of unjustified sentencing guarantees

the right to compensation in accordance with statute or practice of the country. Also the Resolution

1096 of 27.6.1996 concerning the measures for the elimination of negative consequences of former

communist totalitarian systems, which was adopted by the Parliamentary Assembly of the Council of

Europe, contains just a recommendation that victims of totalitarian violence should be granted material

compensation which should not be substantially lower than the compensation to which unjustly

convicted persons are entitled in accordance with the legislation in force, and that in the case of

impossibility of the return in kind or in its entirety a fair material compensation should be awarded.

Review of point 5 of article 145.b of the ZIKS

41. Article 145.b is a special provision which defines the rightful claimants with respect to the return of

confiscated property, for the provisions of the ZDen on parties entitled to the return (of property), in

particular since companies ownership transformation procedures have been brought to the end,

cannot be applied. Provisions of article 145.b - when compared with provisions of the ZDen - grant in

the case of where the return in kind is not possible the right to compensation in the form of shares or

bonds of the Republic of Slovenia. In the disputed point 5 it is provided that the issuance of bonds for

the payment of compensation shall be regulated by special statute. The principle of law-governed

state, which also comprises the principle of protection of the trust in law, demands from the legislator

to definitely regulate a certain relation or right and in doing so not to invoke a piece of legislation which

does not yet exist and in reference with which the time limit by which it should be passed is not even

specified yet. In practice, there are numerous cases where the return of confiscated property in kind is

no longer possible, and the return will have to be effected in the form of pecuniary remuneration. By

failing even to envisage a time limit by which he will pass a statute on the issuance of the bonds of the

Republic of Slovenia, the legislator has not definitely regulated the possibility of payment of

"compensation" through bonds, thus practically excluding this form of compensation. As with the

disputed provision the legislator has violated the principle of protection of the trust in law and, thus, the

principle of law-governed state under article 2 of the Constitution, the Constitutional Court found that

the disputed provision was in conflict with the Constitution and set a period of six month for the

legislator to pass the envisaged statute (decision U-I-86/94 of 14.11.1994, OdlUS V, 153).

Review of article 3 of the revised ZIKS

42. The disputed provision provides that "civil and extrajudicial proceedings relating to the return of

confiscated property, which were started prior to the coming into force of this statute and have not

been decided by final decision yet prior to the coming into force of this statute, shall be brought to an

end in accordance with this statute." All the petitioners dispute this provision because they consider

that, in disagreement with paragraph 2 of article 155 of the Constitution, it interferes with accrued

rights.

43. From legislative materials it is evident that the legislator was aware of retrospective effect of the

disputed provision, but he considered that such retrospective effect was dictated by public interest -

the prevention of extraordinary financial burdening of the state which could lead to its insolvency.

44. Paragraph 2 of article 155 of the Constitution provides that retrospective effect is admissible only if

the two conditions are fulfilled cumulatively; retrospective effect of a statute must be justified by public

interest and, at the same time, retrospective effects may not interfere with accrued rights.

Already when reviewing articles 145.a and 145.c, the Constitutional Court found that benefits of public

interest justify the interference with the right to compensation for damage and/or to compensation for

confiscated property. This is why in the case of reviewing this provision the same reasons apply in

reference with the existence of public interest. But the legislator is wrong as regards the other

16

condition - by finding that the disputed provision does not interfere with accrued rights, for rightful

claimants would supposedly only acquire the right to the return of confiscated property on the basis of

a final decision on the return of confiscated property and/or on compensation for the profit lost.

45. The cases when rightful claimants become entitled to compensation for damage which they

enforce on the basis of the ZKP, with this also excluding the compensation for damage due to the

profit lost in connection with confiscated property, are determined in the ZKP itself. Unjustly convicted

persons shall become entitled to compensation for damage on the date of final decision by which they

have been acquitted of charges or by which the indictment was quashed, or of the final resolution by

which the indictment was quashed or by which the proceeding was stopped (paragraph 1 of article

539 of the ZKP). Heirs become entitled to compensation for material damage when the rightful

claimant dies. Article 541 of the ZKP expressly provides that in the case of death of an unjustly

convicted person, his heirs may continue with proceeding which has already been initiated, or they

may initiate it within a specified period of time - within three years of the date of final judgement of

acquittal or final decision to stop the proceeding. In contrast with the ZKP, the ZIKS dos not contain

any specific provisions concerning the statute of limitations relating to claims for the return of

confiscated property. Having regard to the fact that in the case of the return of confiscated property

what is involved is a special right connected with compensation for "damage" due to unjustified

sentencing, in reference with which provisions of the ZKP are not applied, it is necessary to conclude

that the general five year limitation to the right of action shall apply, as provided in article 371 of the

ZOR.10 Taking into consideration the general rule that the period for the limitation to the right of action

shall start to run once the party is in a position to be able to enforce his claim, it is necessary to find

that the right to the return of confiscated property, also, arose on the date of the final decision by

which the sentence of confiscation of property has been annulled.

46. The disputed provisions, then, interfere with rights retrospectively. In civil and extrajudicial

proceedings initiated already, courts must apply other legal provisions relating to the return (of

property) which are less favourable for rightful claimants, namely the provisions of the ZDen and of

secondary legislation. It is noncontroversial that the said persons, who initiated proceedings at the

time when former legislation was in force, incurred certain lawsuit costs which were caused by the

state who modified the statute.

47. In conformity with paragraph 3 of article 15 of the Constitution, a statute can only interfere with

accrued rights subject to rigorous constitutional review in accordance with the test of proportionality,

which has already been explained by the Constitutional Court in this decision. Thus, the Constitutional

Court assessed whether in the instant case the conditions were fulfilled which justified interference

with an accrued right on the part of the legislator. For this assessment it is essential to take into

consideration that the disputed provision just restricts the two constitutional rights granted in articles

30 and 33 of the Constitution. The unjustly convicted persons and their heirs are still entitled to the

return (of property) in kind. If the return in kind is not possible, they have the right to ask for

compensation for the confiscated property; in conformity with the modified provision, however, it shall

no longer be evaluated on the basis of general rules of the law of compensation but according to

special provisions of the ZDen and the regulations issued on its basis. The statute in article 145.b

allows for the possibility of compensation in the form of shares in possession of the Republic of

Slovenia, the bonds of the Republic of Slovenia and pecuniary compensation under the conditions of

article 50 of the ZDen. The legislator has in the case of payment of compensation for confiscated

property granted to the unjustly convicted persons a more favourable position than to denationalization

claimants, for with respect to the latter he has not envisaged the payment of compensation (damages)

with the bonds of the Compensation Fund. As already pointed out, the excluding of the right to

compensation for the profit lost due to the confiscation of property does not yet mean that the unjustly

convicted persons or their legal heirs do not have the right to request compensation for any other

material damage (for example, that arising from the deprival of liberty) on the basis of the ZKP. The

Constitutional Court judges that the legislator had an urgent reason for interfering with the proceedings

being in progress. The fact is that during this period most proceedings are in progress, which is why in

the opposite case he would not be able to achieve the objective pursued by the disputed amendment

and in reference with which the Constitutional Court already found that it was legitimate.

17

The objective could neither be attained by any milder means. As already mentioned, the legislator took

into consideration the special position of the persons who were affected by his measure and

envisaged a favourable position for those persons in reference with the payment of compensation in

bonds. In this way, proportionality has been achieved between interference with the right to

compensation for the entire damage and/or the right to the return of confiscated property according to

its actual value and the equal rights of all those to whom the state will still have to pay damages or

compensation for the wrongs committed in the postwar period. In this connection the Constitutional

Court also took into account that any other arrangement would treat discriminatorily those unjustly

convicted persons and their legal heirs who have not yet filed their requests or where judgement of

acquittal or the stopping of criminal proceeding is yet to take place in the future.

48. As the persons who have initiated extrajudicial and civil proceedings have incurred lawsuit costs

for no fault of their own, the Constitutional Court decided that the legislator must within 6 months

specifically regulate the question of compensation for the said costs. The principle of law-governed

state requires from the state to provided for the return of those costs which it has cause by amending

a piece of legislation, and this even in the case where the amending of such piece of legislation is

constitutionally admissible.

B. - III.

Paragraph 3 of article 145 and paragraph 1 of article 145.č of the ZIKS

49. The petitioners Alojzija FariČ, Anica Cimperc, Alojzija Osvald and Mirko Lemež jun. consider that

the provision of paragraph 3 of article 145, also, makes impossible the compensation for the entire

damage resulting from the confiscation of property. The actual value of property, and the said property

was of substantial value at the time of confiscation, should supposedly not have been assessed on the

basis of the time of the issuance of the decision on the return, for the market value (of agricultural

machinery, automobile) was at the time of confiscation supposedly much higher than the present

market value. By way of example they state that in 1948 a tractor cost a fortune, while its present

value is because of technical advancement much lower.

50. Article 30 of the Constitution, which determines strict liability of the state for the damage caused by

unjustified sentence grants to the unjustly convicted persons a more favourable position in the

enforcing of claims for compensation than the one they would have if they had to enforce their claims

on the basis of article 26 of the Constitution. In article 26, the Constitution grants the right to

compensation for damage suffered by reason of the wrongful performance by any person or body

carrying out any function or other activity of any government authority. With the date of final decision to

annul the sentence of confiscation of property, unjustly convicted persons shall be entitled to the

return of the said property, and the state cannot get rid of its liability by proving that the court and

judge had acted "legally". Paragraph 3 of article 145 provides that in the case of impossibility of the

return of confiscated property in kind the actual value of that property at the time of the confiscation of

property shall be returned.

As already explained (section 16 hereof), the legislator in conformity with article 30 of the Constitution

in paragraph 3 of article 145 excluded the application of provisions of the ZOR on unjustified

acquisition and equalized the compensation for confiscated property as regards the scope of

compensation for damage with the compensation for damage under the general rules of the law of

compensation. Thus, the injured parties are entitled, in the case where former situation cannot be

reestablished, to obtain financial means by which they can replace the confiscated property by new

property. This is only possible if the value of confiscated property has been assessed as at the time of

the issuance of the decision on the return (of property), and not as at the time when it had been

confiscated11. This is why the assertions of the petitioners, that paragraph 3 of article 145 does not

admit full compensation as determined by article 30 of the Constitution, are obviously unfounded, and

the Constitutional Court consequently dismissed the corresponding part of their initiative. The

Constitutional Court again points out that the provision of article 145 only applies in the case of the

return of property confiscated in criminal proceedings which had been completed by final decision

subsequent to 31.12.1958 (section 15 hereof). Following the finding of the Constitutional Court, that

the provision of article 145.a, which determines a special manner of regulating the return of property

18

confiscated prior to 31.12.1958, is not in conflict with the Constitution, the petitioners can no longer

enforce their claim on the basis of article 145 but on the basis of article 145 a, which provides that also

in connection with the valuation of property provisions of Chapter III of the ZDen shall apply on mutatis

mutandis basis.

51. The petitioners Alojzija Farič, Anica Cimperc, Alojzija Osvald and Mirko Lemež jun. in reference

with the disputing of article 145.č consider that the assigning of extrajudicial proceeding is a violation

of their right under articles 22 and 23 of the Constitution. The modifying of jurisdiction in rem is claimed

to mean that their action would be decided by the District Court in Maribor in extrajudicial proceeding,

and not by the Circuit Court in civil proceeding. The legislator should supposedly not have determined

different protection of rights before courts and state authorities for identical matters - that is, for the

return of confiscated property. As the legislator has prescribed that claims for the return of property

shall be considered in extrajudicial proceeding, which is in the opinion of the petitioners inappropriate

for the consideration of matters regarding the return of confiscated property, he has supposedly also

made it impossible for the courts to adjudicate without undue delay.

52. the former article 145 of the ZIKS did not prescribe the type of judicial proceeding in reference with

the return of confiscated property. This is why the Supreme Court at its general session of 21/22

December 1992 adopted a general legal opinion that the return of confiscated property shall be

decided by courts in extrajudicial proceeding. The new article 145.č, then, has provided statutory basis

for the hitherto court practice and has not in any way modified the position of rightful claimants entitled

to the return of confiscated property. This is why the assertions of the petitioners, that on the basis of

the disputed provision the return of confiscated property will be decided by the district court instead of

the circuit court, are wrong. The assertions of the petitioners, that the prescribing of extrajudicial

proceeding for consideration of matters relating to the return of confiscated property already and in

advance implies the violation of the principle of equality (article 14 ) and the right to equality in the

protection of rights (article 22 of the Constitution), as well as the right to due process of law (article 23

of the Constitution), are obviously unfounded. Extrajudicial proceeding, also, is a court proceeding

which is regulated by statute and as a rule grants to the parties identical guarantees as the civil

proceeding (Extrajudicial Proceeding Act (Official Gazette of SRS, Nos. 30/86 and 20/88). Also in this

proceeding, the court must make it possible for the parties involved to make their statements

concerning the assertions of other parties involved, to take part in the hearing of evidence and to

discuss the results of the entire proceeding (article 4). In extrajudicial proceeding, the provisions of the

Civil Action Act shall apply on mutatis mutandis basis unless provided otherwise by Extrajudicial

Proceeding Act or any other statute (article 37). Thus, paragraph 2 of article 154.č has expressly

provided that appeal against decisions of appellate courts is allowed, for it would otherwise not be

allowed (article 34 of the ZNP12). Bearing in mind the said finding, that the reasons of the petitioners

given concerning the violation of constitutional provisions by the prescribing of extrajudicial proceeding

are obviously unfounded and that prior prescribing of extrajudicial proceeding cannot violate the rights

granted in articles 22 and 23 of the Constitution, the Constitutional Court did not assess the reasons

stated by the petitioners concerning the inappropriateness of extrajudicial proceeding for the return of

confiscated property and/ or the remuneration of its value.

C.

53. This Decision was made on the basis of paragraph 2 of article 26, paragraph 1 of article 40 and

article 48 of the ZUstS by the Constitutional Court in the following composition: Dr. Lovro Šturm,

President, and Dr. Miroslava Geč - Korošec, Dr. Peter Jambrek, Dr. Tone Jerovšek, Matevž Krivic,

M.L., Franc Testen, Dr. Lojze Ude and Dr. Dragica Wedam - Lukić, the judges. Paragraph 1 of the

disposition hereof was adopted with six votes in its favour and 2 votes against it (votes against were

cast by judges Šturm and Jambrek), paragraph 3 of the disposition hereof was adopted with seven

votes in its favour and 1 votes against it (vote against was cast by judge Šturm), and paragraphs 2, 4

and 5 of the disposition hereof were adopted unanimously. Judge Šturm gave a concurring opinion

and was joined by judge Jambrek.

P r e s i d e n t:

Dr. Lovro Šturm

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Notes:

1 Position of the Supreme Court in the decision. II Ips 27/93.

2 Article 204 of Bonded Relations Act provides that a claim for compensation of intangible damage

shall only be transferred to heirs if it has been recognized by a final decision or written agreement.

3 In conformity with provisions of the ZOR on unjustified acquisition, it would be terminologically

appropriate to use "reimbursement" instead of "compensation".

4 Kranjc, Začetki in razvoj lastnine v antičnih pravih, in Šturm et al., Varstvo lastninske pravice kot

temeljne človekove pravice, Inštitut za javno upravo, Ljubljana, 1997, p.62.

5 German law still does no admit full compensation to heirs but only to the extent to which the person

was under statutory obligation to maintain them (paragraph 1 of article 11 of the Act on compensation

for criminal prosecution measures _ Gesetz uber die Entschadigung fur

Strafverfolgungsmassnahmen). Germany has also passed a special law on rehabilitation and

compensation for victims of criminal persecution measures effected in violation of the principles of law-

governed state in the adjoined territory ((Gesetz uber die Rehabilitierung und Entschadigung von

Opfern rechtsstaatswidriger Strafverfolgungsmassnahmen im Beitrittsgebiet). The law has

encompassed criminal sentences of Gernam courts in the adjoined territory passed in the period

between 8 May 1945 and 2 October 1990, if pronounced in violation of the essential principles of the

free law-governed state. The provisions of this law are also applied with respect to measures under

criminal law which were not imposed by court decision. The law restricts the circle of persons who can

file a request for compensation for damage. It could be filed by the injured person, and after his/her

death by his/her spouse, lineal relatives, brothers and sisters and persons having justified interest in

the rehabilitation of the injured person. A request could also be filed by state prosecutor's office if the

injured person did not oppose this. With regard to the return of property taken away by a criminal

sentence, the law prescribes the application of a special property law (Vermogensgesetz) and of

investment law (Investitionsgesetz) as general laws dealing with the return of property. In the case

where property cannot be returned in kind, they specify special rules for the determination of pecuniary

compensation and thus exclude the general rules of civil law applying to compensation for damage

and the profit lost. Compensation does not amount to the present sales value of confiscated property

even in the case where the deduction based on digressive rate is lowest. Other requests (for example,

concerning the damaging of things, decrease in value, inability to use) are excluded (derived from:

Tappert, Die

Wiedergutmachung von Staatsunrecht der SBZ/DDR durch die Bundesrepublik Deutschland nach der

Wiedervereinigung, Arno Spitz, Berlin, 1995, p. 221). - In the United States of America they do not

admit strict liability of the state arising from unjustified sentencing. In the case Korematsu v. United

States (323 U.S. 214; 65Ct, 193; 89 L.Ed.194 - 1944) the Supreme Court confirmed the executive

decree of President Roosevelt of February 1942 on forced evacuation of inhabitants of Japanese

descent from the entire West Coast into the so called "detention centers". The Congress already in

1948 adopted a law on the basis of which rightful claimants received more than 37 million dollars of

compensation. In 1980, the Congress founded a special body (U.S. Internment Commission), whose

task was to investigate violations against Americo-Japanese interned persons, and on its proposal

further compensations were provided in the cases where it considered that this was appropriate

(American Constitutional Law, Ralph A. Rossum and G. Alan Tarr, St. Martin Press, New York).

6 Tomo Grgič, Varstvo človekovih pravic v kazenskem procesnem pravu, pp. 177-188, Slovenija in

Evropska konvencija o človekovih pravicah, Zbornik razprav, Svet za varstvo človekovih pravic in

temeljnih svoboščin. Page 182: "The public prosecutor of the Republic has in the past years filed

requests for renewal of proceedings in connection with the so called political processes and these

were satisfied, but such requests were not really frequent, for his decisions in this regard were based

on his discretion. ... in reference with criminal cases decided by final decision prior to 1.1.1954 neither

the public prosecutor of the Republic (of Slovenia) nor the federal public prosecutor filed any requests

for the protection of legality, obviously adopting the position that the request for the protection of

legality was in such cases not possible. That such position is not correct ... for extraordinary

application of provisions of the ZKP/48 was expressly restricted just to the reopening of criminal

proceedings decided by final decision prior to 1.1.1954 was also clearly stated by the senate of the

Supreme Court of the Republic of Slovenia, namely when it decided on requests of the public

prosecutor of the Republic for reopening two proceedings... Such position of the senate of the

20

Supreme Court was in the middle of 1990 also followed by the practice of the public prosecutor of the

Republic of Slovenia."

7 Ključne značilnosti slovenske politike v letih 1929 - 1955, znanstveno poročilo Inštituta za novejšo

zgodovino, Ljubljana september 1995. Page 89: - The political system based on the inducement of

masses into political life via the Liberation Front (the so called people's democracy) was taken

advantage of by the communist party for settling accounts with the bourgeois opposition and for

subduing the political allies from the period of the war. The authorities proceeded against potential

opposition by judicial proceedings. The basic aim of the processes with political background was "to

damasks the activities directed against the people" by the former Yugoslav regime, to settle accounts

with class enemies (merchants, industrial people, kulaks), as well as with the Church and the

members of German minority and to confiscate their property."

Page 90: Among the most characteristic postwar processes were the processes before courts of

national honour, whose purpose was to enforce the moral principles of the War of National Liberation

(convicted persons were in addition to being sentenced to prison also deprived of their property and of

their citizenship), processes against Nazi war criminals, against collaborators of occupying forces,

terrorist groups, spies, saboteurs and organizers of "king's" army in his home country, processes

against merchants and industrial people and the so called kulak processes. Among political processes

the prominent ones are the Nagode process (July 1947), partly processes against priests (they fall in

various categories) and the Dachau processes (1948-1949). In the latter there was a political settling

of accounts within the Communist Party of Slovenia, and the processes had the typical features of

stalinist political processes (construed or invented charges, trials against members of the same party

and against partisans of the same ideology). Political background also characterized some other

judicial processes. - The judiciary became a means of class struggle and was based on politically

reliable but professionally unqualified staff. - According to the information from the public prosecutor of

the People's Republic of Slovenia, 124 persons were sentenced to death in the period 1947 - 49

before ordinary courts in Slovenia, out of which number only 8 for criminal acts (murders, organized

crime etc.). In the period 1948 - 1950, each year there were about 1000 persons sentenced in political

trials, and in 1952 and 1953 there were 91. The exact number of persons sentenced in political trials

until 1948 has not been established yet."

8 Ključne značilnosti - znanstveno poročilo (see note 6). Page 92: "The new authorities in the early

postwar years first nationalized the so called "enemy's property" (German property and property of

collaborators of occupying forces, which is termed "the patriotic nationalization". ..Most of the seizures

of property to the benefit of the state were carried out on the basis of confiscations. In the penal

system, these were a supplementary penalty for various offenses. The greatest number of

confiscations was pronounced in Slovenia by courts in 1945. By the end of 1946, around 70% of the

capital invested in industry became state property. The authorities used confiscation also

subsequently as a supplementary penalty for those sentenced for violation of obligatory handing over

of crops and for other violations of laws." Zdenko Čepič: Agrarna reforma in kolonizacija v Sloveniji

(1945 - 1948) Page 126: "Confiscations represented a supplemental source for land reserves, while

the major single share of land had been created on the basis of the Avnoj (Antifascist Council of

National Liberation of Yugoslavia) decree on confiscation and transfer of German property and the

property of opponents of national liberation movement to state property and on the basis of court

confiscations. ...In this way, the land passed to land reserves also in subsequent period, when the

agrarian reform was all but completed. For example, property was confiscated wholly or in part from

those farmers who did not surrender a certain part of their crops in the period when obligatory buying

was in force. ... The ratio between expropriated and confiscated land in land reserves shows the

nature of agrarian reform in Slovenia, which, in addition to social liberation, also has a distinct

objective of national liberation. In this way, the agrarian reform in Slovenia was also a form of "patriotic

nationalization". Of all land in land reserves, 50% derived form confiscations (134,117 hectares). Also

the highest in land reserves was the number of confiscated holdings (8447)."

9 Annex to the 9th report on implementation of the Denationalization Act, Gazette, no. 27/95;

10 Article 371 of the ZOR: "Claims shall fall under the statute of limitations within five years, unless

some other time period is determined by statute in reference with the falling under the statute of

limitations."

11 Paragraph 2 of article 189 of the ZOR: "Compensation for damage shall be assessed according to

the prices obtaining at the time of the issuance of court decision, unless determined otherwise by

statute."

12 Article 34 of the ZNP Review is not allowed unless determined otherwise by statute.

21