NADBISKUPIJA ZAGREBACKA v. SLOVENIA
Inadmissible
Georg Ress;Mark Villiger
The applicant, the Zagreb Archdiocese (Nadbiskupija Zagrebačka), is a juristic person whose seat is in Zagreb, Croatia. It is represented before the Court by Zvjezdana Znidarčić-Begović, a lawyer practising in Zagreb, Croatia. The facts of the case as submitted by the applicant may be summarised as follows. On 7 June 1993 the Zagreb Archdiocese, acting through its legal representative, lodged with the Ministry of Culture of the Republic of Slovenia a claim for restitution of castle Mokrice, its outbuildings and surrounding estate together with related movables and works of art. It based its claim on sections 14 and 54 of the Denationalisation Act 1991. The castle and its estate are located on the territory of present-day Slovenia and were purchased in 1937 by the Zagreb Archdiocese Seminary. They were nationalized after the Second World War by Yugoslav authorities. In 1988, the castle and part of the estate were classified as Slovenian cultural and natural monuments. On 25 July 1994 the Ministry of Culture dismissed the claim for restitution on the ground that section 14 of the Denationalisation Act 1991 gave the right to restitution of expropriated property to “churches and other religious communities, their institutions and orders, operating on the territory of Slovenia” on 7 December 1991, the date of the entry into force of the Act. It was generally known, however, that at that time the Zagreb Archdiocese exercised its activities in Croatia. The Zagreb Archdiocese was therefore not entitled to restitution. Further, the Ministry of Culture separated and transferred a part of the claim concerning a part of the surrounding land and certain movables to the Municipality of Brežice as the competent authority. On 25 August 1994 the applicant instituted administrative litigation with the Supreme Court, asserting that the claim for the restitution of the property emanated from the Zagreb Archdiocese as part of the Catholic Church and the catholic religious community. It was clear that, regardless of its internal organisation, the Catholic Church was entitled to restitution under the Denationalisation Act 1991. Moreover, the Razkrižje parish, located on Slovenian territory, belonged, in ecclesiastical administrative terms, to the Zagreb Archdiocese. This meant that the Zagreb Archdiocese was “operating on Slovenian territory” within the meaning of section 14 of the Denationalisation Act 1991 and was therefore entitled to restitution. By a judgment of 23 January 1997, the Supreme Court rejected the applicant's claim and upheld the decision of the Ministry of Culture, holding that section 14 of the Denationalisation Act 1991, with special reference to the concept of “churches and other religious communities, their institutions and orders, operating on Slovenian territory”, should be interpreted narrowly. It transpired from that provision that it was not the universal Catholic Church but its constituent juristic persons operating on the territory of Slovenia and registered as religious communities under the Legal Status of Religious Communities in the Republic of Slovenia Act 1967 that were entitled to restitution. The Catholic Church, as a much wider entity, did not therefore satisfy this criterion. The Supreme Court also rejected the Zagreb Archdiocese's argument that the presence on Slovenian territory of a single parish belonging to the applicant in accordance with the internal organisation of the Catholic Church justified its claim to be operating on Slovenian territory. It held that this was not sufficient for the applicant to qualify as a Slovenian juristic person, since the greater part of its activities took place in another State where its seat was located and to the jurisdiction of which it was subject. On 9 May 1997 the applicant lodged a constitutional appeal with the Constitutional Court, alleging that the Zagreb Archdiocese was a part of the Roman Catholic Church and that its internal organisation was regulated by the Code of canon law (Codex iuris canonici), promulgated on 25 January 1983. According to the provisions of this code, the supreme authority regulating the ownership of property was vested in the Pope. Since Article 7 of the Slovenian Constitution provided for the separation of Church and State and recognised their equality, this implied recognition of the internal organisation of the Catholic Church under the Code of canon law. There can consequently be no doubt that the Catholic Church was entitled to restitution. The decision of the Supreme Court, moreover, violated the right to own property, as protected by Article 67 of the Constitution. On 30 November 1999 the Constitutional Court declared the applicant's constitutional appeal inadmissible, on the ground that it had no jurisdiction to review application of the law by ordinary courts. It found that the applicant essentially contested the Supreme Court's refusal to take into account the Code of canon law in determining the applicant's right to restitution. The Supreme Court's interpretation of the law was reasoned and there was no indication that its conclusions were arbitrary or in breach of human rights and fundamental freedoms. The decision was served on the applicant's lawyer on 21 December 1999. 1. The Constitution (Ustava Republike Slovenije, Official Gazette no. 33/91) “The State and religious communities shall be separate. Religious communities shall enjoy equal rights; they shall pursue their activities freely. ” “The manner in which property is acquired and enjoyed shall be established by law so as to ensure its economic, social and environmental function. (...) ” 2. The Denationalisation Act 1991 (Zakon o denacionalizaciji, Official Journal no. 27/91, with amendments) At the time of the adoption of the Act, its sections 3, 4, 5, 10 and 13 limited the right to restitution of expropriated property to natural persons. The only exception were churches and religious communities, which were expressly recognised as beneficiaries under section 14 of the Act (see below). By the Constitutional Court's decision of 4 March 1993 (see below), the right to restitution was extended to all domestic juristic persons. “(...) The conditions and the mode of denationalisation are determined by this Act. ” “The right to recovery of property is hereby given to churches and other religious communities, their institutions and orders operating on the territory of the Republic of Slovenia at the time of the coming into effect of this Act. ” “ (...) 5. The Ministry of Culture shall decide on denationalisation of objects specified in (...) of this Act (...)” 3. The Constitutional Court's case-law On 4 March 1993 the Constitutional Court adopted a decision in a case brought by three legal persons (not party to the proceedings in this case) who challenged the constitutionality of several provisions of the Denationalisation Act 1991 (U-I-25/92). It declared that the restriction of the right to restitution to natural persons and only certain legal persons was unconstitutional. By altering the wording of sections 3, 4, 5, 10 and 13 of the Act, the Constitutional Court extended the right to restitution to all Slovenian legal persons. It held that section 14 thus acquired a new meaning. The Constitutional Court reasoned that: “...the provision of section 14 is no longer contrary to the Constitution, because it does no longer have the function of providing a legislative basis for denationalisation claims of churches and other religious communities, their institutions and orders. With the annulment (...) of the pertinent legislative provisions, this provision was given a different content. It only means that under this legislative provision the right to restitution of property is accorded only to those churches and other religious communities, their institutions and orders, that were operating on Slovenian territory at the time of the adoption of the Denationalisation Act 1991...”