Volume 10 Number 4

Fall 2001

Constitutional Watch
     A country-by-country update on constitutional politics in Eastern Europe and the ex-USSR

Slovenia - Public opinion-and government coalition partners-have been at odds over the issue of property restitution. On July 4, the Ministry of Agriculture, Food, and Forestry ordered the return of over 8,000 hectares of forest in the Triglav National Park to the diocese of Ljubljana. This order overrode an April 12 decision by the local authorities of Radovljica, rejecting the diocese's claim, on the grounds that the forest is part of the country's protected natural heritage and cannot be returned in kind. A week later, Culture Minister Andreja Rihter issued a contradictory decision, rejecting the parish of Bled's claim to a tiny island on Lake Bled. Rihter explained that the island and the property on it could not be returned in kind, and that the Church should supplement its claim with a request for financial compensation. Both ministries based their differing decisions on Slovenian legislation. Minister Rihter explained that her decision was based on the fact that the Lake Bled island is protected under the Nature Protection Act and Cultural Heritage Protection Act. Agriculture Minister Franci But, on the other hand, claimed that legislation adopted after implementation of the 1991 Denationalization Act-the law on the protection of nature and natural heritage was passed in 1999-cannot interfere retroactively with acquired rights. Minister But also believes that the law on the protection of nature does not apply to denationalization. However, some legal experts have pointed out that the Denationalization Act itself restricts in kind restitution of property that is a public good.

Although Prime Minister Janez Drnovsek has rejected media reports that labeled the two denationalization cases "political decisions," the two ministers belong to two different, junior coalition parties that do not see eye to eye on the issue. Agriculture Minister But heads the center-right Slovenian People's Party + Christian Democratic Party (SPP+CDP), which advocates the restitution in kind of property to the Church, while Minister Rihter is a member of the center-left United List of Social Democrats (ULSD), which believes financial compensation is a more appropriate solution.

Drnovsek, who heads the senior coalition partner, the Liberal Democratic Party (LDP), said that both decisions came too soon, that is, before a comprehensive solution to the problem of returning property seized from the Church could be found. While there are varying opinions on the issue within the LDP leadership, its constituency strongly opposes the restitution of property in kind, as do the majority of Slovenes, according to a public-opinion poll published by the daily Delo. The opposition Social Democratic Party (SDP) and New Slovenia (NS), as well as their voters, support the return or compensation of all confiscated property. The opposition Slovenian National Party (SNP) is strongly against the restitution of the forest to the Church. Similarly, the opposition Party of Slovene Youth (PSY) maintains that the state should seek a solution other than restoring in kind property that is a public good. On August 3, the Solicitor General's Office of Kranj filed a lawsuit appealing the Ministry of Agriculture's decision to return forests in the Triglav National Park to the Church. State Solicitor General Lucijan Bembic argued that it would be unconstitutional to return a public good and questioned an inconsistency in valuation. In 1948, when the forests were nationalized, their value was estimated at just over 15 million deutsche marks, while on return their value was estimated at 12.5 million marks. The decree does not explain why the forests depreciated in value; the solicitor general believes their value should have increased by one million marks.

Newly appointed US Ambassador to Slovenia Johnny Young added fuel to the fire when he told Slovenian reporters in Washington, early in August, that one of the prerequisites for Slovenia's membership in NATO was the return of confiscated property. According to Young, the US administration is pushing for a resolution of the issue because of demands it has received from some 400 US citizens of Slovenian descent. These people left Slovenia after World War II, most of them fleeing the communist regime. When asked if some of the claimants might not be former collaborators of the Nazi occupiers, Young explained that this would be another matter, as the US did not back policies promoting the rights of Nazi collaborators. In response to Young's statement, the Slovenian Foreign Ministry pointed out that the North Atlantic Alliance has been well informed about efforts to speed restitution, and that concrete judicial and administrative resolutions were not envisaged in the Membership Action Plan, the document listing requirements for NATO candidacy.

Denationalization is often brought up by US and EU officials in meetings with Slovenian representatives. Although not specifically listed as a requirement for EU membership, the Union expects Slovenia to return nationalized property as soon as possible. By March 2001, about 58 percent of claims had been resolved, but EU negotiators as well as Slovenian experts maintain that the process is too slow. The ministries in charge have been told to draw up a plan to speed the processing of claims, so that all claims are settled by the first half of 2002.

The two EU countries most affected are Austria and Italy, some of whose citizens held property in Slovenia before World War II. After the war, Yugoslavia's communist regime confiscated and nationalized the property of citizens from countries that had invaded Yugoslav territory, as well as the property of people considered Nazi and fascist collaborators. As the legal successor state to Yugoslavia, Slovenia has been paying funds into a special account intended to be used by the Italian government to compensate the "esuli"-people who left the former Yugoslavia for Italy in the wake of World War II. The compensation is stipulated by the Rome Agreement of 1983.

In addition, Slovenia agreed to speed up the liberalization of its property market and amended its Constitution to broaden the rights of foreigners to purchase property. These concessions were made following the Spanish Compromise in 1996, concluded after Italy had reopened the issue in 1994 and set its resolution as a condition for Slovenia's membership in the EU. Some Austrian officials have also attempted to link the issue to Slovenia's bid to enter the EU. Recently, Slovenian foreign minister Dimitrij Rupel told the press that one third of the restitution claims filed by Austrian nationals had been resolved. From this, a total of 90 percent of the claimed residential and 96 percent of the business property, valued at 100 million deutsche marks, has been returned.

The issue arose again when President Milan Kucan visited Vienna in early November, in the first state visit to Austria by a Slovenian president since independence. Although Kucan stressed that relations between the two countries should not be mired in historical squabbles, Kucan rejected the Austrian call for repealing postwar legislation that confiscated property belonging to Slovenia's German-speaking minority. Kucan also made clear that Slovenia expects Austria to compensate Slovenians who were subjected to forced labor in Austria during the war.

Relations with Yugoslavia have warmed of late. The two countries recently reached an amicable resolution regarding the division of former Yugoslav property. Slovenia, which has no Serbian minority to speak of and is anxious to regain Serbian markets for its goods, opened an embassy in Belgrade in September. In early November, Yugoslavia reciprocated, opening its diplomatic mission in Ljubljana, and the Yugoslav foreign minister met with Slovenian officials.

Relations with Croatia, however, still have some rough spots, particularly in connection with border issues. In a major positive step, on July 19, the Slovenian National Assembly (the Drzavni Zbor) ratified the agreement on border traffic and cooperation between Slovenia and Croatia. The agreement was approved in the 90-seat parliament by 73 votes to 6; voting against were all four members of the opposition SNP, one member of the opposition SDP, and one from the coalition SPP+CDP. Three SDP members and one from the opposition NS abstained.

The agreement was signed on April 28, 1997, by the then Slovenian and Croatian foreign ministers and was ratified by Croatia later the same year. Slovenia's parliament, however, had failed to muster sufficient support to endorse the agreement until the Constitutional Court established in April of this year that the document was in line with the Constitution.

The agreement aims to make the life of the people living near the border easier. It gives the go-ahead to the opening of 27 new crossings for border traffic. This will relieve traffic at the larger, international border crossings between the two states. The border area includes all communities and towns in a ten-kilometer band in each state along the length of the border. People who own property on both sides of the border are granted easier access to their land on the other side of the border, and the transportation of field produce and pasture is simplified. The agreement is also expected to boost tourism in the border area, since it will make it easier for domestic and foreign visitors to cross the border.

Opponents of the agreement claimed that it prejudged the course of the border between Slovenia and Croatia, and that it could weaken Slovenia's position in the continuing border negotiations with Croatia. They believed that the border-cooperation agreement should be ratified only after the two countries have reached a border agreement. After several failed attempts to place the ratification of the agreement on the parliamentary agenda, a group of 30 parliamentarians from LDP, the Democratic Party of Pensioners (DPP), ULSD, and those representing the Italian and Hungarian ethnic minorities in Slovenia asked the Constitutional Court to determine whether the accord prejudged the course of the border.

Last April, in a six to three vote, the Court ruled that Art. 1 of the agreement (the article defining the border area) was not incompatible with either the Basic Constitutional Charter on the Sovereignty and Independence of Slovenia or with the Slovenian Constitution. According to the Court, Art. 1 does not prejudge the state border with Croatia nor is it in disagreement with the Charter, part of which says: "The state borders of Slovenia are the internationally recognized state borders of the so-far-existing Socialist Federal Republic of Yugoslavia (SFRY) with Austria, Italy, and Hungary in those parts where these countries border on Slovenia, and the border between Slovenia and Croatia within the so-far-existing SFRY." According to the Court, the agreement does not directly determine the land border but only lists the towns in Slovenia and Croatia that are part of the border region. The agreement also leaves the question of the sea border open. Thus, the Court established that the agreement does not indicate which of the two states has authority over stretches of the land or sea border under contention.

The land border between Slovenia and Croatia corresponds to the former administrative boundary between the two republics of the former Yugoslavia. While the course of the land border is clear, the two countries must still draw a demarcation line fashioned to meet the actual situation and conditions of people living along the border. The situation is much more complicated in the case of the sea border, since it has never been delineated.

On the same day that the legislature ratified the border-cooperation agreement, the governments of Slovenia and Croatia passed a draft agreement on the course of the border between the two states. The course of the land border was determined on the basis of the 1991 Constitutional Act, which says that the state border is that which was valid on the day when the two states proclaimed independence, that is, June 25, 1991. The sea border was drawn so as to leave Slovenia access to international waters and Croatia a sea border with Italy. The agreement has been harshly criticized in both countries and its fate remains uncertain. In September, after a Croatian parliamentary committee postponed discussion of the draft agreement, Slovenian prime minister Janez Drnovsek publicly urged the Croatians to approve it. He predicted a worsening in relations if they failed to do so.

On July 4, the National Assembly passed changes to the Referendum and People's Initiative Act, raising the number of signatures required to file a referendum initiative from 200 to 1,000, and obliging the National Assembly to implement a referendum outcome no later than one year after the referendum is held. The decision to set the one-year term is in line with a ruling by the Constitutional Court, which in 1998 decided that a referendum should be implemented "within a reasonable period of time." The amended legislation also anticipates that in a situation where elections occur during the one-year period, the one-year term starts running from the day the new parliament is constituted. Legislators initially proposed setting the number of required signatures to file a referendum initiative at 2,000, but after a heated debate, and opposition claims that the provision restricted citizens' right to direct democracy, the number was set at 1,000. A referendum initiative may be filed within seven days after the adoption of a law, whereupon a 30-day period is set in which proponents must collect at least 40,000 signatures in support of a referendum. A referendum may also be demanded by one third of legislators or by the National Council.

In the most recent case, the nonparliamentary New Party attempted to collect sufficient signatures in support of a referendum on the Duty Free Shop Transformation Act. The party had filed a referendum initiative in February, which Parliament Speaker Borut Pahor rejected, explaining that the party had missed the deadline, since parliament initially adopted the law on January 31. The New Party insisted its filing was timely, since the seven-day term only started running on February 21, the day parliament confirmed adoption of the bill after it had been vetoed by the National Council. The party's view was confirmed by the Constitutional Court. The law was put on hold and the party given 30 days to collect 40,000 signatures. The party managed to gather only half the required signatures, whereupon it filed suit against the Ministry of the Interior for alleged obstruction in collecting signatures. After the suit was dismissed by the administrative court, the party filed a complaint against the proclamation of the act with the Constitutional Court on July 27, the day it was published in the Official Gazette. The law took effect 15 days later.

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