In a denationalisation case, the Constitutional Court decided on the constitutional complaint of a complainant against court decisions in non-litigious civil proceedings that referred to the dismissal of a motion for the restitution of the nationalised property of the complainant’s legal predecessor. The property was nationalised on the basis of both the Anti-Fascist Council for the National Liberation of Yugoslavia (AVNOJ) Decree on the Transfer of Enemy Property to State Ownership, on the State Administration of the Property of Absent Persons, and on the Confiscation of Property that Was Forcibly Taken by the Occupying Forces, as well as the judgment of a military court in a criminal case. The complainant and other applicants first requested the restitution of the property on the basis of the Anti-Fascist Council for the National Liberation of the Denationalisation Act, and after the abrogation of the criminal judgment they also filed a motion for the restitution of the same property on the basis of the Enforcement of Criminal Sanctions Act. The court then called on them to choose, in accordance with the “freedom of choice”, to proceed with either a procedure before an administrative authority or with proceedings at a court, and they selected judicial proceedings.
The Constitutional Court has already previously decided on the case at issue. Even in the repeated proceedings, the complainant did not concur with the decision of the courts and claimed that the effective invocation of her right to denationalisation was rendered impossible and that the courts did not correctly take into consideration the previous decision of the Constitutional Court. She stressed that the courts substantiated their assessment with reasons substantively equivalent to those by which they had already substantiated the decision in the previous proceedings, regarding which the Constitutional Court established that they entail a violation of the right to private property and inheritance determined by Article 33 of the Constitution.
When deciding on the constitutional complaint, the Constitutional Court followed from the position that the right to denationalisation entails an entitlement based on the right to private property, which also applies in the event courts decide on the basis of the Enforcement of Criminal Sanctions Act. It noted its position from its decision on the constitutional complaint against the previous decisions of the courts issued in the same case, and adjudicated that the challenged judicial decisions were essentially based on equivalent grounds as the previous decisions. Also in the repeated proceedings, the courts proceeded from the position that the claim of the complainant and other applicants – who when called upon by a court to exercise their “freedom of choice” chose judicial proceedings to invoke their right to restitution of the property nationalised on the basis of the mentioned AVNOJ Decree and the judgment in the criminal case – must on the basis of the Enforcement of Criminal Sanctions Act be dismissed merely because in accordance with their findings, the property at issue was nationalised in accordance with the mentioned AVNOJ Decree already before the judgment in the criminal case was adopted. The statutorily determined time limit for filing claims under the Denationalisation Act has expired. The difference in the decisive positions of the courts was only the fact that, previously, the courts had held that they are not competent to decide on a motion for the restitution of nationalised property, while in the case at issue they decided to dismiss such motion.
Since such entailed that the effective invocation of the complainant’s right to the restitution of property taken from her was rendered impossible, Article 33 of the Constitution was violated. Therefore, the Constitutional Court annulled the challenged judgments and remanded the case to the first instance court for new adjudication.