Slovenia and Austria

The Scare of "Indiscriminate Denationalisation"

The Slovenian officials live in fear of the possible repetition of the old scenario when they had been forced to pay for the promised admission to EU with certain property concessions to the Italian optants. This time it is Vienna's turn and the concessions relate to the restitution of the property of the German minority which was expelled from Slovenia after World War II.

AIM Ljubljana, September 14, 2000

"I have to congratulate you on your courage, the courage you have shown by talking to me - the state enemy and traitor. To tell you the truth, words fail me. They are accusing me of being a traitor - me who did everything possible to help this state come into being! That is a complete lunacy, it's time for the people to wake up and ask themselves what is going on. Or, perhaps this is AVNOJ all over again (Anti-Fascist Council of the National Liberation of Yugoslavia)", said the current Foreign Minister Lojze Peterle, visibly irritated after the session of the Parliamentary Foreign Relations Committee.

Several moments before that a procedure for his removal from office was initiated in Parliament. This interpellation had a symbolic character since the initiators were aware that due to the suspension of the work of Parliament (because of the pre-election campaign), this Cabinet and Parliament would most probably be unable to carry this through. After that, with the new Government and Parliament - there would be no point in pursuing the matter any further. Harsh words were exchanged both after and before the interpellation.

Zmago Jelincic's Slovenian National Party, the Pensioners' Party DeSUS and several delegates from the United List (reformed communists) accused Peterle of anti-state, unconstitutional and anti-Slovenian conduct at his recent meeting with the Foreign Minister of Austria in Alpbach. In short, according to the interpellation, Lojze Peterle's policy as Foreign Minister, starting with the initialling of "Oglej Statement" up to Alpbach, "has destroyed the Slovenian state". Furious delegates have reminded the national public that the Italian demands for the restitution of real estate to optants originally started as a regional initiative to be soon taken over by the official Rome.

Similar thing is happening today, when demands of the leader of Austrian rightists, Joerg Haider, are being taken over by Foreign Minister Ms. Ferero-Waldner and Chancellor Schiessel. This has brought about the situation in which Minister Peterle "instead of defending the rights of the Slovenian minority in Carinthia, allows the conclusions of AVNOJ to be discussed, thereby undermining our right to succession and international-legal position of Slovenia". Because of all this and the "additional fact" that Lojze Peterle "fails to understand the harm his initiatives have caused", the initiators argued that such Foreign Minister was unfit to carry out the mentioned function.

According to Peterle, the initiative for his removal from office was a "natural conclusion of years-long political hunt". Coalition partners from the parliamentary right wing decided not to support the interpellation, while Janez Drnovsek's opposition LDS did not sign it for legal-formal reasons as the Parliament would be dissolved on September 15. "Peterle's interpellation will be the elections" explained LDS stand one of its frontmen.

The influence of AVNOJ to the expansion of EU

The essence of the dispute which has raised so much dust and is threatening to turn into a serious problem between EU, Austria and Slovenia, and could block the planned expansion of the European Union (which the EU leadership will discuss at the Nice Conference this year) is contained in one, or even two AVNOJ decisions. These are not the famous decisions of November 29, 1943, but the less known documents adopted on November 11, 1944. The first paper is entitled "The Decision on the Transformation of Enemy Property into State Property, Management of Property of Absent Persons and Confiscation of Property Forcibly Taken by the Occupying Forces".

The conclusion has 12 Articles, with Article 1 being most important for the denationalisation because it specifies that with the day of its proclamation "all property of persons of German nationality, except for those Germans who fought in the ranks of the National-Liberation Army and partisan units of Yugoslavia or citizens of countries which were neutral and not hostile during occupation" became state property. In addition, the German sources invoke the so called "small decision from Jajce" on the withdrawal of citizenship from German minority members. Since nothing of this was published in the "Official Gazette", there is no original copy of either of these controversial decisions in Slovenia.

Irrespective of all this, these two documents represent the most important regulations on the restitution of property to members of the German minority in Slovenia.

It was considered that the problem of the former property of Germans in Slovenia was resolved already in 1955, with the establishment of Austria as an independent state under the Austrian State Treaty (ADU). Second paragraph of Article 27 of that Treaty specifies that "the Federal People's Republic of Yugoslavia can confiscate or liquidate Austrian property, rights and interests located on the Yugoslav territory, by the day of the entry of this Treaty into force" and that "the Austrian government will pay indemnification to Austrian citizens" for property confiscated under the mentioned Article. In the former state and, afterwards, in the independent Slovenia, that Article of ADU was interpreted as partial compensation for the reparations which Slovenia never got from Austria, although the Austrian citizens were the ones who had committed the most heinous crimes on the territory of the then Slovenia. On the basis of that Article, the Slovenian jurists even claimed that the right to compensation of those who are today demanding indemnification from Slovenia, have been extinguished and that possible compensation of the damages would represent "double" indemnification for the same thing, since, on the basis of its laws Austria has already paid that compensation to its citizens.

It soon turned out that the problem was much more complicated than that: as officially reported by the Austrian Embassy in Ljubljana, according to the official Vienna Article 27 of ADU doesn't "cover" the indemnification of nationals for which Austria intercedes for today. In the period since the end of war until mid 50's, a large number of Austria's current citizens did not have any citizenship. In Austria's interpretation, that means that they had no right to indemnification, because of which none was paid to them under Article 27 of ADU. Slovenia disagrees with this position, but due to its own changeable and inconsistent practice doesn't want to oppose Austria. The stalemate in which Ljubljana has been caught is greater because the Slovenian 1991 Law on Denationalisation envisages that members of German minority whose property was expropriated under AVNOJ Decrees, can also request the restitution of property. That means that Slovenia has legalised in practice the stand according to which members of German minority (at that time still without Austrian citizenship), whose property had been expropriated, have the right to demand the return of their confiscated property from Slovenia.

Proving Loyalty

Until now, the number of granted applications of members of former German minority in Slovenia for the restitution of expropriated property is negligible, mostly thanks to special conditions that applicants must fulfil. Until 1997, foreigners from the mentioned category (in other words all interested persons "without Slovenian citizenship") had no chance of having their applications for citizenship granted, whereby they would fulfil the first precondition for getting their property back. Then, in 1997 the Constitutional Court of Slovenia enabled applicants for denationalisation to prove in court their loyalty to the Yugoslav state during World War II, which was considered sufficient for the approval of the return of their property in kind. Naturally, loyalty is a category which gives the court a possibility to bring different decisions in each individual case. However, that is precisely the point which the Austrian legal experts are now contesting considering it to be a grave violation of their clients' human rights.

Austria claims that the procedure by which an applicant of German nationality was forced to prove his loyalty, is contr ary to the principle of non-discrimination (because that is not required of others, i.e. Slovenian nationals who institute proceedings for denationalisation); furthermore, they think that demonstration of loyalty is contrary to the principle of presumed innocence and that it is based on collective guilt. The Constitutional Court of Slovenia reviewed these objections and came to quite opposite conclusion: it considered that from the point of today's legal standards collective withdrawal of citizenship was unconstitutional, but also justified and in line with the principles adopted by all civilised nations after all endured Nazi and fascist crimes.

And since the Court, nevertheless, allowed potential applicants to realise their rights by proving "loyalty", the Slovenian politicians thought that the problem of AVNOJ was resolved. Now, they have found out that it is not so, because by allowing members of the former German minority to get citizenship by proving their loyalty, the spirit of collective guilt has resurfaced in the Slovenian legislation against which the Austrian rightists are protesting ever more loudly, criticising AVNOJ and demanding its annulment. For them AVNOJ is just an avnoj and they do not care for any distinction between the two types of decisions it had adopted, i.e. that much more important AVNOJ decisions had been adopted in 1943. Milan Kucan, President of Slovenia, took advantage of this and opposed Haider's demands for the "abolishment of AVNOJ" defending its decisions from 1943 as fundamental for the Slovenian statehood.

In other words, the "plot" is very complicated and suitable for settling political accounts. On the one hand, it is true that the arguments about discrimination in procedure for the re-granting of Slovenian citizenship (presented by the Austrian side) are mostly correct and justified. By granting Austria small concessions and by introducing German minority as a legitimate claimant in denationalisation process, the Slovenian politics and judiciary have placed themselves in a contradiction from which there is no simple way out. On the other hand, it is clear that the opening of this question implies the question of revision of Peace Accords with Austria and the results of World War II, in general. Larger-scale restitution of the German property is not possible without raising the question of never paid war reparations to Slovenia and similar painful subjects. That is why both Slovenia, as well as Austria need a sensible compromise - or else the spirits of the past, aroused by the right wing German circles, could easily poison the relations in this part of the world.

Igor Mekina

(AIM Ljubljana)