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Belgrade, Topličin venac 11,
Serbia and Montenegro

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Jelisaveta Vasilic, solicitor Judge of the Commercial Court, former

Legal Protection of Property and Contract

Property is the basic social, economic and legal category.

In our country there are three forms of property ownership: social, state and private, which includes communal ownership, denoting the ownership of a group of citizens.

The right of property has been the most developed in the private property system. Private property was the most clearly formulated in Roman law, as proprietas, denoting the exclusive right of the owner to the subject of ownership, which is also regarded as such in relations with other persons (erga omnes).

During the centralized government administration of the economy in our country, the prevalent form of socialist ownership was centralized state ownership. During that period, government administrative agencies disposed of all assets of enterprises and could take the assets of one enterprise and give them to another at their discretion.

In the later stage of development, under the Constitution of 1963, social ownership was regulated in such a way that its major economic and legal characteristics provided the common and inalienable basis of personal and associated labour. In principle, labour was the only basis for the management and disposal of socially–owned resources. The work organization was the only holder of the right to socially–owned resources and this right could not be restricted or denied except in the common interest and by the procedure as provided for by federal law. In fact, the basic assumption in regulating social ownership under the Constitution of 1963 was that social property should belong to an unspecified owner or, in other words, to the society as a whole.

State ownership anticipates the right of the state to use, manage and dispose of particular things or subjects. This may be done either directly or indirectly, by transferring the major part of the subject of ownership to public enterprises or other relevant legal persons, whereby they acquire the right of use and restricted management.


Article 69 of the Constitution of the Federal Republic of Yugoslavia (FRY) guarantees the right of property in all forms: private, social, state and communal.

Article 56 of the Constitution of the Republic of Serbia guarantees the equality of all ownership forms or, in other words, equal legal protection to all ownership forms.

The Constitution also stipulates that the right of property may be restricted only under the conditions provided for by law. Accordingly, ownership may be restricted only by law, which means that the change of ownership form or restriction of the right of property are possible only under the conditions provided for by the highest legal act after the Constitution, that is, by law.

Accordingly, under the Constitution, all ownership forms are equal and the holders of title exercise all elements of their right of property – ius utendi, fruendi and abutendi – unless restricted by law.


1. The Law on the Resources Owned by the Republic of Serbia

After the local elections in 1996, when the opposition parties assumed power in many municipalities, the regime passed hastily the laws enabling the change of ownership forms in favour of state ownership, thus preventing the management of property at the local level.

So, the Law on the Resources Owned by the Republic of Serbia was enacted (Službeni glasnik RS, No. 54/96), whereby all resources generated by government bodies, bodies and organizations of territorial and local government units, public services and other organizations established by the Republic or a territorial unit, as well as other resources or revenues stemming from the investment of state–owned capital were proclaimed state–owned resources. This Law restricted the right of local government bodies to dispose of state property by empowering the Government of the Republic of Serbia to decide on the transfer of real property, that is, on lease of real property disposed of by public services.

Before the adoption of this Law, territorial and local government units could use state–owned resources in conformity with the law and intended use without any restriction. However, after the adoption of this Law, the right of territorial and local government units was restricted. As set out in Article 8a, the Serbian Government decides on the transfer of real property, which is used by public services. Likewise, the bodies of public services decide on the acquisition and lease of real property used by them, with the consent of the Agency for the Property of the Republic of Serbia.

Accordingly, regardless of how territorial and local government units have acquired the ownership of real property, its use, management and disposal are restricted, because the Republic of Serbia decides on these issues either by bringing appropriate decisions or by giving its consent.

This Law does not change the form of ownership, but this paper still deals with it in short, because it has provided legal grounds for the deprivation of the media of their property. Namely, according to Article 1, the property of public services or enterprises formed by the Republic or a territorial unit is regarded as state property. On these grounds and proceeding from the fact that it was founded by the City of Belgrade territorial unit, Studio B was taken away just before the elections of 24 September, 2000, were scheduled.

2. The Enterprise Law

In legal theory, the enterprise is not a special subject of law, but an economic category. According to the classical concept, the enterprise is the object of commercial law and has no legal personality, so that it cannot be a right– and duty–bearing entity. Since the enterprise has no legal capacity, its title holder has to enter into legal relationships. However, our Enterprise Law does not regulate the issue of the holder of title to an enterprise (it regulates only enterprise bodies), thus leaving the enterprise as an economic category without legal personality. This is why we have great problems, especially at present. Namely, foreign investors do not understand quite clearly with whom they have to conclude a contract or, in other words, who bears the rights and duties of an enterprise, that is, who is the legal person with whom a legal relationship is to be established.

Accordingly, our law attributes legal personality to the enterprise, although it cannot be seen who the title holder is; there is no entity with which a legal relationship with a third person may be established or right– and duty–bearing entity. It is clear that this was done because of socially–owned enterprises, which still constitute the majority of economic agents and whose assets have so far been disposed of by a minor group of persons without any restriction.

Depending on the form of ownership, enterprises can be as follows: socially–owned enterprises, public enterprises and companies, including partnerships and joint–stock companies.

In the case of enterprises with majority private capital, their founders, that is, their owners can have their capital fully protected through the election of managing bodies, as stipulated by law. In the case of one–man companies, the founder has the right to perform all functions of both the general meeting and board of directors, as well as to be the managing director. In this way, private property in companies enjoys full legal protection.

Consequently, the Law does not restrict private property and the same applies to social property. The problem lies in the fact that such property is ownerless or, in other words, there is no right– and duty–bearing entity. As a result, the persons managing socially–owned enterprises could dispose of their assets without restriction.

According to Article 436 of the Enterprise Law, an enterprise may change its ownership form under strictly defined conditions.

Thus, the application of this Law is not disputable as regards the change of ownership form, since it lays down the conditions under which it can be done.

3. The Law on the Public Enterprise and the Performance of an Activity of Common Interest

According to Article 401 of the Enterprise Law, the public enterprise is understood to mean an enterprise performing an activity of common interest, which is formed by the state or a local government unit.

At its first extraordinary session, which was held on 13 July 2000, the National Assembly of the Republic of Serbia passed the Law on the Public Enterprise and the Performance of an Activity of Common Interest. The Law came into force on 26 July, 2000, and on the day of its coming into force the Public Enterprise Law (Službeni glasnik RS, No. 6/90) ceased to be valid.

The difference between the previous Public Enterprise Law and the present one lies not only in their names. They differ greatly in the way in which enterprise formation and management, assets and income distribution are regulated or, in other words, in their approach to ownership.

According to Article 1 of the Public Enterprise Law of 1990, public enterprises are formed so as to perform an economic activity of common interest in infrastructure (electric power industry, railways, postal services, air transport, radio and television), use and management of goods of common interest (water management, road industry and forestry), as well as in utility and other services, which are essential for the life and work of citizens.

Since the activity of public enterprises was regarded as an economic activity, Article 2 of the old Law stipulated that public enterprises could operate with the resources in state, social and private ownership. Managing bodies were set up on the basis of ownership form and the founder had to approve the statute, election of the director, status–related changes and the criteria for income distribution, as set forth in Article 22 of the Public Enterprise Law, thus enabling the owner to exercise his right of property.

Under the Law on Public Enterprises and the Performance of an Activity of Common Interest or, in other words, under the new Law, this activity is not specified as an economic one. As a result, the founders' rights stipulated by the old Law have been withdrawn from a greater number of articles of the new one.

According to Article 4 of the new Law, a public enterprise is formed by the Republic of Serbia. A local government unit may form a public enterprise only for the provision of utility services. In the past, there was no such restriction. A territorial government unit could form a public enterprise engaging in any of the above mentioned activities.

According to Article 19 of the Law, public enterprises may form subsidiary companies engaging in activities coming within the scope of their activity, with the consent of the Government of the Republic of Serbia.

Such consent was not necessary in the past.

According to Article 20 of this Law, public enterprises may invest their capital in other joint–stock companies performing the activities of common interest only upon approval of the Serbian Government.

In the past, such a disposal of assets was not subject to the approval of the Serbian Government.

According to Article 22 of this Law, public enterprises adopt medium– and long–term work and development programmes, as well as annual work plans. These programmes and plans are also subject to the approval of the Serbian Government.

According to Article 25 of this Law, in the event of any disruption in the operation of a public enterprise formed by a local government unit, which may endanger the life and health of people or property, and the founder fails to take appropriate measures, such measures will be taken by the Serbian Government.

Although this was not stipulated before, the Serbian Government imposed its administration on some public enterprises formed by the City of Belgrade.

According to Article 27 of this Law, the Serbian Government approves the statute of a public enterprise, its tariff plan, disposal of assets, investments and status–related changes.

In the past, the Serbian Government had no such competence.

According to Article 34 of the above mentioned Law, public enterprises cannot give money for any sponsorship, donation, humanitarian, sports and similar events, advertising and representation.

The fact that all decisions of a public enterprise are subject to the approval of the Serbian Government, including the decisions relating to income distribution, even if the enterprise is in private ownership, points clearly to the restriction of private property, or the management of private property by non–owners, that is, by the government. In the previous Public Enterprise Law, the common interest was clearly formulated and so were the decisions that had to be approved by the Government (those were only the decisions relating to the common interest). The Serbian Government did not decide on income distribution. This was done by the owner of property. Under this Law, the owner's right is restricted, which is contrary to the constitutional principle that guarantees all forms of ownership and their equality within legal protection.

4. The Law on the Elements of the Change of Ownership of Socially–Owned Capital – the Law on the Conditions for Transformation of Social Ownership into Other Ownership Forms (Republican)

This Law provides the elements of the change of ownership of socially–owned capital in enterprises, cooperatives and other forms of organization, which dispose of socially–owned capital. It states explicitly that the aforementioned legal entities, which dispose of socially–owned capital, decide autonomously on the change of ownership of socially–owned capital. Accordingly, the users of socially–owned capital decide on the change of ownership and not government bodies. In other words, decisions on ownership transformation are made by title holders, with the exception of certain enterprises, where such decisions are made by the government under a special programme.

The right of property may be restricted in the process of ownership transformation due to the participation of the Agency for Capital Valuation in it. Namely, due to the ambiguity of the provisions of the Law on the Agency for Capital Valuation, the Agency was a powerful instrument of the old regime. In the case of VEČERNJE NOVOSTI, for example, the Agency cancelled the decision on ownership transformation.

VEČERNJE NOVOSTI Company “was formed by separation of the VEČERNJE NOVOSTI Division from BORBA”. VEČERNJE NOVOSTI Company decided to undergo ownership transformation and carried out the valuation of its capital. This capital valuation was verified by the Agency for Capital Valuation. The Agency brought its first decision on 19 July, 1999, whereby it verified the total capital of 6,245,000 dinars, of which 1,484,000.00 dinars accounted for socially–owned capital and 4,750,000.00 dinars for share capital. On 29 February, 2000, since this decision on capital evaluation was cancelled, the Agency cancelled the decision on the commencement of ownership transformation, as well as on public calls for subscriptions for shares in the first and second round on 17 September, 1998, and on 13 September, 1999, respectively. The Agency was not authorized to cancel the aforementioned decisions, because it cannot decide on how someone will manage his assets. It is only authorized for the valuation and verification of capital, and its role begins and ends with the audit of capital valuation. Since the Agency brought the decision to cancel the decisions on the commencement of ownership transformation and two rounds of subscriptions for shares, the Commercial Court in Belgrade – only two days later, on 3 March, 2000 – brought the decision to remove VEČERNJE NOVOSTI Company from the court register so that it could be merged with the BORBA Federal Public Institution, as provided for by the amendment to the Decree on the BORBA Federal Public Institution.

5. The Law on Forced Settlement, Bankruptcy and Liquidation

The question that imposes itself is whether the property of a legal person may be protected at the moment when such a person ceases to exist. In my opinion, we need to talk about the protection of property in bankruptcy proceedings, because the solutions provided by the above mentioned Law are evidently insufficient, considering the long duration of these proceedings and, thus, inadequate protection of the property found at the commencement of bankruptcy proceedings. Namely, one cannot speak about the protection of property if bankruptcy proceedings last five or more years.

The bodies of bankruptcy proceedings are the bankruptcy court, bankruptcy judge and bankruptcy trustee, which means that everything begins and ends in a court. The judicial protection of property is certainly good, but due to overburdened courts, it has been confined to one man, i.e. the bankruptcy trustee, and has proved to be insufficient. It happens quite often that very high values are placed in the hands of one man only.


a. Statutory Decrees

The separation of the legal validity of decrees from that of laws is a very important issue, because it determines whether the executive authority will push out the legislative one and pass laws in the form of decrees.

According to Article 99, section 1, item 4, of the FRY Constitution, the Federal Government has power to enact decrees, decisions and other acts for the enforcement of federal laws and other regulations and acts of the Federal Assembly. Thus, decrees may be enacted only for the purpose of enforcing federal laws and in conformity with the law. This means that no decree can be enacted unless it has legal grounds.

Statutory decrees are special decrees by which laws may be modified. They have temporarily the force of a higher act, that is, the law, in which case the legislative power actually passes to the executive one. Statutory decrees are unknown in our Constitution, so that they cannot be enacted.

However, although our Constitution does not provide for statutory decrees, the enactment of such decrees changing the form of ownership was customary during the past few years. This was especially practiced in the case of the media, where the executive authority changed the form of ownership contrary to law by means of the judiciary.

Thus, by the Decree on the BORBA Federal Public Institution, the socially–owned BORBA Newspaper and Publishing Enterprise was transformed into a state–owned federal institution.

Until 1997, BORBA was a socially–owned enterprise.

By its Decree on the BORBA Federal Public Institution, the Federal Government changed the status of this enterprise which, thus, became a federal public institution. The Decree was published in Službeni list SRJ, No. 15/97.

The Decree was subsequently modified, so that in 1998 the BORBA Federal Institution obtained the following sections: Printing Shop, Marketing, Sports, Joint Services, EKONOMSKA POLITIKA and BORBA Agency.

In 2000, by amending the above Decree of the Federal Government, VEČERNJE NOVOSTI daily was merged with BORBA.

It is interesting to note that the BORBA Federal Public Institution and its sections were registered in the Commercial Court without any documents.

Namely, according to Article 2 of the Law on Federal Public Institutions, a federal public institution can be any form of organization established with a view to performing an activity of interest for the exercise of competence of the FRY, that is, for the needs of federal bodies and organizations.

According to Article 5 of this Law, the act on founding a federal public institution is adopted by the Federal Government. In our case, this was done by a decree.

Regardless of the decree, the court may make entry in its register if the authorized person submits the relevant application, with the contents and enclosures as set forth in Article 5 of the Law on Entry in the Court Register. According to Article 27 of this Law, it is also necessary to enclose the specified documents. In other words, entry in the court register cannot be made unless the specified documents are enclosed with the application.

In the case of the BORBA Federal Public Institution, apart from an application for its entry in the court register, the authorized person had – according to Article 15 of the Law on Federal Public Institutions – to submit its Statute, which regulates the issues of relevance for the court register, as well as for all persons having access to the court register as a public record book. In other words, court registration was not possible without the Statute, which regulates the activity of the institution, the manner of performing this activity and providing services to other users, managing bodies, their composition, method of election and competence, as well as the representation of the institution, income distribution and other issues of significance for a federal institution.

It is not clear how the court could register the institution without its Statute, only on the basis of the Decree, since the above mentioned issues are regulated only by the Statute and without them there is actually no legal person.

By changing the form of ownership, from social to state, the Government tried to restrict the freedom and independence of the media. Namely, the freedom of press, free flow of information and ideas, as well as an open exchange of views, without government interference, play the major role in the development of free and stable democratic societies and the strengthening of the rule of law.

The authorities enacted the above mentioned Decree so as to change the ownership form of the BORBA Newspaper and Publishing House and, thus, assume control over it at the moment when this socially–owned enterprise also began to feel the need for true information.

In this way, the Government nationalized social property, which was undergoing ownership transformation. It is interesting to note that this was done mostly with the media, at the moment when they began freely to inform the public.

b. Decrees Enacted in Time of War

During the state of war, the Government enacted some decrees, whereby it prevented bank owners from deciding on the status of their banks and other relevant issues.

During the state of war, the Federal Government also enacted the Decree on the Application of the Law on Banks and Other Financial Institutions During a State of War. According to Article 5 of the Decree, the general meeting, board of directors, supervisory board and other bank bodies suspend their activities and transfer their competences, provided for by law and bank documents, to the bank manager.

Pursuant to this Decree, the managers of 22 banks brought a decision to change the status of their bank and merge with BEOGRADSKA BANKA. The majority of these banks are joint–stock companies, but their shareholders did not decide on this change of status, although they have the exclusive right to decide on their capital. The decision was made by the bank manager as stipulated by the Decree. We bear witness that the banks were exposed to a very serious pressure to merge with BEOGRADSKA BANKA in the year preceding the war. However, despite political pressure, such merger was rejected at their general meetings. By enacting this Decree during the state of war, the Government accomplished that which it could not in peacetime.

The question that imposes itself is whether the bank manager could change the status of the bank registered as a joint–stock company with majority private capital by applying this Decree. The Federal Government is authorized to enact only those decrees whose aim is to enforce federal law. Our Constitution does not anticipate statutory decrees, but only the decrees that have to be enacted out of necessity. The latter have the force of law and may be enacted only in a very difficult situation, when the legislative authority cannot normally perform its duty. During the NATO bombing of our country, the decrees were enacted out of necessity and had the force of law.

Accordingly, the Decree on the Application of the Law on Banks and Other Financial Institutions During a State of War is a decree with the elements of law.

The question that imposes itself is whether the Decree authorizes the bank manager to assume the powers of the general meeting and other managing bodies only with respect to on–going activities or, in other words, whether during a state of war he may perform only on–going activities, which are essential for the operation of the bank, or may also decide on its status, which is not an on–going activity, and, thus, disregard the will of the owners of bank capital.

The Federal Government enacted the Decree authorizing the bank manager to make decisions that secure the normal operation of the bank during a state of war, because this had to be done out of necessity. However, the manager could not be authorized to decide on the change of status, because this is not an on–going activity, which has to be performed during a state of war, but something on which only the owners of capital can decide.

In general, the decree is an anomaly, because a lower act is temporarily given the force of a higher one. Therefore, in interpreting a decree, one must take a restrictive approach or, in other words, restrict its application to the activities that should be performed during a state of war. During the state of war, there was no need to change the status of a bank and prevent the shareholders from deciding on it, because their capital in the bank depends on its status.

Accordingly, this Decree had to be interpreted in a restrictive way, which means that the manager should have been authorized to perform only the on–going activities of the managing body, and not to decide on the shareholders', private capital by himself.

According to Article 75 of the FRY Constitution, the disposal of a part of the assets of legal and natural persons may be restricted by law during a state of war, an immediate danger of war or a state of emergency, but only for the duration of such a state.

Thus, the effect of a decree enacted during a state of war is restricted – only for the duration of a state of war. The above mentioned Decree could restrict the shareholders' right to manage and dispose of their capital, because the change of status implies the disposal of property, but only during a state of war.

Thus, the disposal of shareholders' assets by the bank manager during a state of war must be temporary in character. In other words, if one's property was disposed of during a state of war, its previous (prewar) status has to be restored after the termination of the state of war by enacting the relevant decrees.

In other words, if the Decree was interpreted in such a way that, during a state of war, the manager could make status–related decisions and, thus, decide on the disposal of property, such property had to recover its previous status after the state of war.

However, by the Decree on the expiry of specified documents adopted during a state of war and the Decision on the termination of a state of war, it was decided to the contrary. All decisions relating to the disposal of private property, which were brought by managers, were proclaimed legally valid.

Consequently, the unlawful and unconstitutional disposal of property, which is otherwise guaranteed by the Constitution, was sanctioned by the Decree enacted after the termination of the state of war.

The question that imposes itself is whether the merger implied the disposal of shareholders' capital, thus violating the shareholders' rights.

The Law on Banks and Other Financial Institutions has no provisions relating to merger, but only the provisions relating to the establishment of a new bank by fusion. Therefore, it would be necessary to apply Article 423 of the Enterprise Law to this issue. In the case of merger, according to this Article, the property of one person is transferred to another.

Consequently, by bringing the Decision to merge with BEOGRADSKA BANKA, the managers of 22 banks disposed of the property of others – their shareholders.

The shareholders' rights have been violated, because all shareholders in a bank have the right to decide in what bank they wish to be shareholders or, in other words, in what bank they wish to keep their assets, that is, share capital.


The aim of this paper is not to deal with the protection of contract from the aspect of a contractual obligation to secure its performance. However, one should point to the instruments providing security for the performance of contract under our law.

Since the time of manus iniectio, attempts have been made to develop such a security device as will guarantee the settlement of debt under a contract. This brought about the development of real security devices, beginning with mortgage as a kind of lien on real property, as well as chattel mortgage. As security devices, both mortgage and chattel mortgage have survived to the present time. Attempts have also been made to provide security under a fiduciary arrangement. It consists in the transfer of ownership of certain immovables from the debtor to the creditor, whereby the creditor must recover those things to the debtor after the latter has performed his obligations arising from the secured contract. This kind of security is a fiduciary arrangement, because it s based on confidence (fiducia) in the creditor that he will not retain the debtor's property in his possession after the latter has performed his obligation. According to Article 913 of the Law on Property Relations, the provision of the contract for pledge anticipating that the pledged property will pass into the creditor's possession if his claim is not settled at maturity (lex commissoria) is null and void. Montenegro adopted the Law on the Fiduciary Security of Contract as early as 1997.

Countertrade arrangements are well known in world practice. Under a credit agreement, the lending bank concludes a sales contract with the credit beneficiary, stipulating that the contract will come into force only if the suspensive condition is met, i.e. if the debtor fails to perform his obligations arising from the credit agreement (suspensive condition). In that case, the bank, as the buyer, may request from the debtor, as the seller, to deliver goods, thus offsetting his claim arising from the credit agreement. One may raise many objections to such security. One of them is that the original motive was not the conclusion of a sales contract, but the motive of one contracting party does not affect the validity of the contract unless it is unlawful.

Some of the well–known security devices for the protection of contract, i.e. for its performance, are those provided under contract law, i.e. the contract of guarantee, letter of guarantee, letter of credit, documentary collection and bank guarantees.

However, despite all these devices providing security for the performance of contract, it is very difficult for the creditor to collect his debt under a contract. This is evidenced by a very large number of cases arising from the requests for the performance of contract.

The aim of this paper is not to enumerate the devices securing the protection of contract about which it was written on a number of occasions. Instead, it attempts to show how the government interferes in the performance of contract and how its interests are more important to it than the interests of its citizens, even in clear contractual relations where it appears as one of the parties.

The best example is the Law on Old Foreign Currency Savings.

Every savings deposit is a contract of deposit under which the depositor places with a bank a certain sum of money on deposit. The bank receives this money and, thus, acquires the right to dispose of money on deposit and assumes the obligation to recover it under the terms of the contract.

According to rough estimates, savings deposits (or contracts of deposits) of our citizens in the banks amount to about DEM 6 billion in hard currency.

Since the banks were obliged to transfer foreign currency savings deposits to the National Bank of Yugoslavia, which ultimately disposed of the foreign currency reserves, the refund of these savings deposits was guaranteed by the government. Thus, the government guaranteed the performance of a contract concluded between the citizen and his commercial bank.

However, the banks stopped performing the contracts of deposit as early as April 1991. Many depositors engaged in a lawsuit and, naturally, won it (courts should make a statistical analysis concerning the number of depositors engaged in a lawsuit for the refund of their foreign currency savings, as well as the amount of legal costs). However, only a small number of depositors, those who had connections in these banks, succeeded in having the judgement enforced. All other depositors could not do that due to the lack of will in courts or in banks or in the government (courts should also provide statistical data on the judgements that have not been enforced and reasons).

Finally, the Law on Old Foreign Currency Savings was adopted. Its very name suggests that it is the question of something old and forgotten, although a savings deposit is a contract of deposit and must be performed either by a commercial bank or by the government as its guarantor.

Under this Law, the government determines the sums of money that will be refunded in the course of one year, cancels the enforcement of all judgements, does not assume any obligation with respect to legal costs and does not give any guarantee that payments will be made under this Law.

The question that imposes itself is whether this Law restricts the right of property or even leads to the deprivation of property.

This Law restricted the right of property, since it modified the contract by favouring one party – the bank and restricting the depositor's disposal of his own resources.

Considering the sum of money to be paid, we also encounter some cases of deprivation of property, because – if savings deposits are very large – the refund may last for decades and be continued after the depositor's death.

It is interesting to determine whether the government could adopt such a law in the public interest. Namely, the government may control the use of property in the common interest. What is disputable, however, is the evaluation of “public interest”. In such an evaluation, there must be a balance between the interests of the community and the basic rights of individuals, especially in the case of a contractual relationship between the government and the depositor. The government cannot violate its contractual obligations towards depositors drastically, from a position of strength, thus leaving the depositor absolutely unprotected, because the latter cannot take any legal action against this law or collect his money by force. Is the government's interest not to perform its contractual obligations equalized with the common interest?

Such a behaviour of the government is short–lived. Many years will have to pass before the citizens restore their confidence in the government and stop fearing that they might be deceived.


The right to the peaceful enjoyment of property is certainly one of the human right and every property implies ownership. In Article 1 of Protocol I, it is expressly stated that every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one can be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The above mentioned Article protects the right to the peaceful enjoyment of property, which is usually termed the right of property.

Like in the case of other rights, which are guaranteed by the Convention, states may deprive an individual of his possessions “in the public interest and subject to the conditions provided for by law”.

As already mentioned, in our country, the human right to the peaceful enjoyment of property, or the right of property, was very often violated by laws as well. But, it was also violated by statutory decrees for the enactment of which there were no grounds in the Constitution.

This right was violated by the decrees changing social ownership and share capital into another form of ownership, i.e. state ownership without “public interest”.

As already mentioned, property in our country was restricted without “public interest” in the case of the media. Namely, it is not in the public interest to change the form of ownership and, thus, to restrict the freedom of expression and information, which is also one of the human rights stipulated by Article 10 of the Convention on Human Rights.

The interest of the Government, which enacted the Decrees on the media and changed their ownership form by proclaiming them state property and assuming absolute control over information, was not in the “public interest”, but only in the interest of the political parties constituting the Government in their struggle for long and unlimited rule.

The right of property may be violated in the “public interest”, but subject to the conditions provided for by law and by the general principles of international law.

This right was violated by decrees, which could not regulate the property issue, and not under the conditions provided for by law, because restrictions were not anticipated by any regulation.

Accordingly, the violation of the right to own private and social property was contrary to the Constitution, which guarantees the right of property and equality of all ownership forms, i.e. private, social and state. This violation was also contrary to the Convention on Human Rights, Protocol I, Article 1, which guarantees the right to the peaceful enjoyment of one's possessions and anticipates that no natural or legal person will be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

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