Finally we are back to talking about the assets of the exiles. The credit goes to the National Association of Venezia Giulia and Dalmatia, whose Provincial Committee of Gorizia promoted a round table held on Friday 21 March in the capital of the Isonzo at the “Carlo X” room of the Grand Hotel Entourage in Piazza S. Antonio. In addition to the large audience, many followed the speeches in live streaming on the site www.direttatv.net or later on Youtube also through the site www.anvgd.it.

Introducing the proceedings, the national vice-president of ANVGD Rodolfo Ziberna defined the issue as very uncertain, recalling that Italy paid a large part of the war debts to Yugoslavia by selling the real estate of the Istrian-Fiuman-Dalmatian exiles, and that the hopes of restitution raised at the end of the 90s by the Croatian Supreme Court and last December by the presidents of the Austrian and Croatian Parliaments have remained such, as have the many promises made by the Italian governments on definitive compensation. On the website www.anvgd.it you can find and freely download the written texts of the conference speeches (including that of the lawyer Gian Paolo Sardos Albertini, absent for work reasons) and many useful documents on the subject.

The work was moderated by Davide Rossi, a professor at the University of Trieste and a lawyer, member of the scientific committee of the Magna Carta Foundation and of the board of directors of Coordinamento Adriatico. In his introductory speech he explained that the round table is a point of arrival but above all a point of departure. If on the one hand, in fact, speakers who have dealt with these issues in the last 15-20 years were called, on the other hand, the aim was to provide, via the web portal, a logistical reference point on these issues accessible not only to Italian citizens living near the eastern border, but also to all other interested parties. After a brief historical overview of the upper Adriatic area, Rossi recalled how the discussions on the assets of exiles that began in the 90s have so far led to very few results.

Ulrike Haider Quercia, a university professor and head of the list for the European elections of the Union for the Future of Austria, has stated that the European Union must guarantee the rights of all European exiles, including those from Julian-Dalmatia. The issue of exodus should not be consigned to history but should be considered current. It must be given universal dignity because it has happened too many times and in too many places. European exiles have the right to return to live in their own territory of settlement while maintaining their nationality and the property they owned before the Second World War. Minority rights also concern exiles and refugees. Europe is unfinished and must take up again the unitary project of the founding fathers, their betrayed ideals. The meeting between the Presidents of the Austrian and Croatian Parliaments has not yet led to any negotiations on the “abandoned” Austrian property, an issue that should be addressed from a European perspective and on which it would be useful to hold a conference in Brussels.

Professor Rossi pointed out that Annex XIV of the Peace Treaty of 1947 recognized the Italian citizens who opted for the perfect subjective right to the assets located in the ceded territories. But in May 1949 an Italian-Yugoslavian agreement took note of the measures of nationalization and expropriation of such assets, transformed into collective property. A joint Italian-Yugoslavian commission was tasked under art. 4 with listing a list of indemnifiable assets, establishing the categories for the classification of assets and the determination of the valuation principles, as well as establishing for each category the relationship between the original value and the variations that had occurred over time. In December 1950, a second bilateral agreement, implemented by Law No. 10 of 1955 March 192, introduced the principle that the Italian State could deduct the value of assets from war indemnities destined for Yugoslavia, in violation of the 1947 treaty. This was followed by the Treaty of Osimo of 1983 and the Rome Agreement of 1983.

When Yugoslavia fell apart, internationalists clashed over principles pacta sunt servanda e rebus sic stantibus, which were the basis respectively of the Leanza Commission, chaired by the then legal representative of the Farnesina, Prof. Umberto Leanza, and the Maresca Commission, chaired by Prof. Maurizio Maresca and expressed by the local realities of Trieste and Friuli Venezia Giulia. Different legal consequences arose from the two principles regarding the applicability of the treaties to the successor states of Yugoslavia. A mixed Italian-Croatian commission, in which the drafter of the final document of the Leanza Commission, Prof. Giuseppe de Vergottini, participated for FederEsuli, was supposed to draft a new treaty that would overcome the problems related to Croatian and Slovenian denationalization. In European jurisprudence, a lifeline was sought in vain to resolve this still open question.

The scientific coordinator of the round table Giuseppe de Vergottini, professor emeritus of constitutional law, honorary president of the Association of Constitutional Law, director of the scientific journal of the Magna Carta Foundation “Percorsi istituzioni” and president of Coordinamento Adriatico, started from the Peace Treaty, which on paper ensured that Italian private property was fully available to the owners. But the situation had already gotten out of hand since September 1943, some confiscations had hit especially those considered hostile to the Yugoslav regime. The Treaty of 10 February 1947 was therefore the end point of a situation that had compromised the right to ownership of Italian private property. Subsequently, Italy thought of relieving itself of part of the war debts towards the victorious powers, including Yugoslavia, by making a sort of package of Italian private property. The approach therefore changed not only because of Yugoslav ill-will, but also because of a misunderstood Italian practical sense. A huge legal mess ensued: thanks to the bilateral Italian-Yugoslavian treaties implementing the Peace Treaty, the confiscated assets ad personam or expropriated by law were acquired by Yugoslav social property.

After having defined the compensation issue as "almost catastrophic", which had dragged on for decades and was not yet concluded, Professor de Vergottini recalled how the dissolution of Yugoslavia reactivated the debate for the recovery of property. The point was whether Slovenia and Croatia would inherit from Yugoslavia the treaties implementing the 1947 treaty. Some asserted that the international panorama had changed radically, that in the two new Republics there was no longer social property and that the principle of private property was regaining strength; for this reason, on the basis of the principle rebus sic stantibus, the treaties signed in a completely different situation were no longer valid. It was therefore necessary to reset and discuss everything from scratch. A second orientation supported the continuity of the treaties between Yugoslavia and the successor states. In this confused situation, the Italian Government and Parliament did not express a clear and unequivocal position and in fact accepted the takeover of Croatia and Slovenia, taking the pre-existing treaties as binding.

The Leanza Commission, whose final document was drafted by Prof. de Vergottini, tried to see if there was room to reopen negotiations with Slovenia and Croatia on properties that had passed into public hands. It identified various situations that were not included in the bilateral Italian-Yugoslav treaties, which had regulated only the assets of those who had opted but not those subjected to individual or generalized expropriation measures between September 1943 and February 1947 or those of the subjects who abandoned the territory after 1947 without opting. In addition to these two, there were still other cases, but of a more “lawyer-like” nature. Overall, the number of assets not covered by the treaties for which the right of ownership would have remained intact is very significant. Based on the results of the Leanza Commission, the Italian Government said, albeit with little conviction, that negotiations needed to be restarted. Slovenia did not express interest, while Croatia initially did. An Italian-Croatian bilateral commission met three times. The Croatian delegation was given an Italian memorandum that, following in a very summary and imprecise way the assumptions of the Leanza Commission, tried to reopen the negotiations. The principle of binding treaties was not contested, but it was said that there were significant spaces uncovered by the treaties. This memorandum never received a written response. Everything died there because the Italian government did not want to insist on the matter any longer.

In Croatia and Slovenia, the denationalization laws favored Slovenians and Croats, being applicable only to former Yugoslav citizens or to those who had a national connection. Now that Slovenia and Croatia have entered first the Council of Europe, binding themselves to the European Convention on Human Rights, and then also the European Union, we are in a single pool of legal rules, including the right to property, the protection of minorities and non-discrimination on the basis of ethnicity. We need to see whether it is possible to make these principles suspended in mid-air active or whether we must give up because theory is one thing and practice is another.

Lawyer Paolo Sardos Albertini, president of the Lega Nazionale and honorary president of the CDM of Trieste, began to deal with the assets in 1991, when he was at the helm of FederEsuli. On January 15, 1992, immediately before recognizing Slovenia and Croatia, Foreign Minister Gianni De Michelis summoned him, informing him that the recognition was subject to two conditions: the signing of a trilateral memorandum on the respective minorities and the commitment to start negotiations on the assets, which meant that the issue was not closed. Croatia signed the memorandum. Slovenia committed to respecting it as if it had signed it. But the Italian government fell, first Giovanni Goria took over at the Farnesina, then Emilio Colombo, and on July 1, 1992 Slovenia sent a note expressing its willingness to take over a hundred Italo-Yugoslav treaties, including that of Osimo. The note was published in the Official Journal – Part Three (the one with the press releases) on 8 September 92. At the bottom it was written that the Ministry of Foreign Affairs had acknowledged with satisfaction the takeover. Signed: Undersecretary Valdo Spini. The associations of exiles mobilized public opinion against “Osimo bis”. In November 92 Colombo, speaking in the Chamber, said embarrassed that the note meant nothing and that negotiations on the assets would begin immediately. But the Government fell again and no steps were taken. In October 1994, the Undersecretary of Foreign Affairs of the Berlusconi Government, Livio Caputo, signed an agreement in Aquileia with the Slovenian minister Lojze Peterle on the restitution of a certain number of assets. They were not many, but at least the principle of renegotiation was affirmed. Peterle was however disavowed by the Slovenian Parliament and so everything fell through.

The Foreign Minister of the Dini Government, Susanna Agnelli, initially very skeptical and detached towards the requests of the exiles, then changed her attitude. FederEsuli said: Slovenia and Croatia took over from Yugoslavia, they say they are no longer communist and have passed laws on denationalization that provide for either the restitution of the property or, if this is impossible, an alternative property or, if this is also impossible, compensation with government bonds. But a clause established that such laws did not apply to foreign citizens. There was therefore an inconceivable discrimination on the basis of citizenship, which FederEsuli asked to be removed as a condition for Slovenia's entry into the European Union. On this, Agnelli followed the exiles and obtained that Europe itself set the Solana compromise as a condition, which regulated the reopening of the real estate market for foreigners subject to a solution to the bilateral Italian-Slovenian problems.

In May 1996, when the first Prodi government had not yet received a vote of confidence from both chambers, the new Undersecretary of Foreign Affairs Piero Fassino rushed to Ljubljana to say that Italy had nothing to claim and that Slovenia could join the EU for free. In Trieste, at an assembly of the ANVGD, he showed a large audience a compromise according to which the exiles could buy back what had been stolen from them and dismissed the objections of Sardos Albertini. Thus, a great opportunity was lost, because Slovenia was willing to negotiate. The explanation for that sensational turn of events came in 2003, when in his autobiography For passion Fassino said that American President Clinton had telephoned Prodi to ask him to immediately resolve the issue with the Slovenians and Croatians.

Croatia has always played catch-up with Slovenia because it was supposed to be the first to join Europe. In 2003, Sardos was invited to Zagreb by the then HDZ leader Ivo Sanader before the political elections. During the meeting, they discussed a perspective along the lines of: let's leave aside the analyses and controversies over treaties; there are many unused public properties in Croatia; let's think about these. The Croatian state, which is not interested in them, will return them and the Italian citizen who already owns a hovel that has been returned to him will do his best to fix it up. This operation, if integrated with interventions by the Italian state of subsidized credit, would have been zero-cost for Croatia and would have guaranteed it certain economic as well as political advantages, while for Italy it would have meant meeting a request for justice from its citizens. So it stood. As always, the best agreements are those that suit both parties. After the Croatian elections, won by Sanader, Sardos sent a memo to the then Undersecretary of Foreign Affairs Roberto Antonione inviting him to move the officials of the Farnesina to verify whether that path was practicable. But he received no response. He was subsequently received in Rome by the Vice President of the Council and Minister of Foreign Affairs Gianfranco Fini, who showed interest in the hypothesis presented to him on the assets but who, after receiving three phone calls, seemed distracted. The fact is that nothing came of it. So the Italian government has so far shown a few single flashes of interest immersed in a sea of ​​inattention, because they do not remember the exiles, who do not count anyway, and because these are old things.

The Maresca Commission, wanted by the president of the Province of Trieste Renzo Codarin, moved on the principle rebus sic stantibus, which considers the different status of real estate in a communist regime and in a liberal one. Therefore, stopping at the treaties without considering what happened afterwards was short-sighted and unlawful. Furthermore, having published the Slovenian note in the “Official Gazette” – Part Three without a parliamentary vote was not enough to recognize the replacement of a non-territorial agreement such as that of Rome. If there is no political will, there is no legal reason that holds.

Professor Umberto Leanza called together the associations of exiles to invite them to appeal to the European level. Sardos's response was that a final Croatian or Slovenian sentence would be needed, but that he did not feel like suggesting the route of appeals to the expropriated exiles. According to Leanza, however, the violation contained in the denationalization laws was so macroscopic that it could have been sufficient to present an appeal to the European level. This was done, but it was rejected.

Sardos believes that when faced with problems of this magnitude, either a political solution is found or else it is difficult. It takes the will of the States and the conviction that it is convenient for them to find an agreement. At the time of the meeting with Sanader, who said he did not have a phobia of Italian irredentism, the conditions were there and there can be even more so today that that Croatian psychological resistance, but even more Slovenian, has been praised, for which returning the goods to the Italian exiles was a taboo. On the other hand, it would take a huge act of optimism to think that there could be more attention on the Italian side.

The moderator Rossi reported in summary the basic concept of the appeals presented by the lawyer Gian Paolo Sardos Albertini, that is, according to the principle rebus sic stantibus the treaties with the successor states of Yugoslavia which have recognized the right to property must be renegotiated. Such appeals, even if unsuccessful, are necessary to then appeal to the Court of Human Rights in Strasbourg, which can only rule once all the internal levels of judgment have been exhausted.

The Roman lawyer Vipsania Andreicich reported that she began to deal with the legal aspect of the restitution of the exiles' assets when Law 2002 was enacted in Croatia in 81 following the Supreme Court ruling that declared the previous law on denationalization, which excluded foreign citizens, to be unconstitutional. The new law also provided for the restitution to foreigners in the presence of specific international law agreements and reopened the terms for the presentation of applications by six months, with a deadline of January 5, 2003. In practice, what we had not been able to do through our authorities, Croatia had managed to do. The passing of the law and the creation of a joint Italian-Croatian commission gave lawyer Andreicich hope, and she presented Croatia with a request for the restitution of the assets of her father, originally from Abbazia, and then also of other exiles: about twenty in all. The questions were complex because they had to be drawn up in Croatian in a short time, indicating the land registry entries (which had been completely changed in the meantime), the hereditary titles (attaching a family tree) and the expropriation measures adopted.

These questions remained unanswered until 2008, when a client of the lawyer Andreicich received a letter in Croatian demanding that he send new documents that were very difficult to find within 15 days and that he be required to be domiciled with a Croatian lawyer. The lawyer Andreicich, in collaboration with the lawyer Anita Prelec from Rijeka, obtained all the requested documentation, but received a negative response because the law provided for restitutions, replacement goods or compensation only for citizens of countries with which international or bilateral agreements had not already closed the issue. And this was the case with the Peace Treaty with Italy, which contemplated the transfer of the exiles' goods as war damages. The one who was supposed to protect them was Italy. Why were they now turning to Croatia, which was respecting the treaties? They should have asked Italy for fair compensation.

In those same years, a woman presented to the lawyer Andreicich the case of her husband, an exile from Fiume, one of the few to be included in list A, which lists 500 assets left freely available to Italian citizens in the ceded territories. In addition to this, there is also list B, including 179 assets in Zone B of the FTT. The woman had grandchildren to whom she wanted to leave an inheritance. But the lawyer discovered that those assets were occupied by citizens authorized by the local authorities. One had even been sold. In 2009, the lawyer told this to a working table where the Undersecretary of Foreign Affairs Mantica was present, underlining how Croatia, contrary to proclamations, did not respect the treaties. The next day, the Farnesina entrusted her with the task of verifying who the 179 “free” assets in Zone B were registered to. She and the lawyer Prelec checked the parcels on the land registers, from which they deduced that most of those properties were registered to Croatian and Slovenian administrations of the former Zone B (mainly the Municipalities, which had carried out the nationalization). Therefore, both Slovenia and Croatia were violating the 1983 Italian-Yugoslavian agreement. Lawyer Andreicich delivered a statement to the Ministry of Foreign Affairs, imagining that the Slovenian-Croatian non-compliance could reopen negotiations. Another non-compliance had already been raised previously, since Slovenia and Croatia had never completed the payment of the 110 million dollars owed to Italy by Yugoslavia based on the 1983 Rome Agreement. But Ljubljana and Zagreb claimed to be willing to honor the debt. However, the failure to deliver the free assets was a clear non-compliance.

Unfortunately, the commitments of the Italian governments have always been many, but the results very few. The only Italian assets that have been returned so far are the “forgotten” ones, for which no one transcribed decrees of nationalization or confiscation and which therefore remained registered to the old owners, many of whom did not even know it. Some descendants discovered this when they received phone calls from Croatians who wanted to buy them at a fair price.

In 2009-2010, a ruling by the Croatian Supreme Court caused quite a stir, suggesting that the assets would also be restituted to the Italians. In reality, it confirmed the principles of the law in force, while recognizing the restitution of assets to a Brazilian citizen, that is, a state with which Croatia has no agreements on the matter. Croatian law provides for restitution in only two cases: when the issue has not already been resolved by international agreements or when there is a specific agreement for restitution. The Istrian-Fiuman-Dalmatian exiles do not fall into either of the two cases, because the issue of their assets has already been resolved by treaties with Yugoslavia and because no agreement with Slovenia and Croatia provides for their restitution. Lawyer Andreicich is therefore a bit pessimistic and has not even sent the supplementary documentation requested by the Croatian authorities for his father's assets, knowing that the response would be negative. And he doubts that positive responses will be forthcoming at the moment.

Lawyer Anita Prelec reported that she is called by people who receive a document from Croatia asking them to send a certified translation into Croatian of the application submitted by 5 January 2003, appoint a Croatian lawyer and submit documents certifying the current land registry number of the property, the historical number, the first degree relationship (no uncles or nephews), the nationality of the de cuius when the property was deducted and the nationality of the person who is now asking for it. Attorney Prelec tries to collect the documentation, but warns clients to be skeptical because so far no positive answers have ever been received.

One of the arguments she tried in vain was to have the then over-eighteen or unmarried children of the former owners say that in reality they did not share their father's option and that they would have liked to stay; but art. 79 of the Peace Treaty provides no basis because it entrusted the choice only to the father. Art. 74, paragraph 1 provided that Italy would pay war reparations to Yugoslavia for 125 million dollars. Art. 79 read: "Each of the Allied and Associated Powers shall have the right to requisition, detain, liquidate or take any other action with respect to all property, rights and interests which, at the date of the coming into force of the present Treaty, are within its territory belonging to Italy or Italian nationals and shall further have the right to apply such property or the proceeds of liquidation thereof for such purposes as it may deem appropriate, up to the limit of the amount of its claims or those of its nationals against Italy or Italian nationals, including claims which have not been fully settled under other articles of the present Treaty. All Italian property or the proceeds of liquidation thereof in excess of the amount of such claims shall be returned."

Those who opted – argued the lawyer Prelec – renounced their assets. The exiles who never opted ask themselves why they saw their assets taken away. The answer is in art. 79, paragraph 1, which speaks of "Italian citizens", therefore not only those who opted. Paragraph 3 says that "the Italian Government undertakes to compensate Italian citizens, whose assets will be confiscated pursuant to this article and will not be returned to them".

The cost of the appeal itself is not high. It depends on the quantity and location of the documents to be found, as well as the number of hearings. But for those who opted, the outcome has so far always been negative. These administrative appeals are handled by municipal offices, where officials who do not always have a law degree work.

According to the lawyer Prelec, the only way left are the lists of the free assets of the optants. In the municipal courts he found those of the assets still registered in the name of the ancestors of his clients and made the property transcriptions in their favor. At number 28 of the list A, a lady is registered as the owner of two houses (each with two apartments), which the Municipality of Rijeka had given for use or sold. When the procedure was going well, the Municipality filed a lawsuit for abandonment of the assets by the lady claiming that the two houses had become the property of the Municipality. Despite this, the lawyer won, forcing the Municipality to compensate for the damage, but he is still fighting to get the current tenants out, protected by a law on state tenants. In the meantime, his client is over 90 years old.

Sanader could promise to return the shacks, but if someone lives in them it is difficult. The maternal grandfather of the lawyer Prelec, a Rijeka “remainer”, had an important shoe shop in the city center whose building was destroyed by a bomb and a square was built in its place. The family, all “remainers”, asked for the restitution, but the answer was that the four heirs could only have 50 euros. In the end they did not even get that because the aunt had made the request only in the name of the children of the deceased grandfather, not taking into account the grandmother, to whom the property had passed. However, in Croatia the law on denationalization has not remained a dead letter, it is applied and even important assets have been returned to Croatian citizens.

"So - commented Paolo Sardos Albertini - it is true that we are discriminated against."

University of Verona professor and lawyer Davide Lo Presti gave an overview of the jurisprudence of the European Court of Human Rights on the subject of expropriation and nationalization to answer the question of whether it still makes sense for exiles (Italians and otherwise) to expect recognition of their claims at the community level. Disappointment prevails after the decade from February 21, 2003, when Croatia submitted its application for membership, to July 1, 2013, when it entered, some openings by the then president Mesić and the Istrian Democratic Diet gave hope. What was at stake was not the restitution of a property inhabited by a Croatian family for fifty years, but at least a fair restoration to current values ​​to repair the wrong suffered. Politics – especially Italian – has failed because it has obtained nothing in exchange for Croatia's accession to the EU.

The expropriation of “abandoned” property has trampled on the right to property, as well as the right to non-discrimination and protection of minorities. Article 345 (ex 295) of the Treaty on the Functioning of the European Union leaves the existing property regime in the individual States untouched. However, the right to property has entered the Community legal system by virtue of both Community case law and the recognition of the Charter of Fundamental Rights of the European Union and the European Convention for the Protection of Human Rights and Fundamental Freedoms. With a ruling in 1974, the Court for the first time recognized the right to property as part of the fundamental principles of the Community legal system, the observance of which it has undertaken to ensure. The Charter in Article 17 states that: “everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his property except for reasons of public interest, in the cases and according to the methods provided by law and upon payment in due time of just compensation for the loss of the same. The right to property is strengthened by art. 52, first and third paragraphs, of the Convention, which also protects it from the limitations of national States.

The new consolidated version of the Treaty on the Functioning of the European Union, in force since 1 December 2009, recognises in art. 6, paragraph 1, the rights, freedoms and principles enshrined in the Charter of Fundamental Rights of the European Union, "which has the same legal value as the Treaties". This recognition has strengthened the line of jurisprudence on the principle of property started in 1974, making it increasingly authoritative. Art. 6, paragraphs 2 and 3 of the Treaty implements the Convention by stating that the fundamental rights guaranteed by it "form part of the law of the Union as general principles". Art. 1 of the first Additional Protocol to the Convention states that "every natural or legal person has the right to the peaceful enjoyment of his possessions". Community jurisprudence gives an extremely broad definition of the concept of "property": it can be either tangible or intangible, whether it is an inheritance or goodwill. Anything that can be of use must be protected from expropriation. The Court's jurisprudence states that any expropriation, whether de facto or de jure, must be compensated, that is, aimed at the restitution ad integro, the return of the property to its legitimate owner. Only where this is not possible, compensation equal to the current value of the property must be recognized to the expropriated.

According to Prof. Lo Presti, this jagged path of European recognition of property rights is still maturing, but it leaves room for maneuver and can give rise to reasonable optimism, corroborated by case law rulings in cases that have many points of contact with the Julian-Dalmatian case. Two examples show the strength of European case law in influencing national legal systems: the Court condemned Italy for inadequate expropriation procedures, as they recognized the expropriated people's value to be far lower than the market value of the property; a 2004 ruling by the Court condemned Poland for violating art. 1 of the first Additional Protocol to the Convention, as it had assigned compensation of less than half the market value to its citizens whose "abandoned" property it had sold to the USSR under an agreement. Poland should have adequately compensated those citizens. This does not imply that this precedent can be used and transposed to the property of Italian exiles. In fact, every legal phenomenon is first of all political, and when it comes to large sums of money the interests at stake are very high. However, there is some legal possibility of asserting the right affirmed by the Convention.

Paul Radivo

The Adriatic Observer