The Supreme Court of Slovenia has recently issued a decision ( VSRS Sodba II Ips 219/2018) on the challenging, much publicised and politicised legal battle between the Municipality of Ljubljana (MOL) and certain users of ROG Factory. It is the culmination of the 2016 eviction proceedings against 8 individual users of ROG; a legal journey that followed MOL’s attempts to demolish part of the factory area in the summer of 2016. In this most recent judgment, the Slovenian Supreme Court makes certain intriguing (and perhaps radical for UK standards) remarks with respect to the protection of property and the use of a place owned by public entities. Furthermore, this decision demonstrates a liberal approach to the concept of squatting, an action that is progressively becoming institutionalised and appropriated across European urban centres (e.g. Copenhagen or Berlin).
In the summer of 2016 the Municipality of Ljubljana (MOL) decided to start renovation works in the area of ROG (which the municipality had purchased in 2011, having had a lease on it since 2002), by attempting the demolition of part of the factory’s surrounding wall. The attempts were reinforced by the presence of private security guards, and were met by the users’ and the broader city’s outcry: flyers and graffiti promoting the defence of ROG appeared in every corner of Ljubljana. Consequently, a number of individual users of ROG filed lawsuits against the Municipality claiming disturbance of possession. Each one of these individual users declared themselves an owner of the disputed property through prescription (Article 42(2) of the Slovenian Property Code/ SPZ). Ultimately, interim injunctions against MOL’s renovation plans were secured. The municipality countered with separate eviction proceedings (emptying and extradition) against the same, individual claimants.
The more recent Supreme Court decision of the 19th of September 2019 constitutes the culmination of one of these evictions proceedings against an individual defendant/ user of ROG. No other legal route against a collective of users can be possible under the current state of things: it appears that the “community” of ROG users performs as one by name only, as the lower Slovenian Courts also reiterate. In essence, the lack of an organisational hierarchy within ROG means that the collective of its users lacks legal standing, and can neither sue nor be sued. This precludes the filing of a single lawsuit that could order all ROG users to empty and deliver the premises; the Municipality can only act against one individual user at a time, something that has been declared as impossible to pursue.
This sole fact constitutes one of the Supreme Court decision’s most intriguing attributes, as it essentially points to Slovenian property law’s inability to deal with the squatting of ROG at first instance. A closer look at the decision, as well the decision of the lower court that is being appealed, reveals the Slovenian legal system’s unique stance towards squatting and towards the use of public property more particularly.
The petition at the Supreme Court from the part of the MOL concerned the rejection by the lower courts of the Municipality’s claim that the defendant deliver the property vacant of all persons and belongings. This inability first observed at the Court of First Instance, led the MOL to claim that the courts were unable to protect the Municipality’s constitutional rights, contradicting existing case law that enables the delivery of property free of all persons and belongings in similar situations. The MOL reiterated that the defendant user, having himself claimed exclusive ownership of the area in the aforementioned disturbance of possession proceedings, would be in effect able to deliver the property as requested. The Municipality suggested that the disturbance proceedings single out the defendant as a prominent member of the ROG users’ community, and that in any event there exists a single community of users that can be ordered to empty and deliver. MOL’s claim finally stipulated that the ROG factory area is in such decline that the property’s economic and ecological functions, introduced by virtue of Article 67 of the Slovenian Constitution, can not be fulfilled. The factory is in such a dire state that intervention for refurbishment is vital for its existence.
The Supreme Court dismissed the MOL’s petition primarily on the premise that the defendant (or any single user of ROG as a matter of fact ) cannot possibly be ordered to deliver an empty property. This inability does not contradict any prior case law; rather it stems directly from ROG Factory’s unique features: notwithstanding that ROG is a squat, it is nevertheless owned by the MOL. Furthermore, the particular squat of ROG Factory remains relatively open in nature: everyone can be the user of ROG. These facts afford the place a unique/ quasi-public character.
In other words, since the number of users that remain active in ROG or at least participate in events and social activities therein remains open, and since diverse and unrelated persons frequent or occupy the factory’s buildings, the Supreme Court has acknowledged that the squatting of ROG performs a quasi-public function. The “community of ROG’s users” cannot be a legal entity in the strictest sense, as their number is constantly changing. There is no hierarchy among the even the most active users, who are neither organised nor connected in any way. Rather, ROG’s users constitute an “amorphous, anonymous, and ever-changing social formation” which by definition escapes the arm of the law as such.
Even more important seems to be the reiteration that such areas of extensive and vibrant social life tend to be owned by municipalities or other public entities, which also happens to the be the case here. Indeed, we are dealing with a place of quasi-public nature owned by a public entity, performing a public social function, as it is dedicated to the getting together of the public for the purposes of activism, recreation or sport. Of course here the Supreme Court takes notice of the variety of activities represented at ROG, ranging from political activism, including refugee rights advocacy and LBTQ+ representation, to artistic production, to dance and music, skating, boxing, or even acrobatics. The SC agrees that this place is as diverse as the surrounding city.
All property rights are simply not equal, explains the Supreme Court. First of all, the Slovenian Constitution does not distinguish between privately and publicly owned property; it does nevertheless place limitations upon the acquisition and the enjoyment of property by way of Article 67:
The manner in which property is acquired and enjoyed shall be established by law so as to ensure its economic, social, and environmental function. The manner and conditions of inheritance shall be established by law.
All property rights are simply not equal, subject to their respective functions. More importantly, property owned by a public entity cannot be the subject of a human rights claim or dispute as would have been the case with property owned by a private individual. Public entities are simply not bearers of fundamental human rights. What the Municipality of Ljubljana decides to do with the place is not a matter of law but a matter of public policy. Consequently, the overarching issue with ROG Factory is not a legal but political one.
The users of ROG can be -theoretically- as many as the people in Ljubljana; everyone is free to visit and perform various functions and activities in its premises. The anonymity of ROG users can therefore be deduced. More importantly, this anonymity is exactly the reason why the Supreme Court went on to explain how ROG bears the characteristics of a “public good” pursuant to Article 19(1) of the SPZ:
(1) A public good is a thing which may be used in accordance with its purpose and under the same conditions by anyone (general use).
Even though a building cannot qualify for public good status without the decision of the competent authority pursuant to Article 245 of the Slovenian Spatial Planning Act, the SC did acknowledge the similarities between the wording of the Act and the very nature of ROG; in the present case, full civil protection remains impossible.
Notwithstanding that the defendant in the particular case is still required to ensure that no more events organised by him take place in ROG, and that by extension he stops securing people access to MOL’s property, this is but a small fraction of the story:
ROG is used and frequented by people who are not connected or even known to each other, who are by no means considered a community, and who represent the people of the city to the extent that this is a de facto quasi-public place, despite its ownership status. For as long as it remains this way, there is only so much protection civil law can afford the Municipality of Ljubljana…