| Sažetak (engleski) | entity of the Catholic Church in its territory, regardless of which ecclesiastical authority
instituted the legal personality. The records of legal entities of the Catholic Church are kept as
a public register at the ministry responsible for general administration, in accordance with the
regulations on maintaining public records. This means that the Republic of Croatia only keeps
records of the establishment and termination of legal entities of the Catholic Church based on
the notification of the competent ecclesiastical authorities, more precisely the diocese on
whose territory the legal entity of the Catholic Church was established, while the registration,
status changes and abolition of Church legal entities from the records is declaratory in nature.
The constitutive act on the establishment of a legal entity of the Catholic Church is passed in
accordance with the provisions of canon law by the competent ecclesiastical authority and
with the prescribed approvals or consents also issued by the competent ecclesiastical
authority. The situation is the same with the cessation of the existence of any legal entity
within the Catholic Church, which is constitutively bound by the provisions of canon law and
the decisions of the competent ecclesiastical authority, which abolishes or suspends legal
(ecclesiastical) personality. As a rule, in accordance with the provisions of canon law and
status documents of the ecclesiastical legal entity, the competent ecclesiastical authority
decides on the legal succession of the legal entity of the Catholic Church, which has ceased to
exist, and thus who are the holders of property rights of that (missing) legal entity.
The Agreement on Economic Affairs establishes the obligation of the Republic of Croatia to
restitute property to the Catholic Church. This is property confiscated during the Yugoslav
communist rule through measures of nationalization, confiscation, agrarian reform, and
expropriation in the form of legal frameworks or other bylaws. The Republic of Croatia has
also undertaken the obligation to pay the Catholic Church compensation in cash for properties
that will not be returned through natural or alternative restitution. The Agreement on
Economic Affairs partly addresses the issues of the Church's financing, as well as the
exemption from the tax system for certain incomes. Furthermore, this Agreement forms
special bodies authorized for alternative and monetary restitution, whereas in relation to the
model of natural restitution of confiscated property, it refers to the direct application of the
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Law on Compensation for Property Confiscated during the Yugoslav Communist Rule. In
relation to the model of substitute restitution, the Agreement on Economic Issues establishes a
special "Joint Committee" responsible for the inventory and exchange of goods, as well as the
deadlines for substitution restitution, while in relation to monetary restitution a "Joint church-
state committee of experts” which should determine the total amount of compensation based
on the estimated value of the property that will not be covered by natural and alternative
restitution.
The Agreement on Economic Affairs and the Agreement on Legal Matters provide a kind of
privileged legal position to the Catholic Church in property restitution proceedings. In
addition to the privileged position in the formal-legal sense, considering the historical role of
the Catholic Church in general, it’s legal and social position at the time of the confiscation of
property, the specificity of its organizational structure, and the legal position in international
relations. Since all other religious communities in Croatia that are not part of the Catholic
Church, as well as all other claimants of the right to restitution of confiscated property,
exercise their rights in accordance with the Law on Compensation for Property Confiscated
during Yugoslav Communist Rule, the question of equality of religious communities before
the law and their separation from the state is raised, as principles established by the
Constitution of the Republic of Croatia. Starting from the principle of equality under equal
conditions, it is noted that the restitution of the property of the Catholic Church is regulated
by the International Agreement on Economic Affairs, which was concluded and ratified in
accordance with the Constitution of the Republic of Croatia. Such an international agreement
is legally above the law and allows the Catholic Church privileged ways of restitution and
even different terms of return. All other claimants of the right to restitution of confiscated
property, as well as religious communities, are exclusively subject to a hierarchically lower
legal regulation, i.e. the Law on Compensation for Property Confiscated during the Yugoslav
Communist Rule.
In terms of status and in the legal sense, the Catholic Church in the Republic of Croatia does
not operate under the same conditions as other religious communities. While the legal
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framework of the Catholic Church is an international agreement, for other religious
communities in terms of status and legal issues, the 2002 Law on the Legal Status of
Religious Communities and individual agreements between the Government of the Republic
of Croatia and certain religious communities apply. The Catholic Church is by nature a
religious organization because it exercises freedom of religion by performing religious rites
and other manifestations of religion, but it is not a religious community in the formal legal
sense of the Law on the Legal Status of Religious Communities, but a global strictly
hierarchical organization of supranational character, that is a subject of international law. The
Law on the Legal Status of Religious Communities defines a religious community as a
community of natural persons who have met certain organizational criteria and are entered in
the Registry of Religious Communities in the Republic. Entry of religious communities in the
Registry is based on a final administrative act and is of a constitutive nature. The Catholic
Church in general as well as its legal entities are not entered in the Register of Religious
Communities in the Republic of Croatia, and the entry in the Register of Legal Entities of the
Catholic Church is declaratory.
The agreement on cooperation in the field of education and culture is a kind of component of
the special property law of the Republic of Croatia for cultural goods. Since cultural goods,
both monumental heritage and other immovable cultural goods, but also works of art and
movable cultural goods and archives, are the most important and most valuable part of church
property, the research work addresses the issues concerning the reasons why sacral cultural
goods were not confiscated as property, while other churches’ cultural goods and archives are,
as well as issues of restitution, primarily natural, confiscated cultural goods and archives.
The Law on Compensation for Property Confiscated during the Yugoslav Communist Rule is
the basic legal framework for the restitution of confiscated property in Croatia for all
restitution claimants, whereas for the confiscated property of the Catholic Church the right to
apply the natural restitution model is applicable. The Law on Compensation for Property
Confiscated during Yugoslav Communist Rule also contains a provision excluding the
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application to those persons whose right to compensation for the confiscated property is
regulated by international treaties. The restitution of the confiscated property of the Catholic
Church is regulated by an international (economic) Treaty, which stipulates that natural
restitution is carried out in accordance with the Compensation Act. At first glance, this is a
mutual exclusion of the application of regulations that is a different legal force, and the
application of legal rules on the hierarchy of regulations leads to the conclusion that an
international bilateral agreement, as a legal act of stronger legal force had a priority from the
moment of entry into force. Therefore, the legal rules in the implementation of the model of
natural restitution are unquestionable.
In addition to the mentioned issue of mutual exclusion of regulations, the legal framework of
restitution of church property is burdened with shortcomings, legal gaps, but also perceived
inaccuracies and ambiguities, which leads to difficult fulfillment of international obligations
of the Republic of Croatia on restitution of the confiscated property. Starting from the issue of
the complex, strictly hierarchical internal structure of the Catholic Church which is under the
legal regulation of canon law, but also the fact that the status issues of the Catholic Church
and legal entities in its composition at the time of confiscation were governed by the then
valid 1917 Code of Canon Law, and at the time of restitution according to the provisions of
the current 1983 Code of Canon Law, the question of the legal succession of those
ecclesiastical legal entities whose property was confiscated and which ceased to exist at the
time of restitution of property arises. It has already been said that the ecclesiastical authorities
are in charge, in accordance with the provisions of canon law, for all status issues of legal
entities within the Catholic Church. Canon law, however, is not only the current Code of
Canon Law, but the totality of the legislation of the Latin Church, which includes not only the
codified provisions of the Code, but also all other ecclesiastical regulations, both central and
particular, or provincial ecclesiastical law. Following the provisions of the Agreement on
Legal Matters, canon law in the status part is a component of the internal legal system of the
Republic of Croatia because this right determines the legal personality, but also all other
status issues of church legal entities, which are holders of property rights and other real rights
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as well as claimants of restitution of the confiscated property. In addition, canon law contains
legal regulations for the management of cultural and other ecclesiastical assets, which it refers
to as "temporary assets". In the coexistence of legal regulations for church property on the
one hand and the Croatian property law system on the other hand, there is sometimes a simple
amendment of regulations, however in rare cases and to the confrontation of certain legal
norms, especially when it comes to restrictions on the disposition of church property that may
result in the voidness of legal affairs, but also regulations on restrictions in the management
of church property.
Apart from the observed problems regarding the right to restitution of church property,
coexistence and collision of the Croatian and canonical legal systems, an issue that belongs to
the interpretation of the content of the legal contract, the legal regulation of restitution of the
Catholic Church property according to the content of the economic agreement, roughly
determined, with recognized legal voids and ambiguities regarding the conditions, manner,
and deadlines for the return of the confiscated property. The Economic Agreement entered
into force on the day of the exchange of ratification documents of the Republic of Croatia and
the Holy See, in December 1998. At the time of the introduction of the Economic Agreement,
deadlines for submitting a request for restitution, i.e. compensation for the confiscated
property, according to the agreement provisions, officially lapses in January 2003. This raises
the question about the timeliness of the request for restitution of the confiscated property that
would be submitted by legal entities of the Catholic Church subsequently, after the entry into
force of the Economic Agreement and on that legal basis which is above the law. One of the
expressed legal opinions and positions from the administrative and administrative-judicial
practice is that the deadlines for submitting requests for restitution of property under the
Compensation Act unconditionally apply to the restitution of property to the Catholic Church
and that the provisions of the Economic Agreement do not affect the preclusive deadlines
established by law. Such an interpretation of the administrative and administrative-judicial
practice would result from a certain interpretation of the provision of the Economic
Agreement which stipulates that the Catholic Church will be given back the property
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confiscated during the Yugoslav communist rule, which can be returned according to legal
provisions. Additionally, in the content of the Economic Agreement, the Republic of Croatia
accepts the obligation to find a suitable replacement for the part of the property, which cannot
be returned and to pay legal compensation to the legal entities of the Catholic Church for
other property that will not be returned. The latter means that if there are legal obstacles of
any kind (including the expiration of legal deadlines), only the type of restitution changes, so
natural restitution would be replaced by substitute or monetary restitution. On the other hand,
given the hierarchy of regulations, it could be acceptable to interpret that the provisions of the
Economic Agreement, regarding the restitution of Catholic Church property, derogated from
the provisions on legal deadlines for filing a request for restitution. The Joint Committee
composed of an equal number of representatives of the Church and the State, responsible for
the application, fulfillment and interpretation of the provisions of the Economic Agreement,
had the authority within one year to establish an inventory for the exchange of goods and
deadlines within the alternative form of restitution has to be carried out, that by the end of this
research has not been finalized. Furthermore, nobody has been explicitly designated to decide
on the type of restitution (substitute or monetary). It can, therefore, be interpreted that a
decision on cash compensation could be made whenever there is no decision on any other
form of compensation. It is also possible to interpret that the existence of a decision on the
impossibility of other forms of compensation would be a precondition for deciding on
compensation in cash.
The legal issue of the person entitled to the restitution of church property arises from the
interpretation of the provisions of the Agreement on Economic Issues, especially article 4 and
5, which determine how to act in cases when the Republic of Croatia is unable to return its
property in kind to the Catholic Church. In these cases, an appropriate replacement is
prescribed, i.e. an appropriate monetary compensation in a certain amount and installments of
payment. With an analysis of the cited legal provisions and a strict interpretation, it is clear
that the Catholic Church is entitled to the right to restitution of property, i.e. compensation for
its value by appropriate replacement or payment of monetary compensation, regardless of the
fact that the Economic Agreement states that the Republic of Croatia will pay monetary
compensation to legal entities of the Catholic Church. This is because the meritum of the
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economic agreement states that this amount will be paid to the Catholic Church every three
months to the account of the Central Fund of the Croatian Bishops' Conference, which is the
supreme collegial body in the internal structure of the Catholic Church in Croatia. However,
according to the Law on Compensation, the claimants of the right to restitution of the
confiscated property are legal entities, i.e. their legal successors. The agreement on Economic
Issues, in the context of the implementation of natural restitution, requires the use of the Law
of Compensation. This means that in practice, restitutions of the churches’ confiscated
property through the use of the model of natural restitution, there is an appearance of
individual legal persons who hold rights for restitution, whether they are the previous owners
of the property or the legal successors of the previous owners. Taking into consideration the
content and meaning of the Agreement on Legal Matters, the Catholic Church should, in
accordance to canon law, have the right to decide to which legal person within the structure of
the church the property rights will go when talking about the repossession of the confiscated
property in accordance to the provisions of establishment, termination, existence and non-
existence, as well as other status issues of the church’s legal persons. The way in which the
Catholic Church should decide to which person the rights will go in the context of
repossession of property, is prescribed through canonical provisions, which emphasize the
principle of territoriality and acquisition of rights. According to canon law, the ownership of
things and rights that make up church assets is determined in benefit of the legal persons who
acquired the property legally. If this legal ecclesiastical person ceases to exist, canon law
dictates that their property then belongs to the next immediate legal person of the church that
is hierarchically above them. According to the provisions of the Agreement on Legal Matters
and the Code of Canon Law, the rights to restitution of the confiscated property in legal
proceedings of natural restitution would belong to the ecclesiastical authority, while
according to the Agreement on Economic Issues the rights holder would be the Catholic
Church. This legal gap could be eliminated through implementation of regulations that would
help with implementing restitution of the confiscated church property in accordance with the
Agreement on Economic Issues. Namely, final provisions of the Economic Agreement
include provisions on methods and deadlines, solving possible doubts and difficulties
regarding the interpretation and application of certain provisions of the Agreement, provision
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on ratification as well as the exchange of instruments of ratification and provisions on
negotiations regarding the procedure changes in the content of the Agreement. Final
provisions of the Agreement also include the obligation of the Joint Committee concerning
the details of the application of the principles of the Agreement. Because of this, there is a
need for implementation of a document that will fill these legal gaps and ambiguities in the
context of rights holders to natural restitution, as well as determine: the final list of the
confiscated church property, a list of property which was returned through natural restitution,
a list of property that would be covered by alternative restitution, rules and mathematical
criteria regarding the model of alternative restitution, deadlines for implementation of
alternative restitution, a list of property that requires monetary restitution, rules of
implementation of monetary restitution and mathematical criteria for determining the fees as
well as deadlines for implementation of monetary restitution.
However, it does not seem justified to expect alternative restitution to the full extent to which
the property has been confiscated, especially when it comes to immovable property. The
reasons for this are objective possibilities given the time elapsed from the confiscation of
property to the beginning of the restitution process, acquired rights of third parties, as well as
reasons of economic nature and availability of appropriate real estate to be used in the
replacement restitution model. Objective possibilities and the mentioned limitations should be
observed together with the differences of church-state relations and the very role of the
Catholic Church in the period before the Second World War, in relation to the contemporary
role of the Church in society in general. In modern society, state-church relations are
essentially regulated by complex legal regulations, which, although burdened with certain
shortcomings, especially regarding the implementation of contractual obligations, indicate an
effort to create an institutional framework of the activities of the Church in society, which
includes specifying the institutional framework for restitution of church property in the
specified and objectively possible range. Therefore, this research paper should be viewed as an effort to contribute to improving the
legal regulation of restitution of church property, and thus improving the institutional
framework of church-state relations in general |
