crimes committed by totalitarian regimes - Ministrstvo za pravosodje

Crimes committed by totalitarian regimes
held to restitute whatever the claimant himself could have recovered under normal circumstances.
Before the appellate court could decide on the appeal, there occurred in our state an alteration of
the law in this area. In the meantime, an Act on the Temporary Suspension of the Implementation of
some Provisions of the Act on Denationalisation (ZDEN) and the Act on the Implementation of Penal
Sanctions (ZIKS) was adopted on the basis of which all legal procedures pertaining to such cases
would rest ex offo (until 20/12/97). Subsequently, the Act on the Alteration of the Act on a Temporary
Suspension of the Provisions of ZDEN and ZIKS was introduced (Official Gazette of the Republic of
Slovenia 87/97) which extended the period of suspension till 31/3/98. Thereafter, the now valid Act
on Amendments and Supplements to the Act on Implementation of Penal Sanctions was adopted and
tested regarding its constitutionality by the Constitutional Court that ruled on this matter by means
of a Decision No. U-I-60/98, published in the Official Gazette of the Republic of Slovenia 56/98.
Since the valid Act on the Implementation of Penal Sanctions provided that the amendments should be
applied also to those proceedings which started before the introduction of the Act, but have not been
concluded in a legally binding way hitherto, this case has to be decided according to the valid and
amended ZIKS (Art. 3 of the Act quoted). Since the amended Act has altered the provisions determining
the comprehensiveness, form and limitations with respect to the restitution of property confiscated in
criminal trials concluded in a legally binding way before 31/12/1958, while the penalty of confiscation
was set aside on the basis of extraordinary legal procedures, it is necessary to distinguish between
various kinds of claims by the claimant with precision, as the legal basis for the decision on these claims
depends on this distinction.”
The above text, taken from the order of the Higher Court of Ljubljana, dated 16 April 1999,
provides an illustration of the complete disregard for human rights and legal principles by the Slovene
legislation and judiciary.
Eight years after the quashing of the 1947 sentence on Ljubo Sirc and his late father Franjo Sirc,
the appellate court referred back to the first instance court, a case for compensation for confiscated
property which was submitted six years earlier, and which the first instance court ruled on three years
earlier.
The reason for the delays was the chopping and changing of the pertinent law by the Slovene
Parliament in opposition to all internationally accepted principles, especially that retroactivity of legal
rules is not permissible and that persons in the same situation should be treated equally.
2. Relevant international law
2.1. Independent and impartial tribunals
Partisans of the present state in the Republic of Slovenia will naturally claim that the activities of
the courts in the country were legitimate since they were carried out by bodies that had been appointed
according to law.
However, appointment, according to valid law, is only one condition for legitimacy. Art. 6 (1) of
the Convention for the protection of Human Rights and Fundamental Freedoms provides inter alia:
“In the determination of his civil rights and obligations or any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal
established by law.” 14
In Findlay v. United Kingdom the European Court of Human Rights stated that: “In order to
establish whether a tribunal can be considered as ‘independent’, regard must be had inter alia to the
manner of appointment of its members and their terms of office, the existence of guarantees against
outside pressures and the question whether the body presents an appearance of independence.
As to the question of ‘impartiality’, there are two aspects to this requirement. First, the tribunal must
be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective
viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect.” 15
14
Art. 6 (1) of the Convention for the protection of Human Rights and Fundamental Freedoms, Rome 1950.
15
EHRR 221, 1997, para. 73.
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