crimes committed by totalitarian regimes - Ministrstvo za pravosodje

Crimes committed by totalitarian regimes
This pronouncement makes it clear the Slovene courts are neither ‘independent’ nor ‘impartial’.
It cannot be expected that they would judge fairly. Perhaps one or two judges with a communist past
may be overlooked, but more than this becomes senseless. It should not be forgotten that the totalitarian
party to which they belonged staged show trials and ordered mass murders without court proceedings.
2.2. Prohibition of retroactivity
In Article 155, the Constitution of the Republic of Slovenia prohibits retroactive validity of legal
provisions. The second paragraph of Article 155 reads: “A legal act only may provide that its individual
provisions have a retroactive effect if such an effect is required by a public need and if such an effect
does not disturb acquired rights.” The conjunction “and” rather than “or” means that both conditions
have to be fulfilled rather than one of them only.
Although this Article conforms with an internationally accepted legal principle, there is no
equivalent Article in the European Convention of Human Rights, so much so that the Grand Chamber
had to fall back on an interpretation of Article 1 (Protection of Property) of Protocol No. 1 to the
Convention when confronted with the problem in Draon v. France. 16
Paragraph 86 of this Case declares that “section 1 of the Law of 4 th March 2002” breaches Art. 1
of Protocol No. 1 to the Convention “in so far as its concerned proceedings pending on 7 th March 2002
the day of its entry into force. In other words, a new Act must not alter the provisions concerning a
proceeding pending on the day of its entry into force.
Furthermore, in its paragraph 79, the Case also deals with so-called proportionality, i.e. with “the
assessment whether the contested measure respects the requisite fair balance and, notably, burden on
the applicants”. It gives the following reply: “In this connection, the Court has already found that the
taking of property without payment of an amount reasonably related to its value will nominally institute
a disproportionate interference and a total lack of compensation can be considered justifiable under
Article 1 of the Protocol No. 1 only in exceptional circumstances.”
It should be added that the Court (Grand Chamber) assesses under paragraph 91: “Regard being
had to its finding of violation concerning the applicants’ peaceful enjoyment of this possession (see
paragraph 86 above), the Court does not consider it necessary to examine the applicants’ complaint
under Article 14 of the Convention taken together with Article 1 of Protocol 1 to the Convention.”
Retroactive legislation can also be questioned because its causes different treatment of persons who are
supposed to be treated equally under the law that is then changed in retrospect.
3. Application to a prominent case
From the preceding arguments, it follows that the workings of the Slovene judiciary became clearly
questionable after 1998, i.e. after the ex post facto alteration of the restitution and denationalisation law,
and after the election of new, predominantly communist judges to the Slovene Constitutional Court.
These unjustified changes in consequence apply to the restitution and denationalisation case of the
family Sirc. In fact, Ljubo Sirc and his father Franjo Sirc were involved in the Slovene Supreme Court
show trial of Nagode and co-defendants in 1947, mentioned in Appendix I B. Ljubo Sirc was sentenced
to death and remained in prison for seven and a half years after the sentence was first commuted to 20
years forced labour. Franjo Sirc was sentenced to ten years, but died in November 1950.
In January 1991 the Nagode trial sentence was quashed by the Slovene Supreme Court, which
entitled the family Sirc to restitution, viz. compensation for the property confiscated by the sentence
now abolished as being the result of a show trial.
At that time, there were two valid sources of Slovene Law on restitution and compensation:
– The Act on the Implementation of Penal Sanctions providing for the full restitution of, or
compensation for, the property confiscated, if the sentence is quashed;
16
ECHR 1513, 2003.
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