crimes committed by totalitarian regimes - Ministrstvo za pravosodje

Crimes committed by totalitarian regimes
Court, demanding prohibition of the ex post facto alteration of the law on restitution, which was
rejected.
Since the domestic proceedings were not interrupted by the application to ECHR, the Applicant
reported about twice yearly to the European Court on these proceedings, including his comments and
pleas. More than one hundred pages of text and over 200 documents have been sent to the Court
and are accessible to the public, as deposited with the Registrar under Article 40, paragraph 2 of the
Convention.
That flow of information to the Court was interrupted by a Partial Decision by the Court on
16 May 2002, i.e. almost four years after submission of the application. It was accompanied by a
questionnaire for the Slovene State Attorney and the Applicant. The State Attorney insisted on the need
for the Applicant to “exhaust all domestic remedies.”
The Applicant in turn stated in his submissions of 1 July 2003 and 21 April 2004, inter alia, that
the ECHR should declare his application admissible because all effective domestic remedies have been
exhausted, in particular as the Slovene Constitutional Court itself has pronounced on the ex post facto
alteration of law and on artificial prices; and the Applicant has not had a fair and public hearing within
a reasonable time by an independent and impartial tribunal.
What effective domestic remedies are there against the decisions of the Constitutional Court
confirming Acts of Parliament, and against the general bias of judges, especially judges of the
Constitutional Court? The European Court should have decided on the merits of the case as submitted.
Instead, the Third Section disregarded the facts that the Slovene Court were biased and dependent, and
that the law on restitution after confiscation and the denationalisation was changed ex post facto.
It further dismissed the factual objections against the judgment by the Slovene Constitutional
Court in the so-called contentious proceedings and declared such objections inadmissible in its Final
Decision of 22 June 2006. It needs repeating that the wrong facts “confirmed” by the Third Section were
“first established” by the biased and dependent Slovene Constitutional Court.
All that remained after adoption of this doubtful decision by the Third Section was the complaint
against “unreasonable time” of more than 15 years.
5. Conclusions
A judgement by a partial and politically dependent Court, using law adopted ex post facto, cannot
be considered valid.
At least it requires a careful analysis.
As it will transpire under scrutiny, the Third Section itself has somewhat strange features. It was
normally presided over since 2004 by the Slovene judge Boštjan Zupančič who, however, was not
presiding when the Sirc case was considered for the second time. But he was a member of the Chamber
when the Partial Decision was taken in 2002, and the fact that he is the regular presiding judge implies
that his views influence his fellow judges, and are reflected in their way of operating.
His views certainly need to be taken into account by anyone concerned with the working of his
usual chamber.
After six months in Strasbourg, Judge Zupančič stated: “As a matter of fact, there is a deep abyss
at the European Court of Human Rights between Western and Eastern thinking, especially as a sizeable
part of the former is still caught up in the bourgeois legal mentality.” 19
The attention of the then ECHR President, Luzius Wildhaber, was drawn to the language used by
Judge Zupančič, but he did not consider that it disturbed the Unité de doctrine of the Strasbourg Court.
Soon afterwards Judge Zupančič again explained his low opinion of the Western “yuppie” law in
a lengthy article in the Delo supplement. 20
When 13 years of the Slovene constitution were celebrated, Judge Zupančič – by then President of
the Third Section of the European Court – proclaimed that judges should be allowed to disregard “legal
19
Delo, 14 May 1999.
20
Delo, 3 January 2000.
141