crimes committed by totalitarian regimes - Ministrstvo za pravosodje

Crimes committed by totalitarian regimes
formalism” which only causes delays, and “use their judicial power”. This speech reported in Delo 21
seems to mean that judges should have the right to decide issues according to their own lights.
“The rule of law cannot depend on the magnanimity of a state regime”, Zupančič continued.
This appears to mean that governments and parliaments may well decree that confiscated property be
returned, yet the (Marxist) judges have every moral and political right to refuse and judge accordingly.
In fact, the leading Slovene professor of criminal law, Ljubo Bavcon, supported the Slovene deputy
human rights Ombudsman when he claimed that property was not a human right at all. 22
Furthermore, the ad hoc Slovene judge in the ECHR Sirc case, Rajko Pirnat, was the Slovene
Minister of Justice when the 1947 Sirc sentence was quashed in 1991. If it was up to him that Sirc first
had to appeal for restitution of property, Pirnat did not answer his draft request.
On the basis of the preceding argument, the Applicant puts forward the following (draft) request:
1. That a panel of five judges of the Grand Chamber ECHR should accept the request for the referral
of this case to the Grand Chamber because it raises serious questions affecting the interpretation and
the application of the Convention and two protocols thereto; simultaneously, the case raises issues
of general importance in view of the character of the communist regime in Eastern Europe for fifty
years.
2. The serious questions affecting the interpretation and application of the Convention and the protocols
thereto are:
– If a judiciary or a last instance national court is accused of being biased and/or dependent, in line
with Article 6, this point has to be decided first when the case is submitted to the European Court
– It has to be assumed, if the accusation is accepted, that the domestic remedies have been
exhausted.
– If a judiciary or a last instance national court is decided by the European Court to be biased and
or dependent, their decisions and judgments must not be considered valid, but both facts and
legal questions have to be re-examined and a new decision or judgment passed.
– If national law has been made worse, the party to which the more favourable law applied, must
be judged under the original law and the case should be admitted without delay in the European
Court, if the change of law has been confirmed by the highest court of the country concerned.
3. Should it be confirmed that either a national judiciary or the last instance national court of a country is
biased or dependent, and/or that the national law has been worsened ex-post facto, and that deterioration
has been confirmed by the last instance national court, the European Court, possibly the Grand Chamber,
has to establish the factual situation anew and apply the original national law in a new judgment.
Arguments about biased and or/dependent courts or about ex post facto deterioration of law cannot
be declared inadmissible.
21
Delo, 24 December 2004.
22
Delo, 27 January 1995.
142