Examining the Rule of Law in Croatian Criminal Justice Through the Perspective of Exemption Legislation

Examining the Rule of Law in Croatian Criminal Justice Through the Perspective of Exemption Legislation Presented by: Dr. Prtenjača Date: 13 October 2023 Content - Something about the Rule of Law - The Rule of Law elements - Principle of legality and prohibition of retroactivity in Croatian Criminal Law - Similar experiences - Concluding remarks Something About The Rule Of Law As The Supranational Concept - The Rule of Law- Law is the 'main (f)actor' (Omejec) • Is the principle every person and entity is subject to the law • Regardless of their social status, wealth, or power • All individuals are equal before the law • It ensures that laws are applied consistently and impartially, without discrimination or favoritism • It is the foundation of democratic societies and • Ensures everyone is treated equally under the law The Rule Of Law Elements - The Venice Commission established the "necessary elements of the rule of law", as well as those 'Rechtstaat' which are not only formal but also substantial or material for "which it seems that a consensus could be found", namely: • "1. legality, including a transparent, accountable, and democratic process of passing laws; • 2. legal certainty; • 3. prohibition of arbitrariness; • 4. access to justice before independent and impartial courts, including judicial review of administrative acts (access to justice before independent and impartial courts, including judicial review of administrative acts); • 5. respect of human rights and • 6. prohibition of discrimination and equality before the law (non-discrimination and equality before the law)." Principle Of Legality And Prohibition Of Retroactivity In Croatian Criminal LawConstitutional Amendments - in 2010, an Amendment to the Constitution introduced a new provision, para. 4, to Art. 31 (Principle of legality); - this addition states that criminal offenses related to war profiteering, as well as criminal offenses arising from the process of ownership transformation and privatization, committed during the Homeland War and peaceful reintegration, war circumstances, and immediate threats to the independence and territorial integrity of the state, will not be subject to the statute of limitations if prescribed by law or if they do not expire according to international law; - simultaneously, any financial gain or property benefit (pecuniary advantage) obtained through these acts or associated with them will be subject to confiscation; - after a constitutional amendment, the enactment of the Law on Exemption from the Statute of Limitations for War Profiteering and Crimes Committed in the Process of Ownership Transformation and Privatization followed in 2011 (the Law on Exemption or the Exemption Act) - 2011, the Law on Exemption, accompanied by a new Penal Code and certain provisions thereof, played a crucial role in providing comprehensive clarification and practical application of the recently amended constitutional provision (Art. 31; para. 4) - additionally, in September 2011, I.S. faced separate charges for allegedly accepting a - €10 million bribe during his tenure as the Prime Minister of Croatia; the bribe was purportedly received from Z.H., the chairman of the management board of Hungarian oil company MOL, in exchange for granting control of the Croatian oil company INA to MOL; - the indictment asserted that the deal was made in 2008, with the bribe being offered in return for taking action to amend the Shareholder's Agreement; - both sets of charges were consolidated into a single trial, and the verdict was delivered on November 20th, 2012. I.S. was found guilty of abusing his position for personal gain rather than serving the country's best interests; - the judgment delivered a strong message about the significance of public office being carried out for the benefit of society, highlighting the detrimental impact of I.S.'s actions on Croatia's reputation - consequently, he was sentenced to eight and a half years of imprisonment. Principle Of Legality And Prohibition Of Retroactivity In Croatian Criminal Law- The Most Known Case - sentence of 6 years for the INA-Mol affair (one of the cases elaborated previously); - having faced multiple proceedings over the course of the past 13 years (with a total of 5 cases, 3 of which resulted in guilty verdicts and have reached their final decisions), it became necessary to consolidate the sentences from all the conclusive judgments; - as a result, the consolidated sentence has been determined as 18 years of imprisonment; - he is obligated to reimburse 34 million HRK (equivalent to approximately EUR 4.5 million); - verdict in the cases HYPO and INA/MOL (the cases were unified in one procedure and consequently verdict) was challenged before the Constitutional Court of the Republic of Croatia, and subsequently, the court overturned the initial ruling (2015); - the primary reason for this decision was the courts' inability to provide justification for the application of the relevant penal code and the Law on Exemption; - the courts failed to assess whether the statute of limitations for the underlying criminal offense had expired (as in the Kononov v. Latvia case), did the criminal offenses were statute-barred, and to determine the proper application of the Law on Exemption in such circumstances; - the Constitutional Court pointed out that the lower courts failed to determine whether the supplementary elements outlined in Art. 7, para. 1 of the Law on Exemption were applicable to the specific case; - the Constitutional Court had a significant role in interpreting the Constitution, especially Art. 31. para. 4. and in overturning this case; - the conclusion of this case took place quite recently, the former Croatians Principle of legality and prohibition of retroactivity in Croatian Criminal Law- The Law on Exemption in Practice - the impact of the Constitutional Court decision on negative trends regarding criminal offenses from the time of the ownership transformation and privatization and war profiteering is seen through different State Attorney's Office Reports (for different years and periods) - e.g. in the State Attorney's Report for the year 2021 is stated - there were no convictions in significant cases prosecuted under the Law, and the trend of negative court decisions continued - 1 judgment resulted in the acquittal of three defendants, and an appeal has been filed against this judgment, which the appellate court has not yet decided on - 2 decisions from the appellate court were received: one rejected the prosecutor's appeal against a judgment received in 2020 that acquitted the defendant, making that decision final - the other decision accepted the prosecutor's appeal, overturning the initial acquittal judgment, and the case was returned to the first-instance court for a retrial - 1 decision was made under Art. 355, para. 1, point 3 of the Criminal Procedure Act, which, after the indictment was filed, terminated the criminal proceedings against one defendant for an economic offense under the Law, based on the existence of a circumstance that excludes criminal prosecution, namely, the occurrence of the statute of limitations- an appeal has been filed against this decision, which is pending resolution (the State Attorney's Report for 20201 p. 202-203) - „such indicators confirm the conclusion highlighted in previous reporting periods that, bearing in mind the absence of final convictions in significant cases of this type of criminal offense, the Law did not fulfill the Similar experiences - according to the Opinion of the Venice Commission, which was requested by Hungary regarding the fourth amendment to the Hungarian constitution in 2013, the provision in the constitutional amendment regarding the non-obsolescence (concept of non-statute barred) nature of "inhuman crimes committed against the Hungarian people during the socialist and communist dictatorship" is deemed unacceptable - the Commission concluded that 'provisions regulating this must at least allow for sufficient flexibility with regard to proportionality, taking into account the individual circumstances of each concrete case' - the Commission expresses concerns that incorporating lustration measures into the constitution after a significant period since the democratization process began could potentially prioritize retaliation. over democracy (and consequently even threaten the rule of law) Concluding remarks - the Law on Exemption (or the Exemption Act) enables the retroactive prosecution of specific crimes associated with privatization and ownership transformation and war profiteering (from that period in '90) - it goes against the principle of legality and the prohibition of retroactive application of the law - unlike Hungary, which did not take a similar approach, this law stands out as an exceptional example worldwide, and it can be inferred that it does not align with the principles of the rule of law - in brief it is evident that the proponents of this unprecedented solution in contemporary comparative criminal law did not consider the fact that "correcting" something that transpired almost 21-29 years ago (that is, 20 years until the passing of the Exemption Act) through delayed administration of justice actually leads to injustice - this reasoning is further supported by the Venice Commission, which concluded in the case of lustration in Hungary that delayed implementation of the law and justice, due to the significant passage of time, has the opposite effect and violates the principle of fairness, and in that regard the principle of rule of law - as it was seen from the State Attorney's Office (SAO) Report it looks like the Law did not achieve its presumed goals but led to additional cost (SAO must act by the Law and Courts make decisions according to the Constitutional Court decision which elaborates on the bad side effects of the Law on Exemption)