Naslov
The Croatian Constitutional Court – Transition without Social Justice?

Autori
Roksandić Vidlička, Sunčana

Izvornik
Balkan Criminology News – Newsletter of the Max Planck Partner Group for Balkan Criminology

Vrsta, podvrsta
Ostale vrste radova, ostali članci/prilozi

Godina
2015

Ključne riječi
Constitutional Court decision in the Sander case; transitional period; social justice

Sažetak
Roksandić Vidlička, Sunčana ; Maršavelski, Aleksandar. Criminal responsibility of political parties for economic crime : Democracy on test // The 15th Cross-border Crime Colloquium of The Criminal Policy Research Centre "The Relativity of Wrongdoing : Corruption, organized crime, fraud and money laundering in perspective" : proceedings / Van Duyne, Petrus C. ; Maljević, Almir ; Antonopoulos, Georgios A. ; Harvey, Jackie ; Von Lampe, Klaus (ur.). Oisterwijk : Wolf Legal Publishers, 2015. 329- 346 prilozen text rada Economic crimes are the most common type of crimes committed by political parties and among these the most important is political corruption. There is hardly any country in the world that has been immune to corruption scandals involving ruling political parties. Their collective will to power and lack of fear of possible consequences of their acts, makes it difficult to discipline them. Until now countries did not find a way to adequately address the criminal responsibility of political parties. The presented judgment in the Croatian CDU case is a precedent that can be used as a new model to address responsibility of political parties for economic crimes. Challenges that political corruption poses for society and democracy are large- scale, however, this new model also brings more challenges for democracy. This does not mean we should give up or substantially limit the criminal responsibility of political parties. Certain safeguards are already provided by obstacles in investigating, prosecuting, convicting and punishing political parties for criminal offences, such as e.g. immunity, abolition, amnesty, pardon, law amendments etc. However, it is necessary to determinate the correct balance in the spectrum of their application in order not to lead to a condition of irresponsible political structures. After evaluating certain sanctions that can be imposed on political parties, it seems that a fine is the most acceptable punishment for political parties in cases of economic crimes. Sanction of dissolution is generally considered to be inappropriate for political parties and especially too harsh for economic crimes. Some national legal systems tend to generally exempt political parties from this sanction, as it is the case in Croatia. The reason for this is to avoid possible threats of criminal proceedings to democracy, in which a ruling political party could use criminal prosecutions to exert pressure on or even eliminate opposition parties. Confiscation and compensation are sanctions of crucial importance in order to satisfy the principle that crime doesn’t pay. Criminal procedure is an appropriate forum to resolve the issues arising from the illegally obtained assets from crimes committed by political parties, because civil proceedings completely depend on the initiatives of the damaged persons. Link:http://organized-crime.de/sar15book.html Roksandić Vidlička, Sunčana. Possible Future Challenge for the ECtHR?: Importance of the Act on Exemption and the Sanader Case for Transitional Justice Jurisprudence and the Development of Transitional Justice Policies. // Zbornik Pravnog fakulteta u Zagrebu. 64 (2014) , 5/6 ; 1091-1119 (objavljeno u 2015). Constitutional amendments adopted in Croatia in 2010 that allowed retroactive prosecution of economic crimes related to the process of ownership transformation and privatization committed during the Homeland War and peaceful reintegration, and war profiteering cases (transitional economic crimes) opened a Pandora’s box. It should be argued that these Constitutional amendments and the Act on Exemption from the Statute of Limitations belong to the mechanisms of “transitional justice” usually implemented in post-conflict societies with the aim of achieving full realization of the rule of law and the principle of social justice. The one case prosecuted to date in Croatia on the basis of the Act on Exemption, received tremendous media attention: the case against the former prime minister of Croatia, Ivo Sanader. As the decision in the Sanader case has become final, this article illuminates the transitional justice narrative of the Act on Exemption and raises the question whether this Act as such, through the Sanader case, could be put under the scrutiny of the European Court of Human Rights as a “transitional justice case” that tackles some of the most fundamental provisions of the European Convention of Human Rights. This article therefore explores the narratives of transitional justice discourse, and touches upon the need to protect economic, social and cultural rights in the context of transitional justice mechanisms. Moreover, this article tries to anticipate some of the questions with which the European Court of Human Rights could deal in order to either confirm or reject the Croatian approach towards combating transitional economic crimes. In any case, if this “Croatian model” of transitional justice laws is proven to be legally justified and effective, it could be implemented in the other countries in the region and possibly serve as a model on how to approach long neglected crimes – transitional economic offences that could have grave consequences on the development of the society. Link: http://hrcak.srce.hr/index.php? show=clanak&id_clanak_jezik=195811&lang=en Roksandić Vidlička Sunčana, Galjer Šamota, Marta Političko-gospodarski kriminalitet i prošireno oduzimanje imovinske koristi: Quo vadis Hrvatska? // hrvatski ljetopis za kazneno pravo i praksu, Vol. 22 -br.2 (2015), str. 523-558. Organizirani kriminal, gospodarski kriminal i korupcija predstavljaju jedan od najznačajnih izvora ugrožavanja nacionalne sigurnosti u Republici Hrvatskoj. U temeljne odredbe Kaznenog zakona uvršteno je načelo da nitko ne može zadržati imovinksu korist ostvarenu protupravnom radnjom. Prošireno oduzimanje imovinske koristi također je našlo svoje mjesto u odredbama hrvatskog zakonodavstva. ovaj je institu posebno važan za suzbijanje organiziranog kriminaliteta i korupcije. Zašto njegova primjena nije učinkovita, tema je ovog članka. Nastavno, autorice su, na temlju istraživanja koje su provele o primjeni ovog instituta u praksi, a koje su u ovom članku detaljno izložile, predložile rješenja de lege ferenda koja bi, prema njihovom mišljenju, pridonijela učinkovitijoj borbi protiv organiziranog kriminaliteta, gospodarskog kriminaliteta i korupcije u Republici Hrvatskoj. Autorice smatraju da je u svakom slučaju potrbno otvoriti širu znanstvenu i stručnu raspravu zašto primjena ovog instituta nije ni približno zadovoljavajuća. Roksandić Vidlička, Sunčana Preview: Second Volume of the Research Series of the MPPG for Balkan Criminology: Sunčana Roksandić Vidlička "Serious (Transitional) Economic Crimes as Crimes Against Humanity - Development of International Criminal Law" , Balkan Criminology Newsletter 1/2015, pg. 12 Serious economic crimes and violations of economic, social and cultural rights have often been neglected in criminal proceedings and/or reports of truth commissions following economic transitions or armed conflict. Although economic crimes have often resulted in a substantial loss of profit to economies and societies at large, they have neither been widely nor effectively prosecuted. Central- European and the Balkan region are not exception to this rule. However, as argued in the book, from Nuremberg on, there have been attempts and successful examples of prosecuting war profiteering cases. Even quite recently, the International Criminal Court's prosecutor called for such a prosecution to be conducted before the ICC. The study focuses on criminal responsibility for severe economic offences committed in transitional periods, as well as on establishing serious economic criminal offences as crimes under international law. it explores legal and social preconditions under which serious economic offences may be characterized as crimes under international criminal law. link: http://balkan- criminology.eu/files/newsletter/balkan- criminology-news_2015-01.pdf Roksandić Vidlička, Sunčana The Croatian Constitutional Court – Transition without Social Justice?//Balkan Criminology Newsletter 2/2015, pg.9-10 Since the economic offences committed in the transitional period during the Homeland War were not originally prosecuted in the period of their commission, Croatia amended its constitution on June 16 2010 and abolished the statute of limitations with retroactive effect for this specific catalogue of crimes. The explanation forthe constitutional amendment was that such crimes are considered extremely serious and continue to undermine Croatian society ; they should therefore not be afforded privilege under the country’s statute of limitations. After the constitutional amendment, a special law was passed to make prosecution of these crimes possible:according to the 2014 annual report of Croatia’s Attorney General, there were eight convictions, 49 indictments and 12 initiated investigations in that year alone. But on July 242015, almost five years later, the Constitutional Court decided otherwise. According to its 2015 decision, the abolition of retroactivity cannot apply to offences for which the statute of limitations expired before June 16 2010. Thus, the 2015 decision significantly limits the ability of the state to punish economic offences committed in the transitional period because, for the great majority of privatization and ownership transformation scandals committed during the Homeland War, the statute of limitations has already expired. Therefore, in spite of the constitutional change, the Constitutional Court did not accept the possibility of the retroactive effect of the 2010 constitutional amendment. According to the Constitutional Court, if the statute of limitations has already expired for a crime that would otherwise be affected by the 2010 amendment, then the crime cannot be prosecuted.The Constitutional Court noted that this is to protect the principle of legality. Yet concerning the principle of social justice, unless the 2015 decision of the Constitutional Court is altered, Croatian society will apparently not have a serious confrontation with the transitional crimes committed by perpetrators who clearly took advantage of a situation of war and disorder during the time in which they were committed. It can be said that the proclamation of non- application of this constitutional provision by the Constitutional Court in the individual case (Sander case) actually legalized wide spread political white-collar crime. In fact, the Constitutional Court could have taken another path in its decision making and, based on the principle of proportionality, decide otherwise giving the priority to the principle of social justice. These grave economic offences were committed in the transitional period in the time of conflict and peaceful reintegration when the rule of law did not function in its entirety. The basis for such reasoning could be even found in the transitional justice jurisprudence of the European Court of Human Rights. By making such a decision, the Constitutional Court made the voyage of this case to the ECHR legally impossible. Therefore, the European Court of Human Rights lost perfect opportunity to hear this case and decide on such important issue that connects economic and social rights, criminal law and international criminal law and take its stand on the importance of protecting economic and social rights in the transitional period . How Croatia will deal with this difficult moment in its past thus remains to be seen.

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