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mr.sc. Sunčana Roksandić Vidlička, PhD candidate Assistant lecturer Department of Criminal Law

Croatian legal approach toward defining and prosecuting transitional economic crimes : No statue of limitation and retroactive prosecution. mr.sc. Sunčana Roksandić Vidlička, PhD candidate Assistant lecturer Department of Criminal Law Faculty of Law , University of Zagreb. Content.

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mr.sc. Sunčana Roksandić Vidlička, PhD candidate Assistant lecturer Department of Criminal Law

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  1. Croatian legal approach toward defining and prosecuting transitional economic crimes: No statue of limitation and retroactive prosecution mr.sc. Sunčana Roksandić Vidlička, PhD candidate Assistant lecturer Department of Criminal Law Faculty of Law, University of Zagreb New developments in Croatian criminal legislation - joint research programmes of MPI and Zagreb Faculty of law, SRV 290813

  2. Content Data of the revision of privatization (2004) Constitutional amendments (2010) Law on Exemption from the Status of Limitation for War Profiteering and Crimes Committed in the Process of Ownership Transformation and Privatization (2011) Ambiguities and opened questions Pending case Importance for jurisprudence New developments in Croatian criminal legislation - joint research programmes of MPI and Zagreb Faculty of law, SRV 290813

  3. Historical perspective In last two decades Croatia went through at least four political transitions while shifting from the economic system based on social ownership (socialist self-management) to market economy - ownership transformation privatization started in 1988 (SFRY) The Homeland war and peaceful reintegration (1990-1995 (1998)) New developments in Croatian criminal legislation - joint research programmes of MPI and Zagreb Faculty of law, SRV 290813

  4. Legal consequences of conflict and postconflict period Dichotomy existed between the company law (2003) and the criminal law and between provisions of the criminal law itself (up to 2013): economic crimes based on social ownership Prosecution of violent crimes had priority Impunity for perpetrators of serious transitional economic crimesprior, during and immediately after the Homeland War: example of ill-treatment and neglecting of committed economic offences in conflict and post-conflict society State Audit Report 2004 After almost two decades (2010), Croatia decided to react to non-prosecution of the major privatization affaires and Croatian Constitution was amended prescribing no status of limitation for transitional economic crimes New developments in Croatian criminal legislation - joint research programmes of MPI and Zagreb Faculty of law, SRV 290813

  5. Shifts in paradigms From May 2001 to September 2004, the State Audit Office carried out revisions of the privatization and transformation of 1,556 companies. - 1,936 irregularities were established (in 1.481 companies – 95,2 % revized)), of which 1215 did not have the characteristics of criminal acts, and sanctions were not prescribed. - for 271 irregularities there was a reasonable doubt that they could qualify as criminal offences and 247 as misdemeanors. (offence reports for 71 cases were filed) New developments in Croatian criminal legislation - joint research programmes of MPI and Zagreb Faculty of law, SRV 290813

  6. Seriousness of the crime Criminal Code 2011 - Art. 81 para 2. The non-applicability of the criminal legislation of the RoC does not refer to the criminal offenses of: - genocide (Art. 88.), - a war of aggression (Art. 89.), - crime against humanity (Art. 90), - war crimes (Art. 91) or - other criminal offenses which, pursuant to the Constitution or international law, are not subject to the statute of limitation New developments in Croatian criminal legislation - joint research programmes of MPI and Zagreb Faculty of law, SRV 290813

  7. Decision admending Constitution: justification? …the implementation of transformation and privatization resulted in the increase of domestic and foreign debt, caused a significant increase in unemployment, disproportionate and fast enrichment of individuals, and unjust impoverishment of many. …It is just and in spirit of international law to deny the perpetrators of such grave crimes the possibility to avoid criminal liability by application of the institute of statute of limitations. The basis for the institute of statute of limitations is the guarantee of legal certainty to citizens, but it is certain that this institute should not be the benefit for the perpetrators enabling them to practically legalize the effects of such acts through statute of limitations New developments in Croatian criminal legislation - joint research programmes of MPI and Zagreb Faculty of law, SRV 290813

  8. Separate Law Law on exemption from the statute of limitations for war profiteering and crimes committed in the process of ownership transformation and privatization (Official Gazette 57/2011) - In stead of filling vagnues, it created more necessity for interpretation and balancing New developments in Croatian criminal legislation - joint research programmes of MPI and Zagreb Faculty of law, SRV 290813

  9. AMBIQUITIES and QUESTIONS WHICH OFFENCES? 1. War Profiteering? 2. Crimes from the process of Privatization and Ownership transformation? TIME PERIOD of PERPETRATION? 1. Homeland War and the process of peaceful integration – When? (1990.-1998.) 2. The time of clear and present danger, immediate threat of independence and territorial integrity of RoC? 3.Ownershiptransformationandprivatization? LEGAL CONTINUITY RETROACTIVE APPLICATION OF THE STATUS OF LIMITATION New developments in Croatian criminal legislation - joint research programmes of MPI and Zagreb Faculty of law, SRV 290813

  10. Ratione materiae WAR PROFITEERING: Crimes listed in Art. 2, 3, 4, 5 and 6 of the Law on Exemption if there was disproportionate gain by raising the price of goods in the shortage, the sale of state property significantly below its value, or otherwise taking advantage of the war and imminent threat to the sovereignty and territorial integrity of the state ,CRIMES FROM PRIVATIZATION AND OWNERSHIP TRANSFORMATIONabove not needed it does not suffice that the crime from the is committed in the period of transformation and privatization, hence „from the process” itself New developments in Croatian criminal legislation - joint research programmes of MPI and Zagreb Faculty of law, SRV 290813

  11. Ratione temporis Homeland war and imminent threat applies to both categories of crime? The transformation or privatization period? PROVISION vs. EXPLANATION FOR ADOPTING CONSITUTIONAL AMADMENTS New developments in Croatian criminal legislation - joint research programmes of MPI and Zagreb Faculty of law, SRV 290813

  12. Legal continuity Principle of lex mitior is applicable in Croatia. Ifthere is no such continuity between the Criminal Code applicable at the time of ownership transformation and privatization process and the current Criminal Code (CC/11), there will be no justification for the punishment under the Law on Exemption The abuse of trust in business dealings, Art. 246 CC/11, modeld on Untreue, disloyalty” (Untreue) from § 266 of the German CC and § 155 of the Austrian CC According to art. 3 of CC/11, in cases where the name or description of a criminal offence is modified, the court shall examine whether there is legal continuity by subsuming the factual situation in question under the statutory definition of the corresponding criminal offence from the new law. There shall be no criminal offence where there is no legal continuity. New developments in Croatian criminal legislation - joint research programmes of MPI and Zagreb Faculty of law, SRV 290813

  13. Retroactiveapplication does the retroactive applicability refer to the crimes: 1.where the period of limitation still runs(Coëme and others v. Belgium, 18 October 2000, Appl. No. 32492/96, 32547/96, 32548/96 – no breach of Art 7 of the ECHR) 2.for which the limitation period has already expired The limitation periods for the majority of the transitional economic crimes have already expired at the time of Constitutional change, so the restriction of the Constitutional provision to cases in which limitation period still runs would not produce any effect (‘legitimate expectation’ is not fulfilled)! New developments in Croatian criminal legislation - joint research programmes of MPI and Zagreb Faculty of law, SRV 290813

  14. But whatwhentheprescription period hasalreadyrunout? Is it possible that the principle of legality could be invoked to prevent its revival? (see also Venice Commission Report) -It is dubious that with the passage of time, the purposes and objectives of punishment can be reached (Kok Ruth A., Statutory limitations in International law,2007. ) Radbruch’s formula”(Radbruch’sche Formel), that positive law must be considered contrary to justice where the contradiction between statute law and justice is so intolerable that the former must give way to the latter ... Criteria of accessibility and forseeability? Proportionality principle? The severity (of penalties) must not be disproportionate to the crime New developments in Croatian criminal legislation - joint research programmes of MPI and Zagreb Faculty of law, SRV 290813

  15. Transitional society – transitional justice? Time periods passed can be viewed as having the effect of suspending the limitation period because it has been genuinely impossible for the state to prosecute An exemption can be made to the SoL when there is an overriding public interest (Radbruch!) –Powerful message of condemnation: violating is profoundly wrong and wrongdoers must accept the consequences of their actions in contrary with the rule of law and justice? Transition period between regimes often leads to a spike in crime and political disturbance in light of enormous social, economc and political changes. Transitional justice ought to be understood as a long-term project achievable over a generation…Delayed justice allows a holistic view of justice by allowing reform and the strengthening of civil society and governance before bringing legal justice.(S.W.Daniel, Huston Journal of International law, 2008) preclude reoccurrence New developments in Croatian criminal legislation - joint research programmes of MPI and Zagreb Faculty of law, SRV 290813

  16. Breaching the Art. 6 of ECHR “…the purpose is not to confer a benefit on the wrongdoer, but it is rather a recognition of increased impracticality of having fair trials after memories fade, evidence is lost… “ (Comments on the Retroactivity of the Statues of limitation in Georgia, European Commission for democracy through law, CDL (2009)048. - Problems that are emerging in prosecution of transitional economic offences committed more than 20 years ago are are at minimum evaporation of evidence, unreliable witness' testimonies and, the last but not least, fierce opposition by parties with financial interests, as well as the risk of political manipulation. New developments in Croatian criminal legislation - joint research programmes of MPI and Zagreb Faculty of law, SRV 290813

  17. Balancing the intrests the Croatian Parliament gave priority to the principle of justice (termed in Constitution as "social justice" in Art. 3), over the legal certainty ECHR? „In the context of transitional jurisprudence, SFRY´s violent collapse and the creation of new states during the 1990s constituted a fundamental test of not just European Union´s ability to respond to humanitarian crisis, but of the ECtHR´s ability to ensure the protection of human rights norms in the aftermath of violent conflicts and during transitions from authoritarianism.” Lamont, C. K. in Buyse A. and Hamilton M. (ed.)Transitional Jurisprudence and the ECHR (2011), pg. 100. New developments in Croatian criminal legislation - joint research programmes of MPI and Zagreb Faculty of law, SRV 290813

  18. First case First Indictment dated 31 August 2011 against former Prime Minister, Ivo Sanader The Office for the Suppression of Corruption and Organized Crime (USKOK) filed the first indictment against former Prime Minister Ivo Sanader, accusing him of abuse of office as a deputy foreign minister in 1994 and 1995 and taking HRK 3.6 million in kickbacks for a loan the government obtained from Austria's Hypo bank. - art. 337. para. 1 and 4. of Croatian Penal Code (Abuse of office and official authority) in regard to art. 7 para. 1 regarding art. 5. t. 13. of Law on Exemption New developments in Croatian criminal legislation - joint research programmes of MPI and Zagreb Faculty of law, SRV 290813

  19. MOL, second charge against Sanader The second USKOK's charge of September 23, 2011 accused Mr Sanader, then serving already as the prime minister, for taking 10 million EUR bribe from the chairman of the management board of MOL, Mr Zsolt Hernadi in return for the letting of controlling rights in INA to that Hungarian oil companyCroatian oil company. New developments in Croatian criminal legislation - joint research programmes of MPI and Zagreb Faculty of law, SRV 290813

  20. Mr Sanader was found guilty on both charges, abuse of office, for Hypo-Alpe-Adria (Art. 337, paras. 1 and 4, punishable according to Art. 337 para. 4 CC/97 in conjunction with of the Law on Exemption) and for bribery in the MOL case (Art. 347/1 CC/97). Sentenced to, altogether, 10 years imprisonment New developments in Croatian criminal legislation - joint research programmes of MPI and Zagreb Faculty of law, SRV 290813

  21. the application of the Law on Exemption is highly probable in 116 cases in which investigations or criminal proceedings are underway. if the Law on Exemption would not be applied de facto, the aim of its adoption would be missed and new legal tool would end up as a mere political proclamation. The dissatisfaction of the public by the transitional processes of ownership transformation and the privatisation that went on in Croatia could thus only grow (the constant unresolved matter). New developments in Croatian criminal legislation - joint research programmes of MPI and Zagreb Faculty of law, SRV 290813

  22. DANKE! E-mail: suncana.roksandic@pravo.hr New developments in Croatian criminal legislation - joint research programmes of MPI and Zagreb Faculty of law, SRV 290813

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