| Sažetak (engleski) | The paper deals with research into the historical and legal basis of appeals on a point of law
filed against judgments of conviction given by the courts of the former Yugoslavia. The
number of such appeals before the Croatian courts is negligible in relation to the number of
judgments of conviction that were based on the “revolutionary“ post-WWII legislation and
were preceded by criminal proceedings marked by numerous violations of human rights, with
the operative parts of those judgments constituting a violation of the fundamental principle of
any state ruled by law – the principle of legality in criminal law.
Communist regimes, which have been described as sharing many features with the Nazi
regime, have been the subject of many European-level resolutions passed by the Council of
Europe and the European Parliament which emphasize that the totalitarian communist systems
were marked by crimes against humanity and massive violations of human rights (Resolution
of the Council of Europe Parliamentary Assembly on Measures to Dismantle the Heritage of
Former Communist Totalitarian System, 1996; Resolution of the Council of Europe
Parliamentary Assembly on the Need for International Condemnation of Crimes of
Totalitarian Communist Regimes, 2006; Resolution of the European Parliament on European
Conscience and Totalitarianism, 2009). Although the resolutions adopted by the Council of
Europe and the European Parliament do not have the force of law, those documents express a
political position on totalitarian communist regimes, lay down the Member States' political
obligations, call on the Member States that used to belong to such systems to take certain
measures, and emphasize that the prosecution of individual crimes should go hand-in-hand
with the rehabilitation of people convicted of “crimes“ which in a civilised society do not
constitute criminal acts, and of those who were unjustly sentenced. This creates a “moral
obligation“ for the Member States to remedy the inflicted injustices. The Republic of Croatia
has been a member of the Council of Europe since 1996 and a member of the European Union
since 2013, which means that it is fully bound by those resolutions.
Following a historical analysis of the development of human rights and the legality principle,
the central part of the paper deals with violations committed in the course of proceedings
against and the conviction of Cardinal Alojzije Stepinac, which caused the County Court of
Zagreb to deliver judgment no. Kv-I-173/16 on 22 July 2016 quashing judgment no. Stup.
6/1946. rendered against Cardinal Alojzije Stepinac by the Supreme Court of the People's
Republic of Croatia in Zagreb on 11 October 1946 based on the Act on Crimes Against the
People and the State.
The significant documents which prescribe and guarantee human rights and fundamental
freedoms and which have served as the basis for modern-day legislation include: Magna Carta
Libertatum (1215), Habeas Corpus Act (1679), Bill of Rights (1689), Declaration of the
Rights of Man and of the Citizen (La Déclaration des Droits de l'Homme et du Citoyen,
1789), Virginia Declaration of Rights (1776) and The Declaration of Independence (1776).
The most important contemporary documents which provide for the protection of human
rights and freedoms include: the United Nations Universal Declaration of Human Rights, the
Charter of Fundamental Rights of the European Union, and the European Convention for the
Protection of Human Rights and Fundamental Freedoms. The historical analysis of the
development of human rights presented in the paper ends with the conclusions that human
rights have changed and adjusted over time both in terms of the law and the underlying
philosophy, that they have tended to further expand, and that the adoption of charters,
conventions and declarations was at any point in time designed to address the political and
legal questions of that particular period. However, the overall historical development has
strived towards one goal: ensuring that fundamental human rights and freedoms, which
individual human beings are naturally entitled to by virtue of their very existence, do not need
to be “earned”, that they must be inalienable, that there shall be no justification for violating
them and that they may not be the subject of political negotiation.
The legality principle, as one of the basic principles of contemporary criminal law and a
legacy of humankind and human civilisation, embodies numerous requirements meant to
secure the functioning of legal systems in democratic states which are based on and informed
by the rule of law principle. The first instances of acceptance of that principle within its full
meaning and its first codifications can be traced to the Age of Enlightenment when they were
designed to curb judicial authority in accordance with the separation of powers doctrine. The
legality principle comprises the following five requirements: a) that only written statutory
provisions may serve as a source of criminal law (nullum crimen sine lege scripta), b) that the
application by analogy of statutory provisions in criminal law be prohibited (nullum crimen
sine lege stricta), c) that retroactivity of the provisions of criminal code be prohibited (nullum
crimen sine lege praevia), d) that the essential elements of a criminal offence be well defined
(nullum crimen sine lege certa), and e) that no person be punished except in pursuance of a
statute which fixes a penalty for criminal behaviour (nulla poena sine lege). The first
European codification of the legality principle dates back to the year 1789 when the
Declaration of the Rights of Man and of the Citizen (La Déclaration des Droits de l'Homme et
du Citoyen) was passed as the key document of the French revolution, a document which
would, just like the revolution itself, transcend its own boundaries to assume epoch-making
significance manifested precisely in the establishment of the legality principle as the central
principle of criminal law in contemporary statutes.
It was precisely a violation of all the requirements of the legality principle that formed the
ground for quashing judgment no. Stup. 6/1946 rendered by the Supreme Court of the
People's Republic of Croatia in Zagreb against Cardinal Alojzije Stepinac on 11 October
1946. Besides the violation of the legality principle, it was found that the proceedings leading
to the judgment involved a violation of human rights and fundamental freedoms guaranteed
under the Convention for the Protection of Human Rights and Fundamental Freedoms,
specifically: the right of appeal in criminal proceedings, guaranteed under Article 2 of
Protocol 7; the right to freedom and security guaranteed under Article 5; the right to a fair trial
guaranteed under Article 6, the right to freedom of opinion from Article 9, and the right to
freedom of expression from Article 10.
The central part of the paper involves an analysis of the essential features of the communist
regime and a historical development of judicial authorities in the 1945-1946 period, including
the development of military courts because they preceded the administration of civil justice
and initially served as a forum for trying civilians, too. Legislation applicable at the time of
the trial of Cardinal Stepinac is also analysed, with a detailed analysis of the Act on Crimes
Against the People and the State which served as the basis for most judgments rendered by
the courts of the former Yugoslavia which were appealed on a point of law.
The Act on Crimes Against the People and the State was adopted in 1945 with a view to
protecting the newly established Democratic Federal Republic of Yugoslavia. The object of
protection was the political system and the “basic democratic, political, national and
economic legacy of the war of liberation“. Following the proclamation of the Democratic
Federal People's Republic of Yugoslavia, the Act on Ratification and Amendments to the Act
on Crimes Against the People and the State was adopted on 9 July 1946, i.e. on the eve of the
trial of Cardinal Stepinac. The most significant amendment involved the change of Article 13
in the way that provided that especially important cases would be adjudicated, at both the first
and last instances, by the supreme courts of the people's republics on a motion filed by the
respective republic's public prosecutor, and where cases of special state interest were involved
proceedings would be conducted before the Supreme Court of the Federal People's Republic
of Yugoslavia (FPRY) on a motion filed by the Public Prosecutor General of the FPRY. In
conjunction with the amended Article 13, there was Article 15 which provided that no appeal
was available against judgments given by the supreme courts of the people's republics or
those given by the Supreme Court of the FPRY. Therefore, the courts' jurisdiction and
consequently the availability of appeal, even appeal against a death sentence, was a matter for
the public prosecutors to decide on, without any provisions laying down the criteria that
should guide the public prosecutors in deciding whether an individual case was indeed one of
“general state interest”. An enormous power was thus placed in the hands of the public
prosecutor as the supervisory and executive organ of the FPRY People’s Assembly – the
power to deprive a defendant of the right to appeal. Pursuant to those statutory changes,
proceedings against Cardinal Stepinac were conducted before the Supreme Court of the
People's Republic of Croatia in Zagreb and no appeal against the decision was available.
The conclusion drawn from the historical analysis of the features of the communist regime, its
judicial authorities, the method for adopting and the spirit of the „revolutionary legislation“ is
that the fact that the verdict of the court of the former Yugoslavia passed against Cardinal
Stepinac breached all the requirements of the legality principle and the numerous human
rights violations committed during trial did not constitute an exception but rather the rule and
the pattern applied in all trials that relied on the Act on Crimes Against the People and the
State. This is manifested by other judgments of the County Court of Zagreb whereby appeals
on a point of law were granted as well founded, and which are expressly listed and briefly
described in the paper alongside a statistical analysis of the length of proceedings, the
legislation the judgments of conviction relied on, the type of the court that gave a particular
judgment (military, civil, or the Court of Protection of National Honour), and grounds for
dismissing an appeal (incomplete, lapse of the two-year limitation period, inadmissible appeal
or withdrawn appeal). Where an appeal on a point of law was dismissed, there was the option
of re-filing it which, according to the reviewed case files, the appellants did not use.
The next step was to research the case law of the Supreme Court of the Republic of Croatia
and provide a statistical analysis of the Court's decisions based on the method applied in
dealing with an appeal, the length of appellate proceedings, the seat of the county court whose
decision was appealed, the appellant, and brief reasons for the decisions mostly in order to
establish the grounds for denying appeals.
Next, proceedings conducted in the Republic of Slovenia leading to the quashing of
judgments of conviction rendered by the totalitarian communist regime are addressed.
Relevant legislation is quoted and so are some decisions of the Constitutional Court of the
Republic of Slovenia which contain an assessment of the key features of the totalitarian
communist regime, the “revolutionary” legislation that was applied, the nature of the court
proceedings that relied on such legislation and the ensuing judgments. Statistical data are
provided on the number of convictions in Slovenia in the aftermath of WWII and the number
of appellate proceedings conducted on the basis of the Criminal Procedure Act and the
Redressing of Injustices Act.
By relating, as already described, the relevant provisions of the Criminal Procedure Act and
the case law of the County Court of Zagreb and the Supreme Court of the Republic of Croatia
to the historical analysis of the legislation and the organisation of the judiciary between 1945
and 1946 – the period most filed appeals relate to – the paper seeks to research and present the
legal grounds for appeals on a point of law against the judgments of conviction rendered by
the courts of the former Yugoslavia. |
