15 November 2023
The international scientific symposium organised by Associate Professor Marta Dragičević Prtenjača and a Program Committee consisting of Prof. Dr. hab. Marcin Wielec (Cardinal Stefan Wyszyński University in Warsaw/Director of the Institute of Justice in Warsaw, Poland); Associate Professor Dijana Gracin (president; University of Zagreb, Military studies, Croatia); Associate Professor Katarína Šmigová, LL.M, (Pan-European University, Faculty of Law, Bratislava, Slovakia); Associate Professor David Sehnálek, (Vice-dean for the bachelor’s degree study and a two-year follow-up master’s degree program Masaryk University, Faculty of Law, Brno, Czech Republic) and Assistant Professor Bartlomiej Oreziak, (Cardinal Stefan Wyszyński University in Warsaw/Institute of Justice in Warsaw, Poland) was held as a ZOOM meeting on 15 November 2023. The co-organiser of the event was the Central European Academy. The event was organised as part of the Central European Professors’ Network, which is coordinated by the Central European Academy.
Associate Professor Marta Dragičević Prtenjača, as a keynote speaker, gave a presentation on the topic Exploring the Intersection of the Rule of Law and the Statute of Limitations in Croatian Criminal Law. First, she presented the UN definition of the Rule of Law focusing on the main elements: supremacy of law, legality and legal certainty. She also mentioned the main factor of the Rule of Law as defined by Omejec. She presented the necessary elements of the rule of law established by the Venice Commission. She pointed out that later they were extended by eight constituent parts of the rule of law. Furthermore, she presented the principle of legality and the prohibition of retroactivity in Croatian criminal law. There is one exception to the retroactivity principle of Lex Mitior which allows for the retroactive application of a more lenient penalty and other criminal institutes, if it benefits the accused. The European Court of Human Rights (ECtHR) has played a significant role in interpreting and applying these principles in the context of human rights and European law. She presented the ECtHR case Scoppola v. Italy, which set a precedent by recognizing the Lex Mitior principle. The ECtHR referred to the Charter of Fundamental Rights of the EU and the Statute of the International Criminal tribunal for the former Yugoslavia to establish a consensus on the Lex Mitior principle. The obligation is for domestic courts to retroactively apply it to enacted laws, if they provide a benefit to the accused in criminal cases. She also mentioned the case Kononov v. Latvia, which concluded that statutory limitation periods had definitively expired. The ECtHR observed that limitation periods existed to ensure legal certainty. It is important because of the application of the statute of limitations in the Croatian Criminal Procedure Code (CPC), Art. 86. The main question is what the nature of the statute of limitations is. If it is of substantive nature, then, all the principles of substantive criminal law must be applied – the principle of legality and the prohibition of retroactivity. If we say it is of procedural nature, then, we do not have to apply substantive criminal law, and we can apply statute of limitation periods retroactively. In Croatian criminal law we are dealing with hybrid nature, meaning both substantive and procedural law must apply. She pointed out that in this case we came to an agreement, if the principle of legality of hybrid nature had to be applied. She presented the Law of Exemption from the Statute of Limitations for War Profiteering and Crimes Committed in the Process of Ownership Transformation and Privatization (Law on Exemption) from 2011, which outlined and identified the specific criminal offenses that were exempt from the statute of limitations. She pointed out that it was not a good practice, as confirmed in practice. She mentioned the famous Croatian case in which a former Prime Minister of Croatia was found guilty in three out of five cases. He was sentenced to 18 years of imprisonment and had to reimburse 34 million HRK (around 4.5 million EUR). Dragičević Prtenjača made some concluding remarks starting with the question, if Art. 86 CPC was in line with the principle of legality, the prohibition of retroactivity and the Rule of Law in general. Next, she mentioned the norms on the statute of limitations in the Law on Exemption, which enabled the retroactive prosecution of specific offenses associated with privatization and ownership transformation and war profiteering even from the 1990s. Therefore, the question is, if it is necessary and if it is in line with the Rule of Law. She concluded that it all went against the principle of legality and the prohibition of retroactive application of law as well as against the Rule of Law principle(s).
The symposium roundtable was opened with the presentation by Prof. Dr. Zrinka Erent Sunko entitled The Rule of Law Throughout History – Did it exist (or does it exist) in reality? First, it was pointed out that every society thought that they were a democratic society, but the question was what a democratic society really was. Was it connected with the rule of law and what was the rule of law? Erent Sunko, as a legal historian, is not sure, if we could say that rule of law was currently better than it was in history. According to the Eurostat, people protest for different rights such as women rights, LGBT rights, black people rights… All these protests point out that we need to worry about the rule of law. In history people did not know about the term ‘rule of law’, but they thought about the rule of law and it had its origin in Ancient Greece. Aristotle, in his work Politics asked if it was better to be lead but the best leader or by good law. He suggested that better laws were a better option. However, the will of a ruler was much stronger. She also presented some data on the rule of law and protests, which showed that people were not satisfied with the current situation. The socialist countries knew about the rule of law, but in a different way than capitalist countries. The socialist countries pointed out that one of the main problems in implementing the rule of law was a lack of tradition of active citizen involvement in government. Erent Sunko thinks that in capitalist countries citizens are not active in the government either. Without active citizens with responsibility we cannot have the rule of law. She concluded that in history we had the rule of law. Although we have it also today, there is a large amount of sexual violence all around the world as well. Therefore, the rule of law loses its meaning because people are insecure. She redefined her question about the rule of law by asking what form it took currently and what form it took before. It was not only about justice, but much more than that. In criminal law it looks fine, but when taking into consideration high crime rates, it is clear that it must be much more.
The following presentation was given by Assistant Professor Dijana Gracin on the topic The Rule of Law – Access to Information (legal framework) and the Possible Influence of Misinformation on a Democratic Society and National Security. At the beginning, she emphasized that we had the right to access to information. First, she gave the definition of the rule of law by Secretary General Ban Ki-moon. Next, the six pillars dealing with access to information were presented. In Croatia the main act on the access to information is the Act on the Right of Access to Information. In the Rule of Law Report, the Commissioner continuously encourages the authorities to publish as much public information as possible, especially those in which users have expressed a special interest and which have been determined as publicly available. Overall, concerning the recommendations in the 2022 Rule of Law Report, Croatia has made some progress on ensuring a more systematic follow-up to recommendations and information requests of the Ombudsman. The level of perceived judicial independence in Croatia continues to be very low, both among the general public and companies. The general legal framework was improved by the Right to Access Information Act 2022. Some specific provisions concerning journalists have been included in the Media Act. Gracin presented the problem of disinformation. She pointed out that in extreme cases disinformation could fuel riots and conflicts or even completely destabilise the society. In Croatia, the problem of fighting disinformation was deficiently covered by existing legal solution in Art. 16 Law on Offenses Against Public Order and Peace. Gracin pointed out that disinformation used to be a criminal offence and, currently, it was a misdemeanour. She concluded that there were certain developments through amendments to the existing legislative framework regarding the right to access to information. However, there was still room for improvement.
The last presentation was given by MSc. Danka Hržina, LL.M, on the topic The Rule of Law and the European Arrest Warrant. The mutual recognition principle should provide the same standards on this matter in all EU countries. It is not applied only to the European Arrest Warrant, but also to other decisions, like pre-trail decisions (European Investigation Order, Freezing Order, supervision measures), post-trial decisions (confiscation orders, judgements in criminal matters imposing custodial sentence or other measure of deprivation of liberty, judgments in criminal matters imposing alternative sanctions/probation decisions, financial penalties) and the main feature of this principle is that the state should recognize the decisions rendered by the courts of other Member States automatically. The European Arrest Warrant was introduced as a simpler and quicker procedure for surrender of a requested person than extradition. Unfortunately, in practice it is as complicated as the extradition procedure. From the rule of law point of view, the decision Advocaten voor de Wereld C-303/05 is very important. It is possible to extradite a person for a criminal offence which is not criminalized in the state which decides about the surrender, but only for listed offences. The court said that it was not a breach of the principle of legality, the principle of equality and it is non-discrimination. Hržina presented several European Court of Justice cases. The next question that she raised considered prison conditions. She also mentioned the margin of discretion pointing out that a national legislation which obliged the executing authority to refuse the surrender of a resident without those authorities having any margin of discretion, and without Member State undertaking to execute the custodial sentence, could not be regarded as compatible with the EAW FD. Hržina also mentioned Ne bis in idem principle. It is the basis for the refusal of a European Arrest Warrant. She presented a very interesting case Giuseppe Francesco Gasparini and Others C-467/04.
The symposium was moderated by Dragičević Prtenjača. After the presentations, there was a very interesting discussion. The symposium was concluded with some final remarks. The participants were very satisfied with the symposium, which produced answers to some open questions and gave a better overview of the rule of law.
Associate Professor Marta Dragičević Prtenjača
