— Sputnik (@SputnikInt) August 15, 2018
Croatia’s Supreme Court has Thursday 1 October overturned the 2014 Zagreb district court nine-year prison sentence and ordered a retrial for former Prime Minister Ivo Sanader, who was jailed for corruption, embezzling millions of euros in public funds via a company named Fimi Media. All other defendants joined in this case of corruption charges by the former State Attorney Mladen Bajic, including the Croatian Democratic Union Party/HDZ, were also included in this verdict and freed from guilty verdict delivered against them in 2014. These charges were originally mounted at the time when Croatia was working towards meeting all criteria for EU membership. Fight against corruption was a big part of proving “worthy” of EU membership as state. The Supreme Court in Croatia has ordered a new trial for charges and claims against Sanader and other defendants, however, it stands to speculation as to whether, under the new Crimes act HDZ will need to be dropped from the list of defendants.
The Supreme Court had made the decision to overturn the district court verdict in its totality and return the case to that court for a new trial and new judgement. While a detailed decision by the Supreme Court regarding this case has not yet been published the Supreme court delivered its decision citing unspecified violations in the lower court trial of significant breaches in the lower court of criminal procedure, among other things serious breaches of right to just and fair trial – guaranteed under the Constitution and the Convention on the protection of human rights and fundamental freedom.
Given that this criminal case was widely publicised and a great deal of Croatia’s reputation in being able to deal with corruption hung on the success of trials brought against individuals for corruption, one does find it perplexing in discovering that apparently there were serious breaches of criminal procedures in this case. One would have thought that nothing untoward when it comes to set procedures could go wrong during the court process! But it seems something went very wrong and, therefore, nothing less than the decision it made could be expected from the Supreme Court.
Indeed, everyone does have a right to a fair trial.
The Croatian Supreme Court decision has, naturally, put a smile to HDZ’s face and while the new trial is yet to occur, the new judgment yet to be delivered some time down the road, one thing does remain possible: HDZ as Political party should never have been joined as a defendant in the case in which Ivo Sanader was brought to court on criminal charges of corruption and fraud whilst HDZ’s President and Croatia’s Prime Minister and it should be dropped! Accusing some 200,000 members of the Party of collective guilt for crimes committed by its leader is just as bad as not having a fair trial.
Indeed, in the new Criminal Act there is no longer the provision under which HDZ (a political party) can be accused of or charged with criminal deeds relating to the Fimi Media case associated with Sanader and this Supreme Court judgment. HDZ was ordered to pay 3.8 million euro fine in 2014 when guilty verdict against Sanader and it was delivered and with this Supreme Court ruling that fine seems to be null and void even though the position the Supreme Court took on HDZ’s appeal is not yet fully known and it will be months before the detailed reasons for the decision are known.
“If that is the case and this new criminal deed is not in continuity with the old legislation then it’s almost certain that the case against HDZ will be stopped and that no guilty verdict will be delivered against it,” said for HRT TV news on 2 October dr Mato Palic, Faculty of Law, Osijek.
During HDZ’s promotion of its election program in Vukovar on Friday 2 October, the President of that largest opposition party in Croatia, Tomislav Karamarko, stated, “because of some individuals HDZ was a target of satanic scenario designed to destroy the party… Our party has gone through its catharsis, there is not a single office-bearer in it with a valid verdict against him/her nor will there ever be one. All who breach the law should leave this party straight away on their own initiative…”
Time is hopefully coming when the Croatian public may have the opportunity of finding out whether “satanic verses”, from the mouth of the former, communist coloured, State Attorney Mladen Bajic, were indeed afoot when original charges that saw a Political Party vilified were laid.
Sanader, who was in office as Prime Minister of Croatia from 2004 to 2009, was sentenced separately to 10 years in prison for bribery in 2012 (INA-MOL case), but Croatia’s Constitutional Court had overturned that verdict and ordered a retrial on similar grounds of procedural unfairness.
After nearly three years in jail, Sanader can now leave on bail of 12.4 million kuna (1.6 million euro) after the court ruled that procedural errors had affected his right to a fair trial. It’s expected that his friends and family will be able to raise the bail by 7 October.
I am quite concerned that the process of justice, the court process of such magnitude as the ones against Croatia’s former Prime Minister Sanader could have gone so terribly wrong. One cannot avoid asking the question whether such procedural transgressions could have been perpetrated on purpose? For political reasons; for political gains? I find it hard to believe that in all cases against Sanader, in all separate trials, same or similar procedural breaches could have been committed! It almost feels like a conspiracy to make the public think corruption is being seriously dealt with when in fact it was all an act? To err, to breach procedural fairness in one case against an accused is easy to believe but to err in all arouses justifiable doubts in the sincerity of efforts put in place for combating corruption.
The right to procedural fairness (a term that is often used interchangeably with “natural justice”) is not a concept that is foreign to the Croatian judicial process and professionals that make it even if many do stem from the biased and politically coloured justice system of communist Yugoslavia. Sanader’s legal team says that charges against him were based upon affidavits or statements made to the State agency against corruption by some people who wouldn’t reply to questions put to them by Sanader’s defence team, and that, apart from that, there was no evidence of his wrongdoing.
While I have always maintained that collective guilt such as the one pinned against the Political Party HDZ in this case had no place in natural or any other justice. It’s pure political witch-hunting and it should have never been allowed in the courtroom in the first place. While HDZ says that “the Supreme Court ruling has removed the stigma from the Party and its 200,000 members and that it said from the beginning that the political party was not and could not be held accountable for the acts of corruption charged against it,” I would, though, like to see HDZ, and every political party, fight harder against such injustice as holding a Political Party (or an organisation) guilty for the (secret, personal) acts of some or few members. If they fought harder for such real justice all along, since independence and since the installation of democracy, then judges in Croatia would not have the nerve to allow procedural unfairness pass through their fingers like some insignificant breeze or pronounce sentences such as “the communist system murdered the people, not the accused former communist Josip Boljkovac”.
Ina Vukic, Prof. (Zgb); B.A., M.A.Ps. (Syd)
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Justice in ridding Croatia of paralysing corrupt practices inherited from the communist power-bases of former Yugoslavia, or at least reducing them so that corruption ceases to stifle democratic progress including the economy, has indeed been a long-suffering entity in Croatia. Croatia that is free from corruption is the new bright position people want Croatia to be in. Frank Serpico, New Yorks’s retired police department office who became famous for blowing the whistle on corruption within the police department in late 1960’s and early 1970’s said: “The fight for justice against corruption is never easy. It never has been and never will be. It exacts a toll on our self, our families, our friends, and especially our children. In the end, I believe, as in my case, the price we pay is well worth holding on to our dignity.”
For years Croatia had been unable or unwilling, or both, to deal decisively with thieves and troublemakers that define the deep-rooted corruption. When in 2014 Zagreb’s District Court delivered a guilty verdict in the first and biggest to date corruption case involving the former Prime Minister Ivo Sanader and Hypo and INA-MOL (Croatian gas and petrol energy company with Hungarian MOL clout) there was a breath of relief in Croatia and abroad. Finally – the breath of fresh air and hope for justice showed optimistic promise that Croatia was well on its way in getting rid of paralysing and omnipresent corruption it inherited from communist Yugoslavia days. Sanader was sentenced to eight and a half years and I thought: justice against corruption has been baptised and it will grow from now on.
Sanader was arrested in Austria as he fled Croatia in an attempt to avoid facing criminal charges, and was extradited to Croatia in July 2011. Series of trials for a string of serious charges of corruption, bribery and war profiteering offences commenced late 2011. In December 2011 criminal charges were laid against Sanader, which stipulated that for a 10 Million euro bribe he negotiated with president of Hungary’s petrol/energy company MOL, Zsolt Hernádi, that MOL receive majority ownership in Croatia’s INA company. These charges were attached to previous one for war profiteering in which Sanader is alleged to have taken a provision of 3.6 Million kuna (475,000 euro) from Hypo Bank while holding the office of deputy foreign minister of Croatia. As far as bribery from MOL, Hungarian Zsolt Hernádi has continuously denied any wrongdoing although he has refused to attend the Croatian court.
After the 2014 verdicts against Sanader, Croatian Supreme court confirmed those Zagreb District Court guilty verdicts.
But, in July 2015 Croatia’s Constitutional court overturned those guilty verdicts, citing procedural errors (not facts of evidence for the criminal acts) and ordered a retrial. The Constitutional court said that in its decision it did not go into whether Ivo Sanader was guilty of war profiteering and criminal acts of receiving bribes for which he was found guilty because it, the Constitutional court, did not have jurisdiction. The Constitutional court had overturned the guilty verdict because it found that all guarantees for a fair trial and all mechanisms of judicial protection provided through the legislation were not secured for him. http://www.tportal.hr/vijesti/hrvatska/390689/Ukinuta-presuda-Ivi-Sanaderu-za-Hypo-i-INA-MOL.html (Click this link for PDF in Croatian/ Summary of Constitutional Court decision 24 July 2015)
The Constitutional court findings say that there had been a breach of rules of a milder law in relation to the constitutional guarantee for a milder sentence. Article 31, clause 1 of the Constitution of Croatia provides that ” No one may be punished for an act which, prior to its commission, was not defined as a punishable offence by domestic or international law, nor may such individual be sentenced to a penalty which was not then defined by law. If a less severe penalty is determined by law after the commission of said act, such penalty shall be imposed.”
The decision also refers to a breach of Constitutional right to explanations of the part of judgement dealing with the rule of the milder law.
And so, on Monday 7 September 2015, Croatia began a retrial of former prime minister Ivo Sanader on corruption charges, including a case of a bribe allegedly taken from Hungarian oil firm MOL to allow it acquire a dominant stake in Croatia’s biggest utility (INA).
As the retrial got under way, Sanader’s lawyers requested the judge (Ivan Turudic) be changed as he had overseen the previous trial and they submit that he may be biased against Sanader in the second-trial. According to media reports Sanader’s lawyers will seek not only that Turudic be disqualified from hearing the case or presiding over the hearing but that he also be removed from his position as president of the Zagreb District Court. Judge Ivan Turudic, on the other hand, says that he can see no reason why he could not preside over the retrial. Any disqualification of a judge from presiding over the trial or hearing the case will need to be decided by a higher court (in this case Supreme Court of Croatia).
Well, well, it seems Sanader and his lawyers don’t worry about the independent facts revealed during the first trial against him, which facts point to guilt of actual corruption, bribery and war profiteering. Procedural matters are the hot coals in the baptism of fire of justice in this case. While Sanader and everyone should have the benefit of due process – which includes access to all rights under the law and procedural fairness – one cannot but think of Frank Serpico at this time: the fight for justice is never easy! Baptism of fire for many good things is an inevitable albeit regretful path to the good; we all want justice and want it now! Especially given that Croatia has been suffocated by corruption for a whole lifetime. Time to speed up the fight against corruption in Croatia and I hope that agenda will be included in someone’s election campaign platform! It’s election year with general elections likely to occur in a couple of month’s times. Ina Vukic, Prof. (Zgb); B.A.;M.A.Ps. (Syd)
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