ZAGREB, CROATIA – Ivan Simonovic, university professor and diplomat, has been serving as Croatia’s justice minister for eight months. In those eight months, he says, many positive things have happened in judicial reform. And as he announced, a lot more is yet to come. As one of the
most important reforms is the Penal Code whose adoption is in process and which will significantly change the work of the State Prosecution, courts and police.
The new Law on Criminal Process is in process of being adopted and, among other things, there is mention of the possibility of postponing its adoption due to some omissions.
- Look, we need to have a Law on Criminal Process which the legal practice will be able to use it. What we are implementing currently is a sort of training, a sort of education for judges, state prosecutors and police. What is specific and new is that judges, state prosecutors and police officers have a joint part of the programme and they are in effect learning their roles within the new criminal process. It is implemented so that some former cases are being simulated and through their simulations according to the new proceedings rules everybody learns their new roles. There is no doubt that our Law on Criminal Process had to have been amended because it was out of date. The general consensus is that it needed changing. But the key question is when we should change it because although it will be better, we must first ensure that somebody who should be punished does not fall through the system because of a procedural mistake. So, first, if there are problems in the text of the new law, we must introduce adequate changes and we must be certain that when it starts being implemented all the protagonists are ready.
So, when will the application of the new Law on Criminal Process begin to be implemented?
- A smaller part of it is already being implemented. A very important part of the provisions should start being implemented on July 1, but only for cases of the Office for the Prevention of Corruption and Organised Crime (USKOK), while for all other cases, it will being in 2011.
Is July 1 the definite date? 
- I would not say it is definite. We are still carefully monitoring the results of the simulations to see how ready we are for practical use. The Law on Police Powers still has to be adopted, which is a very important law that defines the role of the police and the role of the State Prosecution which changes radically according to the new Law on Criminal Process. Will that law be adopted early enough for us to be able to adapt the entire system, we shall see. If we are not completely ready then we will postpone the adoption.
Was it necessary to do it this way – let’s practice the law and see how it turns out?
- The law was sent into parliament before I became minister, but one needs to take into consideration all the relevant facts. We had to more relatively quickly with the law, simply because it was imposed by certain obligations pertaining to our accession into the European Union, to Chapter 23, so we had to pass it because there were certain deadlines.
How much does not applying the Law on Criminal Process, that is, its postponement, affect Chapter 23?
- What we had to solve, and that has already come into effect, is, for example, the possibility of the state prosecutor to, at his own initiative, question some judgments or indictments that were issued in absentia for war crimes. Chapter 23 does not state when we have to transfer to the new accusatory model of process, that is, when the roles of the court, state prosecution or police are to be changed. It is simply a matter for us, when we are ready for it. I did advocate that we start applying USKOK cases as soon as possible, but if our legal practitioners assess that there is a risk of somebody passing through the system due to insufficient preparedness for the new rules of the game, then we will train and practice a little more and warm up out teams. This is not a problem from the aspect of Chapter 23, but only for a system which is definitely better, so we are postponing its application a bit longer.
What is the key difference between the old and new criminal process laws, can you give us a concrete example?
- The key difference is that according to the new law, the state prosecution must be much more active. For example, before you had a situation where the investigative judge was in charge of an investigation. Now the state prosecutor will be in charge of the investigation, he asks for the evidence. The state prosecutor has the help of the police, that is, police investigators, who work for the state prosecutor in that segment. Therefore, the state prosecutors gives them orders on what to do, not the police, which is again a sensitive issue of relations between police and the state prosecution. According to the new system, the so-called investigation judge is now just concerned with the state prosecutor and police sticking to the ruled of procedure in carrying out investigations. So, he is a control factor, no longer the engine heading the process. The state prosecution now becomes the engine.
Is the state prosecution ready for that? 
- That is what we are trying to find out right now. If it will not be completely ready, then we will not begin applying the law on July 1. It depends on the prosecution, but also on the police.
USKOK courts began functioning on March 1. What is happening now?
- USKOK courts have currently 180 cases in first instance and another 54 cases in their investigative phases. This means that there are cases for USKOK courts and what is especially important is that the deadlines we set are being observed. This means that a judge working on USKOK cases has seven days to set the first hearing after receiving the case. For now, according to the statistics we are monitoring, the judges are doing just that. From the moment a final indictment is issued, the presiding judge again has a deadline of seven days to set a trial date. USKOK cases will be processed much faster than they have so far.
We still have problems with The Hague’s war crimes tribunal. What about the artillery logs?
- The artillery logs is a metaphor that is somewhat misleading. They are simply documents related to the use of artillery during the liberation of Knin and contains maps and reports about the use of artillery. The problem regarding the documents is that some countries believe that Croatia has not done enough to make all these documents available to the prosecution. Regarding chief prosecutor Brammertz and communication with him – it has been established that there is a difference in the understanding of The Hague prosecution and Croatian military experts about how many documents should have been made and how many there really are. The prosecution has one idea of what the chain of command looked like during operations and Croatian experts and witnesses claim the chain of command looked different than what the prosecution’s perception is, which is why there is a different assessment of documents which were supposed to have been drawn up. However, we did not submit some documents that were definitely made because they are currently unavailable to Croatian authorities.
Some we submitted, some we did not. Will we find the part that went missing and submit it?
- It’s not that simple. Absolutely everything the Croatian authorities had access to has already been submitted and what is not available is being sought, so if they find it, it will be submitted. The problem is that some of those documents that really were made and which not only the prosecution, but also the Croatian authorities have witness confirmation that they exist, are not where they should be. It is evident that those documents were not submitted for some reason. Evidently the chain of legal possession was severed and the documents disappeared somewhere. Out obligation is to either submit the documents or explain why there are no documents and who is responsible for that.
In an interview for the Nacional weekly, President Stjepan Mesic said he knew about a meeting between the late Ivo Pukanic and fugitive General Ante Gotovina. Should have the president reported this to the intelligence service or some other institution?
- I simply do not know enough about the circumstances of the entire case, what President Mesic
knew or should have known at the time, or whether he did or did not report anything to anybody. We need to know all the details before being able to make legal qualifications.
OK, but the president himself said in the interview that he told Pukanic to meet with Gotovina.
- So what do you divine from this? Firstly, President Mesic could have told him to go because he did not believe there would be any meeting, as in ‘go, you won’t find him anyway’, but it could have also meant that the president believed that the meeting would take place and that it would serve to make it easier for Gotovina to turn up in Croatia.
Nevertheless, should not have President Mesic reported it?
- Without all the details of the concrete case, real assessments cannot be made.
There was mention of the establishment of an agency for illegally gained assets. When should it be founded?
- It is not just a question of when, but if it should be founded. There are countries that very efficiently confiscate assets that have an agency, as well as those that do not have an agency. As a possibility, the agency exists, but we are still discussing it. For example, the Italians, the British and the Irish have such an agency, so do the Serbs and Macedonians, but there is a whole number of European countries which confiscated enormous assets, yet they did not found a special agency for that. We have the State Bureau for Managing Assets which manages the overall state assets and one of the possible solutions is for one part of that state bureau deals with managing two specific types of property – assets that have been temporarily frozen and assets which have been confiscated indefinitely. We have a group of experts working on the new Penal Code. Within that group, a sub-group has been charged with dealing with issues relating to the management of frozen and confiscated assets and assessing whether a special agency should be founded and if so, when.
Have anybody’s assets been frozen or confiscated so far?
- Yes, both frozen and confiscated. Last year we confiscated assets in the amount of 17 million euros, mostly in real-estate. It was for the most part property seized for drug smuggling.
What is going to happen to that property now?
- It is now the property of the Republic of Croatia. But there will be more of such assets. For example, the processing of the Dubai case is currently underway and if proven, the Penal Code from 2008 will be applied. If it is proven that this crime from the field of corruption and organised crime was indeed committed, in that case, according to the amended law, it is presumed that all of the perpetrators’ assets had been gained illegally unless proven otherwise. And all those assets, if perpetrators do not prove were gained legally, will be seized.
What about the lawsuit against Serbia? At one point you said the lawsuit should be dropped because the damages could be repaid in different ways.
- My stance was always the same, which is if all the requests Croatia put forward in the lawsuit were fulfilled, then we should not further insist to continue the lawsuit. Financial damages are not the most important. The Croatian lawsuit has already yielded a number of positive effects – several criminal proceedings were initiated in Serbia, for example for Lovas and Ovcara, we learnt more about the whereabouts of missing persons, a significant part of the looted cultural heritage was returned… But this all is not enough. Therefore, the key demands from the lawsuit, that those who committed the grievous crimes be punished, that the full truth about missing persons be disclosed and that all cultural goods be restored, all of which has not been realised for the most part. So, reasons for the lawsuit to stand still exist because it simply exerts pressure on Serbia which is yielding positive results. I agree, it would be best if this pressure would stop being necessary, but that is not the case yet.
The Law on Free Legal Counsel has come into effect. Do you have information about how many people have sought free legal counsel so far?
- According to latest data, 861 people have applied. About two thirds of the applications were granted. This just shows that there is a large number of citizens who got access to court through the free legal counsel which they had not had until now. Since you have two thirds of applicants being granted means, that goes to show that it was truly necessary to introduce free legal counsel. Also, the tender for non-governmental associations is ending, which should, along with attorneys, also provide legal advice and legal assistance in administrative proceedings. We have 22 associations that applied, as well as the Legal Faculty in Split that entered a private clinic to deal with the same issues.
Recently the Globus weekly published a text about what we did not say in Brussels regarding Chapter 23, which relates to the justice system and human rights. The weekly wrote that we failed to mention omissions in the lists of voters, two laws on land that
are unfavourable to small land owners, the non-transparent election of judges…
- You mentioned several issues which can be considered contentious. However, with regards to Chapter 23 and the opening of the chapter, I can tell you that the European Commission estimated that we had already met the criteria for its opening, despite the fact that some questions remain.
But Chapter 23 has not been opened yet.
- The Commission wrote a positive report, but member countries have to agree with it. For now we have some member countries that believe that the negotiation process regarding that chapter should not be opened. There is no other reason for that apart from the artillery documents. This is the reason why negotiations on Chapter 23 are temporarily on hold.
According to a study by Transparency International, corruption in Croatia is still at a high level.
- Definitely. I would not like to make excuses that corruption in some EU countries is higher than in Croatia, although it is. It is doubtless that corruption is too high in Croatia and that part of that which will be asked of Croatia is to show practical examples of a successful fight against corruption, guilty verdicts and a decrease in the index of the perception of corruption… But that is not just a request from Brussels, this is what citizens are asking of the Croatian authorities.
Does not corruption have a stronghold in the government in order to be preserved?
Bracelet instead of jail
There is increased mention of supervised freedom instead of jail. – Our prisons are overpopulated, prisons are filled by more than 40 percent of people than their capacities. We must find new solutions to make conditions better for people serving jail terms. In times of crisis and recession it is not easy to set aside a large amount of funds for building new capacities, but we are doing that too. We will expand capacities where we can without very large expenses, but that’s not enough. An additional solution is a supervised freedom system, that is, probation. This means you no longer have an alternative. Either you are completely free or behind bars. Supervised freedom means that you are conditionally free, but with a certain form of supervision or treatment. This simply makes it possible to send less people to prison. For some crimes it is sufficient to keep the perpetrators under supervision and it is not necessary to put them in jail or holding cells. Some countries use a bracelet. And we will use it soon. One of the projects which we will be presenting to the international community on April 27 as projects of reform of the judiciary is also obtaining material and technical means as a precondition for the introduction of the probation system. For example, this means that you can place somebody under house arrest, which is more humane, it unburdens prisons and has economic benefits. Introducing the electronic bracelet costs a lot at the beginning, but it is very cost-effective in the long-term.
- By definition corruption is abuse of authority and public powers for illegal gain. The higher corruption is in authority, the more dangerous is it. There is no doubt that there is corruption in Croatia, that it is dangerous and that we should advance the fight against it. We improved laws well and booster the organisational capacity to combat corruption. However, the law’s application in practice, political determination and a general public atmosphere of zero tolerance to corruption are crucial now. We need enough charges and no compromise in proceedings. Everybody must be equal before the law.
News was recently published about the rehabilitation of Andrija Hebrang in Belgrade.
- That process was carried out long ago in Zagreb and I think this is a positive sign of Serbia being ready to carry it out. It is a contribution to shed light on certain dark parts of the past and is a step forward in any case. It would be good that the same positive steps are made in Belgrade regarding the acceptance of the truth about the conflict in the former Yugoslavia.
According to your opinion, is Tito a hero or a criminal?
- The characterisation of Tito as a leader of the successful struggle against fascism and of Tito as the one responsible for the victims of Bleiburg is definitely not the same. But many other leaders and statesmen who lived in dramatic times have that light and dark side to them.
Should symbols of communism, such as the red star, be banned by law, as have been the symbols of totalitarian regimes such as fascism and Nazism?
- I am against any form of totalitarian regime by principle. Stalin’s gulags and the Bleuburg march compromised the red star, but it was a symbol under which the anti-fascist fight took place. Therefore, the swastika and the red star are not the same.
Your name was mentioned in the context as the possible president of state. Would you agree to that, that is, would you run for president?
- For me it is a compliment that some think I would make a good president. But for now I am trying to be a good justice minister and I have my work cut out for me. I never was nor am I now a member of any party and hypothetically speaking, the question is whether it is possible in Croatia for a bog party or even several parties to back a non-partisan candidate, such as what happened with the election of President Tuerk in Slovenia.
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Full story and link can be found here:
http://www.javno.com/en-croatia/swastika-and-red-star-are-not-the-same_251762
It is not right for anyone to manipulate with anyone`s mortal remains and if anyone needs to deal with these, then it has to be experts. They cannot be forensics of the Croatian Helsinki Committee – the Croatian president said, adding that the Croatian Helsinki Committee can ask for the facts and responsibility to be determined for any crime, but they are not investigators. 
