CYIL 2010

VLADIMÍR BALAŠ CYIL 1 ȍ2010Ȏ be able to meet the requirements spelled out in the introductory paragraphs of the resolution. Time limitation must not be allowed to preserve the status quo . Such leniency would open the door for the return of the old structures. In this particular respect, the Albanian lustration legislation, though far from perfect, does not conflict with the Council of Europe resolution; quite on the contrary, it seeks to fully meet its requirements. Paragraph 7 5 of the resolution recommends that crimes committed by individuals during the communist totalitarian regime should be punished under the standard criminal code. Passing and applying retroactive criminal laws is not permitted. Nevertheless, the Parliamentary Assembly of the Council of Europe was very well aware that the application, and even observance, of the national laws that were in force during the totalitarian rule might run counter to the standards recognized in democratic countries under the rule of law. That is why it does not regard as retroactive the application of general principles of criminal law recognized by civilized nations. In general, it puts totalitarian crimes on par with war crimes, crimes against humanity and other crimes for which civilized nations have no statute of limitations. The Council of Europe thus takes a clear stand to protect the general values originating in natural law. This is an important message and the only way to deal with the past. The Council of Europe resolution further recommends that the prosecution of individual crimes should go hand-in-hand with the rehabilitation of people sentenced for acts which in a civilized society do not constitute crimes, in particular people sentenced for political reasons as well as political opponents of the totalitarian regime sentenced on fabricated criminal charges, since their trials were also mostly politically motivated. The Council of Europe also welcomes the opening of secret service files for public examination. It advises that property, including that of the churches, which was illegally expropriated during the totalitarian rule, should be restituted to its original owners. Unquestionably, these measures are of utmost importance in redressing the wrongs inflicted by the totalitarian regime.

5 The Assembly also recommends that criminal acts committed by individuals during the communist totalitarian regime be prosecuted and punished under the standard criminal code. If the criminal code provides for a statute of limitations for some crimes, this can be extended, since it is only a procedural, not a substantive matter. Passing and applying retroactive criminal laws is, however, not permitted. On the other hand, the trial and punishment of any person for any act or omission which at the time when it was committed did not constitute a criminal offence according to national law, but which was considered criminal according to the general principles of law recognised by civilised nations, is permitted. Moreover, where a person clearly acted in violation of human rights, the claim of having acted under orders excludes neither illegality nor individual guilt.

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