COUNCIL OF EUROPE PARLIAMENTARY ASSEMBLY Mr. Rene van der LINDEN - President- Pece, February 28 ,2005 Motion for abolishing resolution No 1410 (2004) and investigating the controversial circumstances which lead to the adoption of the resolution on 23 November 2004 Dear M. Van der Linden, the answer of Mr. Simon Newman, head of the Private Office  on your behalf from 9 February 2005  is no adequate answer nor action refer to the serious subject we have informed you in our letter from 31 January 2005. Because of your education and your function your know best  how  the Assembly  and its president has to act in a serious case like this. A  resolution  is  no  dogma  nor  axiom,  therefore  a  resolution  can  (  and  has  to)    be  changed,  replaced  or abolished  if facts change, new facts appear or if  there is a serious and founded accusation of corruption like in our case. A resolution which represents the view of the Assembly must be based on the Convention on Human Rights and strengthens the democratic principle of the rule of law.  The controversial resolution 1410 (2004) violates Human Rights ( Article 6 and Article 13 of the Convention). The resolution and its proposal of establishing a collective fund for repaying the Non- Slovenian savers brings the danger of prejudging the court-decision by   questioning the independence and impartiality of the European Court of Human Rights. Having  in  mind  the  very  fact  that  the  European  Court  for  Human  Rights  has  declared  the  first  three applications  of Non- Slovenian depositors ( Applications No. 44574/98, 45133/98 and 48316/99)  in the case of Ljubljanska banka admissible on April 8, 2004 and the fact that our application No. 65553/01 is a pending case  before  the  Court,  the    controversial  resolution  1410  based  on  the  controversial  report  by  prof  Erik Juergens ( Doc. No. 10135)  is unacceptable and represents an  obstruction to the work of the judges in the aforementioned pending  cases before the  European Court of Human Rights by belittling the courts` admissibility- decision and  prejudging and final courts`  decision. The controversial resolution No. 1410 (2004) put an unnecessary burden on the European Court of Human Rights refer the judicial decision on the merits in the first three Ljubljanska banka cases. Either the European Court  of  Human  Rights  will  protect  the  human  rights  of  the  Non-  Slovenian  depositors  or  the  Court    will confirm  the  controversial  resolution    and  protect    the  credibility  not  only  of  Prof  Erik  Juergens,  like  the resolution is prejudging. The  controversial  report  by  Prof  Erik  Juergens  represents  facts  which  give  rise  to  a  presumption  of  the existence  of  possible  criminal  offences  of  coercion  against  judicial  officials.  In  his  report  Prof.  Juergens expresses his opinion  how the judges of the European Court of Human Rights should act in the particular case and what kind of decisions the judges should pass. The following facts speak for themselves:

Resolution 1410 (2004) based on the report by Prof Erik Juergens (Doc. 10135): Paragraph 7 " However,  notwithstanding  the  decision  of  the  Court  to  declare  two  individual  applications    from  Croatian depositors  admissible,  the  assembly  considers  that  the  matter  of  compensation  for  so  many  thousands  of individuals   would   best   be   solved   politically,   between   the   successor   states,   instead   of   an   already overburdened Court.  The Assembly therefore: …" It is of fundamental importance for the rule of law that a victim gets satisfaction vis-à-vis the offender. It is Human Right (Article 6 of the Convention) to have a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Because of  the admissibility decision of the Court published on 8 April 2004 and its reflection on the  former paragraph  7 of the controversial resolution, the  paragraph 7  was replaced by the amendment 1 tabled by Prof  Juergens  and  some mislead  members  of  the  Standing  Committee  of  the  Socialist  group.  The  former paragraph 7 had provided that only in the case if the Court would declare the applications inadmissible, the assembly proposes to set up a collective fund in order to compensate the depositors.  Therefore it was the intention to push through per fas et nefas the controversial resolution based on the report by Prof Juergens, notwithstanding the Courts` admissibility decision. The replaced paragraph 7 of the controversial resolution  is not only  unacceptable for us as the victims but   violates  the  Article  6,  13  and  14  of  the  Convention.  It  is  dangerous  for  principle  of  the  rule  of  law    if  the argument of an overburdened Court will be enough to establish the practice to solve politically serious legal issues of violating human rights. Paragraph 11 "Croatian  depositors  have  put  their  case  before  the  European  Court  of  Human  rights    in  Strasbourg, essentially on the basis of article 14 of the European Convention on Human Rights, discrimination, and on the basis of article 1 of the first protocol  ( unlawful expropriation). The Court has not yet heard these cases. It is uncertain if it will consider them admissible, concerning the fact that the Convention was not applicable in the states concerned at the moment that the problem at issue was created. " Courts`    admissibility  decision  refer  the  Ljubljanska  banka  case,  cite  :  "The  court  observes  that  although, generally, the withdrawal of money from the foreign- currency  savings account was increasingly restricted in the   1980s  and   in   the  early   1990s  by  the   SFRJ,   the   authorities  of   Slovenia,  after   its  accession  to independence  on  25  June  1991,  also  legislated  on  the  matter.  The  National  Assembly  of  the  Republic  of Slovenia continued to do so after 28 June 1994, when the Convention and Protocol No. 1 entered into force in respect of Slovenia, notably by introducing amendments to the 1991 Constitutional law on 27. July 1994 ( Official  Gazette  no.  45/94)...  Regarding  being  had  to  the  content  of  the  1994  Constitutional  law,  the  court considers  that  the  Slovenian  Government`  s  plea  of  inadmissibility  on  the  ground  of  lack  of  jurisdiction ratione temporis must be dismissed. " Paragraph  45 " The rapporteur would suggest that there is no easy answer to the question if the head office of Ljubljanska banka is in fact liable. At the same time it is clear that even if the legal question is decided negatively for the Ljubljanska banka head office  a claim on Slovenia to make good the guarantee to all depositors for many hundreds  of  millions  of  D.  Marks  including  the  accumulated  interest  would  invoke  economic  and  political problems for Slovenia that would be difficult to solve. " Every state has to fulfil its obligations.  The actual example refer the SOB bank, shows that Slovakia had to fulfil its obligation. The court was not interested in if the repayment would invoke a political and economic problem difficult to solve for Slovakia.  To establish the practice of  political and economic problems  as an

acceptable reasons why  a state does not has to fulfil its obligation vis-à-vis foreigners,  gives a wrong  and dangerous signal  especially in the territory of former Yugoslavia !   Paragraph 50 " And the protection against expropriation guaranteed by the European convention on human rights, even if it were applicable to the case in point, which the rapporteur doubts, was in any case not applicable under the FSRY." Paragraph 51 "  Thus  a  rapporteur  of  the  committee  on  Legal  affairs  and  Human  Rights  cannot  express  opinions,  which hold  any  legal  substance  without  recreating  the  world  of  illusions  in  which  the  problem  of  non  refunded depositors was originally created. " Addendum to the report, Paragraph 21 "As  far  as  such  legal  grounds  have  been  put  forward  they  are  of  a  very  complex  nature,  and  only  partials linked to human rights, especially to the protection of property. It must be recalled that the problem has been put before the assembly as a human right as issue. " Addendum to the report,  Paragraph 24 "Certainly , as regards point of law, a general position can be taken by the Committee on legal affairs and Human  rights-  such  as  that  in  this  case  it  is  at  best  uncertain  whether  Article  1  of  the  fist  Protocol  to  the European convention on Human rights can be invoked in this case." The aforementioned paragraphs are disproved by Courts` admissibility decision refer the Ljubljanska banka case, cite " As to the matter of compliance with Article 1 of Protocol No. 1 raised by all three applicants and with Article 14 of the Convention taken together with Article 1 of Protocol No. 1 raised solely by Mr. Kova i , the Court considers, in the light of the parties` submissions, that the complaints raise serious issues of fact and law under the Convention , the determination of which requires an examination of the merits. The court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. " Addendum to the report,  Paragraph 7 "In addition, a case is pending since 2001 before the European court of human rights in an appeal by three private  depositors  from  Croatia.  The  appeal  is  based  especially  on  the  violation  of  article  1  of  the  first protocol  of  the  European  convention  on  human  Rights.  It  is  expected  that  the  Court  will  rule  on  the admissibility  of  this  appeal  by  January  2004.  Even  if  the  appeal  is  declared  admissible,  it  will  take  a  long time before the Court has made a decision in the case..." The rapporteur knows how much time the Court will take to make a decision ? How ? Addendum to the report, Paragraph 25 "...  The Conclusion I had reached was that a political solution should be found for this problem,... " The resolution is seriously controversial and contradictory  in itself by proposing introducing the practice of leaving the Court deal with the issue from the legal point of view, while at the same time advising that the problem should be politically tackled through negotiations, irrespective of the legal background.

Having  in  mind  the  aforementioned  paragraphs  of    the  controversial  report  by  Prof  Erik  Juergens,  which represent  a  resolution  of  the  Parliamentary  Assembly  and  regarding  the  fact  that  the  European  Court  of Human Rights works closely with the institutions of the Council of Europe especially with the Committee on Human  Rights  and  Legal  Affairs  the  controversial  resolution  is  prejudging  the  courts`  decision,  hampering and belittling  the work of the judges,  in fact it represents a coercion against judicial officials. The resolution endangers the credibility of the Assembly and harms seriously the reputation of the European Court of Human Rights by questioning the courts` independence and impartiality. Although  Prof  Juergens  is  reported  to  the  Dutch  officials  responsible  for  combating  economic  crime  and corruption since 15 March 2003 because of his controversial report in the case of Ljubljanska banka  and facts which gives rise to a presumption of the existence of possible illegal activity including corruption or of a serious failure to comply with the obligations of officials and although the former president of the assembly was    informed  detailed  about  the  serious  accusations  against  Prof  Juergens  refer  the  controversial  report and   asked   several   times-   also   by   the   Croatian   and   Bosnian   delegations-   to   postponement   further deliberations and voting by the Standing Committee and PACE until the Court decides on the legal aspects of the issue by a judicial decision, the procedure of the controversial report by Prof Juergens was continued. The  Dutch  ministry  of  justice  is  informed  and  has  to  investigate      if  there  is  a  case  of    non-  respect  of obligations or serious failure to comply with the obligation of  officials refer the report of Prof Juergens and we do deeply hope that the Dutch officials are not unwilling to investigate the serious accusations based on the Criminal Law  Convention on  Corruption against  Prof Erik Juergens, prominent member of PACE and Dutch  parliamentary  official.  We  do    expect  the  answer  of  the  Dutch  minister  of  justice  refer  this  serious subject, soon. It  has  to  be  investigated  by  the  Assembly  too  if  there  is  a  case  of  non-  respect  of  obligations  or  serious professional wrongdoings refer the former president of the Assembly, because  the per fas et nefas continue of  the  procedure  in  the  Standing  Committee  in  this  serious  circumstances  of  the  presumption  of  the existence of possible illegal activity including  corruption was not in the light of the Criminal Law Convention on Corruption. It  has  to  be  stressed  that  the  Parliamentary  delegations  of  the  Republic  of  Croatia  and  of  Bosnia  and Herzegovina have sent a letter refer this serious  subject  to the member of the Standing Committee  on 18 November  2004  and  it  has  to  be  stressed  that  the  Croatian,  Bosnian  and  Macedonian  members  of  the Standing Committee  have tabled an amendment to delete paragraph 7 in its entirety in the draft resolution, which was dismissed. It has to be stressed that the members of the Croatian and Bosnian Delegation were not present at the voting on 23 November 2004 refer the resolution based on the report by Prof Juergens. The  members  of  the  Standing  Committee  cannot  be  accused  for  adopting  this  controversial    resolution because  they  have  been  mislead  by  the  intentionally  uncorrected  and  misleading  report  by    Prof    Erik Juergens, a prominent member of PACE with great influence and maybe the have been mislead too by a case of non- respect of obligations or serious failure to comply with the obligation of  the former president of the   Assembly,   because   the   controversial   report   was   tabled   for   voting   at   the   Standing   Committee notwithstanding the serious accusations against Prof Juergens. The controversial and contradiction ally nature of the resolution based on the report by Prof Erik Juergens is explainable  with  the  controversial  and  contradict  ional  situation  of  abusing  democratic  instruments  -  like  a resolutions of PACE- to ensure an undue advantage for mighty bank corporation KBC bank NV and its NLB by establishing a political solution of the issue to conceal or disguise the banking fraud in the case of Non - Slovenian depositors of former Ljubljanska banka.   As it is written in the preamble of the Criminal Law Convention on Corruption:  Corruption threatens the rule of law, human rights and endangers the stability of democratic institutions, therefore  you will understand and   support our remedies for combating corruption that threatens our human rights.   An effective fight against corruption requires increased, rapid and well- functioning international co-operation, therefore  we  do  believe  that  the  informed  authorities  for  combating  economic  crime  and  corruption  in  the Netherlands and in Belgium as well as the Assembly and you as its new president , the CECD and GRECO    are  not  unwilling  to  take  action  in  this  serious  case  because  of  the  involvement  of  the  mighty  Belgian-

German  KBC bank NV and a prominent member of PACE, Prof Erik Juergens, who is obviously abused to protect  above all the financial interests of the involved banks. As Christians and democratic Europeans we do believe in the rule of law and we protect our rights only in democratic way. The Council of Europe has launched a major campaign for combating corruption. A number of major legal instruments have been adopted, like the Criminal Law Convention on Corruption but the  effectiveness  of    these  legal  instruments  depends  on    our    good  moral.  Organized  crime  and corruption  can  be  combating  effectively  with  "organized  good"  by  creating  a  culture  opposed  to corruption through high moral values and ethical standards.   Refer to our letter from January 31, 2004 we ask you once again to investigate this serious subject and to abolish  the  resolution  1410  because  of  the  aforementioned  facts.  We  thank  you  very  much  for  your understanding and your support and we expect your answer soon. Yours sincerely, Danica Šekrst-Dinjar Danica Šekrst- Dinjar Juraj Šekrst Juraj Šekrst cc. ECHR, refer application No. 65553/01 National delegations of PACE General secretary of Council of Europe, Mr  Terry Davis Committee of the Ministers CM GRECO CECD Ministry of justice of the Netherlands