CEDH · CASELAW;CLIN;ENG — 12 juillet 2007

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Germany - 74613/01 Judgment 12.7.2007 [Section V] Article 7 Article 7-1 Nullum crimen sine lege Allegation by the applicant that the definition of the offence of genocide used by the domestic courts was unduly wide: no violation   Article 6 Criminal proceedings Article 6-1 Tribunal established by law Allegation by the applicant that the German courts had no jurisdiction to try him for serious offences, including genocide, committed in Bosnia: no violation   Facts : In December 1995 the applicant was arrested on returning to Germany from Bosnia on suspicion of having engaged in genocide in the Doboj region between May and September 1992. The accusations against him included setting up a paramilitary group that had ill-treated and killed Muslim villagers and personally executing villagers. He was ultimately convicted of, inter alia , genocide and murder and sentenced to life imprisonment. In his application to the Court, he complained in particular that the German courts had wrongly assumed jurisdiction to try him and that their interpretation of the crime of genocide had no basis in German or public international law. On the former point, the trial court ruled that it had jurisdiction to try the case despite the fact that the alleged offences had taken place in Bosnia as there was a legitimate link with Germany’s military and humanitarian missions there and the applicant had resided in Germany for more than 20 years and been arrested there. The trial court did not consider itself debarred by public international law from hearing the charges, especially as the International Criminal Tribunal for the Former Yugoslavia (ICTY) had stated that it was not willing to take over the prosecution. The trial court’s decision was upheld on appeal, notably under the principle of universal jurisdiction. As regards the definition of the offence of genocide, the trial court ruled that the expression “destruction of a group” used in the German Criminal Code meant the group’s destruction as a distinct social unit and did not require its destruction in a biological-physical sense. It concluded that the applicant had acted with intent to destroy a group of Muslims in the north of Bosnia. The Constitutional Court declined to consider the applicant’s constitutional complaint, holding that there had been no violation of the principle that criminal law was not to be applied retroactively as the interpretation of the relevant provision had been foreseeable and conformed to that used in public international law. Law : Article   5 § 1 (a) and Article   6 § 1 – The German courts’ interpretation of the Genocide Convention and their establishment of jurisdiction to try the applicant on charges of genocide were widely confirmed by the statutory provisions and case-law of numerous other Contracting States to the Convention and by the Statute and case-law of the ICTY. Furthermore, Article   9 § 1 of the ICTY Statute confirmed the German courts’ view providing for the concurrent jurisdiction of the ICTY and national courts without any restriction to domestic courts of particular countries. The German courts’ interpretation of the applicable provisions and rules of public international law was not arbitrary. They had therefore had reasonable grounds for establishing their jurisdiction to try the applicant on charges of genocide. It followed that the applicant had been tried by a “tribunal established by law” (Article   6 § 1) and been lawfully detained after conviction “by a competent court” (Article   5 § 1 (a)). Conclusion : no violation (unanimously). Article   7 – While many authorities had favoured a narrow interpretation of the crime of genocide, there had already been several authorities which had interpreted it in a wider way, in common with the German courts. The applicant could therefore reasonably have foreseen, if need be with the assistance of a lawyer, that he risked being charged with and convicted of genocide for his acts. In this context the Court also had regard to the gravity and duration of the acts the applicant had been found guilty of. The national courts’ interpretation of the crime of genocide could therefore reasonably be regarded as consistent with the essence of that offence and reasonably foreseeable by the applicant at the material time. Once those requirements were met, it was for the German courts to decide which interpretation of the crime of genocide under domestic law they wished to adopt. Conclusion : no violation (unanimously).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes