CEDH · CASELAW;CLIN;ENG — 13 novembre 2012

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Croatia - 4455/10 Judgment 13.11.2012 [Section I] Article 6 Criminal proceedings Article 6-1 Impartial tribunal Impartiality of judge who had previously participated in criminal proceedings in which applicant had been granted amnesty: no violation Article 4 of Protocol No. 7 Right not to be tried or punished twice Conviction for war crimes of a soldier who had previously been granted amnesty: no violation [This case was referred to the Grand Chamber on 18 March 2013] Facts – A first set of criminal proceedings was brought against the applicant in 1993 in connection with a number of serious offences against civilians, including murder, he had allegedly committed in 1991 as a member of the Croatian army. Those proceedings were terminated in 1997 under the General Amnesty Act, which had entered into force in 1996 and applied to criminal offences committed during the war in Croatia between 1990 and 1996 with the exception of acts amounting to grave breaches of humanitarian law or to war crimes. In 2007 the Supreme Court, on a request for the protection of legality lodged by the State Attorney, found the decision to terminate the proceedings to be in violation of the Amnesty Act. It noted in particular that the applicant had committed the alleged offences as a member of the reserve forces after his tour of duty had terminated, so that there was no significant link between the alleged offences and the war, as required by the Act. In parallel, the applicant was tried in a second set of criminal proceedings. The proceedings before the county court were conducted by a three-judge panel, which included one judge, M.K., who had also presided over the panel that had terminated the earlier proceedings. During the closing arguments, the applicant was removed from the courtroom, after twice being warned for interrupting the Deputy State Attorney. His lawyer remained in the courtroom. In 2007 the county court convicted him of war crimes against the civilian population and sentenced him to 14 years’ imprisonment. On appeal, the Supreme Court upheld the conviction and increased the sentence to 15 years’ imprisonment. A constitutional complaint by the applicant was dismissed. The domestic courts found that he had killed and tortured Serbian civilians, treated them in an inhuman manner, unlawfully arrested them, ordered the killing of a civilian and robbed the civilian population. Those acts had violated international law, in particular the 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War . Law – Article 6 §§ 1 and 3 (c): (a)     Impartiality : Although the Court was not convinced that there was sufficient evidence to establish that Judge M.K. had shown any personal bias, he had participated in both sets of criminal proceedings. The charges against the applicant in those two sets of proceedings had overlapped to a certain extent. However, in the first set, which was terminated under the Amnesty Act, the facts of the case had not been assessed, nor had the question of the applicant’s guilt been examined. The judge had therefore not expressed an opinion on the merits of the case. Under those circumstances there had been no ascertainable facts to justify doubts as to the judge’s impartiality. Conclusion : no violation (unanimously). (b)     The applicant’s removal from the courtroom : The closing arguments were an important stage of the trial. However, where the accused disturbed order in the courtroom, the trial court could not be expected to remain passive and to allow such behaviour. The applicant had been removed from the courtroom only after twice being warned not to interrupt the Deputy State Attorney’s closing submissions. His defence lawyer had remained in the courtroom and had presented the applicant’s closing arguments. The applicant had therefore not been prevented from having the final view of the case given by his defence and had been legally represented throughout the proceedings. Against this background, and viewing the proceedings as a whole, his removal from the courtroom had not prejudiced his defence rights to a degree incompatible with Article 6 §§ 1 and 3 (c). Conclusion : no violation (unanimously). Article 4 of Protocol No. 7: The offences set out in the applicant’s indictment in 1993 corresponded to those described in the county court’s judgment in 2007. The charges had therefore been the same in both sets of proceedings. It was questionable whether the 1997 decision terminating the first set of proceedings under the General Amnesty Act could be understood as a final acquittal, since that decision had not presupposed any investigation into the charges and did not amount to an assessment of the applicant’s guilt. However, the Court decided to leave that question open. In the second set of proceedings, the domestic courts found that the applicant had committed war crimes against the civilian population and thereby violated international law. The Supreme Court had established that the General Amnesty Act had been erroneously applied in respect of those offences and interpreted in a way which called its very purpose into question. The European Court had previously held that that an amnesty was generally incompatible with the States’ duty to investigate acts such as torture and that the obligation to prosecute criminals should not therefore be undermined by granting impunity to the perpetrator in the form of an amnesty law that might be considered contrary to international law. The same approach applied to war crimes. Granting an amnesty in respect of crimes against humanity, war crimes and genocide was increasingly considered to be prohibited by international law. In that light, the Court accepted the Government’s view that the grant of an amnesty to the applicant in respect of acts which had been characterised as war crimes against the civilian population had amounted to a fundamental defect in the proceedings within the meaning of the second paragraph of Article 4 of Protocol No. 7, which had justified the reopening of the proceedings. 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