Grand Chamber – 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 an amnesty: Article 4 of Protocol No. 7 not applicable
Facts – The applicant, a member of the Croatian army, was indicted for murder and other serious offences committed in 1991 during the war in Croatia. Some of the charges were subsequently dropped. In 1997 the trial court, presided by Judge M.K., terminated the proceedings in respect of the remaining charges pursuant to the General Amnesty Act, which granted amnesty for all criminal offences committed in connection with the war in Croatia between 1990 and 1996, except for acts amounting to the gravest breaches of humanitarian law or 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 against the applicant to be in violation of the General 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 indicted on charges of war crimes in a second set of criminal proceedings. These proceedings were conducted by a three-judge panel, which included Judge M.K. During the closing arguments, the applicant was removed from the courtroom after being warned twice for having interrupted the Deputy State Attorney. His lawyer remained in the courtroom and delivered the applicant’s closing argument. The trial court convicted the applicant of war crimes and sentenced him to fourteen years’ imprisonment. On appeal, the Supreme Court upheld the conviction on three grounds: firstly, the two sets of proceedings were not the same case, so it was permissible for Judge M.K. to have participated in both; secondly, the applicant’s removal from the courtroom had been justified; and thirdly, the matter had not been res judicata because the factual background to the offences in the second set of proceedings was significantly wider in scope than that in the first set, as the applicant had been charged with a violation of international law, in particular the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War. The applicant filed a constitutional complaint, which was ultimately dismissed.
Law – Article 6-1: The applicant complained that the same judge had participated in the two sets of proceedings against him, in violation of the impartiality requirement. However, the mere fact that the judge had participated in both sets of proceedings was not incompatible with that requirement. In the first set of proceedings he had not adopted a judgment finding the applicant guilty or innocent and no evidence relevant for the determination of his guilt was ever assessed.
Conclusion: no violation (unanimously).
Article 6-1 and 3 (c): As to the applicant’s complaint that, in violation of his rights of defence, he had been deprived of the right to make closing submissions, the Court noted that where the accused disturbed order in the courtroom, the trial court could not be expected to remain passive and to allow such behaviour. Given that the applicant had been removed from the courtroom after two warnings not to interrupt the Deputy State Attorney’s closing arguments, and that the applicant’s defence lawyer had remained in the courtroom and had presented the applicant’s closing arguments, there had been no violation of Article 6-1 and 3 (c).
Conclusion: no violation (unanimously).
Article 4 of Protocol No. 7: The applicant complained of a violation of his right not to be tried twice. The Court acknowledged that in both sets of proceedings the applicant had been prosecuted for the same offences. There were, however, two distinct situations as regards the charges brought in the first set of proceedings: the prosecutor had withdrawn the charges concerning two alleged killings, whereas the proceedings in respect of two further alleged killings and a charge of serious wounding had been terminated by a County Court ruling adopted on the basis of the General Amnesty Act.
(a) Dropped charges – In respect of the charges that had been withdrawn by the public prosecutor in the first set of proceedings, the Court reiterated that the discontinuance of criminal proceedings by a public prosecutor did not amount to either a conviction or an acquittal, such that Article 4 of Protocol No. 7 was not applicable.
Conclusion: inadmissible (unanimously).
(b) Termination of proceedings under General Amnesty Act – As regards the termination of the first set of proceedings on the basis of the General Amnesty Act, the Court observed that the applicant had been improperly granted an amnesty for acts that amounted to grave breaches of fundamental human rights protected under Articles 2 and 3 of the Convention. The States were under an obligation to prosecute acts such as torture and intentional killings. Moreover, there was a growing tendency in international law to see the granting of amnesties in respect of grave breaches of human rights as unacceptable. In support of this observation, the Court relied on several international bodies, courts and conventions, including the United Nations Human Rights Committee, the International Criminal Tribunal for the former Yugoslavia and the Inter-American Court on Human Rights. Further, even if it were to be accepted that amnesties are possible where there are particular circumstances, such as a reconciliation process and/or a form of compensation to the victims, the amnesty granted to the applicant in the instant case would still not be acceptable since there was nothing to indicate that any such circumstances obtained in his case. The fresh indictment against the applicant for war crimes in the second set of proceedings was thus in compliance with the requirements of Articles 2 and 3 of the Convention, such that Article 4 of Protocol No. 7 was not applicable.
Conclusion: inadmissible (sixteen votes to one).
Updated: 16 December 2021; Ref: scu.533845