in the case of

EDIN GARAPLIJA v. THE FEDERATION OF BOSNIA AND HERZEGOVINA 
(Case No. CH/98/934)

FACTUAL BACKGROUND

Mr. Garaplija, a citizen of Bosnia and Herzegovina of Bosniak descent, is a police officer with the Bosnian State Security Service, the Agency for Investigation and Documentation (“AID”). On 13 June 1997 he was convicted by the Sarajevo Cantonal Court of abduction and attempted murder, and sentenced to 13 years of imprisonment. This judgment was confirmed on appeal by the Supreme Court of the Federation of Bosnia and Herzegovina on 26 May 1998. The applicant complains that his trial was unfair, claiming that he was unable to defend himself properly and also that he should have been granted a pardon.

FINDINGS OF THE CHAMBER

Admissibility

The Chamber declared the application inadmissible with respect to the claim of the applicant that he was entitled to a pardon, as the Human Rights Agreement contains no such right. Concerning the claim that the applicant did not receive a fair trial, the Chamber declared this part of the application admissible.

Merits

Article 6 of the European Convention on Human Rights
The Chamber first examined whether the right of the applicant to defend himself in person or through legal assistance, as guaranteed by Article 6 paragraph 3(c) of the Convention, had been violated. It concluded that it had not, as the applicant did not raise these issues during the proceedings before the domestic courts. In addition, the Chamber did not find it established that it was not open to the applicant to revoke the authorisation of his representative in those proceedings.

The Chamber also examined whether the fact that the applicant was not present during the appellate proceedings before the Supreme Court deprived him of a fair hearing. It recalled that the presence of the defendant is a requirement of the guarantee of the right to a fair trial, contained in Article 6 paragraphs 1 and 3(c) of the Convention. The Chamber also examined the jurisdiction of the Supreme Court, and held that as it examined questions of both law and fact, the guarantees required by paragraphs 1 and 3(c) of Article 6 also applied to the proceedings before the Supreme Court. The applicant claimed that he was not allowed to attend the hearing, while the Federation claimed that he would have been allowed to, but he would have been required to pay for the costs of his attendance.

The Chamber concluded, on the basis of its examination of the proceedings before the domestic courts as a whole, that the right of the applicant to be present during the appellate proceedings was not respected. Therefore, the rights of the applicant as guaranteed by paragraphs 1 and 3(c) of Article 6 of the Convention had been violated.

REMEDIES

The Chamber ordered the Federation to take all necessary steps to grant the applicant renewed appellate proceedings, if he lodged a petition to that effect.

Decision delivered 6 July 2000