Case No.: CH/02/8679, CH/02/8689, CH/02/8690 and CH/02/8691
Applicant: Hadž BOUDELLAA, Boumediene LAKHDAR, Mohamed NECHLE and Saber LAHMAR
Respondent Party: Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina
Date Delivered: 11 October 2002

DECISION ON ADMISSIBILITY AND MERITS

Factual Background

The applicants Boudellaa, Lakhdar, and Nechle obtained citizenship of Bosnia and Herzegovina and of the Federation of Bosnia and Herzegovina on 2 January 1995, 20 December 1997, and 25 August 1995, respectively. The applicant Lahmar was granted a permit for permanent residence in Bosnia and Herzegovina on 4 April 1997. In October 2001 the applicants were arrested and taken into custody on the suspicion of having planned a terrorist attack on the Embassies of the United States and the United Kingdom in Sarajevo. In November 2001 the Federal Ministry of Interior issued decisions revoking the citizenship of Bosnia and Herzegovina and of the Federation of Bosnia and Herzegovina of the applicants Boudellaa, Lakhdar and Nechle. They initiated an administrative dispute before the Supreme Court of the Federation against these decisions. The proceedings were still pending at the time of adoption of the Chamber's decisions. Also in November 2001 the Ministry of Human Rights and Refugees issued a decision terminating the permit for permanent residence of the applicant Lahmar in Bosnia and Herzegovina and banishing him from the country for a period of ten years. The applicant Lahmar appealed against this decision. The appeal was still pending at the time of adoption of the Chamber's decision. On 17 January 2002 the applicants were ordered to be released from pre-trial detention. However, instead of being released, they were immediately taken into the custody of the Federation Police, and the following day they were handed over to the military forces of the United States of America based in Bosnia and Herzegovina as part of the NATO led Stabilization Forces ("SFOR"). At that time, the applicants Boudellaa, Lakhdar and Nechle received decisions on "refusal of entry" ordering them to leave the territory of Bosnia and Herzegovina immediately. Within hours, they were transferred to the U.S. military detention facility at Guantanamo Bay, Cuba.

The expulsion of the applicants raised issues under Article 1 of Protocol No. 7 to the European Convention on Human Rights, which provides for procedural safeguards in relation to the expulsion of aliens. In case that the applicants were still to be considered citizens of Bosnia and Herzegovina the cases raise issues under Article 3 of Protocol No. 4 to the Convention which prohibits the expulsion of nationals. The cases also raised issues under Article 5 and 8 of the Convention.

The delivery of the applicants to U.S. authorities and their subsequent detention in Guantanamo Bay, Cuba, might give rise to a violation of Article 3, the prohibition of torture or inhuman or degrading treatment, to a violation of Article 1 of Protocol No. 6 to the Convention which contains the abolition of the death penalty, and to a violation of Article 6 of the Convention as the applicants claimed that any trial that they may face by U.S. authorities might not be a fair trial.

Admissibility

Bosnia and Herzegovina raised the objection that it could not be considered a respondent Party as the applications were directed solely against the Federation and that it could not be held responsible for possible violations in the present cases. The Chamber held that in accordance with its previous jurisprudence, recalling Zahirovic v. Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina, it was not precluded from examining the potential responsibility of Bosnia and Herzegovina for the events complained of, as it is not restricted by the applicants' choice of respondent Party.

As regards exhaustion of domestic remedies, the Chamber held that the applicants had complied with their requirement to make normal use of effective domestic remedies. However, as regards the applicants' complaints concerning the right to have one's status as a citizen determined within a reasonable time, the Chamber declared this complaint inadmissible ratione materiae as it is not a right which is included among the rights and freedoms guaranteed under the Agreement.

The Chamber declared the remainder of the applications admissible.

Merits

Article 1 of Protocol No. 7 to the Convention

The Chamber found with respect to the expulsion of all four applicants that both respondent Parties failed to act in accordance with the domestic laws of Bosnia and Herzegovina and of the Federation of Bosnia and Herzegovina governing the expulsion of aliens. Although the Chamber did not decide whether the applicants were still citizens at the time of their expulsion, it found that by not acting in accordance with the law both respondent Parties violated Article 1 of Protocol No. 7 to the Convention which provides for procedural safeguards in relation to the expulsion of aliens.

Article 5 paragraph 1 of the Convention

The Chamber found that both respondent Parties violated the rights of the applicants protected by Article 5 paragraph 1 of the Convention with regard to the period from the entry into force of the decision of the Supreme Court of the Federation of Bosnia and Herzegovina to release the applicants on 17 January 2002 until the hand-over of the applicants to U.S. forces.

Article 6 paragraph 2 of the Convention.

The Chamber also found that the decisions withdrawing the citizenship, violated the right of the applicants Boudellaa, Lakhdar and Nechle to be presumed innocent until proven guilty according to law as guaranteed by Article 6 paragraph 2 of the Convention.

Article 1 of Protocol No. 6 to the Convention

The Chamber further examined the obligations of the respondent Parties in handing over the applicants to U.S. forces, which lead to their present detention at Camp X-Ray in Guantanamo Bay, Cuba. Taking into consideration the possibility that U.S. authorities might seek and potentially impose the death penalty against the applicants, the Chamber found that the respondent Parties should have sought assurances from the United States prior to handing over the applicants to U.S. forces that the death penalty would not be imposed upon them; failing to do so constituted a violation of Article 1 of Protocol No. 6 to the Convention.

Articles 3, 6 and 8 of the Convention

The Chamber concluded that the respondent Parties did not violate their obligation under Article 3 of the Convention to protect the applicants from torture or inhuman or degrading treatment or punishment by handing them over to U.S. forces and further concluded that it was not necessary to separately examine their complaints under Articles 6 and 8 of the Convention.

Remedies

The Chamber ordered Bosnia and Herzegovina to take all necessary steps to annul the decisions on refusal of entry issued in respect of three of the applicants on 10 January 2002, to take all necessary steps to decide, as a matter of urgency, on the appeal of the applicant Lahmar against his expulsion order, to take all necessary steps to ensure that the administrative dispute before the Supreme Court of the Federation of Bosnia and Herzegovina concerning the decisions revoking the citizenship of the applicants Boudellaa, Nechle, and Lakhdar is decided, to use diplomatic channels in order to protect the basic rights of the applicants and to take all possible steps to establish contacts with the applicants and to provide them with consular support. Bosnia and Herzegovina was further ordered to take all possible steps to prevent the death penalty from being pronounced against and executed on the applicants, including seeking assurances from the United States via diplomatic contacts that the applicants will not be subjected to the death penalty. Both respondent Parties were ordered to retain lawyers authorised and admitted to practice in the relevant jurisdictions and before the relevant courts, tribunals or other authoritative bodies in order to take all necessary action to protect the applicants' rights while in U.S. custody and in case of possible military, criminal or other proceedings involving the applicants, each of the respondent Parties bearing half the cost of the attorney fees and expenses.

The Chamber further ordered the respondent Parties to compensate each applicant in the amount of 10,000 KM for their suffering arising from the violations found. The respondent Parties were ordered pay this compensation to the applicants' families in Bosnia and Herzegovina if they do not return within a year. Both respondent Parties were also ordered to report to the Chamber no later than 11 November 2002, and thereafter periodically every two months until full implementation of the Chamber's decision is achieved, on all steps taken by the respondent Parties to implement the decision

Dissenting Opinions

Mme. Michele Picard attached a partly dissenting opinion in which she disagreed that it was not necessary to examine the applications separately under Article 6 of the Convention. The European Court of Human Rights did not exclude that a decision on extradition could exceptionally raise a problem under Article 6, where there is a risk that the applicant would suffer "a flagrant denial of justice" in the receiving State. While there are considerable doubts whether the applicants will face the death penalty, there seems to be no doubt that the risk of suffering a flagrant denial of justice exists. Considering the rules of criminal proceedings in force in the American legal system, that is an "accusatory" system, which relies to a great extent on the equality of arms between the defence and the prosecution, the absence of these guarantees might lead to a totally unfair trial.

Mr. Dietrich Rauschning attached a partly dissenting opinion in which he disagreed with the finding that the applicants were in real risk of facing the death penalty and therefore there was no obligation to seek assurances that the death penalty would not be imposed or carried out. Additionally, Mr. Rauschning also disagreed with the finding that the applicants were handed over into illegal detention by U.S. forces as insufficient consideration had been given to the armed conflict with international terrorism and claims that the U.S. is entitled to detain members of the enemy's forces according to international law. Finally, Mr. Rauschning disagreed with the finding of a violation of the presumption of innocence on the basis that the presumption of innocence does not forbid that decisions in administrative matters may be based on other evidence, such as a decision of the prosecutor to open a criminal investigation. The presumption of innocence, which aims to protect the fairness of criminal proceedings, cannot be interpreted so widely as to forbid that.

Mr. Viktor Masenko-Mavi, joined by Mr. Giovanni Grasso, attached a partly dissenting opinion arguing that there was a serious reason to believe that the applicants' rights secured by Articles 3 and 6 of the Convention might be violated. The legal uncertainty created by the U.S. President's Military Order of 13 November 2001 should have prompted the authorities of Bosnia and Herzegovina and the Federation to carefully consider the issues covered by Articles 3 and 6 of the Convention. The rights secured by Articles 3 and 6 of the Convention are of extreme importance, and in cases where there is a real risk of their flagrant violation, the extraditing or expelling State is bound either to take measures aimed at securing the guarantees enshrined in them or to refuse the extradition or expulsion.

Mr. Mato Tadic, joined by Mr. Miodrag Pajic, argued in a dissenting opinion, firstly, that the applications were inadmissible for failure to exhaust domestic remedies. The applicants failed to request postponement of enforcement of the procedural decisions of 16 and 20 November 2001, thus allowing the domestic authorities to continue the proceedings. The defence statement that a positive outcome could not be expected is unacceptable. Secondly, The respondent Parties have accepted the United Nations Security Council Resolution 1373 and joined the fight against all forms of terrorism, aiming to prevent the actions of potential perpetrators or conspirators; thereby, they obliged themselves to take appropriate steps. Certainly, that fight against terrorism does not imply human rights violations. At the same time, however, Bosnia and Herzegovina, being an infant State in transition and under a special kind of protectorate, should not be expected to meet such highly demanding standards which would hardly even be complied with by some countries with highly established legal systems and the rule of law.

Decision adopted 3 September 2002
Decision delivered 11 October 2002