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in the case of
SRETKO DAMJANOVIC v. THE FEDERATION OF BOSNIA AND HERZEGOVINA
(Case No. CH/98/638)
FACTUAL BACKGROUND
The applicant, who is a citizen of Bosnia and Herzegovina of Serb
origin, was convicted of genocide and war crimes against the
civilian population by a Military Court in Sarajevo in 1993. In
December 1996 the applicant submitted a petition to the then
Sarajevo High Court for the reopening of the criminal proceedings
based on the discovery of new evidence. In May and October 1997
the (by then) Cantonal Court in Sarajevo rejected the petition.
The applicant appealed against these decisions and certain
procedural decisions. His appeals were finally rejected by the
Supreme Court of the Federation of Bosnia and Herzegovina in
February 1998. The applicant is identical with the applicant in
case no. CH/96/30 Damjanović v. the Federation of Bosnia and
Herzegovina, in which the Chamber had found the death sentence
inflicted to the applicant to be in violation of the Federation’s
obligations under the Human Rights Agreement. In the case now
decided by the Chamber, the applicant complained that he did not
receive a fair trial in the proceedings upon his request to re-
open his case.
FINDINGS OF THE CHAMBER
Admissibility
As to admissibility, the issue was particularly whether the
Chamber was competent (ratione materiae) to examine whether the
fair trial guarantees contained in Article 6 of the European
Convention on Human Rights were at all applicable to the
proceedings leading to the rejection of the applicant’s petition
to be granted a re-trial. The Chamber noted that the case-law of
the European Commission on Human Rights suggested that Article 6
of the Convention does not apply to such proceedings. However, in
the light of the particular circumstances of the case, in
particular the fact that in rejecting the applicant’s petition the
Cantonal Court had “altered the factual finding” of the Military
Court that found the applicant guilty and thereby re-determined
the charges against the applicant, the Chamber concluded that it
had jurisdiction to examine the complaint on the merits.
Merits
Article 6 of the European Convention on Human Rights
As to the merits, the Chamber found that the applicant had not
been granted a fair trial in the proceedings that lead to the
rejection of his petition for a re-trial and thus did not satisfy
the requirements of a fair trial within the meaning of Article 6
of the Convention. This conclusion was reached on the basis of the
finding that “the reasoning of the Cantonal Court is grossly
inadequate and devoid of the appearance of fairness” and that the
applicant did not enjoy a fair chance to appeal to the Supreme
Court against the decision of the Cantonal Court.
REMEDIES
The Chamber ordered the respondent Party to grant the applicant a
re-trial.
Messrs. Grotrian and Tadić attached a dissenting opinion to the
decision. Ms. Picard attached a partly dissenting opinion.
Decision delivered 11 February 2000
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