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in the case of
V.C. v. BOSNIA AND HERZEGOVINA AND
THE FEDERATION OF BOSNIA AND HERZEGOVINA
(Case No. CH/98/1366)
FACTUAL BACKGROUND
The present case is a so-called “Rules of the Road” case. According
to paragraph 5 of the Rome Agreement of 18 February 1996, signed by
(then) Presidents Izetbegović, Tuđman and Milošević and generally
referred to as the “Rules of the Road”, persons suspected of
genocide or war crimes may be arrested only if the indictment or
arrest warrant against them has been previously reviewed by the
Prosecutor of the International Criminal Tribunal for the Former
Yugoslavia (“ICTY”) in the Hague.
The applicant in this case is a citizen of Bosnia and Herzegovina
of Serb nationality from Foča (Srbinje), Republika Srpska. In June
1996 he was arrested in Sarajevo on account of charges of war
crimes and genocide committed in 1992 against the Muslim civilian
population of Foča. The indictment against him was transmitted to
the Prosecutor of the ICTY only in April 1997. The Prosecutor
expressed the view that the evidence presented to her was
sufficient only to justify proceedings for unlawful confinement or
imprisonment of civilians. In the following, the indictment was
amended several times in order to bring it in line with the opinion
of the ICTY Prosecutor. However, also the final indictment
contained charges that were not considered acceptable in the
opinion of the ICTY Prosecutor. On 19 January 1998 the Cantonal
Court in Sarajevo found the applicant guilty as charged and
sentenced him to eleven years imprisonment. The appeals judgement
of 16 June 1998 reduced the sentence imposed to nine years. In the
meantime, the applicant was released on probation.
FINDINGS OF THE CHAMBER
Admissibility
The Chamber first of all noted that the administration of justice
is not among the matters falling within the competence of the State
of Bosnia and Herzegovina according to the relevant provisions of
its Constitution. It therefore declared the application
inadmissible insofar as it was directed against Bosnia and
Herzegovina on the ground that it was incompatible ratione personae
with Article 1 of the Human Rights Agreement (Annex 6 to the GFAP).
The Chamber rejected the argument made by the Federation that
alleged violations of the Rules of the Road are within the
exclusive competence of the ICTY and that the Chamber therefore has
no jurisdiction over the applicant’s case. The Chamber noted that
there was no provision in the Rules of the Road, in the Statute of
the ICTY or in its Rules of Procedure and Evidence to the effect
that the ICTY was competent to adjudicate violations of the Rules
of the Road. The Chamber also recalled that it had in several
previous cases examined violations of the Rules of the Road and
found that they constituted violations of the Human Rights
Agreement.
Merits
Article 5 (1) of the European Convention on Human Rights
As in several previous cases, the Chamber found that the
applicant’s arrest and detention carried out without previously
obtaining the opinion of the ICTY Prosecutor were in violation of
the Rules of the Road and therefore unlawful. It concluded that
there had been a violation of Article 5 paragraph 1 of the
Convention (right to liberty and security of person) from the date
of the applicant’s arrest to the date of the opinion of the ICTY
Prosecutor.
Article 6 (1) of the Convention
In this case the Chamber was called to rule for the first time on
the relationship between alleged violations of the Rules of the
Road and the right to a fair trial, protected by Article 6 of the
Convention. It held that the wording of the Rules of the Road in
fact revealed that they were agreed on in order to prevent
arbitrary arrests on groundless genocide and war crimes charges.
Nevertheless, the Chamber found that, in order to fulfil their
object and purpose, the Rules of the Road had to be interpreted as
providing that also criminal trials on such charges had to comply
with the opinion given by the ICTY Prosecutor.
The Chamber found that the Cantonal Court convicted the applicant
on charges that were not acceptable according to the opinion of the
ICTY Prosecutor. With regard to the judgement of the Supreme Court,
the Chamber concluded that “the ambiguous and contradictory stance
taken by the Supreme Court in relation to the core argument of the
applicant’s appeal and its failure to make a clear ruling on the
applicant’s guilt under the charges excluded by the opinion of the
ICTY Prosecutor is incompatible with the requirements of a fair
trial. There has therefore been a violation of Article 6 paragraph
1”.
Article 6 (3) (b) and (c) of the Convention
The Chamber also found that the restrictions on the applicant’s
contacts with his defence counsel during the first phase of his
detention constituted a violation of his right to the assistance
of a lawyer in the preparation of his defence, as protected by
Article 6 paragraph 3 (b) and (c).
Finally, the Chamber found no violation of the applicant’s right
to have examined the witnesses against him and to obtain the
attendance and examination of witnesses on his own behalf under
the same conditions as the witnesses against him.
REMEDIES
The Chamber ordered the respondent Party to grant the applicant a
re-trial, in case he should again lodge a petition to that effect.
It further ordered the respondent Party to pay the applicant KM
4,000 as compensation for non-pecuniary damages suffered in
connection with his eleven months of detention in violation of
Article 5 of the Convention.
Messrs. Masenko-Mavi and Deković attached a partly dissenting
opinion to the decision.
Decision delivered 9 March 2000
REQUEST FOR REVIEW
The respondent Party requested the Plenary Chamber to review the
decision of the Second Panel concerning the admissibility, the
merits and the remedies ordered. By decision of 12 May 2000, the
Plenary Chamber rejected the request for review concerning the
admissibility of the application and accepted the request to
review the Second Panel’s findings on the merits as well as the
remedies.
DECISION ON REVIEW
In its decision on review, the Plenary Chamber found, as the
Second Panel had previously, that the "Rules of the Road" were
binding on the Federation already at the time when the applicant
was arrested. The applicant's arrest and detention in
contravention of the "Rules of the Road", being for that reason
unlawful, therefore constituted a violation of Article 5 of the
Convention.
Since the applicant had been tried and convicted on charges not
allowed by the ICTY Prosecutor, the Plenary Chamber endorsed the
finding of the Second Panel that the judgment of the Sarajevo
Cantonal Court, which had been wrongly upheld by the Federation
Supreme Court, constituted a violation of Article 6. The Plenary
Chamber also accepted the Second Panel's finding that in view of
severe restrictions placed on contacts between the applicant and
his lawyer the criminal proceedings had not been impartial and
fair.
Having endorsed the Second Panel's findings on the merits, the
Plenary Chamber also endorsed - in a clearer form - the orders
addressed to the Federation of Bosnia and Herzegovina as
respondent Party, namely an order for a re-trial should the
applicant ask for one and an order for financial compensation.
Mr. Balić attached a dissenting opinion to the decision.
Decision delivered 9 November 2000
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