Case No.: CH/98/1335, CH/98/1370, CH/99/1505, CH/99/2805 and CH/00/4371
Applicant: Zuhdija RIZVIĆ, Sead HUSKIĆ, Almir ŠABANČEVIĆ, Ahmet SEFIĆ and Ismet GRAČANIN
Respondent Party: Federation of Bosnia and Herzegovina
Date Delivered: 8 March 2002 (partial decision on admissibility and decision on the merits)

DECISION ON ADMISSIBILITY AND MERITS

Factual Background

On 27 September 1993 Fikret Abdic proclaimed the "Autonomous Province of Western Bosnia" (the "Autonomy") on the territory of the Velika Kladuša and Cazin municipalities. The applicants Rizvic, Huskic, Šabancevic and Gracanin, all of Bosniak descent, were members of the armed forces of the Autonomy. The applicant Sefic, also of Bosniak descent, was detained in the Serb run concentration camp "Sana Keran" in the Una-Sana Canton. After the victory of the Army of Bosnia and Herzegovina over the armed forces of the Autonomy, the applicants were arrested, indicted and convicted either for having committed war crimes or for multiple counts of murder.

Admissibility (separate decisions of 3 July, 12 October and 7 November 2001, respectively, and partial decision of 5 March 2002)

The Chamber declared all the applications admissible as to the claims of the right to fair trial and the non-compliance of the respondent Party with the Rules of the Road. For some of the applicants, the Chamber also found admissible claims of maltreatment during police custody, or custody in the district prison, lack of investigation by the investigative judge and double jeopardy.

Merits

Article 3 of the Convention

The Chamber noted that in order to fall within the scope of Article 3, the treatment complained of must have attained a minimal amount of severity. The Chamber paid particular attention to the vulnerability of the applicants during police custody, duration of custody, and their inability to protect themselves during beating incidents. Reviewing the evidence, the Chamber found that applicants Huskic, Šabancevic and Gracanin could not protect themselves against the police officers punching, kicking and beating their bodies, heads and foot soles with baseball bats and rubber truncheons for days on end. The Chamber found that this amounted to inhuman and degrading treatment in violation of Article 3. The Chamber found that there had been no violation of Article 3 in the case of the applicant Rizvic, since that applicant's allegations of ill-treatment in the Bihac District Prison were unsubstantiated.

Article 5 of the Convention

The Chamber found that the respondent Party did not comply with the Rules of the Road in any of the cases, thereby violating Article 5, paragraph 1 rights of all the applicants. The Chamber noted that the Rules of the Road became law on 18 February 1996 and that even for applicants arrested very shortly afterwards, the respondent Party had an obligation to comply with the Rules during the applicants' subsequent custody. In response to the Federation's claim that the Bihac courts were not aware of the Rules of the Road, the Chamber observed that it was the respondent Party's duty to make the courts aware of the Rules and that failure to do so was a violation of the Convention.

Article 6 of the Convention

As to the right to a fair trial, guaranteed by Article 6 paragraph 1, the Chamber concluded that there had been no violation in the cases of the applicants Sefic and Gracanin. In the cases of the applicants Huskic, Rizvic, and Šabancevic however, the Chamber did establish violations of this right. The Chamber found that Huskic was not informed sufficiently of the accusation against him and not given adequate opportunity to prepare his defence. In addition, the Chamber noted that under domestic law, there was no possibility for the applicant to appeal against his conviction on the ground that he was found guilty of an offence different from the one he was charged with. The violations in the cases of Šabancevic and Rizvic concerned their rights to examine and call witnesses. The Chamber did not find the amount of witnesses heard on proposal of the prosecution and on proposal of the defence necessarily disproportionate. However, in combination with the fact that the testimony of one of the refused witnesses appeared to have possibly been of significant importance to the outcome of the proceedings, and the importance of confronting witnesses with the fact that their testimony was contradictory on decisive points, the Chamber was of the opinion that the court's reasoning in rejecting the defence's request that there had been enough hearings and testimony in the case in order for the court to reach a decision, was insufficient and not consistent with the concept of a fair trial.

Article 4 of Protocol No. 7 to the Convention

The Chamber found that there had been no violation of the right of the applicant Gracanin not to be tried or punished for the same crime twice as guaranteed under Article 4 of Protocol No. 7 to the Convention.

Remedies

The Chamber ordered the Federation of Bosnia and Herzegovina to pay to the applicants Huskic, Šabancevic and Gracanin the sum of KM 3,000 by way of compensation for the maltreatment suffered while in custody of the Bihac police. The Chamber further ordered that the applicant Huskic be released from detention at the latest when the Chamber's decision becomes final and binding in accordance with its Rules of Procedure. The Chamber ordered the Federation of Bosnia and Herzegovina to pay to the applicant Gracanin the sum of KM 2,000 by way of compensation for his unlawful detention. Finally, the Chamber ordered the Federation of Bosnia and Herzegovina to take all necessary steps to re-try the criminal cases against the applicants Rizvic, Huskic and Šabancevic.

Decision adopted 5 March 2002
Decision delivered 8 March 2002


DECISION ON REQUEST FOR REVIEW

In his request for review, the applicant, Ahmet Sefic, case no. CH/99/2805, argued that (a) the Chamber in finding no violation of Article 6 of the Convention, had failed to consider the fact that he did not have adequate time to prepare his defence after his indictment had been changed from charging him with war crimes to charging him with ordinary murder, which the applicant only learned on the day of the trial; (b) that the Chamber in finding no violation of Article 6 of the Convention, did not adequately consider his allegation that witnesses proposed by him were not heard; and (c) that although in both his case and the case of the applicant Gracanin a violation of Article 5 paragraph 1 was found, and although the applicant was held in unlawful detention for almost seven months, the Chamber did not award him any compensation, whereas it awarded the applicant Gracanin KM 2,000. The Chamber decided that with respect to all the issues raised in the request for review, it could not be said that they raised "a serious question affecting the interpretation or application of the Agreement or a serious issue of general importance", as required by Rule 64 paragraph 2(b) of its Rules of Procedure. Therefore the Chamber decided to reject the request for review.