AS TO THE ADMISSIBILITY OF
by Mladen NALETILIĆ
The European Court of Human Rights (Fourth Section), sitting on 4 May 2000 as a Chamber composed of
Mr G. Ress, President,
Mr I. Cabral Barreto,
Mr V. Butkevych,
Mrs N. Vajić,
Mr J. Hedigan,
Mr M. Pellonpää,
Mrs S. Botoucharova, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application introduced on 15 October 1999 and registered on 18 October 1999,
Having deliberated, decides as follows:
The applicant is a Croatian citizen, born in 1946 and presently in the penitentiary of the International Criminal Tribunal for the Former Yugoslavia (ICTY) at The Hague, the Netherlands. He is represented before the Court by Mr Krešimir Krsink, a lawyer practising in Zagreb (Croatia).
The facts of the case, as submitted by the applicant, may be summarised as follows.
At the time when he lodged his application with the Court the applicant was in custody in Zagreb District Penitentiary, Hospital for Detained Persons, in the context of criminal proceedings pending against him before the Zagreb County Court (Županijski sud u Zagrebu) for kidnapping, murder and participation in a group that committed a crime.
On 21 December 1998 the applicant was indicted by the ICTY on seventeen counts including crimes against humanity, grave breaches of the Geneva Conventions and violations of the laws and customs of war.
On 1 September 1999 the Zagreb County Court ordered that the applicant be handed over to the ICTY. Both the Supreme and Constitutional Courts, upon the applicant’s appeal, upheld that decision.
On 15 October 1999 the applicant lodged with the Court a Rule 39 request which was not granted by decision of the President of the Fourth Section of the same day.
He is presently in custody in the penitentiary of the ICTY at The Hague, the Netherlands, in the context of criminal proceedings pending against him.
The applicant complains under Article 6 § 1 of the Convention that in case of his extradition to the ICTY, criminal proceedings against him in Croatia would necessarily be suspended which would amount to a violation of his right to be tried within a reasonable time.
He further complains also under Article 6 § 1 of the Convention, that the ICTY is not an independent and impartial tribunal established by law.
He also complains, under Article 7 of the Convention that in Croatia he could have been sentenced to a maximum prison term of twenty years, while the ICTY may sentence him to life imprisonment.
1. The applicant raises two separate issues under Article 6 § 1 of the Convention, the relevant parts of which provide:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...”
a. Firstly, the applicant complains that in the case of his “extradition” to the ICTY, criminal proceedings against him in Croatia would have to be suspended and that this would amount to a violation of his right to be tried within a reasonable time.
The Court notes that the applicant does not complain about the length of the proceedings that have been instituted against him in Croatia prior to the decision to hand him over to the ICTY. He complains as to the fact that - because of his extradition to the ICTY - the present criminal proceedings pending against him in Croatia would in future necessarily exceed a reasonable time within the meaning of Article 6 § 1 of the Convention. In this respect the Court notes that even the possibility of such future proceedings is doubtful, because they might be continued only in the event the applicant is acquitted by the Hague Tribunal or if the proceedings before the ICTY are stayed for some reason.
As it is uncertain whether any future proceedings against the applicant before the Croatian courts would take place, and as the Court cannot take into consideration the length of some hypothetical future proceedings, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and, therefore, must be rejected in accordance with Article 35 § 4.
b. Secondly, the applicant complains that the ICTY is not an impartial and independent tribunal established by law.
The Court recalls that exceptionally, an issue might be raised under Article 6 of the Convention by an extradition decision in circumstances where the applicant risks suffering a flagrant denial of a fair trial. However, it is not an act in the nature of an extradition which is at stake here, as the applicant seems to think. Involved here is the surrender to an international court which, in view of the content of its Statute and Rules of Procedure, offers all the necessary guarantees including those of impartiality and independence.
Accordingly, no issue arises under Article 6 § 1 in this respect.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and, therefore, must be rejected in accordance with Article 35 § 4.
2. The applicant further complains under Article 7 of the Convention that he might be sentenced to a heavier penalty by the ICTY than by the domestic courts.
Article 7 reads as follows:
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”
As to the applicant’s contention that he might receive a heavier punishment by the ICTY than he might have received by domestic courts if the latter exercised their jurisdiction to finalise the proceedings against him, the Court notes that, even assuming Article 7 of the Convention to apply to the present case, the specific provision that could be applicable to it would be paragraph 2 rather than paragraph 1 of Article 7 of the Convention. This means that the second sentence of Article 7 § 1 of the Convention invoked by the applicant could not apply.
It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and, therefore, must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Vincent Berger Georg Ress