Stanislav GALIC v the Netherlands - 22617/07 [2009] ECHR 1106 (9 June 2009)

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The European Court of Human Rights (Third Section), sitting on 9 June 2009 as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura-Sandström,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Luis López Guerra,
Ann Power, judges,
and Stanley Naismith, Deputy Section Registrar,

1. The applicant, Mr Stanislav Galić, is a Serbian national who was born in 1943. He is currently detained in a prison in Germany, serving a life sentence imposed by the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (also known as the International Criminal Tribunal for the Former Yugoslavia, hereafter the ICTY). He was represented before the Court by Mr S. Piletta-Zanin, a lawyer practising in Geneva.

2. The facts of the case, as submitted by the applicant and as apparent from documents accessible to the public, may be summarised as follows.

3. On 26 March 1999, the ICTY’s Prosecutor indicted the applicant in the following terms:

The Prosecutor of the International Criminal Tribunal for the former Yugoslavia, pursuant to her authority under Article 18 of the Statute of the Tribunal charges:

with CRIMES AGAINST HUMANITY and VIOLATIONS OF THE LAWS AND CUSTOMS OF WAR as set forth below:

6. The Sarajevo Romanija Corps formed a significant part of the VRS [i.e. Vojska Republike Srpske (“Army of the Serb Republic”), Bosnian Serb Army] under the ultimate command of Ratko MLADIC, the Commander of the Main Staff and Radovan KARADZIC, initially President of the Presidency of the Bosnian Serb administration in Bosnia and Herzegovina and, subsequently, as President of the ‘Republika Srpska’ and designated Supreme Commander of its armed forces.

7. By 10 September 1992 the Sarajevo Romanija Corps controlled all the Bosnian Serb territory around Sarajevo, including established confrontation lines and artillery positions.

8. STANISLAV GALIC, during his period as Corps Commander of the Sarajevo Romanija Corps, was in a position of superior authority to approximately 18,000 military personnel, formed into 10 brigades.

9. As Corps Commander of the Sarajevo Romanija Corps, STANISLAV GALIC demonstrated his authority and control over forces comprising and attached to the Sarajevo Romanija Corps, inter alia, by participating in negotiations and the implementation of a heavy weapons total exclusion zone (TEZ), controlling access of UNPROFOR and other UN personnel to territory around Sarajevo and, in particular, heavy weapon sites.

10. STANISLAV GALIC bears individual criminal responsibility for planning, instigating, ordering, committing, or otherwise aiding and abetting, in the planning, preparation or execution of the campaign of shelling and sniping against the civilian population of Sarajevo and the acts set forth below by the forces and persons under his command, pursuant to Article 7(1) of the Statute of the Tribunal.

11. STANISLAV GALIC also bears individual criminal responsibility as a Commander of the Sarajevo Romanija Corps, responsible for the conduct of subordinates in respect of whom he was in a position of superior authority. STANISLAV GALIC is responsible for the acts and omissions of his subordinates, knowing, or having reason to know, that the subordinates were about to commit such acts, or had done so, failing to take reasonable steps to prevent such acts, or to punish the perpetrators thereof. By failing to take the actions required of a person in superior authority, STANISLAV GALIC is responsible for the acts and omissions set forth below pursuant to Article 7(3) of the Statute of the Tribunal.

From about 10 September 1992 to about 10 August 1994, STANISLAV GALIC, as Commander of Bosnian Serb forces comprising or attached to the Sarajevo Romanija Corps, conducted a protracted campaign of shelling and sniping upon civilian areas of Sarajevo and upon the civilian population thereby inflicting terror and mental suffering upon its civilian population.

COUNT 1: Violations of the Laws or Customs of War (unlawfully inflicting terror upon civilians as set forth in Article 51 of Additional Protocol I and Article 13 of Additional Protocol II to the Geneva Conventions of 1949) punishable under Article 3 of the Statute of the Tribunal.

Between 10 September 1992 and 10 August 1994, STANISLAV GALIC, as Commander of Bosnian Serb forces comprising or attached to the Sarajevo Romanija Corps, conducted a coordinated and protracted campaign of sniper attacks upon the civilian population of Sarajevo, killing and wounding a large number of civilians of all ages and both sexes, such attacks by their nature involving the deliberate targeting of civilians with direct fire weapons. Specific instances of these attacks include, by way of representative allegations, those matters set forth in the First Schedule to this indictment.

COUNT 2: Crimes against Humanity (murder) punishable under Article 5(a) of the Statute of the Tribunal.

COUNT 3: Crimes against Humanity (inhumane acts-other than murder) punishable under Article 5(i) of the Statute of the Tribunal.

COUNT 4: Violations of the Laws or Customs of War (attacks on civilians as set forth in Article 51 of Additional Protocol I and Article 13 of Additional Protocol II to the Geneva Conventions of 1949) punishable under Article 3 of the Statute of the Tribunal.

Between 10 September 1992 and 10 August 1994, STANISLAV GALIC, as Commander of Bosnian Serb forces comprising or attached to the Sarajevo Romanija Corps, conducted a coordinated and protracted campaign of artillery and mortar shelling onto civilian areas of Sarajevo and upon its civilian population. The campaign of shelling resulted in thousands of civilians being killed or injured. Specific instances of this shelling include, by way of representative allegations, the matters set forth in the Second Schedule to this indictment.

COUNT 5: Crimes against Humanity (murder) punishable under Article 5(a) of the Statute of the Tribunal.

COUNT 6: Crimes against Humanity (inhumane acts-other than murder) punishable under Article 5(i) of the Statute of the Tribunal.

COUNT 7: Violations of the Laws or Customs of War (attacks on civilians as set forth in Article 51 of Additional Protocol I and Article 13 of Additional Protocol II to the Geneva Conventions of 1949) punishable under Article 3 of the Statute of the Tribunal.”

6. On 22 December 1999 the ICTY’s Acting President assigned the applicant’s case to Trial Chamber I.

7. On 29 December 1999 the applicant made his initial appearance in open court, on which occasion he pleaded not guilty to all charges. On the same day the applicant was ordered to be placed in detention on remand until further order.

8. The applicant’s trial opened on 3 December 2001. The Trial Chamber sat in a formation of three judges presided over by Judge O., who had been elected to the ICTY as a permanent judge the previous month.

9. On 3 October 2002, on a motion lodged by the applicant, the Trial Chamber acquitted the applicant of a number of sniping incidents but ordered the trial to continue for the remainder.

10. The trial closed on 9 May 2003. On 5 December 2003 the Trial Chamber gave judgment. By a majority, it found the applicant guilty of Counts 1, 2, 3, 5 and 6, acquitted him of Counts 4 and 7 and sentenced him to a single prison term of twenty years. One of the judges, Judge N., expressed a partly dissenting opinion on conviction and sentence.

11. The applicant appealed against his conviction and sentence. The prosecution appealed against the sentence.

12. On 30 November 2006 the Appeals Chamber gave judgment. It unanimously dismissed the applicant’s appeal. By a majority, it allowed the prosecution’s appeal and increased the sentence to life imprisonment, subject to credit being given for the time already spent in detention. Judge P., the presiding judge, appended a partially dissenting opinion in which he expressed the view that the case ought to have been remitted for a reassessment of the sentence. Another judge, Judge M., appended a dissenting opinion to the effect that the sentence imposed by the Trial Chamber was not so low that it could be considered out of keeping with the ICTY’s sentencing practice. A third judge, Judge Sc., dissented with regard to the applicant’s conviction on the first count of the indictment.

2. The indictment of Mr Ratko Mladić and the applicant’s challenge of Judge O.

13. On 10 October 2002 the ICTY’s Prosecutor presented an amended indictment against a different accused, Mr Ratko Mladić. This indictment included the following passages:

“7. Shortly after BiH [i.e. Bosnia and Herzegovina] was internationally recognised as an independent state on 6 April 1992, hostilities broke out in Sarajevo, marking the beginning of a conflict within the city, which would last until 1995. Even before the conflict began, armed forces occupied strategic positions in and around Sarajevo. The city was subsequently subjected to blockade, bombardment and sniper attacks from these positions. From May 1992, Bosnian Serb Forces under the command and control of General Ratko MLADIC used shelling and sniping to target civilian areas of the city and its civilian population and institutions, killing and wounding civilians, and thereby also inflicting terror upon the civilian population. Much of the bombardment and sniping was from positions in the hills around and overlooking Sarajevo, from which the attackers had a commanding view of the city, its population and institutions.”

“20. General Ratko MLADIC is individually criminally responsible pursuant to Article 7(1) of the Statute of the Tribunal for the crimes referred to in Articles 3, 4, and 5 of the Statute of the Tribunal as alleged in this indictment, which he planned, instigated, ordered, committed, or in whose planning, preparation or execution he otherwise aided and abetted. By using the word ‘committed’ in this indictment, the Prosecutor does not suggest that the accused physically committed any of the crimes charged personally. ‘Committed’ in this indictment includes participation in a joint criminal enterprise.

21. The objective of the joint criminal enterprise within BiH was the elimination or permanent removal, by force or other means, of Bosnian Muslim, Bosnian Croat, or other non-Serb inhabitants from large areas of BiH through the commission of crimes which are punishable under Articles 3, 4, and 5 of the Statute of the Tribunal. General Ratko MLADIC participated in the joint criminal enterprise as a co-perpetrator and/or an aider and abettor.

24. Numerous individuals participated in this joint criminal enterprise. Each participant, by acts or omissions, significantly contributed to the overall objective of the enterprise. General Ratko MLADIC worked in concert with or through other members of the joint criminal enterprise, including ... General Stanislav GALIC [the applicant] ...

25. As Commander of the Main Staff of the VRS, General Ratko MLADIC, acting individually and in concert with other members of the joint criminal enterprise, participated in the joint criminal enterprise from no later than 12 May 1992 until at least 22 December 1996 in the following ways:

(a) Planning, preparing, facilitating, or executing a campaign of persecutions, which included acts of genocide, within BiH, by establishing control of the municipalities listed in Paragraph 36 of the indictment [amongst others, Vogošća]; attacking and destroying non-Serb towns and villages, as well as looting, destroying, and/or appropriating residential, commercial and religious properties in the municipalities; killing and terrorising the non-Serb inhabitants, and submitting them to cruel and inhumane treatment and conditions, including physical, psychological and sexual abuse, often in detention facilities; using non-Serbs for forced labour, including at front lines, and as human shields; imposing restrictive and discriminatory measures on the non-Serb population; and separating, deporting, and permanently removing non-Serbs who did not subjugate themselves to Serb authorities;

(b) Planning, preparing, facilitating, or executing a protracted military campaign of artillery and mortar shelling and sniping into civilian areas of Sarajevo and upon its civilian population and institutions, killing and wounding civilians, and thereby inflicting terror upon its civilian population; ...”

“Count 1: GENOCIDE, punishable under Articles 4(3)(a), 7(1) and 7(3) of the Statute of the Tribunal;

Count 2: COMPLICITY IN GENOCIDE, punishable under Articles 4(3)(e), 7(1) and 7(3) of the Statute of the Tribunal.”

14. On 8 November 2002 Judge O. gave an order granting the prosecution leave to file the amended indictment and confirming the indictment (Article 19 of The ICTY Statute, see below).

15. On 23 January 2003 the applicant challenged Judge O.’s involvement in his own trial. The applicant argued that according to the indictment against Mr Mladić the acts of the “joint criminal enterprise” mentioned in paragraph 24 had included murders amounting to “genocide” committed in the municipality of Vogošća, an area under the applicant’s territorial responsibility, but that this crime was not included on the applicant’s indictment. “Genocide” being a crime more serious than any with which the applicant had been charged, the confirmation of this indictment by Judge O. reflected on the latter’s part a preconception that the applicant’s guilt was great indeed.

16. On 3 February 2003 the challenge was dismissed by Judge L., who found that the confirmation of the amended indictment reflected no more than a provisional view of the validity of the charges against Mr Mladić and could not be seen as prejudicial to his impartiality vis-à-vis the applicant, who moreover continued to benefit from the presumption of innocence.

17. On 25 May 2007 the applicant, through a firm of lawyers in Belgrade, lodged a communication with the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights (“the Optional Protocol”). The complaints therein contained may be summarised as follows:

The applicant asked the Human Rights Committee to order a full retrial by the ICTY’s Trial Chamber.

18. The applicant has submitted a photocopy of a letter from the United Nations High Commissioner for Human Rights dated 31 May 2007 and bearing an illegible signature in the name of the Petitions Unit. This letter, which does not give the name or address of the person or persons to whom it is addressed, is stated by the applicant to be the Human Rights Committee’s response to the above communication. It contains the following paragraph:

“After careful consideration of the contents of your petition (communication/complaint), received on 30 May 2007, we sincerely regret having to inform you that the United Nations Office of the High Commissioner for Human Rights is not in a position to assist you in the matter you raise, for the reasons indicated on the back of this letter. Accordingly, your petition is being returned to you.”

“The Human Rights Committee cannot examine petitions alleging violations of the International Covenant on Civil and Political Rights (ICCPR) unless the State is also a party to the Optional Protocol (OP). – Italy [filled in by hand] – is not a State party to the Optional Protocol.”

20. The Kingdom of the Netherlands ratified the Charter of the United Nations on 10 December 1945. As relevant to the present case, it provides as follows:

to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and

to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and

to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and

to practice tolerance and live together in peace with one another as good neighbours, and

to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and

to employ international machinery for the promotion of the economic and social advancement of all peoples,

Accordingly, our respective Governments, through representatives assembled in the city of San Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations.

1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;

3. To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and

4. To be a centre for harmonizing the actions of nations in the attainment of these common ends.

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.

1. The Organization is based on the principle of the sovereign equality of all its Members.

2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.

3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.

6. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.

7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.

1. In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. ...

The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

The Security Council may establish such subsidiary organs as it deems necessary for the performance of its functions.

Chapter VII
Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.

Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided.

The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes.

The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine.

Such decisions shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members.

The Members of the United Nations shall join in affording mutual assistance in carrying out the measures decided upon by the Security Council.

In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

21. The ICTY was established by United Nations Security Council Resolution S/RES/827 of 25 May 1993, which reads as follows:

Reaffirming its resolutions 713 (1991) of 25 September 1991 and all subsequent relevant resolutions,

Having considered the report of the Secretary-General (S/25704 and Add.1) pursuant to paragraph 2 of resolution 808 (1993),

Expressing once again its grave alarm at continuing reports of widespread and flagrant violations of international humanitarian law occurring within the territory of the former Yugoslavia, and especially in the Republic of Bosnia and Herzegovina, including reports of mass killings, massive, organized and systematic detention and rape of women, and the continuance of the practice of ‘ethnic cleansing’, including for the acquisition and the holding of territory,

Determining that this situation continues to constitute a threat to international peace and security,

Determined to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them,

Convinced that in the particular circumstances of the former Yugoslavia the establishment as an ad hoc measure by the Council of an international tribunal and the prosecution of persons responsible for serious violations of international humanitarian law would enable this aim to be achieved and would contribute to the restoration and maintenance of peace,

Believing that the establishment of an international tribunal and the prosecution of persons responsible for the above-mentioned violations of international humanitarian law will contribute to ensuring that such violations are halted and effectively redressed,

Noting in this regard the recommendation by the Co-Chairmen of the Steering Committee of the International Conference on the Former Yugoslavia for the establishment of such a tribunal (S/25221),

Reaffirming in this regard its decision in resolution 808 (1993) that an international tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991,

Considering that, pending the appointment of the Prosecutor of the International Tribunal, the Commission of Experts established pursuant to resolution 780 (1992) should continue on an urgent basis the collection of information relating to evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law as proposed in its interim report (S/25274),

Decides hereby to establish an international tribunal for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia between 1 January 1991 and a date to be determined by the Security Council upon the restoration of peace and to this end to adopt the Statute of the International Tribunal annexed to the above-mentioned report;

Requests the Secretary-General to submit to the judges of the International Tribunal, upon their election, any suggestions received from States for the rules of procedure and evidence called for in Article 15 of the Statute of the International Tribunal;

Decides that all States shall cooperate fully with the International Tribunal and its organs in accordance with the present resolution and the Statute of the International Tribunal and that consequently all States shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute, including the obligation of States to comply with requests for assistance or orders issued by a Trial Chamber under Article 29 of the Statute;

Urges States and intergovernmental and non-governmental organizations to contribute funds, equipment and services to the International Tribunal, including the offer of expert personnel;

Decides that the determination of the seat of the International Tribunal is subject to the conclusion of appropriate arrangements between the United Nations and the Netherlands acceptable to the Council, and that the International Tribunal may sit elsewhere when it considers it necessary for the efficient exercise of its functions;

Decides also that the work of the International Tribunal shall be carried out without prejudice to the right of the victims to seek, through appropriate means, compensation for damages incurred as a result of violations of international humanitarian law;

Requests the Secretary-General to implement urgently the present resolution and in particular to make practical arrangements for the effective functioning of the International Tribunal at the earliest time and to report periodically to the Council;

22. Annexed to the resolution was the “Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991”. Elements of the Statute relevant to the case before the Court are the following:

1. The judge of the Trial Chamber to whom the indictment has been transmitted shall review it. If satisfied that a prima facie case has been established by the Prosecutor, he shall confirm the indictment. If not so satisfied, the indictment shall be dismissed. ...

2. In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute [protection of victims and witnesses].

3. The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute.

4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:

(a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) to have the free assistance of an interpreter if he cannot understand or speak the language used in the International Tribunal;

1. The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the following grounds:

2. The Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers.

1. The Convention on the Privileges and Immunities of the United Nations of 13 February 1946 shall apply to the International Tribunal, the judges, the Prosecutor and his staff, and the Registrar and his staff.

2. The judges, the Prosecutor and the Registrar shall enjoy the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law.

3. The staff of the Prosecutor and of the Registrar shall enjoy the privileges and immunities accorded to officials of the United Nations under articles V and VII of the Convention referred to in paragraph 1 of this article.

4. Other persons, including the accused, required at the seat of the International Tribunal shall be accorded such treatment as is necessary for the proper functioning of the International Tribunal.

23. As relevant to the case before the Court, the Agreement between the United Nations and the Kingdom of the Netherlands concerning the Headquarters of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law committed in the Territory of the Former Yugoslavia since 1991 (“Headquarters Agreement”) reads as follows:

Whereas the Security Council acting under Chapter VII of the Charter of the United Nations decided, by paragraph 1 of its resolution 808 (1993) of 22 February 1993, inter alia ‘that an international tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991’;

Whereas the International Tribunal is established as a subsidiary organ within the terms of Article 29 of the Charter of the United Nations;

Whereas the Security Council, in paragraph 6 of its resolution 827 (1993) of 25 May 1993 further inter alia decided that ‘the determination of the seat of the International Tribunal is subject to the conclusion of appropriate arrangements between the United Nations and the Netherlands acceptable to the Council’;

Whereas the Statute of the International Tribunal, in its Article 31, provides that ‘the International Tribunal shall have its seat at The Hague’;

Whereas the United Nations and the Kingdom of the Netherlands wish to conclude an Agreement regulating matters arising from the establishment and necessary for the proper functioning of the International Tribunal in the Kingdom of the Netherlands;

This Agreement shall regulate matters relating to or arising out of the establishment and the proper functioning of the Tribunal in the Kingdom of the Netherlands.

The General Convention and the Vienna Convention shall be applicable mutatis mutandis to the Tribunal, its property, funds and assets, to the premises of the Tribunal, to the Judges, the Prosecutor and the Registrar, the officials of the Tribunal and persons performing missions for the Tribunal.”

The expressions “General Convention” and “Vienna Convention” refer to the Convention on the Privileges and Immunities of the United Nations adopted by the General Assembly of the United Nations on 13 February 1946 and the Vienna Convention on Diplomatic Relations of 18 April 1961, respectively (Article I (u) and (v) of the Headquarters Agreement).

1. The premises of the Tribunal shall be under the control and authority of the Tribunal, as provided in this Agreement.

2. Except as otherwise provided in this Agreement or in the General Convention, the laws and regulations of the host country shall apply on the premises of the Tribunal.

3. The Tribunal shall have the power to make regulations operative on the premises of the Tribunal for the purpose of establishing therein the conditions in all respects necessary for the full execution of its functions. The Tribunal shall promptly inform the competent authorities of regulations thus enacted in accordance with this paragraph. No law or regulation of the host country which is inconsistent with a regulation of the Tribunal shall, to the extent of such inconsistency, be applicable within the premises of the Tribunal.

4. Any dispute between the Tribunal and the host country, as to whether a regulation of the Tribunal is authorised by this Article, or as to whether a law or regulation of the host country is inconsistent with any regulation of the Tribunal authorised by this Article, shall be promptly settled by the procedure set out in Article XXVIII, paragraph 2 of this Agreement [i.e. arbitration]. Pending such settlement, the regulation of the Tribunal shall apply and the law or regulation of the host country shall be inapplicable on the premises of the Tribunal to the extent that the Tribunal claims it to be inconsistent with its regulation.

1. The host country shall not exercise its criminal jurisdiction over persons present in its territory, who are to be or have been transferred as a suspect or an accused to the premises of the Tribunal pursuant to a request or an order of the Tribunal, in respect of acts, omissions or convictions prior to their entry into the territory of the host country.

2. The immunity provided for in this Article shall cease when the person, having been acquitted or otherwise released by the Tribunal and having had for a period of fifteen consecutive days from the date of his or her release an opportunity of leaving, has nevertheless remained in the territory of the host country, or having left it, has returned.”

24. As relevant to the case before the Court, the ICTY’s Rules of Procedure and Evidence provide as follows:

(A) A Judge may not sit on a trial or appeal in any case in which he has a personal interest or concerning which he has or has had any association which might affect his impartiality. He shall in any such circumstance withdraw, and the President shall assign another Judge to sit in his place.

(B) Any party may apply to the Presiding Judge of a Chamber for the disqualification and withdrawal of a Judge of that Chamber from a trial or appeal upon the above grounds. The Presiding Judge shall confer with the Judge in question, and if necessary the Bureau shall determine the matter. If the Bureau upholds the application, the President shall assign another Judge to sit in place of the disqualified Judge.

(C) The Judge of the Trial Chamber who reviews an indictment against an accused, pursuant to Article 19 of the Statute and Rules 47 or 61, shall not sit as a member of the Trial Chamber for the trial of that accused. ...”

25. The member States of the North Atlantic Treaty Organisation (NATO) have entered into an agreement (Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces, London, 19 June 1951, as supplemented by the Supplementary Agreement of 1959 (subsequently amended in 1971, 1981 and 1993) – “NATO Status of Forces Agreement”). It regulates, among other things, criminal jurisdiction over members of their armed forces serving on each other’s territory. Article VII of this Agreement provides as follows:

a. the military authorities of the sending State shall have the right to exercise within the receiving State all criminal and disciplinary jurisdiction conferred on them by the law of the sending State over all persons subject to the military law of that State;

b. the authorities of the receiving State shall have jurisdiction over the members of a force or civilian component and their dependents with respect to offences committed within the territory of the receiving State and punishable by the law of that State.

2. a. The military authorities of the sending State shall have the right to exercise exclusive jurisdiction over persons subject to the military law of that State with respect to offences, including offences relating to its security, punishable by the law of the sending State, but not by the law of the receiving State.

b. The authorities of the receiving State shall have the right to exercise exclusive jurisdiction over members of a force or civilian component and their dependents with respect to offences, including offences relating to the security of that State, punishable by its law but not by the law of the sending state.

c. For the purposes of this paragraph and of paragraph 3 of this Article a security offence against a State shall include:

ii. sabotage, espionage or violation of any law relating to official secrets of that State, or secrets relating to the national defence of that State.

3. In case where the right to exercise jurisdiction is concurrent the following rules shall apply:

a. The military authorities of the sending State shall have the primary right to exercise jurisdiction over a member of a force or of a civilian component in relation to

i. offences solely against the property or security of that State, or offences solely against the person or property of another member of the force or civilian component of that State or of a dependent;

ii. offences arising out of any act or omission done in the performance of official duty.

b. In the case of any other offence the authorities of the receiving State shall have the primary right to exercise jurisdiction.

c. If the State having the primary right decides not to exercise jurisdiction, it shall notify the authorities of the other State as soon as practicable. The authorities of the State having the primary right shall give sympathetic consideration to a request from the authorities of the other State for a waiver of its right in cases where that other state considers such waiver to be of particular importance.

4. The foregoing provisions of this Article shall not imply any right for the military authorities of the sending State to exercise jurisdiction over persons who are nationals of or ordinarily resident in the receiving State, unless they are members of the force of the sending State.

5. a. The authorities of the receiving and sending states shall assist each other in the arrest of members of a force or civilian component or their dependents in the territory of the receiving State and in handing them over to the authority which is to exercise jurisdiction in accordance with the above provisions.

b. The authorities of the receiving State shall notify promptly the military authorities of the sending State of the arrest of any member of a force or civilian component or a dependent.

c. The custody of an accused member of a force or civilian component over whom the receiving state is to exercise jurisdiction shall, if he is in the hands of the sending State, remain with that State until he is charged by the receiving State.

6. a. The authorities of the receiving and sending States shall assist each other in the carrying out of all necessary investigations into offences, and in the collection and production of evidence, including the seizure and, in proper cases, the handing over of objects connected with an offence. The handing over of such objects may, however, be made subject to their return within the time specified by the authority delivering them.

b. The authorities of the Contracting parties shall notify one another of the disposition of all cases in which there are concurrent rights to exercise jurisdiction.

7. a. A death sentence shall not be carried out in the receiving State by the authorities of the sending State if the legislation of the receiving state does not provide for such punishment in a similar case.

b. The authorities of the receiving State shall give sympathetic consideration to a request from the authorities of the sending State for assistance in carrying out a sentence of imprisonment pronounced by the authorities of the sending State under the provision of this Article within the territory of the receiving State.

8. Where an accused has been tried in accordance with the provisions of this Article by the authorities of one Contracting Party and has been acquitted, or has been convicted and is serving, or has served, his sentence or has been pardoned, he may not be tried again for the same offence within the same territory by the authorities of another Contracting Party. However, nothing in this paragraph shall prevent the military authorities of the sending State from trying a member of its force for any violation of rules of discipline arising from an act or omission which constituted an offence for which he was tried by the authorities of another Contracting Party.

9. Whenever a member of a force or civilian component of a dependent is prosecuted under the jurisdiction of a receiving State he shall be entitled:

b. to be informed, in advance of trial, of the specific charge or charges made against him;

d. to have compulsory process for obtaining witnesses in his favour, if they are within the jurisdiction of the receiving State;

e. to have legal representation of his own choice for his defence or to have free or assisted legal representation under the conditions prevailing for the time being in the receiving State;

f. if he considers it necessary, to have the services of a competent interpreter; and

g. to communicate with a representative of the Government of the sending State and when the rules of the court permit, to have such a representative present at his trial.

10. a. Regularly constituted military units or formations of a force shall have the right to police any camps, establishment or other premises which they occupy as the result of an agreement with the receiving State. The military police of the force may take all appropriate measures to ensure the maintenance of order and security on such premises.

b. Outside these premises, such military police shall be employed only subject to arrangements with the authorities of the receiving State and in liaison with those authorities, and in so far as such employment is necessary to maintain discipline and order among the members of the force.

11. Each Contracting Party shall seek such legislation as it deems necessary to ensure the adequate security and protection within its territory of installations, equipment, property, records and official information of other Contracting Parties, and the punishment of persons who may contravene laws enacted for that purpose.”

26. An additional agreement concluded in 1995 (Agreement among the States Parties to the North Atlantic Treaty and the other States participating in the Partnership for Peace regarding the Status of their Forces, Brussels, 19 June 1995) extends the territorial application of this provision to non-NATO member States participating in the Partnership for Peace.

27. On 18 September 1998 the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of the Netherlands, acting in pursuance of a resolution of the Security Council under Chapter VII of the United Nations Charter (Resolution 1192 of 27 August 1998), concluded an agreement under which the Netherlands Government undertook to host a Scottish Court for the purpose and the duration of a trial under Scots law and procedure of two Libyan nationals accused of bombing a civilian passenger aircraft over Lockerbie, Scotland, in 1988 (Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of the Netherlands concerning a Scottish trial in the Netherlands (with annexes), [2002] 2062 United Nations Treaty Series – UNTS – pp. 81 et seq.). The Scottish Court in the Netherlands existed until 2002.

28. The applicant’s complaints under the Convention are summarised as follows:

29. Reduced to its essentials, the applicant’s complaint before the Court is that the ICTY has violated his rights under Article 6 of the Convention and that the responsibility of the Kingdom of the Netherlands is engaged.

30. In the present case it is beyond dispute that the matters complained of resulted from acts or omissions of the ICTY. As it did in Behrami and Behrami v. France and Saramati v. France, Germany and Norway (dec.) [GC], nos. 71412/01 and 78166/01 (hereafter Behrami and Behrami and Saramati), § 121, ECHR 2007-..., the Court will examine whether these can be attributed to the United Nations; it must then examine whether it has competence ratione personae to review under the Convention any acts or omissions found to be so attributable.

31. In Behrami and Behrami and Saramati, the Court was faced with the question whether actions of the Kosovo Force (KFOR) and the United Nations Interim Administration Mission in Kosovo (UNMIK) were attributable to the respondent Parties.

32. The Court started by noting the foundation for KFOR and UNMIK in Chapter VII of the Charter of the United Nations, both having come into being under the authority of a resolution of the Security Council referring specifically to that Chapter and having been invested by the Security Council with delegated powers. It further considered that Chapter VII provided a sufficient framework for such delegation (loc. cit., §§ 128-30).

33. In relation to KFOR, the Court went on to find that the Security Council had retained ultimate authority and control and that effective command of the operational matters was retained by NATO. From this it drew the conclusion that the actions imputed to KFOR were, in principle, attributable to the United Nations rather than to the States which had contributed troops to KFOR (loc. cit., § 141).

34. The Court found UNMIK to be a “subsidiary organ” of the United Nations created under Chapter VII of the Charter, so that the matters imputed to it were also attributable in principle to the United Nations (loc. cit., §§ 142-43).

35. The Court now finds that the ICTY is likewise a “subsidiary organ” of the Security Council. This is obvious from the manner of the ICTY’s creation (see paragraph 20 above) and confirmed by the preamble to the Headquarters Agreement (see paragraph 23 above), which describes the ICTY as a subsidiary organ of the Security Council within the meaning of Article 29 of the Charter. It follows that the ICTY’s position in relation to complaints under the Convention is akin to that of UNMIK and that acts and omissions imputable to the ICTY are likewise attributable in principle to the United Nations.

36. The Court reiterates that the United Nations is an intergovernmental international organisation with a legal personality separate from that of its member states and is not itself a Contracting Party (Behrami and Behrami and Saramati, § 144). Plainly, therefore, the Court lacks jurisdiction ratione personae to examine complaints directed against the ICTY itself or against the United Nations as a respondent (see, mutatis mutandis, Cooperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij U.A. v. the Netherlands (dec.), no. 13645/05, 20 January 2009). Indeed, the applicant did not argue otherwise.

B. Whether the matters complained of nonetheless engage the responsibility of the Kingdom of the Netherlands

“[s]ince operations established by [Security Council] Resolutions under Chapter VII of the [United Nations] Charter are fundamental to the mission of the [United Nations] to secure international peace and security and since they rely for their effectiveness on support from member states, the Convention cannot be interpreted in a manner which would subject the acts and omissions of Contracting Parties which are covered by [Security Council] Resolutions and occur prior to or in the course of such missions, to the scrutiny of the Court. To do so would be to interfere with the fulfilment of the [United Nations]’s key mission in this field including, as argued by certain parties, with the effective conduct of its operations. It would also be tantamount to imposing conditions on the implementation of a [Security Council] Resolution which were not provided for in the text of the Resolution itself. This reasoning equally applies to voluntary acts of the respondent States such as the vote of a permanent member of the [Security Council] in favour of the relevant Chapter VII Resolution and the contribution of troops to the security mission: such acts may not have amounted to obligations flowing from membership of the [United Nations] but they remained crucial to the effective fulfilment by the [Security Council] of its Chapter VII mandate and, consequently, by the [United Nations] of its imperative peace and security aim.”

The Court concluded on that basis that the applicants’ complaints had to be declared incompatible ratione personae with the provisions of the Convention.

38. In Berić and Others v. Bosnia and Herzegovina (dec.), nos. 36357/04, 36360/04, 38346/04, 41705/04, 45190/04, 45578/04, 45579/04, 45580/04, 91/05, 97/05, 100/05, 101/05, 1121/05, 1123/05, 1125/05, 1129/05, 1132/05, 1133/05, 1169/05, 1172/05, 1175/05, 1177/05, 1180/05, 1185/05, 20793/05 and 25496/05, § 30, 16 October 2007, the Court considered that this reasoning could be transposed to the acceptance of an international civil administration in its territory by a respondent State. Consequently, it similarly concluded that the applicants’ complaints had to be declared incompatible with the provisions of the Convention ratione personae.

39. The Court takes the view that the same reasoning can also be applied to the acceptance by a respondent State in its territory of an international criminal tribunal pursuant to a resolution of the Security Council under Chapter VII of the United Nations Charter. In that respect, it notes that the Security Council, in its resolution S/RES/827, specifically linked the establishment of an international tribunal to the restoration and maintenance of peace and that accordingly the creation of the ICTY is to be seen as an ‘operation’ “fundamental to the mission of the UN”.

40. It is, however, implicit in the applicant’s naming of the Kingdom of the Netherlands as the respondent Party that the applicant nevertheless considers himself to have been within that State’s “jurisdiction”, as that term is to be understood for the purposes of Article 1 of the Convention, either on account of his physical presence within the territory of the Netherlands or on the basis of the Headquarters Agreement entered into by the Netherlands. The Court must now test the validity of this assumption.

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”

42. As the Court has held on earlier occasions, the concept of “jurisdiction” as it is to be understood in public international law and also within the meaning of Article 1 of the Convention is primarily territorial (Soering v. the United Kingdom, 7 July 1989, § 68, Series A no. 161; Banković and Others v. Belgium and 16 Other Contracting States (dec.) [GC], no. 52207/99, §§ 59 and 61, ECHR 2001 XII).

43. The Court recognises that Convention liability normally arises in respect of an individual who is “within the jurisdiction” of a Contracting State, in the sense of being physically present on its territory. However, exceptions have been recognised in the Court’s case-law. In particular, the Court has accepted restrictions on the right of access to court, as embodied in Article 6 § 1 of the Convention, resulting from generally recognised rules of public international law on State immunity (McElhinney v. Ireland [GC], no. 31253/96, § 38, ECHR 2001 XI (extracts); Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 56, ECHR 2001 XI; Fogarty v. the United Kingdom [GC], no. 37112/97, § 38, ECHR 2001 XI (extracts)). The Court has also accepted that where States establish international organisations in order to pursue or strengthen their cooperation in certain fields of activities, and where they attribute to these organisations certain competences and accord them immunities, there may be implications as to the protection of fundamental rights (Waite and Kennedy v. Germany [GC], no. 26083/94, § 67, ECHR 1999 I).

44. Similarly, the practice in other domains shows that it is not axiomatic that a criminal trial must engage the responsibility under public international law of the State on whose territory it is held. Thus, the NATO Status of Forces Agreement provides for the exercise of criminal jurisdiction of the sending State over its forces located on the territory of a receiving State; this Agreement has in recent years been extended beyond the territory of the original NATO member States to the other participants in the Partnership for Peace (see paragraphs 25 and 26 above). In the event that the sending State exercises its criminal jurisdiction on the territory of a receiving State, it is the responsibility under the Convention of the sending State which is engaged (as was implicit in Martin v. the United Kingdom, no. 40426/98, 24 October 2006).

45. More recently still, a trial has been held on Netherlands territory before a Scottish court set up ad hoc, applying Scots criminal law and procedure (see paragraph 27 above).

46. In view of the above, the Court cannot find the sole fact that the ICTY has its seat and premises in The Hague sufficient ground to attribute the matters complained of to the Kingdom of the Netherlands. In arriving at that conclusion the Court has had regard to the particular context in which the question arises before it. The Court stresses that the present case involves an international tribunal established by the Security Council of the United Nations, an international organisation founded on the principle of respect for fundamental human rights, and that moreover the basic legal provisions governing that tribunal’s organisation and procedure are purposely designed to provide those indicted before it with all appropriate guarantees.

47. The applicant “[was] aware of the apparent practical (and legal) difficulties” raised by the application, given that in formal terms the Appeals Chamber’s judgment of 30 November 2006 did not have the appearance of a decision emanating from any domestic legal order. It was his argument – distinct from his complaint under Article 34 of the Convention taken alone and together with Article 14 (see paragraph 28 above) – that the responsibility of the Kingdom of the Netherlands was nonetheless engaged by the voluntary act of its authorities consisting of entering into, or ratifying, the Headquarters Agreement.

48. The Court notes the references in the preamble of the Headquarters Agreement, firstly, to United Nations Security Council Resolution S/RES/827 of 25 May 1993 and in particular to the decision therein contained “that the determination of the seat of the International Tribunal is subject to the conclusion of appropriate arrangements between the United Nations and the Netherlands acceptable to the Council”, and secondly, to Article 31 of the Statute of the International Tribunal which provides that “the International Tribunal shall have its seat at The Hague”. Given these texts, the Headquarters Agreement is clearly no more than a document intended to give practical effect to actions of the Security Council and subject to its approval; it cannot therefore be considered in isolation. Consequently the Court cannot agree with the applicant that the Headquarters Agreement alone has the effect of securing to the applicant access to a substantive examination of his Convention complaints by the Court.

49. The Court finds, on the grounds set out above, that the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

50. In light of the above reasoning and conclusion, the Court considers that the applicant’s complaint under Article 34 of the Convention, formulated in the alternative under Article 14 of the Convention read in conjunction with Article 34 (see paragraph 28 above), is devoid of purpose and need not be entertained. Nor does the Court find it necessary to examine any other questions going to the admissibility or merits of the application, including whether and to what extent the application is identical to the applicant’s communication to the Human Rights Committee of the United Nations, whether the applicant has exhausted any effective domestic remedies available to him within the meaning of Article 35 § 1 of the Convention, and whether the application must be rejected as manifestly ill-founded (see, mutatis mutandis, Behrami and Behrami and Saramati, cited above, § 153).

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You are here: BAILII >> Databases >> European Court of Human Rights >> Stanislav GALIC v the Netherlands - 22617/07 [2009] ECHR 1106 (9 June 2009) URL: http://www.bailii.org/eu/cases/ECHR/2009/1106.html Cite as: [2009] ECHR 1106