THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF CROATIA
No. U-III-854/1999
Zagreb, October 21, 1999
The Constitutional Court of the Republic of Croatia composed of: Jadranko
Crnic, president; and judges: Zdravko Bartovcak; Velimir Belajec, Nikola Filipovic,
Ante Jelavic Mitrovic, Jurica Malcic, Hrvoje Momcinovic, Ivan Marijan Severinac,
Milan Vukovic and Mladen Zuvela, deciding on the constitutional complaint of M.N.
from S.B. and currently held in custody at the District Jail in Zagreb, represented by
K.K. and V.D.L., attorneys from Z., at the meeting on October 21, 1999, has reached
the following
DECISION
I.
The constitutional complaint is dismissed.
II.
This Decision shall be published in “Narodne novine” (Official Gazette)
Statement of reasons
M.N. from S.B., currently in custody at the Zagreb District Jail, submitted
admissible constitutional complaint within specified time against the ruling of the
Supreme Court of the Republic of Croatia No. I Kz-690/1999 of October 15, 1999.
The aforementioned Ruling dismissed the appeal by the complainant and
reaffirmed the ruling of the Zagreb Count Court No. KV-I-433/99 of September 1,
1999.
The ruling in the first instance, pursuant to Art. 20 of the Constitutional Act on
the Cooperation between the Republic of Croatia and ICTY (Official Gazette No.
32/1996, hereinafter the Cooperation Act), granted the ICTY request to turn over the
accused M.N.-T. to ICTY to be criminally prosecuted for crimes against humanity
sanctioned pursuant to Art. 5 of the ICTY Statute, grave breach of the 1949 Geneva
Conventions sanctioned pursuant to Art. 2 of the ICTY Statute, and violation of the
laws and customs of war sanctioned pursuant to Art. 3 of the ICTY Statute, according
to the facts and legal grounds presented in the confirmed ICTY indictment No. IT-9834/I of December 18, 1998.
The complainant believes that the disputed decisions violate the basic
provisions of the Constitution, in particular Articles 3, 5, and 9, as well as the
constitutional rights mentioned in Articles 16, 19, 29, and 31, of the Constitution of
the Republic of Croatia.
2
He points out that Art. 9 of the Constitution of the Republic of Croatia provides
that a citizen of the Republic of Croatia cannot be expelled from the Republic of
Croatia or stripped of his citizenship or be extradited to another state. He states that
Art. 3 para 2 of the Cooperation Act provides that the Republic of Croatia shall grant
an ICTY cooperation request if the request is based on appropriate provisions of the
ICTY Statute and Rules of Procedure and Evidence, and if it is not in contravention of
the Constitution of the Republic of Croatia. He states that Articles 16 and 20 of the
aforementioned Cooperation Act provide that in case of request to turn the accused
over to ICTY, the latter should submit substantiated request, information required for
identifying the accused, and confirmed ICTY indictment to the Government of the
Republic of Croatia.
The complainant believes that in this case the requirements mentioned in Art.
20 of the aforementioned Cooperation Act have not been met as to enable a decision
to grant the request, because the request is in contravention of the Constitution of the
Republic of Croatia, and no information for identifying the accused have been
attached to the request.
The complainant deals with the ICTY indictment and concludes that it is
obvious that not only the complainant and V.M. are charged with the crimes
described in the indictment, but the Government of the Republic of Croatia, the
Croatian Army, and the Croatian Defense Council as well. Pursuant to Art. 5 of its
Statute, ICTY is authorized to try natural persons only, not Governments and Armies,
so in the opinion of the complainant a judge of ICTY could not have confirmed the
indictment, nor could such indictment be a basis for a request to turn over a person to
ICTY.
Besides, the complainant claims violation of Art. 3 of the Constitution referring
to the rule of law; according to the law of the Republic of Croatia all crimes must be
specified as to the place and time, and specific deeds which can be acting, nonacting, omission and responsibility, and the ICTY indictment, in the opinion of the
complainant, does not measure up to this legal standard.
The complainant holds it to be self-evident that the provisions of Articles 3 and
9 of the Constitution have been violated.
The complainant goes on to state that Art. 5 of the Constitution provides that
laws must be in conformity with the Constitution, and other regulations must be in
conformity with the Constitution and laws, and that the Cooperation Act is not in
conformity with Art. 29 of the Constitution, and that it is in contravention of the
provisions of the earlier and current Criminal Procedure Acts (Official Gazette Nos.
110/97 and 27/98) which are subsidiarily applied pursuant to Art. 22 of the
Cooperation Act.
The complainant notes the aforementioned with regard to the fact that criminal
proceedings against him before the Zagreb County Court under No. K-216/97 have
not been finally completed, and wonders what will be with the protection of his
constitutional rights mentioned in Art. 29 of the Constitution in the aforementioned
proceedings if he should be turned over to ICTY. He states that he has made a
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motion to the Zagreb District Attorney to extend the indictment in such manner as to
include all crimes included in the confirmed ICTY indictment.
The complainant believes that the applicable law of the Republic of Croatia
sanctions all crimes falling within the jurisdiction of ICTY, and if he were to be on trial
in the Republic of Croatia the time he spent in custody would be deducted from the
possible sentence which could not exceed 20 years imprisonment, while in case of a
trial before ICTY he could be sentenced to life. The complainant concludes that the
disputed decisions violate his constitutional right mentioned in Art. 31 of the
Constitution, pursuant to which a more lenient punishment shall be measured out if
so provided by law.
The complainant believes that the solutions disputed by the constitutional
complaint are based on the wrong assumption that the jurisdiction of ICTY prevails
over a trial in the Republic of Croatia. The Resolution on the Cooperation with ICTY,
adopted by the House of Representatives of the Croatian Parliament (Official Gazette
No. 24/99), clearly indicates that the expectations of the Republic of Croatia - that the
proceedings would be conducted quickly and without delay guided solely by the
principles of justice - were betrayed, and the complainant is of the opinion that a
national court would conduct the proceedings quicker and more efficiently.
Moreover, the complainant states that the aforementioned decisions are in
contravention of the provision of Art. 6 of the European Convention on Human
Rights, which is wholly compatible with the provision of Art. 29 of the Constitution of
the Republic of Croatia. He believes that his surrender would violate the provision of
Art. 6 of the aforementioned Convention which guarantees the right to fair trial before
a competent court established by law. He points out that the disputed decisions do
not support jurisdiction of a court established by law, and the complainant is deprived
of his constitutional rights mentioned in Art. 29 of the Constitution and of the rights he
is entitled to pursuant to the European Convention, and he would be turned over to
the judiciary which has not undertaken commitments on the basis of this Convention.
The complainant, therefore, stresses that he has filed a complaint in this respect to
the European Human Rights Court.
Violations of the constitutional rights mentioned in Articles 16 and 19 of the
Constitution are merely noted without any explanation.
The complainant proposes that the Constitutional Court should accept the
constitutional complaint and repeal the disputed decisions and return them to the
competent body for reconsideration.
Moreover, he proposes that the Constitutional Court should accept his motion
for the application of Art. 63 para 2 of the Constitutional Act on the Constitutional
Court of the Republic of Croatia (Official Gazette No. 99/99) and postpone the
seizure until the constitutional complaint is decided on.
The constitutional complaint is unfounded.
For the needs of the Constitutional Court proceedings, the file of the County
Court Zagreb No. KV-1-433/99 was obtained.
4
In the course of the Constitutional Court proceedings, it has been established
by the Court that the court of the first instance established that the legal conditions for
turning the complainant over to ICTY were provided in accordance with Art. 20 of the
Cooperation Act.
Pursuant to the provision of Art. 20 of the aforementioned Cooperation Act, a
court shall issue a decision granting the request to turn the accused over to ICTY if it
should be established that the request refers to a person against whom the
surrendering proceedings are conducted, and that the crime referred to is one falling
within the jurisdiction of ICTY pursuant to its Statute. Otherwise, a court shall issue a
decision dismissing the ICTY request. The court shall also dismiss the request if the
accused person has been finally sentenced for the crime by a court in the Republic of
Croatia, and the request for turning the accused over has not been submitted for the
purpose of renewed procedure before ICTY pursuant to the provisions of Article 10
para 2 of the ICTY Statute.
It has been established in the court proceedings that the request does refer to
the person against whom the surrender proceedings are conducted, and that the
crime referred to is one falling within the jurisdiction of ICTY pursuant to its Statute,
and the complainant has not been finally sentenced for the same crime by a court in
the Republic of Croatia, the courts are of the opinion that all legal requirements for
granting the ICTY request are provided.
In the proceedings before the court of the first instance the identity of the
complainant was established at the meeting on September 1, 1999, and his attorney
declared on the record with the same date that there was no doubt as to the identity
of the person whose surrender was requested. Besides, ICTY submitted indictment
No. IT-98-34/I of December 18, 1998, and the order of December 21, 1998,
confirming the indictment, together with substantiated request for surrender which
refers to the crimes falling within the jurisdiction of ICTY in accordance with its
Statute, as properly established by regular courts.
In regard of the objection of the complainant that the aforementioned court
decisions violate the provision of Art. 9 of the Constitution - pursuant to which a
citizen of the Republic of Croatia cannot be expelled from the Republic of Croatia or
stripped of his citizenship or be extradited to another state - note that this is not a
case of extradition of a Croatian citizen to another state, but the proceedings for
deciding on the request for turning the accused to ICTY in accordance with the
Cooperation Act.
Likewise, the Constitutional Court has established that the disputed decisions
do not violate the provisions of Art. 3 of the Constitution - the rule of law - because
the claim by the complainant that the indictment is not duly executed is in no way
proved.
In regard of the claim by the complainant that the disputed decisions violate
the provision of Art. 5 of the Constitution providing that the laws in the Republic of
Croatia must be in conformity with the Constitution, and other regulations in
conformity with the Constitution and laws, and that the mentioned Cooperation Act is
5
not in conformity with Art. 29 of the Constitution, note that this is not the subject of the
proceedings.
In regard of the complainant's statement that criminal proceedings against him
are underway before the Zagreb County Court, and that he has filed a motion with
the Zagreb District Attorney to extend the indictment to include all crimes mentioned
in the confirmed ICTY indictment, and that the failure to do so violates his
constitutional right mentioned in Art. 29 of the Constitution which among other things
guarantees the right to a fair trial before a competent court, note that this is not the
subject of the proceedings, and that the Cooperation Act does not see the
proceedings conducted before national courts as an obstacle for granting the ICTY
request.
Besides, this Court has established that the complainant's constitutional right
mentioned in Art. 31 of the Constitution, that a more lenient punishment for a crime
shall be applied if so provided by law, has not been violated, because this provision
does not apply to the case in question i.e. to the proceedings for granting the ICTY
request.
From the above mentioned follows that the disputed decisions do not violate
the provisions of Art. 6 of the European Convention on Human Rights.
It should be pointed out that the disputed decisions are not based on the
wrong assumption that the jurisdiction of ICTY prevails over a trial in the Republic of
Croatia. Article 9 of the ICTY Statute provides that international and national courts
are simultaneously competent for conducting criminal proceedings against persons
responsible for grave violations of international humanitarian law committed on the
territory of the former Yugoslavia since January 1, 1991. It is, furthermore, provided
that ICTY shall be preferred to the national courts, and that at any stage of the
proceedings ICTY may issue a formal request to the state concerned that its national
court defer to the competence of ICTY, in accordance with the ICTY Statute and
Rules of Procedure and Evidence.
The provision of Art. 29 of the Statute provides that states shall cooperate with
ICTY in the investigation and conducting of criminal proceedings against the persons
accused of grave violations of international humanitarian law, and that states shall
without unreasonable delay grant any request for assistance or order issued by the
Tribunal.
Accordingly, pursuant to Rule 58 of the Rules of Procedure and Evidence,
obligations contained in Art. 29 of the Statute prevail over all legal obstacles to the
surrender or transfer of the accused person or witness to ICTY which exist in the
national legislation or international treaties on extradition signed by the respective
state. The aforementioned Statue and Rules are part of the domestic legal order of
the Republic of Croatia (Art. 134 of the Constitution).
The disputed decisions are based on the above mentioned regulations,
primarily on the provision of Art. 20 of the Cooperation Act.
6
Considering all the above mentioned facts and establishing that the basic
provisions of the Constitution and the complainant's constitutional rights invoked in
his constitutional complaint have not been violated, the Court has decided as above.
The proposal of the complainant to postpone the seizure until the
constitutional complaint has been decided on pursuant to Art. 63 para 2 of the
Constitutional Court of the Republic of Croatia has not been considered because of
the dismissal of the constitutional complaint.
This decision is based on Articles 69 and 71 of the Constitutional Act on the
Constitutional Court of the Republic of Croatia.
The decision on the publication is based on the provision of Article 28 of the
Constitutional Act on the Constitutional Court of the Republic of Croatia.
PRESIDENT
Jadranko Crnic, m. p.