FIRST SECTION
DECISION
Application no. 971/11
by Željko VRAČIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on
4 October 2011 as a Chamber composed of:
Anatoly Kovler, President,
Nina Vajić,
Peer Lorenzen,
Elisabeth Steiner,
Khanlar Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 8 December 2010,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Željko Vračić, is a Croatian national of Serbian origin
who was born in 1967 and lives in Branjin Vrh, Serbia.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised
as follows.
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VRAČIĆ v. CROATIA DECISION
On 25 September 1992 the Act on Amnesty from Criminal Prosecution
and Proceedings in Respect of Criminal Offences Committed during Armed
Conflicts and the War against the Republic of Croatia was enacted.
1. The first set of criminal proceedings against the applicant
On 29 August 1994 an investigation was opened in the Osijek Military
Court (Vojni sud u Osijeku), at the request of the Osijek Military Prosecutor
(Vojno tužiteljstvo u Osijeku), in respect of the applicant and a large number
of other persons on charges of armed rebellion which allegedly had taken
place in the Beli Manastir Municipality.
The applicant submits that he was not aware of these proceedings.
On 24 September 1996 the General Amnesty Act was enacted which
ordered a general amnesty in respect of all criminal offences committed in
connection with the war in Croatia in the period between 17 August 1990
and 23 August 1996, save in respect of those acts which amounted to the
gravest breaches of humanitarian law or to war crimes, including genocide.
At the request of the Osijek Military Prosecutor of 3 December 1996, on
27 January 1997 an investigating judge of the Osijek County Court (istražni
sudac Županijskog suda u Osijeku) terminated the investigation, pursuant to
the General Amnesty Act.
2. The second set of criminal proceedings against the applicant
In the meantime, on 14 September 1994, the Beli Manastir police lodged
a criminal complaint with the Osijek County State Attorney’s Office
(Županijsko državno odvjetništvo Osijek) against eight persons, including
the applicant, in which it was alleged that the applicant had participated in
an act of genocide. On 18 June 1996 the Osijek County State Attorney’s
Office asked the Osijek County Court (Županijski sud u Osijeku) to open an
investigation.
On the same day the Osijek County Court opened such an investigation
in respect of the applicant and seven other persons on charges of genocide
(Article 119 of the Criminal Code), on account of a reasonable suspicion
that between August 1991 and September 1994 they had participated in the
occupation of the village of Branjih Vrh and in the persecution of the ethnic
Croats who at the time lived there.
On 27 June 1996 the Osijek County Court issued an arrest warrant in
respect of the suspects, including the applicant.
On 30 December 1996 the Osijek County State Attorney’s Office
charged the applicant and a number of other individuals with genocide in
the Osijek County Court.
On 16 June 1997 the same court ordered them to be tried in absentia.
In 1999 an amendment of the Code of Criminal Procedure was
introduced providing that no compensation was to be granted in connection
VRAČIĆ v. CROATIA DECISION
3
with the detention of persons against whom criminal proceedings were
terminated pursuant to the General Amnesty Act of 1996.
The applicant was arrested on 12 September 2001 and placed in pre-trial
detention based on the suspicion that he had committed the war crime of
genocide. He was released on 29 November 2001.
On 13 February 2002 the Osijek County State Attorney’s Office reclassified the offence with which the applicant was charged from genocide
to the one of armed rebellion.
On 16 May 2002 the Osijek County Court terminated the proceedings
against the applicant, pursuant to the General Amnesty Act, in view of the
re-classification of the offence.
On 24 May 2002 the Osijek County State Attorney’s Office lodged an
appeal with the Supreme Court against the above decision arguing that they
had re-classified the indictment in respect of only three of the accused, but
not in respect of the applicant and that therefore there had been no ground
for terminating the proceedings against the latter.
On 1 September 2004 the Supreme Court quashed the first-instance
decision terminating the criminal proceedings against the applicant and
remitted the case to the Osijek County Court.
On 16 December 2004 the Osijek County Court again terminated the
proceedings against the applicant, pursuant to the General Amnesty Act, in
view of the re-classification of the offence. No appeal was lodged against
this decision and it became final.
3. Civil Proceedings
On 13 October 2006 the applicant brought a civil action against the State
before the Beli Manastir Municipal Court, seeking damages for his
detention between 12 September and 29 November 2001. He argued that the
criminal proceedings in connection with which he had been detained had
been instituted on charges of genocide and that the State Attorney’s Office
had re-classified the offence to one of armed rebellion only to prevent the
applicant and other persons in the same situation from obtaining damages
for their detention. He referred in this respect to the fact that under the
General Amnesty Act persons against whom criminal proceedings were
terminated on the basis of that Act had no right to compensation for their
detention while all other persons who were detained in connection with
criminal proceedings not ending in conviction had the right to compensation
for their detention.
On 2 April 2008 the Municipal Court awarded the applicant
compensation finding that the applicant had been placed in detention in
connection with charges of genocide and that therefore the General
Amnesty Act was not applicable when it came to the question of
compensation for detention.
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VRAČIĆ v. CROATIA DECISION
On appeal this judgment was reversed by the Osijek County Court on
2 October 2008. The relevant part of the decision reads:
“The first-instance court disregarded the fact that the issue of whether detention was
justified is to be assessed in respect of the final outcome of the proceedings, and not in
respect of the legal basis for ordering detention, irrespective of the criminal offence
with which the plaintiff had been charged at the time he was detained.
Since the criminal proceedings against the plaintiff in respect of the criminal offence
of armed rebellion committed between 17 August 1990 and 23 August 1996 were
terminated on the basis of the General Amnesty Act, this court holds that the plaintiff
is not entitled to compensation for any type of damages on account of unjustified
detention (Article 484 (a) of the Code of Criminal Procedure).”
On 10 November 2008 the applicant lodged a constitutional complaint
against the Osijek County Court’s judgment of 2 October 2008.
He argued that the Osijek County State Attorney’s Office had reclassified the offence in 2002 to one of armed rebellion only to prevent him
from obtaining compensation in connection with his detention in 2001. He
submitted that he had been detained at a time when he was accused of
genocide and that therefore the General Amnesty Act was not applicable as
regards his right to compensation in connection with his detention.
He further complained that he had been tried twice in respect of the same
offence because the criminal proceedings against him had firstly been
terminated in 1997 and then again in 2004.
On 27 October 2010 the Constitutional Court dismissed the applicant’s
constitutional complaint as regards his complains concerning his right to
compensation as ill-founded. As regards the complaint about being tried
twice, the Constitutional Court held that it could not examine such a
complaint since it had no connection with the civil proceedings instituted by
the applicant.
B. Relevant domestic law
The relevant part of the Criminal Code (Opći krivični zakon Republike
Hrvatske, Official Gazette nos. 53/1991 and 31/1993 – integral version – in
force until 31 December 1997) read:
Genocide
Article 119
“Whoever, with the intention of destroying a national, ethnic, racial or religious
group in whole or in part, orders the killing or infliction of grave bodily injuries or
serious harm to the physical or mental health of the members of such a group, the
compulsory displacement of a population or the placing of such a group in conditions
which would lead to its extinction in whole or in part, or who orders measures which
would prevent births within such a group or the compulsory displacement of children
to another group, as well as whoever, with the same intention, commits any of the
foregoing acts shall be sentenced to between five and twenty years’ imprisonment.”
VRAČIĆ v. CROATIA DECISION
5
Armed rebellion
Article 235
“(1) Whoever participates in an armed rebellion which is aimed at harming the
constitutionally established State and social order or the security of the Republic of
Croatia shall be sentenced to at least three years’ imprisonment.
(2) An organiser or leader of the armed rebellion shall be sentenced to at least five
years’ imprisonment.”
The relevant part of the Code of Criminal Procedure enacted on 2 June
1999 and amended on 27 October 1999 (Official Gazette nos. 58/1999 and
112/1999) reads:
Article 484 (a)
“Special laws and decisions adopted as acts of mercy by which perpetrators of
criminal offences were pardoned or granted amnesty in respect of criminal offences
committed between 17 August 1990 and 23 August 1996 do not serve as a basis for
the application of Articles 476 to 484 of this Act.”
Articles 476 to 484 of that Act set forth the conditions and procedures in
respect of the right to compensation in connection with detention and
sentences ordered in the context of criminal proceedings that ended in
acquittal or unjustified conviction.
The relevant part of the Act on Amnesty from Criminal Prosecution and
Proceedings in Respect of Criminal Offences Committed during the Armed
Conflicts and the War against the Republic of Croatia of 25 September 1992
(Official Gazette no. 58/1992, Zakon o oprostu od krivičnog progona i
postupka za krivična djela počinjena u oružanim sukobima i u ratu protiv
Republike Hrvatske) reads:
Section 1
“Criminal prosecution of perpetrators of criminal offences [committed] during the
armed conflicts, the war against the Republic of Croatia or in connection with these
conflicts or war, committed between 17 August 1990 and the day when this Act
comes into force, shall be discontinued. In respect of these offences criminal
prosecution and criminal proceedings shall not be instituted. Where criminal
proceedings have been instituted, a court shall terminate them of its own motion.
Where a person concerned by amnesty under paragraph 1 of this section has been
detained, he or she shall be released.”
Section 2
“Amnesty under section 1 of this Act shall not be granted to perpetrators of the
criminal offences in respect of which the Republic of Croatia is obliged to prosecute
under the international law.”
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VRAČIĆ v. CROATIA DECISION
Section 3
“A state attorney may lodge an appeal within twenty-four hours from the service of
a decision under section 1 paragraphs 2 and 3 of this Act, where she or he considers
that the decision contravenes section 2 of this Act.”
The relevant part of the amendments to the above Act of 6 June 1995
reads:
“In section 1 paragraph 1 of the Act on Amnesty from Criminal Prosecution and
Proceedings in Respect of Criminal Offences Committed during the Armed Conflicts
and the War against the Republic of Croatia (Official Gazette no. 58/92) the words
‘the day when this Act comes into force’ are to be replaced by the words ‘10 May
1995’.”
The relevant part of the General Amnesty Act of 24 September 1996
(Official Gazette no. 80/1996, Zakon o općem oprostu) reads:
Section 1
“This Act gives general amnesty from criminal prosecution and proceedings to the
perpetrators of the criminal offences committed during the aggression, armed
rebellion or armed conflicts and in connection with the aggression, armed rebellion or
armed conflicts in the Republic of Croatia.
Amnesty shall not apply to the execution of final judgments in respect of
perpetrators of the criminal offences under paragraph 1 of this section.
Amnesty from criminal prosecution and proceedings shall apply to offences
committed between 17 August 1990 and 23 August 1996.”
Section 2
“Criminal prosecution or criminal proceedings shall not be instituted against the
perpetrators of the criminal offences under section 1 of this Act.
Where criminal prosecution has already commenced it shall be discontinued and
where criminal proceedings have been instituted a court shall issue a decision
terminating the proceedings of its own motion.
Where a person granted amnesty under paragraph 1 of this section has been
detained, he or she shall be released.”
Section 3
“Amnesty under section 1 of this Act shall not be granted to perpetrators of the
gravest breaches of humanitarian law, which have the character of war crimes,
namely, the criminal offence of genocide under Article 119 of the Basic Criminal
Code of the Republic of Croatia (Official Gazette no. 31/1993, consolidated text, nos.
35/1993, 108/1995, 16/1996 and 28/1996); war crimes against the civilian population
under Article 120; war crimes against the wounded and sick under Article 121; war
crimes against prisoners of war under Article 122; organising groups [with the
purpose of committing genocide] and abetting genocide and war crimes under Article
123; unlawful killing and wounding of the enemy under Article 124; unlawful taking
of possessions from the dead or wounded on the battleground under Article 125; use
of unlawful means of combat under Article 126; offences against negotiators under
Article 127; cruel treatment of the wounded, sick and prisoners of war under Article
VRAČIĆ v. CROATIA DECISION
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128; unjustified delay in repatriation of the prisoners of war under Article 129;
destruction of cultural and historical heritage under Article 130; inciting war of
aggression under Article 131; abuse of the international symbols under Article 132;
racial and other discrimination under Article 133; establishing slavery and transferring
slaves under Article 134; international terrorism under Article 135; putting at risk
persons under international protection under Article 136; taking hostages under
Article 137 and the criminal offence of terrorism under the provisions of international
law.
Amnesty shall not be granted to perpetrators of other criminal offences under the
Basic Criminal Code of the Republic of Croatia (Official Gazette no. 31/1993,
consolidated text, nos 35/1993, 108/1995, 16/1996 and 28/1996) and the Criminal
Code of the Republic of Croatia (Official Gazette no. 32/1993, consolidated text, nos.
38/1993, 28/1996 and 30/1996) which were not committed during the aggression,
armed rebellion or armed conflicts and are not connected with the aggression, armed
rebellion or armed conflicts in the Republic of Croatia.
...”
Section 4
A state attorney may lodge an appeal against a court decision under section 2 of this
Act where a court has granted amnesty in favour of perpetrators of criminal offences
in respect of which this Act gives amnesty within the legal classification of the
criminal offence by a state attorney.”
COMPLAINTS
1. The applicant complained under Article 6 § 1 of the Convention about
the outcome of the civil proceedings for damages.
2. He also complained under Article 4 of Protocol No. 7 that he had been
tried twice for the same offence.
THE LAW
1. The applicant complained that the manner in which the national courts
had interpreted the relevant national law when deciding his claim for
compensation for his detention in 2001 had been contrary to the principles
of fair trial as guaranteed under Article 6 § 1 of the Convention, the relevant
part of which reads:
“In the determination of his civil rights and obligations ... everyone is entitled to a
fair ... hearing ... by [a] ... tribunal ...”
The Court reiterates that its duty, pursuant to Article 19 of the
Convention, is to ensure the observance of the engagements undertaken by
the Contracting States to the Convention. It is not its task to take the place
of the domestic courts.
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VRAČIĆ v. CROATIA DECISION
In the present case the national courts applied the relevant provisions of
the Code of Criminal Procedure and the General Amnesty Act and gave
their interpretation of these provisions. In this connection the Court
reiterates that it is in the first place for the national authorities, and notably
the courts, to interpret domestic law and that the Court will not substitute its
own interpretation for theirs in the absence of arbitrariness (see Tejedor
García v. Spain, 16 December 1997, § 31, Reports of Judgments and
Decisions 1997-VIII). Thus, the role of the Court is limited to verifying
whether the effects of such interpretation are compatible with the
Convention (see Miragall Escolano and Others v. Spain, nos. 38366/97,
38688/97, 40777/98, 40843/98, 41015/98, 41400/98, 41446/98, 41484/98,
41487/98 and 41509/98, § 33, ECHR 2000-I).
The Court notes that the provisions applied were in effect at the time
when the applicant was detained, which means that there was no retroactive
application of laws unfavourable to the applicant. Furthermore, the national
courts’ finding that the relevant provisions were those applicable in respect
of the offence with which the applicant was charged at the time when the
proceedings were terminated, and not those in respect of the time when he
was detained does not appear arbitrary or manifestly unreasonable. Nor is it
substantiated that the reclassification of the offence was done with the
intention to deprive the applicant of compensation for the detention.
It follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3(a) and 4 of the Convention.
2. The applicant also complained that he had been tried twice. He relied
on Article 4 of Protocol No. 7, which reads:
“1. No one shall be liable to be tried or punished again in criminal proceedings
under the jurisdiction of the same State for an offence for which he has already been
finally acquitted or convicted in accordance with the law and penal procedure of that
State.
2. The provisions of the preceding paragraph shall not prevent the reopening of the
case in accordance with the law and penal procedure of the State concerned, if there is
evidence of new or newly discovered facts, or if there has been a fundamental defect
in the previous proceedings, which could affect the outcome of the case.
3. No derogation from this Article shall be made under Article 15 of the
Convention.”
The Court notes that the first set of criminal proceedings against the
applicant was terminated on 27 January 1997 and the second set on 16
December 2004 while the present application was lodged with the Court on
8 December 2010.
In this connection the Court also notes that the applicant’s constitutional
complaint of 10 November 2008 was lodged in the context of the civil
proceedings whereby the applicant sought compensation in respect of his
detention. Although the applicant complained in his constitutional
complaint about his right not to be tried twice, the Constitutional Court
VRAČIĆ v. CROATIA DECISION
9
declined to examine that complaint because that matter had not been
addressed in the civil proceedings at issue. Therefore, the decision by the
Constitutional Court of 27 October 2010 is not pertinent to any issue
concerning the criminal proceedings terminated in 1997 and 2004
respectively.
It follows that this complaint has been introduced out of time and must
be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren Nielsen
Registrar
Anatoly Kovler
President