Alvina Gyulumyan;Corneliu Bîrsan;Elisabet Fura;Josep Casadevall;Luis López Guerra

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.

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

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

“THE PROSECUTOR OF THE TRIBUNAL

AGAINST

STANISLAV GALIC

INDICTMENT

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:

STANISLAV GALIC

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

GENERAL ALLEGATIONS

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.

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

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.

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.

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.

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.

CHARGES:

COUNT 1 (INFLICTION OF TERROR)

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.

By his acts and omissions, STANISLAV GALIC is responsible for:

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.

COUNTS 2 to 4 (SNIPING)

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.

COUNTS 5 to 7 (SHELLING)

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.”

This indictment was confirmed on 24 April 1998 by Judge C. It was kept sealed until the applicant’s arrest.

The applicant was arrested by the Stabilisation Force (SFOR) on 20 December 1999 and transferred to the ICTY the following day.

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

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.

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.

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.

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.

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

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.

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.”

and

“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.

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.

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] ...

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; ...”

and

“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.”

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).

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.

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.

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:

Under Article 5 of the Universal Declaration of Human Rights (“the Universal Declaration”) and Article 7 and 10 of the International Covenant on Civil and Political Rights (“the Covenant”), that he had been arrested on a sealed indictment of which he had no knowledge, and was subjected to physical violence and humiliating treatment in the process;

Under Article 9 §§ 3 and 4 of the Covenant, that the ICTY’s Rules of Procedure and Evidence denied him the possibility to appeal against the decision to detain him on remand;

Under Article 14 § 3 (c) of the Covenant, that the length of the proceedings had been excessive;

Under Articles 10 and 11 § 1 of the Universal Declaration and Article 14 §§ 1 and 3 (d) of the Covenant, that he was compelled to give evidence himself before the evidence of the defence experts, or risk having to forgo the opportunity of giving evidence;

Without naming any provision of either document, that the Appeals Chamber had applied incorrect substantive standards when sentencing him to life imprisonment;

Under Article 11 § 2 of the Universal Declaration and Article 15 § 1 of the Covenant, that since the dissenting opinions of one Trial Chamber judge and one of the dissenting Appeals Chamber judges showed that reasonable doubt remained as to the applicant’s guilt in relation to part of the crimes mentioned in the indictment and the law of the former Socialist Federative Republic of Yugoslavia provided for a twenty-year maximum sentence for the remaining crimes, the life sentence imposed by the Appeals Chamber was unlawful;

Under Article 14 § 5 of the Covenant, that the Appeals Chamber ought not to have increased his prison sentence from twenty years to life without remitting the case to the Trial Chamber. The latter lacked jurisdiction to establish facts for itself and had moreover deprived the applicant of an appeal against the life sentence.

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

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.”

A second photocopy, understood by the Court to be of the reverse side of the letter, shows a box ticked in front of the following pre-printed sentence:

“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.”

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:

We the peoples of the United Nations determined

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 promote social progress and better standards of life in larger freedom,

And for these ends

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

to unite our strength to maintain international peace and security, 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,

Have resolved to combine our efforts to accomplish these aims

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.

The Purposes of the United Nations are:

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;

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;

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

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.

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

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.

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

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.

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.

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.

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.

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.

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.

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

“The Security Council,

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),

Acting under Chapter VII of the Charter of the United Nations,

Approves the report of the Secretary-General;

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;

Decides to remain actively seized of the matter.”

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:

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. ...

All persons shall be equal before the International Tribunal.

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].

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

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;

(c) to be tried without undue delay;

(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;

(g) not to be compelled to testify against himself or to confess guilt.

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

(a) an error on a question of law invalidating the decision; or

(b) an error of fact which has occasioned a miscarriage of justice.

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

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.

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.

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.

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.

The International Tribunal shall have its seat at The Hague.”

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:

“The United Nations and the Kingdom of the Netherlands,

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;

Have agreed as follows. ...

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).

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

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.

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.

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.

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.

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.”

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. ...”

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:

“1. Subject to the provisions of this Article,

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.

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:

i. treason against the State;

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.

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.

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.

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.

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.

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.

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.

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:

a. to a prompt and speedy trial;

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

c. to be confronted with the witnesses 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.

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.

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.”

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.

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.


David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva

The applicants, Mr Giljan Farrugia and Mr John Farrugia are Maltese nationals who were born in 1963 and 1957 respectively and live in St Julian’s. Their application was lodged on 3 November 2010. They were represented before the Court by Dr P.J. Galea, a lawyer practising in Valletta.

, may be summarised as follows.

The applicants are full-time farmers and farm a considerable area of land which is partly owned and partly held on agricultural lease by them following the death of their father. Prior to their father’s death the applicants also farmed the said land. This land included 205 square metres which had been earmarked for the building of a road. This parcel of land will hereinafter be referred to as land X.

On 20 January 1997 the applicants’ late father received a letter from the Ministry of Public Works and Construction asking whether he had come to an agreement over land X with company M who had been attempting to take control of the land. He was informed that failure to reply within a month would lead to expropriation proceedings being commenced.

Having failed to reach an agreement for the purchase of land X from the applicants, on 11 August 1997 Company M asked the Government to expropriate the said land, it constituting the only access to its property. At around the same time Company M applied for a permit to build 75 apartments and 170 garages on its property.

By a declaration published in the Government Gazette of 31 July 1998, under the Land Acquisition (Public Purposes) Ordinance (“LAPPO”), Chapter 88 of the Laws of Malta, it was stated that land X was being expropriated for a public purpose.

On 30 March 1999 the applicants and their father (hereinafter the applicants) instituted constitutional redress proceedings before the Civil Court (First Hall) in its constitutional jurisdiction. They invoked Articles 3, in that their land constituted their only means of making a living, 6 and 8 of the Convention and 1 of Protocol No. 1 since no compulsory taking of land could occur without the payment of adequate compensation and particularly because the taking at issue had been effected solely in the interests of third parties and was not therefore in the public interest. The applicants contended that the proposed street would divide their farm and cultivated land in a way that reduced their very productive land and would make cultivation very different with respect to irrigation and manuring. The existing water reservoirs and livestock would be separated from the cultivated fields, a circumstance which would be disastrous for their livelihood. They noted that they had been cultivating and breeding animals on the said land for forty years, long before the arrival of the present developer. Moreover, they had not been informed of the expropriation until work on the construction of the road was commenced.

The following witness testimony was heard: The architect of the Works Department submitted that the Code of Police Laws provided that when a person wanted to develop land the developer had to ensure road access to such land and when this was not possible because the owners would not sell the land, there existed a legal process by which the developer could ask the Commissioner of Lands to expropriate the said land. The land would then be expropriated by the Government and the developer would pay for the said land. An official of the Lands Department submitted that land X had been expropriated in the public interest. Various requests had been made for its expropriation but eventually Company M had signed a deed of obligation. The Government had then expropriated the land. However, the applicants had not accepted the compensation offered to them and it was then deposited in an interest-bearing account. Another official of the Lands Department submitted that the taking had been in the public interest as the land had already been earmarked for the building of a road. He added that although a request had been made by a third party, once expropriated the land remained the property of the Government.

By a judgment of 7 October 2009 the court rejected all the complaints. Noting the lack of pleadings on the matter, it held that the expropriation could not be considered as inhuman or degrading treatment under Article 3 and that Article 8 could not apply since the case did not concern the expropriation of a home. Nor did any issue arise under Article 6 as the provision did not provide for a judicial process before the initiation of an expropriation. As to Article 1 of Protocol No. 1 in respect of which proper pleadings had been filed, the court noted that there had been an interference with the applicants’ property rights (partly a deprivation in so far as they owned part of the land, and for the rest a control of use in so far as they held part of the land on agricultural lease). The interference had been in accordance with the law, namely the LAPPO, and the applicants had been offered compensation which they had not accepted. The court established that the applicants could not have been unaware of the expropriation, the details having been published in the Government Gazette. Moreover, land X had been earmarked for the development of a road since 1988. A representative had been on site to estimate the value of the land and had informed the applicants that it was being expropriated. As to the public interest, it considered that Article 2 of the LAPPO did not exclude that an expropriation could also serve the interests of third parties. Thus, while it was true that the expropriation in the present case had been triggered by a third party’s request, since the land had originally been earmarked as a road it could not be said that the taking had not been in the public interest. As to the proportionality of the measure, the court considered that, bearing in mind that land X constituted less than one eighth of the applicants’ entire property, and that the applicants only owned a quarter of the land the rest being held on lease, the applicants would not be made to bear an excessive burden. There had therefore been no violation of the said provision.

On 22 October the applicants appealed to the Constitutional Court. By a judgment of 30 July 2010 the Constitutional Court rejected their claims. The court noted that although in their initial application various issues were pleaded, also in relation to the expropriation, the applicants’ appeal had focused on the lack of a public interest. The court held that, as in the cases regarding expropriations for the purposes of the Freeport project, a hospital and a national theatre, and although development of the land was to be carried out by a private third party who would benefit financially from the project, this did not diminish the public interest involved, which in the present case consisted in providing access to a housing complex. Indeed, the Government had a duty to deal with town planning and in consequence the taking in the present case, although to the advantage of third parties, had been made in pursuance of legitimate social and economic policies, namely to create housing for the general public served by adequate roads.

Other lawsuits were instituted by the applicants or their late parents, but none were successful. Details of these lawsuits have not been submitted.

On 24 August 2005 a new declaration was published in respect of the same land. A new set of constitutional proceedings was instituted in this respect. These proceedings are still pending.

Article 2 of the LAPPO, in so far as relevant, reads as follows:

“"public purpose" means any purpose connected with exclusive government use or general public use, or connected with or ancillary to the public interest or utility (whether the land is for use by the Government or otherwise) or with or to town-planning or reconstruction or the generation of employment, the furtherance of tourism, the promotion of culture, the preservation of the national or historical identity, or the economic well-being of the State or any purpose connected with the defence of Malta or connected with or ancillary to naval, military or air operations; and includes any other purpose specified as public by any enactment; and for the purposes of this definition, where the purpose for the exercise of any right under this Ordinance is connected with the utilisation of any land or any right in connection or in relation therewith for any purpose connected with the supply, storage or distribution of fuel or other sources of energy, or in connection with the provision of any utility or municipal services or infrastructural project shall be deemed to be connected with or ancillary to the public interest or utility;”


DASSA FOUNDATION AND OTHERS v. LIECHTENSTEIN

The first applicant, the Dassa Foundation, and the second applicant, the Lafleur Foundation, are legal entities incorporated under Liechtenstein law in 1996 which have their registered offices in Vaduz. The third applicant, Mr Attilio Pacifico, is an Italian national who was born in 1933 and lives in Monaco. According to the statutes of the first and the second applicant, the third applicant is the sole beneficiary of their assets. The applicants were represented before the Court by Ms Luca Lentini and Mr Giampiero Placidi of Lentini, Placidi & Partners, a law firm practising in Rome.

On 6 June 2001 the Regional Court of the Principality of Liechtenstein (Fürstliches Landgericht) in Vaduz, in investigation proceedings on suspicion of money laundering against Z. and unknown further perpetrators committed in the 1990s (file no. 14 UR 2001.0030), ordered the seizure for a duration of two years of all assets which the first and second applicants had deposited with the Neue Bank company and prohibited the latter to dispose of these assets pursuant to section 97a of the Code of Criminal Procedure (see ‘Relevant domestic and international law’ below). It found that the investigations against Z., the former legal representative of the first and second applicants, had revealed that the third applicant had probably bribed several judges in Rome together with another person. The third applicant was suspected of having transferred the proceeds of these offences to the applicant foundations, which were attributable to him, in order to conceal that the money had originated from criminal acts. Therefore, the accounts of the foundations had to be blocked in order to safeguard the subsequent absorption of the profits (Abschöpfung der Bereicherung) or the forfeiture of the assets in accordance with section 97a of the Code of Criminal Procedure.

On 12 May 2003 the Public Prosecutor’s Office of the Principality of Liechtenstein requested the Regional Court to extend the seizure of the foundations’ assets for at least one year.

On 15 May 2003 the Regional Court, acting in the course of independent objective forfeiture proceedings (objektives Verfallsverfahren) under section 356 of the Code of Criminal Procedure (see ‘Relevant domestic and international law’ below) against the applicant foundations (file no. 14 UR 2002.384), prolonged the seizure of the foundations’ assets ordered by it on 6 June 2001 for one year pursuant to section 97a § 4 of the Code of Criminal Procedure.

The Regional Court noted that the third applicant, being the beneficiary of the foundations, had been sentenced by the Milan Criminal Court to eleven years’ imprisonment on 29 April 2003 with respect to the assets at issue in the present forfeiture proceedings. This judgment was not final yet. As the present proceedings were complex and involved inter-State relations, it had not yet been possible to terminate the investigations.

On 20 May 2003 the Court of Appeal of the Principality of Liechtenstein (Fürstliches Obergericht), in the course of the objective forfeiture proceedings concerning the assets of the applicant foundations, endorsed the Regional Court’s decision of 15 May 2003, confirming that court’s reasoning (section 97a § 4 of the Code of Criminal Procedure).

On 6 June 2003 the first and the second applicant, represented by counsel, lodged an appeal against the decision of the Regional Court of 15 May 2003 with the Court of Appeal. They argued that the initial seizure of its assets on 6 June 2001 had been ordered by the Regional Court for a period of two years in criminal investigation proceedings on suspicion of money laundering against Z. In its decision of 15 May 2003 the Regional Court had then ordered a prolongation of this seizure. However, this prolongation had been made in different proceedings, namely in the course of objective forfeiture proceedings concerning the foundations’ assets, in which there had never been an initial blocking of accounts. Therefore, the prolongation order was unlawful. The criminal proceedings against Z. were terminated by a final judgment so that a continued blocking of accounts in these proceedings was no longer possible.

Moreover, as the Regional Court’s order was made in objective forfeiture proceedings it could only be based on section 20b § 2 of the Criminal Code (see ‘Relevant domestic and international law’ below). However, this provision had entered into force only on 19 December 2000; before that date, there was no legal basis for ordering the forfeiture of the assets in question. The third applicant and others were suspected of having received money for offences committed in the 1990s and of having transferred 18 and 11 million Swiss francs respectively to the account of the applicant foundations in 1996, that is, long before the year 2000. Therefore, applying section 20b § 2 of the Criminal Code in order to prolong the blocking of the foundations’ accounts violated the prohibition of retroactive punishment guaranteed by section 61 read in conjunction with section 1 § 2 of the Criminal Code (see ‘Relevant domestic and international law’ below) and Article 7 of the Convention.

The Court of Appeal transmitted the appeal to the Supreme Court of Liechtenstein (Fürstlicher Oberster Gerichtshof).

On 4 September 2003 the Supreme Court of Liechtenstein dismissed the applicant foundations’ appeal. Referring to its previous case-law, it found that it had jurisdiction to deal with the appeal. As an exception from the rule laid down in section 238 § 1 of the Code of Criminal Procedure (see ‘Relevant domestic and international law’ below), which was authorised by that provision, no appeal lay to the Court of Appeal against the Regional Court’s decision on the prolongation of the seizure of the assets. Otherwise the Court of Appeal would have to decide twice on the same subject matter following its necessary consent to the prolongation of the seizure. Contrary to the wording of section 97a § 6 of the Code of Criminal Procedure, an appeal lay, however, with the Supreme Court itself instead.

The Supreme Court found that measures pursuant to section 97a of the Code of Criminal Procedure were aimed at preventing persons suspected of a criminal offence from frustrating the absorption of the profits or the forfeiture of the assets obtained as a result thereof while the investigations into the offence were pending. As rightly found by the Regional Court and the Court of Appeal, there was a reasonable suspicion of money laundering. The third applicant, being the sole beneficiary of the foundations, had been convicted at first instance by the Milan Criminal Court of having received the money later transferred to the foundations as commissions for criminal acts. There were, therefore, reasonable grounds for the assumption that the assets seized would later be declared forfeited.

The Supreme Court conceded that the seizure of the foundations’ assets had initially been ordered in the criminal proceedings against Z. However, it was lawful to prolong the seizure in the present objective forfeiture proceedings as these were the logical continuation of the said criminal proceedings and as the seizure had been made in the criminal proceedings to make the forfeiture possible.

A declaration of forfeiture at a later date pursuant to section 20b of the Criminal Code, which authorised the forfeiture of assets and entered into force on 19 December 2000, was not excluded by the prohibition of retroactivity. The forfeiture of assets was not an additional punishment, but an independent pecuniary consequence of the fact that a perpetrator, his legal successor or other beneficiaries, including legal entities, had obtained assets resulting from an unlawful act. It did not require that the perpetrator had acted with criminal responsibility. In case of a refusal of payment, an order of forfeiture was therefore enforced with the ordinary instruments of execution of payment, not by ordering imprisonment for failure to pay a fine.

As the forfeiture of assets pursuant to section 20b of the Criminal Code was thus not an (additional) penalty for an offence, such a measure did not have to be examined in the light of the prohibition of retroactive punishment enshrined in sections 1 and 61 of the Criminal Code. The new provisions on forfeiture of assets were applicable to all assets which were found to be in Liechtenstein at the time the provisions entered into force. They had not therefore become effective retroactively and had not changed retroactively the consequences of a perpetrator’s past conduct, but concerned a persistent state of affairs, namely assets being situated within the country.

The Supreme Court further found that sections 1 and 61 of the Criminal Code only played a role in so far as the criminal offence as a result of which the assets in question were obtained was concerned. Proceeds of offences which had not been punishable before the entry into force of section 20b of the Criminal Code were not liable to forfeiture. However, in the present case the offences which were suspected to have generated the assets at issue had been punishable both in Italy and in Liechtenstein at the time they had been committed.

The seizure of the assets was proportionate because the disadvantages suffered by the applicant foundations as a result of the blocking of their accounts were less important than the damage possibly incurred by the victims of the offences if the seizure was not ordered.

On 23 September 2003 the first and second applicants lodged a complaint with the Constitutional Court of the Principality of Liechtenstein (Staatsgerichtshof des Fürstentums Liechtenstein). They claimed that the principle of nulla poena sine lege as guaranteed by Article 33 § 2 of the Constitution of Liechtenstein (see ‘Relevant domestic and international law’ below) and Article 7 of the Convention had been violated. They argued that the forfeiture of assets authorised by section 20b of the Criminal Code had to be qualified as an additional punishment. The courts had applied that new penal provision, which had entered into force on 19 December 2000, to assets purportedly obtained by criminal offences committed in the 1990s, that is, before that date, when the forfeiture of such assets had not yet been authorised by law.

Moreover, the applicants claimed that their right to a fair trial and to be heard by the judge having jurisdiction over the case as protected by Article 33 § 1 of the Constitution (see ‘Relevant domestic and international law’ below) and Article 6 of the Convention had been breached. It had been unlawful and indeed arbitrary to order a prolongation of the seizure of its assets in objective forfeiture proceedings, in which there had not been a seizure yet, the initial seizure having been ordered in criminal proceedings against Z. The Regional Court had therefore not had jurisdiction to order the said prolongation in the objective forfeiture proceedings pending before it. Moreover, the decision on the applicants’ appeal against this decision should have been given by the Court of Appeal and not by the Supreme Court.

On 29 June 2004 the Constitutional Court of the Principality of Liechtenstein rejected the foundations’ complaint.

It found, firstly, that the prohibition of retroactive punishment laid down in Article 33 § 2 of the Liechtenstein Constitution and Article 7 § 1 of the Convention as well as in sections 1 and 61 of the Criminal Code did not apply to a forfeiture pursuant to section 20b § 2 of the Criminal Code. Referring to the criteria laid down by this Court notably in the case of Welch v. the United Kingdom (judgment of 9 February 1995, Series A no. 307, p. 13, § 28) it found that forfeiture pursuant to section 20b § 2 of the Criminal Code was not a “penalty” within the meaning of Article 7 § 1 of the Convention.

It was not a precondition for an order of forfeiture pursuant to that section that the person concerned was convicted of a criminal offence or that criminal proceedings had been instituted against him at all. The assets concerned had to stem from an act punishable at the place of its commission to which Liechtenstein criminal law was not applicable.

The purpose of the new provision on forfeiture was to comply with the obligations arising notably under the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (ETS no. 141; see ‘Relevant domestic and international law’ below) and to guarantee that crime did not pay off. Forfeiture was not an additional penalty for offences, the penal sanctions for offences, prison sentences and fines, being sufficient. It was only aimed at absorbing the profits made as a result of an offence. It was therefore not necessary that the person concerned acted with criminal responsibility and forfeiture could also be ordered against the legal successors of a perpetrator. Therefore, forfeiture had to be characterised as a civil law consequence of criminal acts. This was confirmed by the fact that in case of a refusal of payment, an order of forfeiture was enforced with the ordinary instruments of execution of payment orders whereas – other than, for example, in the Welch case – it was not authorised to order imprisonment for failure to pay a fine.

The objective forfeiture proceedings were separate proceedings to which the procedural rules of the Code of Criminal Procedure applied, but which were independent of the guilt of the person or legal entity owning the assets in question. As to the severity of the measure in question, it had to be noted that the assets forfeited were often only part of the net proceeds of a criminal offence.

Secondly, the Constitutional Court found that the applicants’ right to be heard by the judge having jurisdiction over the case under Article 33 § 1 of the Constitution had not been violated. It had been convincing and, in any event, not arbitrary for the Supreme Court to argue that the present objective forfeiture proceedings were the logical continuation of the criminal proceedings against Z. and that it had, therefore, been lawful to order the prolongation of the seizure in the objective forfeiture proceedings. Likewise, having regard to the Supreme Court’s reasoning, it had been reasonable and not arbitrary for that court to conclude that an appeal against the decision of the Regional Court to prolong the seizure of the applicants’ assets did not lie with the Court of Appeal, but with the Supreme Court itself.

On 17 May 2004 the Regional Court of the Principality of Liechtenstein, in the course of the objective forfeiture proceedings against the applicant foundations, prolonged the seizure of the foundations’ assets for another year pursuant to section 97a § 4 of the Code of Criminal Procedure (file no. 14 UR 2002.384). Referring to the conviction of the third applicant by the Milan Criminal Court on 29 April 2003, it argued that the assets were suspected of being the pay-back for bribing civil servants. However, the said judgment was not final yet and the investigation proceedings in Liechtenstein depended on the outcome of the proceedings in Italy.

On 19 May 2004 the Court of Appeal of the Principality of Liechtenstein, referring to the Regional Court’s reasoning and to that of the Supreme Court of Liechtenstein in its decision of 4 September 2003, consented to the Regional Court’s decision (section 97a § 4 of the Code of Criminal Procedure).

On 8 June 2004 the applicant foundations lodged an appeal with the Supreme Court. Disagreeing with the decision given by the Supreme Court of Liechtenstein on 4 September 2003, they reasoned their appeal along the same lines as their appeal of 6 June 2003.

On 23 July 2004 the Supreme Court of Liechtenstein dismissed the foundations’ appeal as ill-founded. Referring to its decision given on 4 September 2003, which had meanwhile been confirmed by the Constitutional Court in its decision of 29 June 2004, it found that it had been lawful to order the prolongation of the seizure in the present objective forfeiture proceedings. Moreover, as had been confirmed by the Constitutional Court, the forfeiture of assets pursuant to section 20b of the Criminal Code was not an (additional) penalty for an offence and therefore did not have to be examined in the light of the prohibition of retroactive punishment. The Supreme Court reiterated that it had repeatedly considered it to be disproportionate to freeze assets of Liechtenstein citizens or legal entities for more than three years without the underlying criminal proceedings being terminated. However, the outcome of the criminal proceedings in Italy prejudged the outcome of the present case and it was likely that a final decision would be given shortly. Therefore, the prolongation of the blocking of the foundations’ accounts was still proportionate, even though the objective forfeiture proceedings should be terminated soon.

On 12 August 2004 the foundations lodged a complaint with the Constitutional Court. They argued again that the application of section 20b of the Criminal Code had violated the principle of nulla poena sine lege as guaranteed by Article 33 § 2 of the Constitution of Liechtenstein and Article 7 of the Convention. Invoking Article 33 of the Liechtenstein Constitution and Article 6 of the Convention, they claimed that their right to a fair trial and to be heard by the judge having jurisdiction over the case had been breached. Moreover, the applicants complained that the Supreme Court of Liechtenstein had failed to give sufficient reasons for its view that it had been lawful to order the prolongation of the seizure in the present objective forfeiture proceedings.

On 30 November 2004 the Constitutional Court dismissed the foundations’ complaint as ill-founded. It referred to the grounds given in its decision of 29 June 2004. As regards the foundations’ claim that the Supreme Court insufficiently reasoned its decision, the court found that the Supreme Court’s reference to the grounds given by the Constitutional Court in its decision of 29 June 2004 did not breach the duty to give sufficient reasons. The latter decision concerned the same questions raised by the same parties so that the reference was clear and comprehensible.

On 13 March 2007 the applicants informed the Court that the seizure of their assets persisted, without a final judgment on the underlying offences having been given.

Pursuant to Article 33 § 1 of the Constitution of the Principality of Liechtenstein, no one may be removed from the jurisdiction of his lawful judge and extraordinary courts shall not be established.

Article 33 § 2 of the Constitution stipulates that the threat or imposition of penalties must be in accordance with the law.

Article 34 § 1 of the Constitution guarantees the inviolability of private property.

Section 1 of the Criminal Code prohibits punishment without law. Pursuant to section 1 § 1 of the Criminal Code, a penalty or a measure of prevention may only be imposed for an act which was punishable according to law at the time of its commission. Section 1 § 2 of that Code provides that no heavier penalty may be imposed than the one that was applicable at the time the criminal offence was committed. A measure of prevention may only be ordered if, at the time of the commission of the offence, this measure or a comparable penalty or measure of prevention had been provided for by law.

Section 61 of the Criminal Code lays down rules on the temporal applicability of criminal provisions. Criminal laws apply to acts committed after the laws’ entry into force. They are applicable to acts committed prior to that date if the laws in force at the time when the offence was committed, having regard to their overall effects, were less favourable to the perpetrator.

Sections 18 to 31a of the Criminal Code, according to their heading, cover penalties, the absorption of profits, forfeiture and preventive measures. Section 18 of that Code regulates prison sentences, section 19 of the Code provides for fines and sections 20 and 20a of the Code contain rules on the absorption of profits. Sections 21 et seq. provide, in particular, for preventive measures such as the placement in an institution for mentally disturbed law breakers, in a detoxification facility or in an institution for dangerous recidivist offenders.

According to section 20b § 2 of the Criminal Code, assets which were derived from an act liable to punishment shall be declared forfeited if the act from which they originate is punishable according to the laws of the place were it was committed, if Liechtenstein criminal law does not apply to that act and if the act did not constitute a fiscal offence. Pursuant to section 20c § 1 no. 1 of the Criminal Code, forfeiture is excluded in so far as third parties, who did not participate in the offences at issue, have legal claims in relation to the assets in question.

Section 20b § 2 of the Criminal Code was introduced into that Code by the Act on Amendments to the Criminal Code of 25 October 2000, which entered into force on 19 December 2000 (see Liechtenstein Federal Gazette (LGBl) 2000, no. 256, issued on 19 December 2000).

Money laundering, that is, in particular, hiding assets originating from a criminal offence or concealing the fact that the assets stem from an offence, is punishable pursuant to section 165 § 1 of the Criminal Code. However, a person who has been punished for having participated in the offence which generated such assets is not (also) liable to prosecution for money laundering (section 165 § 5 of the Criminal Code).

Section 97a § 1 of the Code of Criminal Procedure provides that if there is a suspicion that assets originate from a punishable act and are likely to be declared forfeited (pursuant to section 20b of the Criminal Code) the court, on a motion of the Public Prosecutor’s Office, shall order measures aimed at safeguarding their forfeiture if the recovery of the assets is endangered or rendered considerably more difficult otherwise. Such safeguarding measures comprise, inter alia, the seizure of assets or a prohibition on their disposal.

Section 97a § 4 of that Code stipulates that the court is obliged to fix a time-limit for the safeguarding measure ordered, which may be extended on request. If two years have passed following the first order without an indictment having been laid or a request for forfeiture having been lodged in separate objective proceedings, further extensions of the time-limit for one year respectively are only permitted with the consent of the Court of Appeal.

The seizure order shall be quashed, in particular, if it can be assumed that the forfeiture will not be ordered or if the time-limit for the order has expired (section 97a § 5 of the Code of Criminal Procedure).

Section 356 of the Code of Criminal Procedure regulates the forfeiture proceedings. If there are sufficient grounds for the assumption that the preconditions for forfeiture (section 20b of the Criminal Code) are met and if this cannot be determined in the course of criminal proceedings, the Public Prosecutor shall lodge a separate request for a declaration of forfeiture (§ 1 of section 356). It is the court which would have jurisdiction to adjudicate on the offence due to which the forfeiture order shall be made which shall decide on the request in separate proceedings by a judgment following a public hearing (§ 2 of section 356). Persons who argue to have a claim on the assets liable to forfeiture have the rights of an accused in the forfeiture proceedings (section 354 of the Code of Criminal Procedure).

Pursuant to Section 97a § 6 of the Code of Criminal Procedure, the Public Prosecutor’s Office, the defendant or the persons otherwise affected have the right to lodge an appeal with the Court of Appeal against the order of safeguarding measures or its lifting.

According to section 238 § 1 of the Code of Criminal Procedure all judicial decrees, decisions and orders which are not judgments are subject to appeal to the Court of Appeal on grounds of unlawfulness or disproportionality if there are no exceptions provided for by law.

The Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime signed on 8 November 1990 (ETS no. 141) entered into force for Liechtenstein on 1 March 2001. According to its preamble, the objective of this Convention is to fight effectively against serious crime by depriving criminals of the proceeds from crime and to establish a well-functioning system of international co-operation to attain this aim. Parties undertake in particular to criminalise the laundering of the proceeds from crime and to confiscate such proceeds or property the value of which corresponds to such proceeds.


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant, Mr Vladimir Petrovich Korolev, is a Russian national who was born in 1954 and lives in Orenburg, in the Russian Federation.

The applicant sued the Head of the Passport and Visa Department at the Regional Directorate of the Interior for having denied him access to documents pertaining to a delay in issuing his new travel passport.

On 25 September 2001 the Verkh-Isetskiy District Court of Ekaterinburg dismissed the applicant’s claim. On 13 November 2001 the Sverdlovskiy Regional Court quashed the judgment on appeal and referred the case back to the District Court.

On 16 April 2002 the District Court allowed the applicant’s claim, ordering the Head of the Passport and Visa Department to allow the applicant access to all the documents and materials relating to the issuing of his passport. The court also held that the Passport and Visa Department should pay the applicant 22.50 Russian roubles ((RUB) – less than one euro) in compensation for the court fees.

On 4 July 2002 this judgment was upheld on appeal and became final.

It is not evident from the case file if and when the respondent authority complied with the judgment in the part concerning the applicant’s access to his file. All reported actions taken by the applicant in the wake of the judgment were solely aimed at recovering the RUB 22.50 awarded by the District Court.

On 22 July 2002 the District Court issued a writ of execution which was explicitly limited to the payment of the court’s award of RUB 22.50. On 28 April 2003 the bailiff initiated enforcement proceedings.

On 15 December 2003 the applicant challenged the bailiff’s inactivity before the District Court. On 22 December 2003 the judge found the complaint to fall short of the procedural requirements and requested the applicant to comply therewith by 5 January 2004. The applicant was in particular requested to substantiate the bailiff’s alleged failure.

The applicant supplemented his complaint on 31 December 2003.

On 6 January 2004 the court found that the applicant had not complied with the said requirements and dismissed the complaint without considering its merits. On 10 February 2004 the Sverdlovskiy Regional Court upheld that decision.


Violation of Art. 6-1;Violation of P7-4;Remainder inadmissible;Non-pecuniary damage - Award

Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in 1965 and lives in Pazin.

On 16 June 2005 the Pazin Police lodged a request for minor-offences proceedings to be instituted against the applicant in the Pazin Minor-Offences Court (Prekršajni sud u Pazinu). In a decision of the same day the Pazin Minor-Offences Court found that at about 7 p.m. on 15 June 2005 at the Pazin coach terminal, the applicant had, while under the influence of alcohol, verbally insulted one D.R., punched him in the head several times and proceeded to kick and punch him about the body. The applicant was found guilty of particularly offensive behaviour in a public place in that he had insulted another and caused a breach of the peace. This constituted a minor offence under section 6 of the Minor Offences against Public Order and Peace Act for which he was sentenced to forty days’ imprisonment. That decision became final on 29 June 2005. The relevant part of the decision reads:

“Defendant: Armando Maresti ...

is guilty

in that at 7 p.m. on 15 June 2005 at the coach terminal in Pazin, while under the influence of alcohol, he ... firstly insulted D.R. ... and then pushed him with both hands and, when he fought back, started to hit him with his fists many times to the head before continuing to punch and kick him about his entire body.

On 14 July 2005 the Pazin State Attorney’s Office (Općinsko državno odvjetništvo Pazin) lodged an indictment with the Pazin Municipal Court (Općinski sud u Pazinu) accusing the applicant of causing grievous bodily injury to A.M.

The applicant was represented in the proceedings by counsel. On 9 September 2005 his counsel submitted a written request for all correspondence to go through him and enclosed a signed authority by the applicant’s mother. At the time the applicant was serving a prison sentence in Pula Prison.

On 15 November 2005 the Pazin State Attorney’s Office lodged an indictment with the Pazin Municipal Court accusing the applicant of causing grievous bodily injury to D.R. It relied in the indictment on a police report on the events of 15 June 2005.

On 12 April 2006 the Municipal Court joined three separate sets of criminal proceedings against the applicant, including the proceedings in respect of the alleged assaults on A.M. and D.R. On the same day it ordered the applicant’s detention on the grounds that he had been indicted in several sets of proceedings, had a number of previous convictions and would be liable to reoffend if left at large.

On 19 May 2006 the Municipal Court found the applicant guilty on two counts of assault causing grievous bodily injury and one count of making death threats. In respect of the incident at the Pazin coach terminal on 15 June 2005, it found that the applicant had approached D.R. and insulted him verbally before proceeding to punch and kick him about the body. He was sentenced to one year’s imprisonment in respect of all the offences of which he was convicted. The time he had already served in connection with his conviction in the summary proceedings before the Minor-Offences Court was to be deducted from his sentence. He was ordered to undergo compulsory treatment for alcohol addiction during his imprisonment. The relevant part of the judgment reads:

“Defendant Armando Maresti ...

is guilty

because

2) at about 7 p.m. on 15 June 2005. at the coach terminal in Pazin, while under the influence of alcohol, he ... approached D.R. ... and firstly insulted him verbally, ... and then proceeded to push him with both hands before hitting him on the head with his fists breaking his dental prosthesis; when he [D.R.] attempted to leave, the defendant caught him, pushed him to the ground and kicked him about his entire body thereby causing him a number of injuries...”

In an appeal of 7 June 2006 the applicant alleged, inter alia, that in respect of the offences against A.M. and D.R. he had already been convicted by the Pazin Minor-Offences Court and that the non bis in idem rule had been violated. On 30 June 2006 the Pula County Court (Županijski sud u Puli) allowed the applicant’s appeal in respect of the offence against A.M., on grounds other than the alleged violation of the non bis in idem rule, and upheld his convictions of the other two offences, while reducing the overall sentence to seven months’ imprisonment.

The appellate judgment was served on the applicant’s mother on 9 August 2006 and on his counsel on 16 August 2006. On 13 September 2006 the applicant’s counsel lodged a request with the Pazin Municipal Court for extraordinary review of the final judgment. He argued, inter alia, that the applicant had acted in self defence and repeated the submission he had made on appeal that, as the applicant had already been convicted by the Pazin Minor-Offences Court , the non bis in idem rule had been violated.

In a decision of 14 September 2006, the Municipal Court declared the request inadmissible as it had been lodged outside the one-month time limit. On an appeal against that decision, the applicant argued that the impugned judgment had not been properly served since his mother suffered from schizophrenia and was not capable of clear judgment and so could not be regarded as an adult member of the same household within the meaning of Article 146, paragraph 1, of the Code of Criminal Procedure. He supported that assertion with a medical certificate. He further argued that his request for extraordinary review of the final judgment had been lodged within one month after it was served on his counsel and so had complied with the prescribed time-limit.

On 23 February 2007 the Pula County Court dismissed the appeal after finding that the applicant’s mother had signed an authority for the applicant’s legal representation in the criminal proceedings, so that it could not be said that she had been incapable of clear judgment.

In a subsequent constitutional complaint lodged on 23 March 2007 the applicant argued, inter alia, that the judgment of the Pula County Court of 30 June 2006 had not been properly served on him and that his right to a remedy had thus been violated. On 24 May 2007 the Constitutional Court declared the complaint inadmissible on the ground that it did not concern the merits of the case.

The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 63/2002, 62/2003 and 115/2006) read as follows:

“Correspondence for which this Act does not specifically prescribe personal service shall also be served personally. Where, however, the intended recipient is not found on the premises..., it may be served on an adult member of the same household who shall be bound to accept service...”

“An infringement of the Criminal Code arises if:

there exist circumstances which exclude criminal prosecution, in particular, where ... the matter has already been finally adjudicated,

“(1) A defendant who has been finally sentenced to a prison term ... may lodge a request for the extraordinary review of a final judgment on account of infringements of this Act.

(2) A request for the extraordinary review of a final judgment shall be lodged within a month after the final judgment has been served on the defendant.

“The Supreme Court shall decide requests for the extraordinary review of a final judgment.”

“A request for the extraordinary review of a final judgment may be lodged [in respect of]:

an infringement of the Criminal Code to the detriment of the convicted person under Article 368(1)-(4) of this Act...

an infringement of the defence rights at the trial or of the procedural rules at the appellate stage, if it may have influenced the judgment.”

The relevant parts of the Criminal Code (Kazneni zakon, Official Gazette no. 110/1997) read as follows:

“Whoever inflicts bodily injury on another or impairs another’s health shall be sentenced to imprisonment for a term of no less than three months and not exceeding three years.”

The relevant part of the Minor Offences against Public Order and Peace Act (Zakon o prekršajima protiv javnog reda i mira, Official Gazette nos. 5/1990, 47/1990 and 29/1994) reads:

“Anyone who behaves in a particularly offensive or rude manner in a public place by insulting citizens or disturbing the peace shall be liable to a fine ... or to a term of imprisonment not exceeding sixty days.”