Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

The applicant, Mr Frans Cornelis Adrianus van Anraat, is a Dutch national who was born in 1942. He is currently serving a sentence of imprisonment (gevangenisstraf) in Zoetermeer Prison, the Netherlands. He was represented before the Court by Mr G. Spong, a lawyer practising in Amsterdam.

The applicant was a businessman. Between April 1984 and August 1988 he purchased quantities in excess of eleven hundred metric tons of the chemical thiodiglycol in the United States and Japan, and, acting through companies based in a variety of countries, he supplied it to the Government of Iraq. After 1984 he was the Iraqi Government's sole supplier of this substance.

Thiodiglycol is a precursor in a chemical reaction at the final stage of formation of 1,5-dichloro-3-thiopentane. One of a group of compounds known as sulphur mustards and better known as mustard gas, 1,5-dichloro-3-thiopentane has severe vesicant properties. In contact with the skin, it causes severe and potentially lethal chemical burns; in contact with the eyes, it causes inflammation possibly resulting in blindness; if inhaled, it blisters mucous membrane and lung tissue and can cause pulmonary oedema. Its known long-term effects on survivors include an increased risk of cancer in later life. Mustard gas, so called because of its smell, was first used as a battlefield weapon during the First World War, at the Third Battle of Ypres (July-November 1917).

Mustard gas is known to have been used by the Iraqi military, along with other chemical weapons, against Iranian armed forces and civilians during the Iran-Iraq War (1980-1988) and in attacks against the Kurdish population of northern Iraq (1988). One such attack, carried out on the town of Halabja in March 1988, killed thousands of non-combatant civilians and injured thousands more. Among those later considered primarily responsible were Saddam Hussein Abd al-Majid al-Tikriti (known as Saddam Hussein), President of Iraq from 1979 until 2003, and Ali Hassan Abd al-Majid al-Tikriti, Secretary General of the Ba'ath Party in northern Iraq between 1987 and 1989, nicknamed “Chemical Ali”.

Saddam Hussein was charged before the Special Iraqi Tribunal (later re-named Supreme Iraqi Criminal Tribunal) with the use of poison gas against Kurdish civilians in Halabja. However, he never stood trial on this charge; he was hanged on 30 December 2006 for another crime.

Ali Hassan Abd al-Majid al-Tikriti was tried by the Special Iraqi Tribunal/Supreme Iraqi Criminal Tribunal on a plurality of charges; these included the 1988 Halabja gas attack, in respect of which he was found guilty. He was hanged on 25 January 2010.

Charges were brought against the applicant in the Netherlands which may be summarised as follows:

(1) aiding and abetting genocide committed by named individuals including Saddam Hussein and Ali Hassan al-Majid al-Tikriti against the Kurdish population of northern Iraq in a number of places including Halabja;

in the alternative, aiding and abetting violations of the laws and customs of war committed by named individuals including Saddam Hussein and Ali Hassan al-Majid al-Tikriti, as regards gas attacks on the Kurdish population of northern Iraq in Halabja and elsewhere; and

(2) aiding and abetting violations of the laws and customs of war committed by named individuals including Saddam Hussein and Ali Hassan al-Majid al-Tikriti, as regards gas attacks on the territory of Iran.

The acts constitutive of these crimes were stated to be the supply of various named chemicals, including thiodiglycol, to the Republic of Iraq as well as materials and advice for the manufacture of chemical weapons in violation of international law. The charges referred to several provisions of domestic legislation, including, as relevant to the case before the Court, section 8 of the War Crimes Act (Wet Oorlogsstrafrecht), taken together with Article 48 of the Criminal Code (Wetboek van Strafrecht).

The trial opened before the Regional Court (rechtbank) of The Hague on 18 March 2005. On 23 December 2005 the Regional Court delivered its judgment. It acquitted the applicant of the first primary charge, aiding and abetting genocide, finding that genocidal intent on his part could not be proved; but it convicted him on the first alternative charge and the second charge. It sentenced him to fifteen years in prison and ordered him to pay sums of money in compensation to a number of named individuals who had joined the proceedings as civil parties.

Both the prosecution and the applicant appealed against the Regional Court's judgment to the Court of Appeal (gerechtshof).

In its judgment of 9 May 2007, the Court of Appeal of The Hague acquitted the applicant of aiding and abetting genocide as the Regional Court had done. It convicted him, however, of aiding and abetting violations of the laws and customs of war committed by Saddam Hussein, Ali Hassan al-Majid al-Tikriti and another person or other persons in a non-international or international conflict as the case might be, as regards gas attacks on the Kurdish population of northern Iraq in Halabja and elsewhere (the first alternative charge), and of aiding and abetting violations of the laws and customs of war committed by Saddam Hussein, Ali Hassan al-Majid al-Tikriti and another person or other persons in an international conflict, as regards gas attacks on the territory of Iran.

The Court of Appeal's judgment concluded as follows (translation published by the Court of Appeal itself):

“12.5 Conclusion

Based on the above, the following conclusions can be made:

a) The defendant played an important part by supplying the precursor Thiodiglycol [or TDG] to the Iraqi regime for the production of mustard gas: at least 38% of this substance had been supplied by him in the years 1980 up to and including 1988. If any TDG would also have been supplied from the United Kingdom to Iraq in those same years, this fact does not impair the qualification of 'important' regarding defendant's part in this matter.

b) When the supplies by others eventually stopped no later than in the course of 1984, the defendant supplied at least another 1,116 tons of this precursor until the spring of 1988.

c) The first shipment of TDG supplied by the defendant arrived in Iraq towards the summer of 1985; in that year he supplied a total of approximately 197 tons. Based on the considerations written under item 12.3 above, the Court deems it very likely that in the course of that year TDG supplied by the defendant was also used for the production and finally ended up in ammunition that was used for the attacks as mentioned in the charges.

Conclusive evidence for his co-responsibility regarding the attacks mentioned in the charges (in so far as mustard gas was deployed in those attacks) is the following:

d) As of 1985, the supplementation of the essential precursor TDG to the Iraqi regime depended completely on the supplies made by the defendant.

e) For that reason, the unwholesome policy that was continuously carried out by the regime that from 1984 onwards seemed to find it necessary to deploy hundreds of tons of this poison gas during combat, depended to a decisive extent if not totally on those supplies.

Taking into consideration the crucial significance that the shipments of TDG supplied by the defendant since 1985 had for the chemical weapon program of the regime, the Court finds the defendant (together with his co-perpetrators) guilty of being an accessory to providing the opportunity and the means for the proven attacks with mustard gas in the years 1987 and 1988.

Liability to punishment on account of the proven charges

The proven charges constitute a punishable offence:

Regarding the proven charges under count 1. alternatively:

The defendant is found guilty of the offence of complicity in being an accessory to a violation of the laws and customs of war, while that offence resulted in the death or grievous bodily harm of another person or that offence was an expression of a policy of systematic terror or wrongful actions against the whole population or a specific group thereof, committed several times.

Regarding the proven charges under count 2:

The defendant is found guilty of the offence of complicity in being an accessory to a violation of the laws and customs of war, while that offence resulted in the death or grievous bodily harm of another person, committed several times.

Liability to punishment of the defendant

No circumstance has become plausible that would rule out the punishability of the defendant. Therefore the defendant is liable to punishment.

Considerations regarding the applicable legislation

The [War Crimes Act] which was applicable at the time of the period referred to in the charges, was amended several times afterwards; following the entry into force of the International Crimes Act (...) on 1 October 2003, the war crimes were devolved from the [War Crimes Act] to the [International Crimes Act]. Only the amendments to the law dated 27 March 1986 (...) and dated 14 June 1990 (...) are important when determining whether the later legal provisions are more favourable for the defendant than the law that was applicable during the period referred to in the charges.

Pursuant to Act of Parliament dated 27 March 1986, a new [section] 10a was inserted into the [War Crimes Act], which makes it possible to impose an additional sentence provided by article 28, first paragraph, under 3o, of the Penal Code (deprive a person of his/her active and passive right to vote) on account of – inter alia – a conviction for being found guilty of war crimes, while by Act of Parliament dated 14 June 1990, the death penalty as possible punishment was removed from the [War Crimes Act].

The [War Crimes Act] as it reads as of 1 January 1991, after the amendment by Act of Parliament of 14 June 1990, is more favourable to the defendant in terms of an eventual penalty. From the devolvement of the penal provisions that refer to war crimes from the [War Crimes Act] to the International Crimes Act, as from 1 October 2003, it cannot be said that they result in more favourable provisions for the defendant. Based on the provisions in article 1, paragraph 2, of the Penal Code, the [War Crimes Act] will have to be the starting point as it read on 1 January 1991. Furthermore with regards to complicity, the Court has taken into consideration article 49, paragraph 2, of the Penal Code, as it read until 1 February 2006 (the date of entry into force of the Act regarding reassessment of maximum penalties). Pursuant to article 10 (old), 49, paragraph 2 (old), 57 and 78 of the Penal Code and [section] 8 of the [War Crimes Act], as it read on 1 January 1991, viewed together and in relation to each other, the Court cannot draw any other conclusion than that in this case the defendant is liable to a maximum term of twenty years imprisonment.

Grounds for the punishment

During the appeal trial, the advocate general moved that the sentence of the court of first instance be set aside and on account of the principal charge under counts 1. and 2. he demanded that the defendant be sentenced to a term of imprisonment of 15 years, less the period spent in pre-trial detention.

In making its assessment as to what penalty should be imposed, the Court has taken into account the following considerations.

During a number of years the defendant supplied raw material to the Iraqi regime for the production of chemical weapons. From 1985 until early 1988, in a total of twenty shipments he supplied at least more than 1,100 tons of Thiodiglycol (TDG) on the basis of three Letters of Credit. That substance was used for the production of mustard gas that was deployed during the war in Iran as well as in Iraq. By doing so during a number of years, the defendant has consciously made a substantial contribution to the continuing violation of the laws and customs of war committed by the Iraqi regime. Based on Dutch criminal law that was applicable at that time, a person who is found guilty of complicity in a criminal offence which carries a life sentence can be sentenced to a term of imprisonment of a maximum of 15 years. Seen the fact that the defendant committed the offence of complicity several times, in his case the penalty to be imposed will be a maximum term of twenty years imprisonment, which is based on the regulation set out in article 57, paragraph 2, of the Penal Code, concerning various offences for which one sentence is pronounced.

In determining the punishment in this case, the Court has taken into account the following circumstances, that on the one hand relate to the seriousness of the offences, the circumstances in which they were committed, as well as the intended purposes of the punishment to be considered when fixing the punishment, and on the other hand the personal circumstances of the defendant.

As results from the case file (in the period referred to in the charges), the Iraqi regime carried out multiple attacks with (among others) mustard gas during the war with Iran on places in that country, as well as on the border region between Iraq and Iran, where Kurdish population groups lived that were suspected of collaboration with the Iranian enemy. Those attacks caused the death of at least thousands of civilians (that did not participate in the conflict) and caused permanent and severe health problems to very many persons. It is beyond doubt that the regime in Bagdad by doing so committed extensive and extremely gross violations of the international humanitarian law by using a weapon that was already prohibited by the Geneva (Gas) Protocol of 17 June 1925.

The defendant has made an essential contribution to these violations – at a time that many, if not all other suppliers 'pulled out' with regard to the increasing international pressure – by supplying many times in the course of several years (among other matters) very large quantities of a precursor for mustard gas; in doing so the defendant made significant profits. Those supplies enabled the Iraqi regime to (almost) continue their deadly (air) attacks in full force during a number of years. Apparently the defendant did not give his deliberate support to the afore mentioned gross violations out of sympathy for the targets of the regime, but – as it should be assumed – the defendant acted exclusively in pursuit of large gains and fully neglected the consequences of his actions. Even today the defendant does not show any sense of guilt or any compassion for the numerous victims of the mustard gas attacks.

The Court recognizes that the proven offences were committed over more than twenty years ago and that the defendant is a man of advanced age, who is to be expected to spend a large part of the remaining years of his life in prison. The Court will only be able to attach limited weight to this slightly mitigating circumstance. In this case the most important aspect concerning the determination of the appropriate sanction – considering the extreme gross violation of the principles of humanitarian law that took place and the important supporting role that was played by the defendant – is to point out to the victims and survivors, as well as to the international legal community, how much value is put on the actions of the defendant and what severe punishment can only be the consequence of these actions.

Finally in fixing the appropriate punishment, the Court has taken into account the general prevention aspect. People or companies that conduct (international) trade, for example in weapons or raw materials used for their production, should be warned that – if they do not exercise increased vigilance – they can become involved in most serious criminal offences.

It should be made clear to them that they will have to face prosecution and long-term prison sentences, in accordance with the seriousness of the crimes they committed.

Considering all of the above, the Court concludes that the only suitable and necessary reaction in these circumstances is a non-suspended prison sentence of a very long term as set out below.”

The Court of Appeal sentenced the applicant to seventeen years' imprisonment; however, it rejected the claims of the civil parties as unsuitable for summary decision.

The applicant lodged an appeal on points of law (cassatie) with the Supreme Court (Hoge Raad), submitting a statement of points of appeal on 14 April 2008. He argued, referring to section 1(1) of the War Crimes Act, that the Netherlands courts lacked jurisdiction since the Court of Appeal had not convicted him of aiding and abetting crimes committed in “time of war” (as distinct from non-international or international “conflict”); section 1(2) of that Act could not apply, since the conflict, whether international or not, did not in any way involve the Netherlands. He also alleged a violation of Article 7 of the Convention in that the concept of “laws and customs of war” as used in section 8 of the War Crimes Act was so vague and uncertain in scope that he could not reasonably have been found to have had the criminal intent to be an accessory to their violation. He further claimed that the 1925 Geneva Gas Protocol and the 1949 Geneva Conventions, as considered relevant by the Court of Appeal, had become a dead letter in the light of the use of weapons of mass destruction, nuclear in particular, and the widespread use of other indiscriminate weapons such as incendiary bombs and napalm (which he described as “chemical weapons”) during the Second World War (1939-45), the Korean War (1950-53) and the Vietnam War (1959-75). The 1925 Geneva Gas Protocol, moreover, had lost its force, or at the very least could no longer be seen as proof of the existence of customary law given widespread State practice to contrary effect.

The Procurator General (Procureur-Generaal) at the Supreme Court submitted an advisory opinion on 18 November 2008. He considered the Court of Appeal's reference to general international law an error which the Supreme Court could itself correct ex officio: it was sufficient to refer to the 1925 Geneva Gas Protocol, to the common Article 3 of the 1949 Geneva Conventions, and (in relation to the second charge) to Article 147 of the fourth Geneva Convention, all of which had been relied on by the Court of Appeal as setting out the applicable substantive standards.

The applicant submitted a response to the Procurator General's opinion on 27 November 2008, as permitted by Article 439 § 5 of the Code of Criminal Procedure (Wetboek van Strafvordering). He argued, among other things, that Saddam Hussein and Ali Hassan al-Majid al-Tikriti, whose crimes he had supposedly aided and abetted, had at the time been members of the government of a sovereign State (one of them its Head of State) and for that reason protected by that State's sovereign immunity. Since the Dutch courts had no jurisdiction over them, it followed that they were not entitled to try him as their accessory either.

On 30 June 2009 the Supreme Court gave judgment dismissing the appeal on points of law. It found that section 3 of the War Crimes Act conferred universal jurisdiction on Dutch courts in respect of the crimes set out in section 8 of that Act. In response to the applicant's complaint going to the supposed vagueness of the concept of “laws and customs of war” as used in section 8 of the War Crimes Act, it held as follows:

“Contrary to the argument made in the point of appeal (middel), section 8 of the War Crimes Act is not contrary to the 'requirement of specificity' (bepaaldheidsgebod) contained in the statutory and Convention provisions relied upon. In the light, among other things, of the nature of its subject-matter, consisting of the setting of penal sanctions on the severest indictable offences which originate in a common legal consciousness – whether it be set out in laws and treaties or not –, the norm formulated in section 8 of the War Crimes Act makes it clear enough what behaviour will carry a penal sanction and sufficiently enables the suspect to adjust his behaviour accordingly, even though the nature and content of this provision inevitably entail a certain vagueness in the description of the crime (een zekere vaagheid in de delictsomschrijving).”

The relevant provisions of domestic law, in the versions applicable and applied in the applicant's case, read as follows:

Within two weeks from the transmission of the copy of the advisory opinion (of the Procurator General) the accused's counsel ... may submit his written comments thereon to the Supreme Court.”

“The following persons are liable as accessories (medeplichtigen) to an indictable offence (misdrijf):

those who intentionally assist in the commission of the indictable offence;

those who intentionally provide the opportunity, means or information necessary to commit the indictable offence.”

“1. In the case of complicity as an accessory, the maximum of the principal penalties (hoofdstraffen) prescribed for the indictable offence shall be reduced by one third.

In the case of an indictable offence carrying a sentence of life imprisonment, a term of imprisonment not exceeding fifteen years shall be imposed.

The additional penalties (bijkomende straffen) for complicity as an accessory shall be the same as for the indictable offence itself.

Only those acts that were intentionally facilitated or promoted by the accessory (die de medeplichtige opzettelijk heeft gemakkelijk gemaakt of bevorderd), and the consequences of such acts, shall be taken into consideration in sentencing.”

“1. In the case of a concurrence of criminal acts which must be considered as separate and which constitute more than one indictable offence carrying equivalent principal penalties (gelijksoortige hoofdstraffen), a single sentence shall be imposed.

The maximum sentence shall be the total of the maximum penalties prescribed for the acts; however, in the case of imprisonment and penal detention (hechtenis), the sentence may not exceed the maximum of the most severe penalty by more than one third.”

“1. The provisions of the present Act shall apply to crimes that are committed in time of war or that are criminal only in time of war, as set out in:

3o sections 4-9 of the present Act; ...

In the case of an armed conflict that cannot be described as war and in which the Netherlands is involved either for the purpose of individual or collective self-defence or to restore international order and security, sections 4-9 shall apply by analogy and We [i.e. the Crown; that is the Monarch together with the responsible Minister] may determine by order in council (algemene maatregel van bestuur) that the other provisions of the present Act shall apply in whole or in part.

The expression 'war' shall be understood to include civil war.”

“Without prejudice to the relevant provisions of the Criminal Code and the Military Criminal Code (Wetboek van Militair Strafrecht), Dutch criminal law shall apply to:

1o anyone who commits the indictable offence set out in [section] 8 outside the Realm in Europe; ...

4o any Netherlands national who commits an indictable offence as referred to in section 1 outside the Realm in Europe.”

“1. Anyone who commits a violation of the laws and customs of war shall be liable to a term of imprisonment not exceeding ten years ...

A term of imprisonment not exceeding fifteen years ... shall be imposed:

1o if the criminal act is liable to result in someone else's death or cause them severe bodily injury;

2o if the criminal act involves inhuman treatment;

3o if the criminal act involves forcing someone else to do something, not to do something or suffer something to happen;

4o if the criminal act involves looting.

Life imprisonment or a temporary term of imprisonment not exceeding twenty years ... shall be imposed:

1o if the criminal act results in someone else's death or causes them severe bodily injury or involves rape;

2o if the criminal act involves violence by a plurality of persons acting in concert (geweldpleging met verenigde krachten) against one or more persons or violence against a dead, sick or injured person;

3o if the criminal act involves the destruction, damaging, putting beyond use or hiding, by a plurality of persons acting in concert, of any property belonging to someone else in whole or in part;

4o if the criminal act set out under 3o or 4o of the preceding paragraph is committed by a plurality of persons acting in concert;

5o if the criminal act is an expression of a policy of systematic terror or unlawful action (wederrechtelijk optreden) against the entire population or a particular group thereof;

6o if the criminal act involves the breaking of a promise or the breaking of an agreement entered into as such with the opposing party;

7o if the criminal act involves the misuse of a flag or emblem protected by the laws and customs of war or the military distinctive signs or uniform of the opposing party.”

The International Crimes Act (Wet internationale misdrijven) entered into force on 1 October 2003, replacing the War Crimes Act and the Genocide Treaty (Implementation) Act (Uitvoeringswet Genocideverdrag). In relevant part, it provides as follows:

“1. Anyone who commits one of the following acts, if committed as a part of a widespread or systematic attack directed against a civilian population, in the knowledge that it is part of such attack, shall be found guilty of a crime against humanity and be liable to life imprisonment or to a term not exceeding thirty years ...:

a. wilful killing;

b. extermination;

c. enslavement;

d. deportation or forcible transfer of population;

e. imprisonment or other serious deprivation of physical liberty contrary to fundamental rules of international law;

f. torture;

g. rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable seriousness;

h. persecution of an identifiable group or collectivity on political grounds, because they belong to a particular race or a particular nationality, on ethnic, cultural or religious grounds, on grounds of gender or on other grounds which are universally recognised as impermissible under international law, in connection with an act referred to in this paragraph or any other crime set out in the present Act;

i. enforced disappearance of persons;

j. apartheid;

k. other inhumane acts of a comparable nature deliberately causing serious suffering or serious bodily injury or harm to mental or physical health. ...”

“1. Anyone who, in an international armed conflict, commits one of the serious violations of the Geneva Conventions, namely the following acts if committed against persons protected by the said Conventions:

a. wilful killing;

b. torture or inhuman treatment, including biological experiments;

c. wilfully causing great suffering or serious bodily injury or harm to health;

d. large-scale deliberate and unlawful destruction and appropriation of property in the absence of military necessity;

e. compelling a prisoner of war or other protected person to serve in the armed forces of a hostile power;

f. deliberately denying a prisoner or war or other protected person the right to a fair trial in accordance with the law;

g. unlawful deportation and transfer or unlawful confinement; or

h. taking hostages

shall be liable to life imprisonment or to a term not exceeding thirty years ...

Anyone who, in an international armed conflict, commits one of the following acts:

a. deliberately directing attacks against civilian objects, that is to say objects which are not military objectives;

b. deliberately initiating an attack knowing that such an attack will cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and serious damage to the natural environment, and that it will clearly be excessive in relation to the concrete and direct overall military advantage anticipated;

c. attacks or bombing, by whatever means, of towns, villages, dwellings or buildings which are not being defended and are not military targets;

d. the transfer, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;

e. declaring rights and actions of nationals of a hostile party to be abolished, suspended, or inadmissible in a court of law;

f. compelling of nationals of a hostile party to take part in hostile acts directed against their own country, even if before the beginning of the war they were in the service of the belligerent party;

g. the use of poisoned weapons;

h. the use of asphyxiating, poisonous or other gases and other similar liquids, materials or devices;

i. the use of bullets which easily expand or flatten or widen in the human body, such as bullets with a hard jacket which leaves the core partially exposed or is incised;

j. outrages (wandaden) upon personal dignity, in particular humiliating and degrading treatment;

k. taking advantage of the location of a civilian or other protected person to secure particular points, areas or forces against military operations;

l. deliberately making use of the starvation of civilians as a method of waging war by denying them objects which are indispensable to their survival, including deliberately impeding the supply of aid goods as provided for in the Geneva Conventions;

m. deliberately directing attacks against the civilian population as such or individual civilians who are not directly participating in hostilities;

n. deliberately directing attacks against buildings, materiel, medical units and transport as well as personnel making use in accordance with international law of the emblems of the Geneva Conventions;

o. deliberately directing attacks against personnel, installations, materiel, units or vehicles involved in humanitarian aid or peace missions in accordance with the Charter of the United Nations, as long as they are entitled to the protection granted to civilians or civilian objects pursuant to the international law of armed conflict;

p. deliberately directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, such buildings not being military objectives;

q. pillaging of a town or a place, even if taken in an attack;

r. conscripting or enlisting into military service in the national armed forces or groups children under the age of fifteen or using them for active participation in hostilities;

s. denying quarter;

t. destroying or seizing property of the adversary unless such destruction or seizure is urgently necessary as a consequence of cogent circumstances of a conflict,

shall be liable to a term of imprisonment not exceeding fifteen years ...

If an act as set out in ... the fifth paragraph:

a. results in a person’s death or causes them severe bodily injury or involves rape;

b. involves violence by a plurality of persons acting in concert (geweldpleging in vereniging) against one or more persons or violence against a dead, sick or injured person;

c. involves the destruction, damaging, putting beyond use or hiding, by a plurality of persons acting in concert, of any property belonging to a person in whole or in part;

d. involves a plurality of persons acting in concert forcing someone else to do something, not to do something or suffer something to happen;

e. involves a plurality of persons acting in concert pillaging a town or a place, even if taken in an attack;

f. involves the breaking of a promise or the breaking of an agreement entered into as such with the adversary; or

g. involves the misuse of a flag or emblem protected by the laws and customs of war or the military distinctive signs or uniform of the opposing party

the person found guilty shall be liable to life imprisonment or to a term not exceeding thirty years ...”

Anyone who, in a non-international armed conflict, commits a violation of the common Article 3 of the Geneva Conventions, that is to say the commission against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, of any one of the following acts:

a. violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

b. taking of hostages;

c. outrages upon personal dignity, in particular humiliating and degrading treatment;

d. the passing of sentences and the carrying out of executions without prior judgment pronounced by a lawfully constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples;

shall be liable to life imprisonment or to a term not exceeding thirty years ...

Anyone who, in a non-international armed conflict, commits one of the following acts:

a. rape, sexual slavery, enforced prostitution, enforced sterilisation, or any other form of sexual violence that can be deemed equally serious as a serious violation of the Geneva Conventions;

b. forced pregnancy;

c. subjecting persons who are in the power of an adversary to physical mutilation or medical or scientific experiments, whatever their nature, not justified by medical or dental treatment of the person concerned or his treatment in hospital, nor carried out in his interest, and which result in death or can seriously endanger the health of that person or persons; or

d. treacherously killing or wounding persons who belong to the hostile nation or army;

a. deliberately directing attacks against the civilian population as such or against individual civilians who are not participating directly in hostilities;

b. deliberately directing attacks against buildings, materiel, medical units and transport, as well as personnel making use in accordance with international law of the emblems of the Geneva Convention [i.e. the Red Cross, the Red Crescent and the Red Crystal];

c. deliberately directing attacks against personnel, installations, materiel, units or vehicles involved in humanitarian assistance or peace missions in accordance with the Charter of the United Nations, as long as these are entitled to the protection granted to civilians or civilian objects pursuant to the international law of armed conflict;

d. deliberately directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, such buildings not being military objectives;

e. pillaging of a town or a place, even if taken in an attack;

f. conscripting or enlisting into military service in the national armed forces or groups children under the age of fifteen or using them for active participation in hostilities;

g. denying quarter;

h. destroying or seizing property of the adversary unless such destruction or seizure is urgently necessary as a consequence of cogent circumstances of a conflict; or

i. giving orders for the displacement of a civilian population for reasons connected with the conflict, not including reasons connected with the security of the civilians involved or in cases of urgent necessity because of cogent circumstances of the conflict,

shall be liable to a term of imprisonment not exceeding fifteen years ...

The sixth paragraph of section 5 shall apply by analogy to an act as referred to in the third paragraph.”

In a decision of 11 November 1997 reported in the Nederlandse Jurisprudentie (Netherlands Law Reports) 1998 (no. 463), the Supreme Court held as follows:

“5.2. That it certainly was the Government's intention to comply in full with that treaty obligation [to criminalise all serious breaches of the four 1949 Geneva Conventions] is apparent from, among other things, the parliamentary history of that Act, in particular from the Explanatory Memorandum (Memorie van Toelichting) and the Memorandum in Reply (Memorie van Antwoord) pertaining to the Bill in question, which respectively include the following passages:

'When another power that is a party to the violated Convention does not request the transfer (overlevering) of a prisoner of war who is in the hands of the Netherlands, it should be possible for him to be tried by a Dutch court, even though the indictable offence may have been committed abroad, and even if the criminal act has not been committed against a Dutch national or harms no Dutch interest.'

and

'The provision enacted in section 3(1) grants the Dutch courts jurisdiction to try war crimes, regardless of by whom and where they have been committed, that is to say also in those cases in which the indictable offence has been committed by a non-Dutch national outside the Netherlands in a war to which our country is not a party. It is rightly pointed out in the Provisional Report (Voorlopig Verslag) that this provision is to be seen as an application of the so-called principle of universality.'

5.3. In view of the finding contained in paragraph 5.2 above, a reasonable interpretation of the law, in accordance with the legislature's intention to comply in full with the treaty obligations entered into by the Netherlands, makes it necessary to understand section 1 of the War Crimes Act – despite its, to that extent, opaque wording – in such a way that the limitations comprised in subsections 1, 2 and 3 respectively of section 1 of the War Crimes Act have no bearing on sections 8 and 9, and to that extent, not on section 3 ... either.”

Similar rulings have appeared since this decision in other decisions and judgments of Dutch courts, including a judgment (Landelijk Jurisprudentie Nummer [National Jurisprudence Number] BC7418) given by the Supreme Court on 8 July 2008, while the present case was pending before it.

The Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare (signed at Geneva on 17 June 1925), better known as the 1925 Geneva Gas Protocol, entered into force on 8 February 1928. It reads as follows:

“THE UNDERSIGNED PLENIPOTENTIARIES, in the name of their respective Governments:

Whereas the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices, has been justly condemned by the general opinion of the civilised world; and

Whereas the prohibition of such use has been declared in Treaties to which the majority of Powers of the world are Parties; and

To the end that this prohibition shall be universally accepted as a part of International Law, binding alike the conscience and the practice of nations;

DECLARE:

That the High Contracting Parties, so far as they are not already Parties to Treaties prohibiting such use, accept this prohibition, agree to extend this prohibition to the use of bacteriological methods of warfare and agree to be bound as between themselves according to the terms of this declaration.

The High Contracting Parties will exert every effort to induce other States to accede to the present Protocol. Such accession will be notified to the Government of the French Republic, and by the latter to all signatory and acceding Powers, and will take effect on the date of the notification by the Government of the French Republic.

The present Protocol, of which the French and English texts are both authentic, shall be ratified as soon as possible. It shall bear today's date.

The ratification of the present Protocol shall be addressed to the Government of the French Republic, which will at once notify the deposit of such ratification to each of the signatory and acceding Powers.

The instruments of ratification of and accession to the present Protocol will remain deposited in the archives of the Government of the French Republic.

The present Protocol will come into force for each signatory Power as from the date of deposit of its ratification, and, from that moment, each Power will be bound as regards other Powers which have already deposited their ratifications.”

Among the earliest States to agree to be bound by this Protocol were Iran, which acceded to it (as the Imperial State of Persia) on 5 November 1929; Iraq, which acceded to it (as the Kingdom of Iraq) on 8 September 1931; and the Kingdom of the Netherlands, which ratified it on 31 October 1930. All three are still parties.

Other States have followed suit throughout the second half of the twentieth century and more recently still. Among them are the United States of America (which ratified the Protocol in 1975), Vietnam (which acceded to it in 1980) and the Democratic People's Republic of Korea and the Republic of Korea (which acceded to it on the same day, 4 January 1989). The most recent are Ukraine (2003), Serbia and Croatia (both 2006), Slovenia (2008) and Costa Rica (2009). To date, more than one hundred and thirty States have ratified or acceded or declared succession to this Protocol.

The Kingdom of the Netherlands and Iraq were among those States which, in ratifying or acceding to the Protocol, entered a reservation making its binding force in war conditional on reciprocal application by the enemy. The Kingdom of the Netherlands withdrew its reservation on 17 July 1995. Other States which entered similar reservations to the Protocol but have since withdrawn them are Ireland (1972), Australia (1986), New Zealand (1989), Czechoslovakia (1990, binding its successor States), Mongolia (1990), Bulgaria (1991), Chile (1991), Romania (1991), Spain (1992), France (1996), South Africa (1996), Belgium (1997), Canada (1999), and Russia (2001).

The Charter of the International Military Tribunal (better known as the “Nuremberg Tribunal”) was annexed to the Agreement for the prosecution and punishment of the major war criminals of the European Axis (“London Agreement”) of 8 December 1945. In the relevant part, it reads as follows:

The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:

a. Crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;

b. War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

c. Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.”

In its Resolution 177 (II), paragraph (a), the General Assembly of the United Nations directed the International Law Commission to “formulate the principles of international law recognized in the Charter of the Nürnberg Tribunal and in the judgment of the Tribunal”. The International Law Commission adopted a text at its second session (Yearbook of the International Law Commission, 1950, Vol. II, pp. 374-378).

The Principles identified by the International Law Commission (“Nuremberg Principles”) are the following:

Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.

The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.

The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.

The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

Any person charged with a crime under international law has the right to a fair trial on the facts and law.

The crimes hereinafter set out are punishable as crimes under international law:

(a) Crimes against peace:

(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;

(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).

(b) War crimes:

Violations of the laws or customs of war include, but are not limited to, murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.

(c) Crimes against humanity:

Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connexion with any crime against peace or any war crime.

Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.”

The Kingdom of the Netherlands ratified the 1949 Geneva Conventions (Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Convention (III) relative to the Treatment of Prisoners of War; and Convention (IV) relative to the Protection of Civilian Persons in Time of War) on 3 August 1954. Iraq did so (as the Kingdom of Iraq) on 14 February 1956. Neither State has entered any reservation.

Article 3 common to all four 1949 Geneva Conventions reads as follows:

“In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed 'hors de combat' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.”

In the relevant part, Convention (IV) relative to the Protection of Civilian Persons in Time of War additionally provides as follows:

“The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a 'prima facie' case.

Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.

In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949.”

“Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”

Over 140 States had ratified or acceded or declared succession to the 1949 Geneva Conventions by 1980. Iran and the Kingdom of the Netherlands, both among the original signatories, did so in 1957 and 1954 respectively; Iraq did so in 1956. The 1949 Geneva Conventions now bind every State in the world.

The Treaty on the Non-Proliferation of Nuclear Weapons was opened for signature on 1 July 1968 and it entered into force on 5 March 1970. Among other things, it binds States Parties not already in possession of nuclear weapons not to seek possession of, or control over, nuclear weapons or nuclear explosive devices and to submit to verification measures.

In the North Sea Continental Shelf cases (Judgment, I.C.J. Reports 1969, p. 3) the International Court of Justice held as follows:

“71. In so far as this contention is based on the view that Article 6 of the Convention [the 1958 Geneva Convention on the continental shelf] has had the influence, and has produced the effect, described, it clearly involves treating that Article as a norm-creating provision which has constituted the foundation of, or has generated a rule which, while only conventional or contractual in origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to have become binding even for countries which have never, and do not, become parties to the Convention. There is no doubt that this process is a perfectly possible one and does from time to time occur: it constitutes indeed one of the recognized methods by which new rules of customary international law may be formed. At the same time this result is not lightly to be regarded as having been attained.

It would in the first place be necessary that the provision concerned should, at all events potentially, be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law. ...

The essential point in this connection – and it seems necessary to stress it – is that even if these instances of action by non-parties to the Convention were much more numerous than they in fact are, they would not, even in the aggregate, suffice in themselves to constitute the opinio juris; – for, in order to achieve this result, two conditions must be fulfilled. Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e.., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitua1 character of the acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty.

In this respect the Court follows the view adopted by the Permanent Court of International Justice in the Lotus case, as stated in the following passage, the principle of which is, by analogy, applicable almost word for word, mutatis mutandis, to the present case (P.C.I.J., Series A, No. 10, 1927, at p. 28):

'Even if the rarity of the judicial decisions to be found ... were sufficient to prove ... the circumstance alleged ..., it would merely show that States had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves as being obliged to do so; for only if such abstention were based on their being conscious of having a duty to abstain would it be possible to speak of an international custom. The alleged fact does not allow one to infer that States have been conscious of having such a duty; on the other hand, there are other circumstances calculated to show that the contrary is true.'”

In the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) case (Merits, Judgment, I.C.J. Reports 1986, p. 14) it held as follows:

“186. It is not to be expected that in the practice of States the application of the rules in question should have been perfect, in the sense that States should have refrained, with complete consistency, from the use of force or from intervention in each other's interna1 affairs. The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule. If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State's conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule.”

The Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction (“Biological Weapons Convention”) was opened for signature simultaneously in Moscow, Washington DC and London on 10 April 1972. By the end of 1972 it had been signed by over 100 States.

The Biological Weapons Convention entered into force on 26 March 1975, after the deposit of the twenty-second instrument of ratification. It had been ratified by 91 recognised States and one non-recognised State by the end of 1980. A further 19 ratified or acceded to it, or declared succession to it upon gaining independence, from 1981 until the end of 1988 (among them the Kingdom of the Netherlands, which ratified it on 22 June 1981). It currently has 163 States Parties (including all member States of the Council of Europe) and 13 signatories. Iraq ratified it on 19 June 1991.

In the relevant part, it reads as follows:

“The States Parties to this Convention,

Determined to act with a view to achieving effective progress towards general and complete disarmament, including the prohibition and elimination of all types of weapons of mass destruction, and convinced that the prohibition of the development, production and stockpiling of chemical and bacteriological (biological) weapons and their elimination, through effective measures, will facilitate the achievement of general and complete disarmament under strict and effective international control,

Recognizing the important significance of the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva on June 17, 1925, and conscious also of the contribution which the said Protocol has already made, and continues to make, to mitigating the horrors of war,

Reaffirming their adherence to the principles and objectives of that Protocol and calling upon all States to comply strictly with them,

Recalling that the General Assembly of the United Nations has repeatedly condemned all actions contrary to the principles and objectives of the Geneva Protocol of June 17, 1925,

Desiring to contribute to the strengthening of confidence between peoples and the general improvement of the international atmosphere,

Desiring also to contribute to the realization of the purposes and principles of the United Nations,

Convinced of the importance and urgency of eliminating from the arsenals of States, through effective measures, such dangerous weapons of mass destruction as those using chemical or bacteriological (biological) agents,

Recognizing that an agreement on the prohibition of bacteriological (biological) and toxin weapons represents a first possible step towards the achievement of agreement on effective measures also for the prohibition of the development, production and stockpiling of chemical weapons, and determined to continue negotiations to that end,

Determined for the sake of all mankind, to exclude completely the possibility of bacteriological (biological) agents and toxins being used as weapons,

Convinced that such use would be repugnant to the conscience of mankind and that no effort should be spared to minimize this risk,

Have agreed as follows:

Article VIII

Nothing in this Convention shall be interpreted as in any way limiting or detracting from the obligations assumed by any State under the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva on June 17, 1925.

Article IX

Each State Party to this Convention affirms the recognized objective of effective prohibition of chemical weapons and, to this end, undertakes to continue negotiations in good faith with a view to reaching early agreement on effective measures for the prohibition of their development, production and stockpiling and for their destruction, and on appropriate measures concerning equipment and means of delivery specifically designed for the production or use of chemical agents for weapons purposes. ...”

By the time of the Iran-Iraq War, a number of States had officially instructed their armed forces to refrain from the use of chemical weapons. These included the United Kingdom, whose Military Manual (1958) provided that “asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices [were] forbidden”, and Belgium, whose Law of War Manual (1983) proscribed the first use of asphyxiating, toxic or similar gases. The United States, in its Field Manual FM 27-10, Law of Land Warfare (1956, revised 1976), forbade its land forces the first use of “lethal and incapacitating chemical agents”, referring to the 1925 Geneva Gas Protocol and the American reservation of no first use.

The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects was opened for signature on 10 October 1980 and it entered into force on 2 December 1983. It comprises five Protocols. One of them (Protocol III on Prohibitions or Restrictions on the Use of Incendiary Weapons) prohibits the use of incendiary weapons against civilian targets and of air-delivered incendiary weapons against military objectives located within a concentration of civilians in all circumstances, and of non-air-delivered incendiary weapons against military objectives located within a concentration of civilians unless the civilians are spared (Article 2).

Every year during the war between Iraq and Iran, that is, between 1980 and 1988, the General Assembly of the United Nations adopted resolutions on chemical and bacteriological weapons (nos. 35/144, 12 December 1980; 36/96, 9 December 1981; 37/98, 13 December 1982; 38/187, 20 December 1983; 39/188, 12 December 1984; 40/92, 12 December 1985; 41/58, 3 December 1986; 42/37, 30 November 1987; and 43/74, 7 December 1988). In each of them the General Assembly reaffirmed “the necessity of strict observance of the principles and objectives” by all States of the 1925 Geneva Gas Protocol and of adherence by all States to the Biological Weapons Convention.

In Resolution no. 35/144C of 1980 the General Assembly expressed the belief

“... that the continued authority of the Protocol and relevant rules of customary international law [required] that full and proper attention be given to all reports regarding the alleged use of chemical weapons and to their harmful effects, both immediate and long-term, to humans and to the environment of the victim countries”.

In Resolution no. 37/98D on Provisional Procedures to Uphold the Authority of the 1925 Geneva Protocol of 1982 the General Assembly requested the Secretary-General of the United Nations

“... to devise procedures for the timely and efficient investigation of information concerning activities that [might] constitute a violation of the Geneva Protocol or of the relevant rules of customary international law and to assemble and organize systematically documentation relating to the identification of signs and symptoms associated with the use of such agents as a means of facilitating such investigations and the medical treatment that [might] be required”

with the assistance of qualified experts. Elsewhere (in Resolution no. 37/98E on Chemical and Bacteriological (Biological) Weapons) the General Assembly recalled

“... that the use of chemical and biological weapons [had] been declared incompatible with the accepted norms of civilization”.

The Secretary General published his report on 2 October 1984 (UN Doc. A/39/488). To it was annexed a report of a Group of Consultant Experts, transmitted to the Secretary General on 24 August 1984, which set out procedures for investigating allegations of the use of chemical or biological weapons. Sub-annexed to the report of the Consultant Experts was a list (Annex IX) of potential chemical and biological warfare agents; “sulphur mustard” was one of those mentioned. The General Assembly took note of the Secretary General's report in its Resolution 39/65E of 1984.

In Resolution 42/37C of 1987, the General Assembly recalled

“... the provisions of the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva on 17 June 1925, and other relevant rules of customary international law”.

The following year, in Resolution 43/74A, it expressed

“... deep dismay at the use of chemical weapons in violation of the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva on 17 June 1925, and other relevant rules of customary international law”.

On 30 March 1984 the President of the Security Council delivered the following statement:

“On behalf of the members of the Security Council, I am authorized to make the following declaration:

The Security Council,

Having considered again the question entitled 'The situation between Iran and Iraq',

Greatly concerned about the conflict between Iran and Iraq, which endangers international peace and security in the region;

Taking note of the report of the specialists appointed by the Secretary General to investigate allegations by the Islamic Republic of Iran concerning the use of chemical weapons (S/16433),

Taking note with particular concern of the unanimous conclusions of the specialists that chemical weapons have been used,

Expressing its grave concern about all reported violations in the conflict of the rules of international law and of the principles and rules of international conduct accepted by the world community to prevent or alleviate the human suffering of warfare,

Strongly affirming the conclusion of the Secretary-General that these humanitarian concerns can only be fully satisfied by putting an end to the tragic conflict that continues to deplete the precious human resources of Iran and Iraq,

Strongly condemns the use of chemical weapons reported by the finding of the mission of specialists;

Reaffirms the need to strictly abide by the Geneva Protocol of 1925 for the Prohibition of the use in war of asphyxiating, poisonous or other gases, and of bacteriological methods of warfare;

Calls on the States concerned immediately and unconditionally to reaffirm the obligations flowing from their accession to the Geneva Protocol of 1925;

Condemns all violations of international humanitarian law and urges both parties to observe carefully the generally recognized principles and rules of international humanitarian law which are applicable to armed conflicts and their obligations under international conventions designed to prevent or alleviate the human suffering of warfare;

Recalls its relevant resolutions, renews urgently its appeal for the strict observance of a cease-fire and for a peaceful solution of the conflict, and calls upon all governments concerned to cooperate fully with the Council in its efforts to bring about conditions leading to a peaceful settlement of the conflict in conformity with the principles of justice and international law;

Appreciates the mediation efforts of the Secretary-General and requests him to continue his efforts with the parties concerned with a view to achieving a comprehensive, just and honourable settlement acceptable for both sides;

Decides to keep the situation between Iran and Iraq under close review.”

On 24 February 1986, the Security Council unanimously adopted Resolution 582 (1986), of which the relevant part reads as follows:

“The Security Council,

Having considered the question entitled 'The situation between Iran and Iraq',

Recalling that the Security Council has been seized with the question between Iran and Iraq for almost six years and that decisions have been taken thereon,

Noting that both the Islamic Republic of Iran and Iraq are parties to the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare signed at Geneva on 17 June 1925,

Also deplores the escalation of the conflict, especially territorial incursions, the bombing of purely civilian population centres, attacks on neutral shipping or civilian aircraft, the violation of international humanitarian law and other laws of armed conflict and, in particular, the use of chemical weapons contrary to obligations under the 1925 Geneva Protocol; ...”

On 9 May 1988, the Security Council unanimously adopted its Resolution 612 (1988), which reads as follows:

“The Security Council,

Having considered the report of 25 April 1988 of the mission dispatched by the Secretary-General to investigate allegations of the use of chemical weapons in the conflict between the Islamic Republic of Iran and Iraq,

Dismayed by the mission's conclusions that chemical weapons continue to be used in the conflict and that their use has been on an even more intensive scale than before,

Affirms the urgent necessity of strict observance of the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva on 17 June 1925,

Condemns vigorously the continued use of chemical weapons in the conflict between the Islamic Republic of Iran and Iraq contrary to the obligations under the Geneva Protocol;

Expects both sides to refrain from the future use of chemical weapons in accordance with their obligations under the Geneva Protocol;

Calls upon all States to continue to apply or to establish strict control of the export to the parties to the conflict of chemical products serving for the production of chemical weapons;

Decides to remain seized of the matter and expresses its determination to review the implementation of the present resolution.”

On 26 August 1988, the Security Council unanimously adopted its Resolution 620 (1988), of which the relevant part reads as follows:

“The Security Council,

Recalling its resolution 612 (1988) of 9 May 1988,

Having considered the reports of 20 and 25 July and of 2 and 19 August 1988 of the missions dispatched by the Secretary-General to investigate allegations of the use of chemical weapons in the conflict between the Islamic Republic of Iran and Iraq,

Deeply dismayed by the missions' conclusions that there had been continued use of chemical weapons in the conflict between the Islamic Republic of Iran and Iraq and that such use against Iranians had become more intense and frequent,

Profoundly concerned by the danger of possible use of chemical weapons in the future,

Bearing in mind the current negotiations in the Conference on Disarmament on the complete and effective prohibition of the development, production and stockpiling of chemical weapons and on their destruction,

Determined to intensify its efforts to end all use of chemical weapons in violation of international obligations now and in the future,

Condemns resolutely the use of chemical weapons in the conflict between the Islamic Republic of Iran and Iraq in violation of obligations under the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva on 17 June 1925, and in defiance of its resolution 612 (1988);

Encourages the Secretary-General to carry out promptly investigations in response to allegations brought to his attention by any Member State concerning the possible use of chemical and bacteriological (biological) weapons that may constitute a violation of the 1925 Protocol or other relevant rules of customary international law, in order to ascertain the facts of the matter, and to report the results;

Calls upon all States to continue to apply, to establish or to strengthen strict control of the export of chemical products serving for the production of chemical weapons, in particular to parties to a conflict, when it is established that they have used chemical weapons in violation of international obligations;

Decides to consider immediately, taking into account the investigations of the Secretary-General, appropriate and effective measures in accordance with the Charter of the United Nations, should there be any future use of chemical weapons in violation of international law, wherever and by whomever committed.”

Proposals for a treaty intended to supplement the 1925 Geneva Gas protocol by prohibiting the development, production or possession of chemical weapons in addition to their use were placed on the agenda of the Eighteen-Nation Disarmament Committee in 1968. In 1980, this Committee (re-named the Conference on Disarmament the year before) set up an ad hoc working group charged with identifying the issues to be dealt with in a multilateral treaty to be prepared for that purpose. Drafting began in earnest in 1984, after the Secretary-General of the United Nations announced that Chemical Weapons had been used by Iraq in its war against Iran. Beginning in 1986, the global chemical industry actively participated in the negotiations. The new Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (or Chemical Weapons Convention) was opened for signature in Paris on 13 January 1993. One hundred and thirty States signed it within the first two days. It entered into force on 29 April 1997, 180 days after the date of the deposit of the 65th instrument of ratification. It currently binds 188 States.

In Article I § 1 of the Chemical Weapons Convention, States Parties undertake

“... never under any circumstances:

(a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone;

(b) To use chemical weapons;

(c) To engage in any military preparations to use chemical weapons;

(d) To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention.”

Article VII § 1 obliges States Parties to enact criminal legislation making activities prohibited to a State Party under this treaty punishable by law. This includes extending penal legislation to cover the commission of such acts by natural persons possessing that State's nationality.

Appended to the Chemical Weapons Convention is an “Annex on Chemicals” comprising three schedules:

Schedule 1 includes toxic chemicals or precursors that are chemical weapons themselves, or may be used as chemical weapons or for the manufacture of such weapons, and have “little or no use for purposes not prohibited under this Convention”.

Schedule 2 includes chemicals that possess lethal or incapacitating toxicity as well as other properties that could enable them to be used as chemical weapons or that may be used in the manufacture of such weapons, and are “not produced in large commercial quantities for purposes not prohibited under this Convention”.

Schedule 3 includes chemicals that have been produced, stockpiled or used as chemical weapons, or might be used as chemical weapons, or are important for the production of Schedule 1 or Schedule 2 chemicals, and “may be produced in large commercial quantities for purposes not prohibited under this Convention”.

Separate verification regimes apply to chemicals according to the Schedule in which they are listed, details of which are laid down in the Verification Annex appended to the Chemical Weapons Convention.

Thiodiglycol, which has industrial uses (including as a solvent in the manufacture of some types of printing and ballpoint pen inks), is listed in Schedule 2.

Article VIII establishes the Organization for the Prohibition of Chemical Weapons (OPCW) to achieve the object and purpose of the Chemical Weapons Convention, to ensure the implementation of its provisions, including those concerning international verification of compliance with it, and to provide a forum for consultation and co-operation among States Parties. The OPCW is based in The Hague, Netherlands.

In its decision of 2 October 1995 on the defence motion for interlocutory appeal on jurisdiction in Prosecutor v. Duško Tadić (Case No. IT-94-1), the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia held as follows (original emphasis):

“119. So far we have pointed to the formation of general rules or principles designed to protect civilians or civilian objects from the hostilities or, more generally, to protect those who do not (or no longer) take active part in hostilities. We shall now briefly show how the gradual extension to internal armed conflict of rules and principles concerning international wars has also occurred as regards means and methods of warfare. As the Appeals Chamber has pointed out above ..., a general principle has evolved limiting the right of the parties to conflicts 'to adopt means of injuring the enemy.' The same holds true for a more general principle, laid down in the so-called Turku Declaration of Minimum Humanitarian Standards of 1990, and revised in 1994, namely Article 5, paragraph 3, whereby '[w]eapons or other material or methods prohibited in international armed conflicts must not be employed in any circumstances.' (Declaration of Minimum Humanitarian Standards, reprinted in, Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its Forty-sixth Session, Commission on Human Rights, 51st Sess., Provisional Agenda Item 19, at 4, U.N. Doc. E/CN.4/1995/116 (1995).) ...

Indeed, elementary considerations of humanity and common sense make it preposterous that the use by States of weapons prohibited in armed conflicts between themselves be allowed when States try to put down rebellion by their own nationals on their own territory. What is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife.

This fundamental concept has brought about the gradual formation of general rules concerning specific weapons, rules which extend to civil strife the sweeping prohibitions relating to international armed conflicts. By way of illustration, we will mention chemical weapons. Recently a number of States have stated that the use of chemical weapons by the central authorities of a State against its own population is contrary to international law. On 7 September 1988 the [then] twelve Member States of the European Community made a declaration whereby:

'The Twelve are greatly concerned at reports of the alleged use of chemical weapons against the Kurds [by the Iraqi authorities]. They confirm their previous positions, condemning any use of these weapons. They call for respect of international humanitarian law, including the Geneva Protocol of 1925, and Resolutions 612 and 620 of the United Nations Security Council [concerning the use of chemical weapons in the Iraq-Iran war].' (4 European Political Cooperation Documentation Bulletin, (1988) at 92.)

This statement was reiterated by the Greek representative, on behalf of the Twelve, on many occasions. (See U.N. GAOR, 1st Comm., 43rd Sess., 4th Mtg., at 47, U.N. Doc. A/C.1/43/PV.4 (1988)(statement of 18 October 1988 in the First Committee of the General Assembly); U.N. GAOR, 1st Comm., 43rd Sess., 31st Mtg., at 23, U.N. Doc. A/C.1/43/PV.31 (statement of 9 November 1988 in meeting of First Committee of the General Assembly to the effect inter alia that 'The Twelve [. . .] call for respect for the Geneva Protocol of 1925 and other relevant rules of customary international law'); U.N. GAOR, 1st Comm., 43rd Sess., 49th Mtg., at 16, U.N. Doc. A/C.3/43/SR.49 (summary of statement of 22 November 1988 in Third Committee of the General Assembly); see also Report on European Union [EPC Aspects], 4 European Political Cooperation Documentation Bulletin (1988), 325, at 330; Question No 362/88 by Mr. Arbeloa Muru (S-E) Concerning the Poisoning of Opposition Members in Iraq, 4 European Political Cooperation Documentation Bulletin (1988), 187 (statement of the Presidency in response to a question of a member of the European Parliament).)

It is interesting to note that, reportedly, the Iraqi Government 'flatly denied the poison gas charges.' (New York Times, 16 September 1988, at A 11.) Furthermore, it agreed to respect and abide by the relevant international norms on chemical weapons. ... It should also be stressed that a number of countries ... strongly disagreed with United States' assertions that Iraq had used chemical weapons against its Kurdish nationals. However, this disagreement did not turn on the legality of the use of chemical weapons; rather, those countries accused the United States of 'conducting a smear media campaign against Iraq.' (See New York Times, 15 September 1988, at A 13; Washington Post, 20 September 1988, at A 21.)

It is therefore clear that, whether or not Iraq really used chemical weapons against its own Kurdish nationals - a matter on which this Chamber obviously cannot and does not express any opinion - there undisputedly emerged a general consensus in the international community on the principle that the use of those weapons is also prohibited in internal armed conflicts.”

Article 10 of the Statute of the Special Iraqi Tribunal provides as follows:

“The Tribunal shall have jurisdiction over any Iraqi national or resident of Iraq accused of the crimes listed in Articles 11 - 14, committed since July 17, 1968 and up and until May 1, 2003, in the territory of Iraq or elsewhere, namely:

a) The crime of genocide;

b) Crimes against humanity;

c) War crimes; or

d) Violations of certain Iraqi laws listed ... below.”


The applicant, Mr Igor Paška, is a Slovakian national who was born in 1945 and lives in Zvolen. The respondent Government were represented by Mr P. Vršanský, their Agent.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 11 September 1991 the applicant lodged an action for restitution of property, for compensation and for the protection of his good name and reputation with the Bratislava III District Court.

The action was lost and the applicant submitted, at the District Court’s request, a new action on 5 February 1992. He claimed restitution of his property and damages from an individual. The applicant alleged, in particular, that prior to his emigration from Czechoslovakia in 1989, he had deposited his belongings and also documents containing his intellectual property to the defendant, and that the latter refused to restore that property to him.

On 9 March 1992 the judge heard the applicant. Hearings were scheduled for 20 October 1992, 17 November 1992 and 3 December 1992. They were adjourned on each occasion as the court considered it necessary to clarify the position in the case and to take further evidence.

On 27 July 1993 the Bratislava City Court dismissed the applicant’s request for exclusion of the District Court judge.

On 15 December 1994 the District Court allowed another person to join the proceedings as plaintiff and granted the applicant’s request for exemption from the obligation to pay court fees.

On 17 March 1995 the Bratislava City Court dismissed the defendant’s request for exclusion of the Bratislava III District Court judge dealing with the case.

A hearing before the Bratislava III District Court was held on 26 September 1996. Subsequently the case was assigned to another judge.

A hearing before the Bratislava III District Court was scheduled for 31 January 2000. On 14 January 2000 the applicant challenged all judges of the court and requested that the hearing be adjourned. On 14 March 2000 the District Court submitted the request for exclusion of its judges to the Bratislava Regional Court. The latter dismissed the request on 25 May 2000.

On 5 February 2001 the Supreme Court dismissed the plaintiffs’ request for exclusion of the Regional Court judges.

On 19 September 2001 the District Court adjourned the case as the applicant had challenged the judges of that court. On 5 February 2002 the Bratislava Regional Court returned the file to the District Court as the applicant’s request contained no relevant new information.

On 24 April 2002 the Bratislava III District Court adjourned the case as the plaintiffs had challenged the judges of both the Bratislava III District Court and of the Bratislava Regional Court.

The proceedings are pending.

On 27 November 1991 the applicant lodged an action for protection of his good name and reputation and for damages against an individual and against the Bratislava II District Office.

On 27 February 1992 the applicant submitted further information to the Bratislava III District Court which the latter found to be incomprehensible, as in the case of his first submission of 27 November 1991.

Hearings scheduled for 10 August 1992 and 7 September 1992 had to be adjourned as both the applicant and the defendant failed to appear. On 12 and 26 October 1992 the District Court adjourned the case.

On 18 January 1993 the Bratislava III District Court dismissed the action. The applicant appealed.

On 25 June 1993 the Bratislava City Court quashed the judgment and sent the case back to the District Court. The decision stated that the District Court should invite the applicant to specify his claims and decide on the case in the light of the information thus obtained.

On 15 November 1993 the applicant challenged the District Court judge. His request was dismissed by the appellate court on 29 December 1993. In the meantime, on 24 November 1993, the applicant completed his original action.

On 14 June 1994 the first instance court submitted the case file to the Bratislava City Court for a decision on the applicant’s request for exclusion of the judge dealing with the case. On 18 August 1994 the Bratislava City Court sent the case back to the first instance court without taking a decision. It pointed out that the applicant’s submissions did not contain any new facts.

On 16 May 1995 the president of the Bratislava III District Court informed the applicant that the case would be proceeded with after problems arising from the shortage of judges had been resolved.

On 2 January 1997 the president of Bratislava III District Court assigned the case to himself.

On 23 February 2001 the Bratislava Regional Court decided that the Bratislava III District Court judges were not excluded.

By a decision delivered on 31 August 2001 the Bratislava III District Court discontinued the proceedings. The court noted that the applicant’s action concerned the protection of his personality rights. The decision further stated that the first defendant had died in 1997 and that the second defendant, the Bratislava II District Court, was not a legal person and that it therefore lacked standing in the proceedings.

The applicant filed an appeal. The proceedings are pending.

On 28 May 1996 the applicant lodged a petition, pursuant to Article 130 (3) of the Constitution, alleging a violation of his right to a hearing without undue delays in the above two sets of proceedings before the Bratislava III District Court. On 23 July 1997 the Constitutional Court declared the petition admissible.

On 28 July 1997 and on 18 September 1997 the Constitutional Court invited the applicant to appoint a lawyer to represent him in the proceedings as required by the Constitutional Court Act.

On 30 September 1997 the applicant requested the Bar Association to assign a lawyer to represent him before the Constitutional Court free of charge. He explained that several lawyers had refused to do so. The applicant informed the Constitutional Court about the difficulties in finding a representative and requested an extension of the time-limit set for appointing a lawyer.

On 30 October 1997 the Constitutional Court discontinued the proceedings on the ground that the applicant was not represented by a lawyer.

On 25 November 1997 the president of the Bar Association asked the applicant to submit a copy of his constitutional petition with a view to examining the request of 30 September 1997.

Article 48 (2) of the Constitution provides, inter alia, that every person has the right to have his or her case tried without unjustified delay.

Pursuant to Article 130 (3) of the Constitution, as in force until 30 June 2001, the Constitutional Court could commence proceedings upon the petition (“podnet”) presented by any individual or a corporation claiming that their rights have been violated.

As from 1 January 2002, the Constitution has been amended in that, inter alia, individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to Article 127 the relevant part of which reads as follows:

“1. The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.

When the Constitutional Court finds that a complaint is justified, it shall deliver a decision stating that a person’s rights or freedoms set out in paragraph 1 were violated as a result of a final decision, by a particular measure or by means of other interference. It shall quash such a decision, measure or other interference. When the violation found is the result of the failure to act, the Constitutional Court may order that [the authority] which violated such rights or freedoms should take the necessary action. At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order that such an authority abstain from violating fundamental rights and freedoms ... or, where appropriate, order that those who violated the rights or freedoms set out in paragraph 1 restore the situation existing prior to the violation.

In its decision on a complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 were violated.” ...

The implementation of the above constitutional provisions is set out in more detail in Sections 49 - 56 of Act No. 38/1993 (the Constitutional Court Act), as amended with effect from 20 March 2002.

Pursuant to Section 20 (2) of the Constitutional Court Act, a person who wishes to bring proceedings before the Constitutional Court shall submit the authority of a lawyer representing him or her in the proceedings.

After 20 March 2002 the Constitutional Court delivered a number of decisions in which it found a violation of Article 48 (2) of the Constitution, ordered the general court concerned to avoid any further delays in the proceedings and awarded the successful complainants financial compensation in respect of delays which had already occurred.

According to an explanatory letter by the president of the Constitutional Court of 6 June 2002, nothing prevents the Constitutional Court from dealing with complaints about length of proceedings in cases in which proceedings have also been instituted before the European Court of Human Rights provided that the domestic proceedings complained of are still pending at the moment when the constitutional complaint is filed.

In its decision no. I. ÚS 61/2000 of 16 November 2000 the Constitutional Court pointed out that it has been its practice to examine thoroughly all requests for a lawyer to be appointed, at State cost, to represent persons in proceedings before it. The decision further states that the Constitutional Court has regularly granted such requests when they are justified by the material and personal situation of the person concerned provided that the other statutory requirements for declaring the case admissible are met.

Subsequently the above position has been confirmed in a number of cases. In deciding on requests for a lawyer to be appointed at the cost of the State the Constitutional Court has regard to the relevant provisions of the Code of Civil Procedure governing the exemption of a party from the obligation to pay court fees and the appointment of a legal representative for such a person.


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens

The applicant was born in 1964 in Dashkesan, Azerbaijan, and currently lives in Russia.

The applicant was a unit commander in the Azerbaijani Army. On 7 October 1994 he was arrested in Ganja, Azerbaijan, due to his alleged participation in the coup d'Etat organised by S. Huseynov.

On 31 July 1996 the Supreme Court, sitting as a court of first instance for especially serious crimes, convicted the applicant for high treason, use of armed forces against the citizens and constitutional government authorities, creation of illegal armed units, and illegal possession of weapons. He was sentenced to thirteen years' imprisonment and confiscation of property. This judgment was final and not subject to appeal under the rules of criminal procedure applicable at that time.

Upon Azerbaijan's admission to the Council of Europe, the applicant's name was included in the lists of the “alleged political prisoners in Azerbaijan” submitted to the experts of the Secretary General.

Pursuant to a presidential pardon decree of 18 October 2002, the applicant's sentence was reduced by half.

Pursuant to another presidential pardon decree of 28 August 2003, the applicant was released from serving the remainder of his sentence. As the applicant was no longer imprisoned, no final opinion was adopted by the experts of the Secretary General on whether he could be considered as a political prisoner.

In 2000 a new Code of Criminal Procedure (“the CCrP”) and new Criminal Code of the Republic of Azerbaijan were adopted. Before the new CCrP's entry into force on 1 September 2000, on 14 July 2000 Parliament passed a transitional law allowing the lodging of an appeal under the new CCrP against the final judgments delivered in accordance with the old criminal procedure rules (“the Transitional Law”).

On 11 August 2004 the applicant, using the opportunity granted to him by the Transitional Law, filed a cassation appeal against the judgment of 31 July 1996 with the Supreme Court. On 17 August 2004 the Supreme Court refused to accept the appeal due to the applicant's failure to enclose a copy of the challenged judgment.

On 4 October 2004 the applicant again filed the cassation appeal, which was registered by the Supreme Court on 6 October 2004. In his appeal he noted that, although he had been pardoned and released from imprisonment, his conviction for high treason remained intact. He argued that his trial by the first-instance court had been unfair. He also argued that, under the new Criminal Code the actions for which he had been convicted could not be qualified as “high treason”. He asked the court to quash the judgment of 31 July 1996.

According to the Government, on 15 October 2004 the Supreme Court “informed the applicant that the appeal hearings concerning his case would be held on 7 December 2004”. According to the applicant, he did not receive any such summons and, in general, did not receive any information concerning his case for several months.

On 27 January 2005 the applicant wrote a letter to the Supreme Court inquiring about the status of the proceedings. He also requested to add an issue concerning the confiscation of property to his appeal. In reply, by a letter dated 15 February 2005, the Head of the Registry of the Supreme Court informed the applicant that the court had not received from him any documents in this respect.

On 5 April 2005 the applicant was sent a copy of the Supreme Court decision concerning his case, dated 7 December 2004. The applicant was informed that on 7 December 2004 the Supreme Court had examined his cassation complaint in the presence of a public prosecutor but in the absence of the applicant. The judgment was silent as to the reasons for holding the hearing in the applicant's absence. During the hearing, the prosecutor asked the court to dismiss the appeal. The court found that the applicant's guilt had been duly established during the trial in the first-instance court and that his actions had been properly qualified under the criminal law. Accordingly, the court dismissed the applicant's appeal as being unsubstantiated.

In accordance with the Law of 14 July 2000 on the Adoption and Entry into Force of the Code of Criminal Procedure of the Republic of Azerbaijan (“the Transitional Law”), judgments and other final decisions delivered by first instance courts under the old CCrP before the entry into force of the new CCrP, may be reconsidered by an appellate court or the Supreme Court in accordance with the relevant provisions of the new CCrP.

In accordance with Article 415.0.3 of the new CCrP, the Supreme Court may leave the cassation appeal unexamined if the person lodging the appeal fails to attach to his appeal a copy of the disputed judgment or decision.

A cassation appeal lodged with the Supreme Court is transmitted to one of the judges of the relevant chamber of the Supreme Court for preliminary examination (Article 418.1 of the CCrP). Within three days of receiving the appeal, the judge carrying out the preliminary examination of the appeal must, inter alia, inform the public prosecutor, the convicted (or acquitted) person and other parties to the case or interested parties about the time and place of examination of the merits of the appeal (Articles 418.2 and 418.2.7 of the CCrP).

When examining the merits of the appeal, the Supreme Court deals only with the points of law and verifies whether rules of criminal law and criminal procedure had been applied correctly (Article 419.1 of the CCrP). The examination on the merits is carried out by a chamber composed of three judges. The persons having a right to lodge an appeal and the public prosecutor representing the prosecution before the Supreme Court have the right to be present at the court hearing (Article 419.2 of the CCrP).

The Supreme Court hearing is opened by the president of the chamber who announces which court decision will be examined and on what grounds, the composition of the chamber examining the case, and which of the parties to the criminal proceedings are present at the hearing. The absence of the person who has lodged the appeal, if he has been duly informed about the hearing, does not prevent the Supreme Court from deciding to proceed with the hearing in his or her absence (Article 419.4 of the CCrP).