No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 6 - Right to a fair trial (Article 6-3-c - Defence in person);No violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Acquittal;Conviction)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant was born in 1961 and is currently serving a prison term in Lepoglava State Prison.

On 19 December 1991 the Osijek Police Department lodged a criminal complaint against the applicant and five other persons with the Osijek County Court, alleging that the applicant, a member of the Croatian Army, had killed several civilians.

On 25 September 1992 the Act on Amnesty from Criminal Prosecution and Proceedings in Respect of Criminal Offences Committed during the Armed Conflicts and the War against the Republic of Croatia (Zakon o oprostu od krivičnog progona i postupka za krivična djela počinjena u oružanim sukobima i u ratu protiv Republike Hrvatske) was enacted.

On 20 April 1993 the Osijek Military Prosecutor indicted the applicant before the Osijek County Court on charges of murder, inflicting grievous bodily harm, causing a risk to life and assets, and theft. The relevant part of the indictment read:

“the first accused, Marguš Fred

on 20 November 1991 at about 7 a.m. in Čepin ... fired four times at S.B. with an automatic gun ... as a result of which S.B. died;

at the same time and place as under (1) ... fired several times at V.B. with an automatic gun ... as a result of which V.B. died;

on 10 December 1991 took N.V. to the “Vrbik” forest between Čepin and Ivanovac ... and fired at him twice with an automatic gun ... as a result of which N.V. died;

at the same place and time as under (3) fired at Ne.V. with an automatic gun ... as a result of which she died;

on 28 August 1991 at about 3 a.m. threw an explosive device into business premises in Čepinski Martinovec ... causing material damage;

on 18 November 1991 at 00.35 a.m. in Čepin placed an explosive device in a house ... causing material damage ...;

on 1 August 1991 at 3.30 p.m. in Čepin ... fired at R.C., causing him slight bodily injury and then ... kicked V.Ž ... causing him grievous bodily injury ... and also kicked R.C. ... causing him further slight bodily injuries ...;

between 26 September and 5 October 1991 in Čepin ... stole several guns and bullets ...;

He was further charged with appropriating several tractors and other machines belonging to other persons.

On 25 January 1996 the Osijek Deputy Military Prosecutor dropped the charges under counts (3), (4), (6), (7) and (9) of the indictment as well as the charges of appropriating goods belonging to others. A new count was added, by which the applicant was charged with having fired, on 20 November 1991 at about 7 a.m. in Čepin, at a child, Sl.B., causing him grievous bodily injury.

On 24 September 1996 the General Amnesty Act was enacted. It stipulated that a general amnesty was to be applied in respect of all criminal offences committed in connection with the war in Croatia between 17 August 1990 and 23 August 1996, save in respect of those acts which amounted to the gravest breaches of humanitarian law or to war crimes, including the crime of genocide (see paragraph 22 below).

On 24 June 1997 the Osijek County Court, sitting as a panel presided over by judge M.K., terminated the proceedings pursuant to the General Amnesty Act. The relevant part of this decision reads:

“The Osijek County Court ... on 24 June 1997 has decided as follows: the criminal proceedings against the accused Fred Marguš on two charges of murder ... inflicting grievous bodily harm ... and causing a risk to life and assets ... instituted on the indictment lodged by the Osijek County State Attorney’s Office ... on 10 February 1997 are to be concluded under sections 1(1) and (3) and section 2(2) of the General Amnesty Act.

The indictment of the Osijek Military State Attorney’s Office no. Kt-1/93 of 20 April 1993 charged Fred Marguš with three offences of aggravated murder under Article 35 § 1 of the Criminal Code; one offence of aggravated murder under Article 35 § 2(2) of the Criminal Code; two criminal offences of causing a risk to life and assets ... under Article 153 § 1 of the Criminal Code; one criminal offence of inflicting grievous bodily harm under Article 41 § 1 of the Criminal Code; one criminal offence of theft of weapons or other fighting equipment under Article 223 §§ 1 and 2 of the Criminal Code; and one criminal offence of aggravated theft under Article 131 § 2 of the Criminal Code ...

The above indictment was significantly altered at a hearing held on 25 January 1996 before the Osijek Military Court, when the Deputy Military Prosecutor withdrew some of the charges and altered the factual and legal description and legal classification of some of the offences.

Thus, the accused Fred Marguš was indicted for two offences of murder under Article 34 § 1 of the Criminal Code, one criminal offence of inflicting grievous bodily harm under Article 41 § 1 of the Criminal Code and one criminal offence of causing a risk to life and assets ... under Article 146 § 1 of the Criminal Code ...

After the military courts had been abolished, the case file was forwarded to the Osijek County State Attorney’s Office, which took over the prosecution on the same charges and asked that the proceedings be continued before the Osijek County Court. The latter forwarded the case file to a three-judge panel in the context of application of the General Amnesty Act.

After considering the case file, this panel has concluded that the conditions under section 1(1) and (3) and section 2(2) of the General Amnesty Act have been met and that the accused is not excluded from amnesty.

The above-mentioned Act provides for a general amnesty in respect of criminal offences committed during the aggression, armed rebellion or armed conflict .... in the Republic of Croatia. The general amnesty concerns criminal offences committed between 17 August 1990 and 23 August 1996.

The general amnesty excludes only the perpetrators of the gravest breaches of humanitarian law which amount to war crimes, and certain criminal offences listed in section 3 of the General Amnesty Act. It also excludes the perpetrators of other criminal offences under the Criminal Code ... which were not committed during the aggression, armed rebellion or armed conflict and which are not connected with the aggression, armed rebellion and armed conflict in Croatia.

The accused, Fred Marguš, is indicted for three criminal offences committed in Čepin on 20 November 1991 and one criminal offence committed in Čepin on 1 August 1991.

The first three of these offences concern the most difficult period and the time of the most serious attacks on Osijek and Eastern Croatia immediately after the fall of Vukovar, and the time of the most severe battles for Laslovo. In those battles, the accused distinguished himself as a combatant, showing exceptional courage and being recommended for promotion to the rank of lieutenant by the commander of the Third Battalion of the 106th Brigade of the Croatian Army, who was his superior officer at that time.

In the critical period concerning the first three criminal offences, the accused was acting in his capacity as a member of the Croatian Army; in that most difficult period, acting as commander of a unit, he tried to prevent the fall of a settlement into enemy hands, when there was an immediate danger of this happening. The fourth criminal offence was committed on 1 August 1993, when the accused was acting in his capacity as an on-duty member of the Reserve Forces in Čepin and was dressed in military camouflage uniform and using military weapons. The accused had joined the Reserve Forces in July 1993, after the well-known events and the beginning of the armed rebellion in the village of Tenja, close to Osijek.

The actions of the accused, in view of the time and place of the events at issue, were closely connected with the aggression, armed rebellion and armed conflict in Croatia, and were carried out during the period referred to in the General Amnesty Act.

Against this background, this court finds that all the statutory conditions for application of the General Amnesty Act have been met ...”

On an unspecified date the State Attorney lodged a request for the protection of legality (zahtjev za zaštitu zakonitosti) with the Supreme Court, asking it to establish that section 3(2) of the General Amnesty Act had been violated.

On 19 September 2007 the Supreme Court, when deciding upon the above request, established that the above decision of the Osijek County Court of 24 June 1997 violated section 3(2) of the General Amnesty Act. The relevant part of that decision reads:

Section 1(1) of the General Amnesty Act provides for a general amnesty from criminal prosecution and proceedings for the perpetrators of criminal offences committed in connection with the aggression, armed rebellion or armed conflict ... in Croatia. Under paragraph 3 of the same section the amnesty concerns criminal offences committed between 17 August 1990 and 23 August 1996. ...

For the correct interpretation of these provisions – apart from the general condition that the criminal offence in question had to have been committed in the period between 17 August 1990 and 23 August 1996 (which has been met in the present case) – there must exist a direct and significant connection between the criminal offence and the aggression, armed rebellion or armed conflict. This interpretation is in accordance with the general principle that anyone who commits a criminal offence has to answer for it. Therefore, the above provisions have to be interpreted in a sensible manner, with the necessary caution, so that the amnesty does not become a contradiction of itself and call into question the purpose for which the Act in question was enacted. Therefore, the expression ‘in connection with the aggression, armed rebellion or armed conflict’ used in the General Amnesty Act, which does not specifically define the nature of that connection, has to be interpreted to mean that the connection must be direct and significant.

Part of the factual description of the criminal offences with which the accused Fred Marguš is charged in counts 1, 2 and 3 of the indictment, which suggests some connection with the aggression against the Republic of Croatia or armed rebellion and armed conflicts in Croatia, relates to the arrival of the victims of these offences – S.B., V.B. and the minor Sl.B. – in Čepin, together with their neighbours, after they had all fled the village of Ivanovac on account of the attack by the so-called ‘Y[ugoslav] P[eoples’] A[rmy]’. It should be stressed that it is not in dispute that the accused Fred Marguš was a member of the Croatian Army. However, these circumstances are not such as to amount to a direct link with the aggression, armed rebellion or armed conflicts in Croatia which is required for the General Amnesty Act to apply.

The factual description of the criminal offences under count 4 of the indictment states that the accused committed these acts as a member of the Reserve Forces in Čepin, after his tour of duty had terminated. This characteristic in itself does not represent a significant link between the criminal offences and the war because, were this to be the case, the amnesty would encompass all criminal offences committed between 27 August 1990 and 23 August 1996 by members of the Croatian Army or the enemy units (save for those specifically listed in section 3(1) of the General Amnesty Act); this was certainly not the intention of the legislature.

Finally, the accused’s war career, described in detail in the impugned decision, cannot be a criterion for application of the General Amnesty Act ...

The factual description of the criminal offences in the indictment ... does not show that the acts in question were committed during the aggression, armed rebellion or armed conflict in Croatia, or that they were committed in connection with them.

On 26 April 2006 the Osijek County State Attorney’s Office indicted the applicant on charges of war crimes against the civilian population. The proceedings were conducted by a three-judge panel of the Osijek County Court, including judge M.K. During the entire proceedings the applicant was represented by a lawyer.

A concluding hearing was held on 19 March 2007 in the presence of, inter alia, the applicant and his defence lawyer. The applicant was removed from the courtroom during the closing arguments of the parties. The applicant’s lawyer remained in the courtroom and presented his closing arguments. The relevant part of the written record of that hearing reads as follows:

“The president of the panel notes that the accused Marguš interrupted the Osijek County Deputy State Attorney (“the Deputy State Attorney”) in his closing arguments and was warned by the panel to calm down; the second time he interrupted the Deputy State Attorney he was warned orally.

After the president of the panel orally warned the accused Marguš, the latter continued to comment on the closing arguments of the Deputy State Attorney. The panel therefore decides, and the president of the panel orders, that the accused Marguš be removed from the courtroom until the pronouncement of the judgment.

The applicant was subsequently removed from the courtroom and the Deputy State Attorney, the lawyers for the victims, the defence lawyers and one of the accused gave their closing arguments.

The pronouncement of the judgment was scheduled for 21 March 2007 and the hearing was concluded. The applicant was present at the pronouncement of the judgment. He was found guilty as charged and sentenced to fourteen years’ imprisonment. The relevant part of the judgment reads as follows:

The accused Fred Marguš ...

and

the accused T.D. ...

are guilty [in that]

in the period between 20 and 25 November 1991 in Čepin and its surroundings, contrary to Article 3 § 1 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 and Article 4 §§ 1 and 2(a) and Article 13 of the Additional Protocol to the Geneva Conventions of 12 August 1949 Relative to the Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1977, while defending that territory from armed attacks by the local rebel Serbian population and the so-called Yugoslav People’s Army in their joint attack on the constitutional legal order and territorial integrity of the Republic of Croatia, Fred Marguš, in his capacity as the commander of Unit 2 in the 3rd Corpus of the 130th brigade of the Croatian army, and the accused T.D., as a member of the same Unit under the command of Fred Marguš, with the intention of killing Serbian civilians [acted as follows];

the accused Fred Marguš

(a) on 20 November 1991 at about 8 a.m. in Čepin, recognised V.B. and S.B. who were standing ... in front of the Fire Brigade Headquarters in Ivanovac and were fleeing their village because of the attacks by the Yugoslav People’s Army, ... fired at them with an automatic gun ... which caused S.B. a gunshot wound to the head ... and neck as a result of which S.B. immediately died, while V.B. was wounded and fell to the ground. The accused then drove away and soon afterwards came back, and, seeing that V.B. was still alive and accompanied by his nine-year-old son Sl.B. and ... his wife M.B., again fired the automatic gun at them, and thus shot V.B. twice in the head ...twice in the arm ... as a result of which V.B. soon died while Sl.B. was shot in the leg ... which amounted to grievous bodily harm;

(b) in the period between 22 and 24 November 1991 in Čepin, arrested N.V. and Ne.V., threatening them with firearms, appropriated their Golf vehicle ... took them to the basement of a house ... where he tied them by ropes to chairs and kept them locked in without food or water and, together with the members of his Unit ... beat and insulted them, asked them about their alleged hostile activity and possession of a radio station, and during that time prevented other members of the Unit from helping them ... after which he took them out of Čepin to a forest ... where they were shot with several bullets from firearms ... as a result of which N.V. ... and Ne.V. died;

(c) on 23 November 1991 at about 1.30 p.m. at the coach terminal in Čepin, arrested S.G. and D.G. and their relative Lj.G. and drove them to a house ... tied their hands behind their backs and, together with the late T.B., interrogated them about their alleged hostile activity and in the evening, while they were still tied up, drove them out of Čepin ... where he shot them ... as a result of which they died;

the accused Fred Marguš and T.D. [acting] together

(d) on 25 November 1991 at about 1 p.m. in Čepin, on seeing S.P. driving his Golf vehicle ... stopped him at the request of Fred Marguš ... ... and drove him to a field ... where ... Fred Marguš ordered T.D. to shoot S.P., [an order] which T.D. obeyed, shooting S.P. once ... after which Fred Marguš shot him several times with an automatic gun ... as a result of which S.P. ... died and Fred Marguš appropriated his vehicle.

The applicant’s conviction was upheld by the Supreme Court on 19 September 2007 and his sentence was increased to fifteen years’ imprisonment. The relevant part of the judgment by the Supreme Court reads as follows:

“Under Article 36 § 1 (5) of the Code of Criminal Procedure (CCP) a judge is exempted from performing judicial functions if he or she participated in the same case in the adoption of a decision of a lower court or if he participated in adopting the impugned decision.

It is true that judge M.K. participated in the proceedings in which the impugned judgment was adopted. He was the president of a panel of the Osijek County Court which adopted the decision ... of 24 June 1997 by which the proceedings against the accused Fred Marguš were terminated under section 1(1) and (3) and section 2(2) of the General Amnesty Act ...

Even though both sets of proceedings were instituted against the same accused, it was not the same case. The judge in question participated in two different cases before the Osijek County Court against the same accused. In the case in which the present appeal has been lodged, judge M.K. did not participate in adopting any decision of a lower court or in a decision which is the subject of an appeal or an extraordinary remedy.

The accused incorrectly argued that the first-instance court had acted contrary to Article 346 § 4 and Article 347 §§ 1 and 4 of the CCP when it held the concluding hearing in his absence and in the absence of his defence lawyer because it had removed him from the courtroom when the parties were presenting their closing arguments. Thus, he claimed, he had been prevented from giving his closing arguments. Furthermore, he had not been informed about the conduct of the hearing in his absence, and the decision to remove him from the courtroom had not been adopted by the trial panel.

Contrary to the allegations of the accused, the written record of the hearing held on 19 March 2007 shows that the accused Fred Marguš interrupted the [Osijek] County Deputy State Attorney in his closing arguments and was twice warned by the president of the trial panel. Since he continued with the same behaviour, the trial panel decided to remove him from the courtroom ...

Such action by the trial court is in conformity with Article 300 § 2 of the CCP. The accused Fred Marguš started to disturb order in the courtroom during the closing arguments of the [Osijek County Deputy] State Attorney and persisted in doing so, after which he was removed from the courtroom by a decision of the trial panel. He was again present in the courtroom when judgment was pronounced on 21 March 2007.

Since the trial court complied fully with Article 300 § 2 of the CCP, the accused’s appeal is unfounded. In the case in issue there has been no violation of the defence rights, and the removal of the accused from the courtroom during the closing arguments of the parties had no effect on the judgment.

The accused Fred Marguš further argues ... that the impugned judgment violated the ‘ne bis in idem’ principle ... because the proceedings had already been discontinued in respect of some of the charges giving rise to the impugned judgment ...

It is true that criminal proceedings were conducted before the Osijek County Court under no. K-4/97 against the accused Fred Marguš in respect of, inter alia, four criminal offences ... of murder ... committed against S.B., V.B., N.V. and Ne.V, as well as the criminal offence ... of creating a risk to life and assets ... These proceedings were terminated by final decision of the Osijek County Court no. Kv 99/97 (K-4/97) of 24 June 1997 on the basis of the General Amnesty Act ...

Despite the fact that the consequences of the criminal offences which were the subject of the proceedings conducted before the Osijek County Court under no. K 4/97, namely the deaths of S.B., V.B., N.V. and Ne.V. and the grievous bodily injury of Sl.B., are also part of the factual background [to the criminal offences assessed] in the proceedings in which the impugned judgment has been adopted, the offences [tried in the two sets of the criminal proceedings at issue] are not the same.

Comparison between the factual background [to the criminal offences assessed] in both sets of proceedings shows that they are not identical. The factual background [to the offences referred to] in the impugned judgment contains a further criminal element, significantly wider in scope than the one forming the basis for the proceedings conducted before the Osijek County Court under no. K-4/97. [In the present case] the accused Fred Marguš is charged with violation of the rules of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 and of the Additional Protocol to the Geneva Conventions of 12 August 1949 Relative to the Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1977, in that, in the period between 20 and 25 November 1991, while defending that territory from armed attacks by the local rebel Serbian population and the so-called Yugoslav People’s Army in their joint attack on the constitutional legal order and territorial integrity of the Republic of Croatia, and in violation of the rules of international law, he killed and tortured civilians, treated them in an inhuman manner, unlawfully arrested them, ordered the killing of a civilian and robbed the assets of the civilian population. The above acts constitute a criminal offence against the values protected by international law, namely a war crime against the civilian population under Article 120 § 1 of the Criminal Code.

Since the factual background to the criminal offence at issue, and its legal classification, differ from those which were the subject of the earlier proceedings, such that the scope of the charges against the accused Fred Marguš is significantly wider and different from the previous case (case-file no. K-4/97), the matter is not res judicata ...”

A subsequent constitutional complaint by the applicant was dismissed by the Constitutional Court on 30 September 2009. The Constitutional Court endorsed the views of the Supreme Court.

The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku – Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003, 178/2004 and 115/2006) provide as follows:

“(1) Where the accused ... disturbs order at a hearing or does not comply with the orders of the presiding judge, the latter shall warn the accused ... The panel may order that the accused be removed from the courtroom ...

(2) The panel may order that the accused be removed from the courtroom for a limited time. Where the accused again disturbs the order [he or she may be removed from the courtroom] until the end of the presentation of evidence. Before the closure of the presentation of evidence the presiding judge shall summon the accused and inform him about the conduct of the trial. If the accused continues to disturb order and insults the dignity of the court, the panel may again order that he be removed from the courtroom. In that case the trial shall be concluded in the accused’s absence and the presiding judge or another member of the panel shall inform him or her about the judgment adopted, in the presence of a typist.

“(1) A grave breach of criminal procedure shall be found to exist where

a hearing has been held without a person whose presence is obligatory under the law ...

The relevant part of the Act on Amnesty from Criminal Prosecution and Proceedings in Respect of Criminal Offences Committed during the Armed Conflicts and the War against the Republic of Croatia of 25 September 1992 (Official Gazette no. 58/1992, Zakon o oprostu od krivičnog progona i postupka za krivična djela počinjena u oružanim sukobima i u ratu protiv Republike Hrvatske) reads as follows:

“Criminal prosecution of perpetrators of criminal offences [committed] during the armed conflicts, the war against the Republic of Croatia or in connection with these conflicts or war, committed between 17 August 1990 and the day when this Act comes into force, shall be discontinued. In respect of these offences no criminal prosecution or criminal proceedings shall be instituted. Where criminal proceedings have been instituted, a court shall terminate them of its own motion. Where a person concerned by the amnesty ... has been detained, he or she shall be released.”

“No amnesty under section 1 of this Act shall be granted to perpetrators of the criminal offences in respect of which the Republic of Croatia is obliged to prosecute under international law.”

“A state attorney may lodge an appeal within twenty-four hours from the service of a decision under section 1 ... of this Act, where she or he considers that the decision contravenes section 2 of this Act.”

The relevant part of the amendments to the above Act of 6 June 1995 reads as follows:

“In section 1, paragraph 1 of the Act on Amnesty from Criminal Prosecution and Proceedings in Respect of Criminal Offences Committed during the Armed Conflicts and the War against the Republic of Croatia (Official Gazette no. 58/92) the words ‘the day when this Act comes into force’ are to be replaced by the words ‘10 May 1995’.”

The relevant part of the General Amnesty Act of 24 September 1996 (Official Gazette no. 80/1996, Zakon o općem oprostu) reads as follows:

“This Act grants general amnesty from criminal prosecution and proceedings to the perpetrators of criminal offences committed during the aggression, armed rebellion or armed conflicts and in connection with the aggression, armed rebellion or armed conflicts in the Republic of Croatia.

No amnesty shall apply to the execution of final judgments in respect of perpetrators of the criminal offences under paragraph 1 of this section.

Amnesty from criminal prosecution and proceedings shall apply to offences committed between 17 August 1990 and 23 August 1996.”

“No criminal prosecution or criminal proceedings shall be instituted against the perpetrators of the criminal offences under section 1 of this Act.

Where a criminal prosecution has already commenced it shall be discontinued and where criminal proceedings have been instituted a court shall issue a decision terminating the proceedings of its own motion.

Where a person granted amnesty under paragraph 1 of this section has been detained, he or she shall be released.”

“No amnesty under section 1 of this Act shall be granted to perpetrators of the gravest breaches of humanitarian law, which have the character of war crimes, namely, the criminal offence of genocide under Article 119 of the Basic Criminal Code of the Republic of Croatia (Official Gazette no. 31/1993, consolidated text, nos. 35/1993, 108/1995, 16/1996 and 28/1996); war crimes against the civilian population under Article 120; war crimes against the wounded and sick under Article 121; war crimes against prisoners of war under Article 122; organising groups [with the purpose of committing] or aiding and abetting genocide and war crimes under Article 123; unlawful killing and wounding of the enemy under Article 124; unlawful taking of possessions from the dead or wounded on the battleground under Article 125; use of unlawful means of combat under Article 126; offences against negotiators under Article 127; cruel treatment of the wounded, sick and prisoners of war under Article 128; unjustified delay in repatriation of prisoners of war under Article 129; destruction of cultural and historical heritage under Article 130; inciting war of aggression under Article 131; abuse of international symbols under Article 132; racial and other discrimination under Article 133; establishing slavery and transferring slaves under Article 134; international terrorism under Article 135; putting at risk persons under international protection under Article 136; taking hostages under Article 137; and the criminal offence of terrorism under the provisions of international law.

No amnesty shall be granted to perpetrators of other criminal offences under the Basic Criminal Code of the Republic of Croatia (Official Gazette no. 31/1993, consolidated text, nos. 35/1993, 108/1995, 16/1996 and 28/1996) and the Criminal Code of the Republic of Croatia (Official Gazette no. 32/1993, consolidated text, nos. 38/1993, 28/1996 and 30/1996) which were not committed during the aggression, armed rebellion or armed conflicts and are not connected with the aggression, armed rebellion or armed conflicts in the Republic of Croatia.

“A state attorney may lodge an appeal against a court decision under section 2 of this Act where a court has granted amnesty in favour of the perpetrators of criminal offences in respect of which this Act grants amnesty within the legal classification of the criminal offence by a state attorney.”

The relevant part of common Article 3 of the Geneva Conventions of 1949 reads:

“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 judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

The relevant parts of the Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949 – hereafter “the First Geneva Convention”) read:

“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.

“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 Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”

Articles 50 and 51 of the Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Geneva, 12 August 1949 – hereafter “the Second Geneva Convention”) contain the same text as Articles 49 and 50 of the First Geneva Convention.

Articles 129 and 130 of the Convention (III) relative to the Treatment of Prisoners of War (Geneva, 12 August 1949 – hereafter “the Third Geneva Convention”) contain the same text as Articles 49 and 50 of the First Geneva Convention.

Articles 146 and 147 of the Convention (IV) relative to the Protection of Civilian Persons in Time of War (Geneva, 12 August 1949 – hereafter “the Fourth Geneva Convention”) contain the same text as Articles 49 and 50 of the First Geneva Convention.

The relevant part of the Additional Protocol (II) to the Geneva Conventions, relating to the Protection of Victims of Non-International Armed Conflicts (Geneva, 8 June 1977) reads:

“1. All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there shall be no survivors.

Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph I are and shall remain prohibited at any time and in any place whatsoever:

(a) violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; ...”

“1. The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations. To give effect to this protection, the following rules shall be observed in all circumstances.

The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.

Civilians shall enjoy the protection afforded by this part, unless and for such time as they take a direct part in hostilities.”

Mandated by the States convened at the 26th International Conference of the Red Cross and Red Crescent, the International Committee of the Red Cross (ICRC) presented in 2005 a Study on Customary International Humanitarian Law (J.-M. Henckaerts and L. Doswald-Beck (eds.), Customary International Humanitarian Law, 2 Volumes, Cambridge University Press & ICRC, 2005). The Study contains a list of customary rules of international humanitarian law. Rule 159 which refers to non-international armed conflicts reads:

“At the end of hostilities, the authorities in power must endeavour to grant the broadest possible amnesty to persons who have participated in a non-international armed conflict, or those deprived of their liberty for reasons related to the armed conflict, with the exception of persons suspected of, accused of or sentenced for war crimes.”

“The Security Council:

Urges the Government of the Republic of Croatia to eliminate ambiguities in implementation of the Amnesty Law, and to implement it fairly and objectively in accordance with international standards, in particular by concluding all investigations of crimes covered by the amnesty and undertaking an immediate and comprehensive review with United Nations and local Serb participation of all charges outstanding against individuals for serious violations of international humanitarian law which are not covered by the amnesty in order to end proceedings against all individuals against whom there is insufficient evidence;

The relevant text of the Resolution on human rights in the world and Community human rights policy for the years 1991/1992 reads:

“The European Parliament

Believes that the problem of impunity ... can take the form of amnesty, immunity, extraordinary jurisdiction and constrains democracy by effectively condoning human rights infringements and distressing victims;

Affirms that there should be no question of impunity for those responsible for war crimes in the former Yugoslavia ...”

The United Nations Human Rights Committee noted in 1994 in its General Comment No. 20 on Article 7 of the International Covenant that some States had granted amnesty in respect of acts of torture. It went on to state that “[a]mnesties are generally incompatible with the duty of States to investigate such acts; to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not occur in the future. States may not deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be possible”.

“18. Where the investigations referred to in paragraph 15 reveal violations of certain Covenant rights, States Parties must ensure that those responsible are brought to justice. As with failure to investigate, failure to bring to justice perpetrators of such violations could in and of itself give rise to a separate breach of the Covenant. These obligations arise notably in respect of those violations recognized as criminal under either domestic or international law, such as torture and similar cruel, inhuman and degrading treatment (article 7), summary and arbitrary killing (article 6) and enforced disappearance (articles 7 and 9 and, frequently, 6). Indeed, the problem of impunity for these violations, a matter of sustained concern by the Committee, may well be an important contributing element in the recurrence of the violations. When committed as part of a widespread or systematic attack on a civilian population, these violations of the Covenant are crimes against humanity (see Rome Statute of the International Criminal Court, article 7).

Accordingly, where public officials or State agents have committed violations of the Covenant rights referred to in this paragraph, the States Parties concerned may not relieve perpetrators from personal responsibility, as has occurred with certain amnesties (see General Comment 20 (44)) and prior legal immunities and indemnities. Furthermore, no official status justifies persons who may be accused of responsibility for such violations being held immune from legal responsibility;

“The Commission on Human Rights:

Also emphasizes the importance of taking all necessary and possible steps to hold accountable perpetrators, including their accomplices, of violations of international human rights and humanitarian law, recognizes that amnesties should not be granted to those who commit violations of international humanitarian and human rights law that constitute serious crimes and urges States to take action in accordance with their obligations under international law;

“The Commission on Human Rights:

Also recognizes that amnesties should not be granted to those who commit violations of human rights and international humanitarian law that constitute crimes, urges States to take action in accordance with their obligations under international law and welcomes the lifting, waiving, or nullification of amnesties and other immunities.

“The Commission on Human Rights:

Also recognizes that amnesties should not be granted to those who commit violations of human rights and international humanitarian law that constitute crimes, urges States to take action in accordance with their obligations under international law and welcomes the lifting, waiving, or nullification of amnesties and other immunities, and recognizes as well the Secretary-General’s conclusion that United Nations-endorsed peace agreements can never promise amnesties for genocide, crimes against humanity, war crimes, or gross violations of human rights.

In 1998, in the conclusions and recommendations of his fifth report on the question of the human rights of all persons subjected to any form of detention or imprisonment, in particular, torture and other cruel, inhuman or degrading treatment or punishment, the Special Rapporteur of the UN Commission on Human Rights stated with respect to the Draft Statute for an International Criminal Court:

The relevant part of the Furundžija case (judgment of 10 December 1998) reads:

“155. The fact that torture is prohibited by a peremptory norm of international law has other effects at the inter-state and individual levels. At the inter-state level, it serves to internationally de-legitimise any legislative, administrative or judicial act authorising torture. It would be senseless to argue, on the one hand, that on account of the jus cogens value of the prohibition against torture, treaties or customary rules providing for torture would be null and void ab initio, and then be unmindful of a State say, taking national measures authorising or condoning torture or absolving its perpetrators through an amnesty law. If such a situation were to arise, the national measures, violating the general principle and any relevant treaty provision, would produce the legal effects discussed above and in addition would not be accorded international legal recognition. Proceedings could be initiated by potential victims if they had locus standi before a competent international or national judicial body with a view to asking it to hold the national measure to be internationally unlawful; or the victim could bring a civil suit for damage in a foreign court, which would therefore be asked inter alia to disregard the legal value of the national authorising act. What is even more important is that perpetrators of torture acting upon or benefiting from those national measures may nevertheless be held criminally responsible for torture, whether in a foreign State, or in their own State under a subsequent regime. In short, in spite of possible national authorisation by legislative or judicial bodies to violate the principle banning torture, individuals remain bound to comply with that principle. As the International Military Tribunal at Nuremberg put it: “individuals have international duties which transcend the national obligations of obedience imposed by the individual State.”

In 1992, in a report on a case with respect to the Las Hojas massacres in El Salvador in 1983 during which about 74 persons were allegedly killed by members of the Salvadoran armed forces with the participation of members of the Civil Defence, and which had led to a petition before the Inter-American Commission on Human Rights, the latter held that:

“... the application of [El Salvador’s 1987 Law on Amnesty to Achieve National Reconciliation] constitutes a clear violation of the obligation of the Salvadoran Government to investigate and punish the violations of the rights of the Las Hojas victims, and to provide compensation for damages resulting from the violations ... The present amnesty law, as applied in these cases, by foreclosing the possibility of judicial relief in cases of murder, inhumane treatment and absence of judicial guarantees, denies the fundamental nature of the most basic human rights. It eliminates perhaps the single most effective means of enforcing such rights, the trial and punishment of offenders.”

In 1994, in a report on the situation of human rights in El Salvador, the Inter-American Commission on Human Rights stated, with regard to El Salvador’s General Amnesty Law for Consolidation of Peace, as follows:

“... regardless of any necessity that the peace negotiations might pose and irrespective of purely political considerations, the very sweeping General Amnesty Law [for Consolidation of Peace] passed by El Salvador’s Legislative Assembly constitutes a violation of the international obligations it undertook when it ratified the American Convention on Human Rights, because it makes possible a ‘reciprocal amnesty’ without first acknowledging responsibility ... because it applies to crimes against humanity, and because it eliminates any possibility of obtaining adequate pecuniary compensation, primarily for victims.”

In 1999, in a report of a case concerning El Salvador’s 1993 General Amnesty Law for Consolidation of Peace, the Inter-American Commission on Human Rights stated:

“112. The Commission should emphasize that [this law] was applied to serious human rights violations in El Salvador between January 1, 1980, and January 1, 1992, including those examined and established by the Truth Commission. In particular, its effect was extended, among other things, to crimes such as summary executions, torture, and the forced disappearance of persons. Some of these crimes are considered of such gravity as to have justified the adoption of special conventions on the subject and the inclusion of specific measures for preventing impunity in their regard, including universal jurisdiction and inapplicability of the statute of limitations ...

The Commission also notes that Article 2 of [this law] was apparently applied to all violations of common Article 3 [of the 1949 Geneva Conventions] and of [the 1977 Additional Protocol II], committed by agents of the State during the armed conflict which took place in El Salvador.

... in approving and enforcing the General Amnesty Law, the Salvadoran State violated the right to judicial guarantees enshrined in Article 8(1) of the [1969 American Convention on Human Rights], to the detriment of the surviving victims of torture and of the relatives of ... who were prevented from obtaining redress in the civil courts; all of this in relation to Article 1(1) of the Convention ...

... in promulgating and enforcing the Amnesty Law, El Salvador has violated the right to judicial protection enshrined in Article 25 of the [1969 American Convention on Human Rights], to the detriment of the surviving victims ...”

In its conclusions, the Inter-American Commission on Human Rights stated that El Salvador “has also violated, with respect to the same persons, common Article 3 of the Four Geneva Conventions of 1949 and Article 4 of [the 1977 Additional Protocol II]”. Moreover, in order to safeguard the rights of the victims, it recommended that El Salvador should, “if need be, ... annul that law ex-tunc”.

In its judgment in the Barrios Altos case in 2001 involving the question of the legality of Peruvian amnesty laws, the Inter-American Court of Human Rights stated:

“41. This Court considers that all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law.

The Court, in accordance with the arguments put forward by the Commission and not contested by the State, considers that the amnesty laws adopted by Peru prevented the victims’ next of kin and the surviving victims in this case from being heard by a judge ... they violated the right to judicial protection ... they prevented the investigation, capture, prosecution and conviction of those responsible for the events that occurred in Barrios Altos, thus failing to comply with Article 1(1) of the [1969 American Convention on Human Rights], and they obstructed clarification of the facts of this case. Finally, the adoption of self-amnesty laws that are incompatible with the [1969 American Convention on Human Rights] meant that Peru failed to comply with the obligation to adapt internal legislation that is embodied in Article 2 of the [1969 American Convention on Human Rights].

The Court considers that it should be emphasized that, in the light of the general obligations established in Articles 1(1) and 2 of the [1969 American Convention on Human Rights], the States Parties are obliged to take all measures to ensure that no one is deprived of judicial protection and the exercise of the right to a simple and effective recourse, in the terms of Articles 8 and 25 of the [1969 American Convention on Human Rights]. Consequently, States Parties to the [1969 American Convention on Human Rights] which adopt laws that have the opposite effect, such as self-amnesty laws, violate Articles 8 and 25, in relation to Articles 1(1) and 2 of the [1969 American Convention on Human Rights]. Self-amnesty laws lead to the defenselessness of victims and perpetuate impunity; therefore, they are manifestly incompatible with the aims and spirit of the Convention. This type of law precludes the identification of the individuals who are responsible for human rights violations, because it obstructs the investigation and access to justice and prevents the victims and their next of kin from knowing the truth and receiving the corresponding reparation.

Owing to the manifest incompatibility of self-amnesty laws and the American Convention on Human Rights, the said laws lack legal effect and may not continue to obstruct the investigation of the grounds on which this case is based or the identification and punishment of those responsible, nor can they have the same or a similar impact with regard to other cases that have occurred in Peru, where the rights established in the [1969 American Convention on Human Rights] have been violated.”

In his concurring opinion, Judge Antônio A. Cançado Trinidade added:

“13. The international responsibility of the State for violations of internationally recognized human rights, – including violations which have taken place by means of the adoption and application of laws of self-amnesty, – and the individual penal responsibility of agents perpetrators of grave violations of human rights and of International Humanitarian Law, are two faces of the same coin, in the fight against atrocities, impunity, and injustice. It was necessary to wait many years to come to this conclusion, which, if it is possible today, is also due, – may I insist on a point which is very dear to me, – to the awakening of the universal juridical conscience, as the material source par excellence of International Law itself.”


Violation of Art. 5-1;Violation of Art. 5-4

The second applicant is the first applicant's uncle.

The second applicant, who then had a criminal record of two previous convictions, was arrested on 18 July 1997 and questioned in the context of criminal proceedings for theft. He was released on 21 July 1997.

The first applicant, then having a criminal record of four convictions, was arrested on 19 July 1997 and questioned in the context of another set of criminal proceedings for theft. He was released on 21 July 1997.

On 22 July 1997 the second applicant was arrested in the context of criminal proceedings for murder of VB, a third person. On the same date the Tauragė District Court ordered his detention on remand for two months on the ground that he might abscond from the investigation and commit fresh crimes.

On 31 July 1997 the second applicant was charged with murder.

On 2 August 1997 the first applicant was arrested in the context of criminal proceedings for attempted robbery.

On 4 August 1997 the Tauragė District Court ordered the first applicant's detention on remand for two months because of the danger of his absconding, committing fresh crimes and obstructing the investigation.

On 11 August 1997 the second applicant was also questioned in the attempted robbery case.

On 13 August 1997 a prosecutor charged the first applicant with attempted robbery.

On 15 August 1997 the Tauragė District Court ordered compulsory psychiatric examination of the second applicant.

On 19 August 1997 the Klaipėda Regional Court rejected the first applicant's appeal against the detention order.

On 21 August 1997 the two criminal cases for murder and attempted robbery were joined.

On 15 September 1997 the Tauragė District Court extended the term of the second applicant's remand in custody until 22 November 1997 on the same grounds.

On 2 October 1997 the Tauragė District Court extended the first applicant's remand in custody until 2 December 1997 on the same grounds.

On 21 October 1997 two more criminal cases, concerning unlawful possession of firearms and robbery, were joined to the criminal proceedings against the applicants.

On 19 November 1997 the Tauragė District Court extended the term of the second applicant's detention until 21 January 1998 on the ground that he may abscond from the investigation, commit fresh crimes and influence witnesses.

On 27 November 1997 the court prolonged the first applicant's remand in custody for two months on the same grounds.

On 20 January 1998 the Šiauliai Regional Court extended the term of both applicants' detention on remand until 1 March 1998 because of the danger of their absconding and influencing the investigation.

On 18, 24 and 25 February 1998 a number of new alleged episodes from other criminal cases, namely in relation to damaging property of another, assault, unlawful possession of weapons, causing bodily harm, aggravated murder, attempted robbery and theft were joined in the criminal proceedings against the applicants.

On 26 February 1998 the investigation was concluded, and the applicants and their defense counsel had access to the case-file.

On 27 February 1998 a prosecutor rejected the applicants' request to discontinue the proceedings.

On 2 March 1998 the bill of indictment was confirmed, and the case was sent to the Klaipėda Regional Court.

On 15 April 1998 the Klaipėda Regional Court committed the applicants for trial. It further stated in the decision that their remand measures should remain unchanged pending the adoption of a judgment in the case.

On 21 September 1998 the Klaipėda Regional Court returned the case to the prosecutors for further investigative measures to be carried out. Thereafter the courts extended the term applicant's detention on various occasions.

A new bill of indictment was confirmed on 29 December 1998.

On 11 May 1999 the case was transmitted to the Šiauliai Regional Court.

On 13 March 2000 the court returned the case for further investigation to be carried out in view of the prosecutors' request to bring a fresh charge against the first applicant. Subsequently, the charges against the applicants were again reformulated.

On 11 July 2000 a new bill of indictment was confirmed, and the case was sent to the Šiauliai Regional Court.

On 10 April 2001 the applicants were convicted: a) the first applicant on one count of attempted robbery; b) the second applicant on five counts of murder, attempted robbery, causing bodily harm, and unlawful possession of two types of weapons.

On 3 December 2001 the Court of Appeal amended the first applicant's conviction, but his sentence of imprisonment remained unchanged. The Court of Appeal also reclassified the second applicant's actions to aggravated murder, sentencing him to 13 years' imprisonment.

On 30 April 2002 the Supreme Court quashed the decision of the Court of Appeal insofar as it concerned the second applicant's conviction for aggravated murder, reinstating his sentence of 7 years and 6 months' imprisonment as it had been imposed by the first instance court.

On an unspecified date the second applicant completed the sentence, and was released from prison.

The provisions of the Code of Criminal Procedure (Baudžiamojo proceso kodeksas) applicable at the material time (repealed by entry into force of the new Code of Criminal Procedure on 1 May 2003):

Article 104 (in force from 21 June 1996) reads:

“Detention on remand shall be used only ... in cases where a statutory penalty of at least one year's imprisonment is envisaged.

The grounds for detention on remand shall be the reasoned suspicion that the accused will:

(1) abscond from the investigation and trial;

(2) obstruct the determination of the truth in the case [influence other parties or destroy evidence];

(3) commit new offences ... whilst suspected of having committed crimes provided in Articles ... [274] [cheating,] 275 [embezzlement] of the Criminal Code ...”

Article 104-1 (in force from 21 June 1996 to 24 June 1998) reads:

“... [T]he arrested person shall be brought before a judge within not more than 48 hours ... The judge must hear the person as to the grounds of the arrest. The prosecutor and counsel for the arrested person may take part in the inquiry. After having questioned the arrested person, the judge may maintain the arrest order by designating the term of detention, or may vary or revoke the remand measure. ...

After the case has been transmitted to the court ... [it] can order, vary or revoke the detention on remand.”

Pursuant to the amended Article 104-1 (in force from 24 June 1998 until 1 May 2003), the prosecutor and defence counsel must take part in the first judicial inquiry of the arrested person, unless the judge decides otherwise. The amended provision also permits the court to extend the detention on remand before its expiry.

Article 106 § 3 (in force from 21 June 1996 to 24 June 1998) reads:

“For the purpose of extending the term of detention on remand [at the stage of pre-trail investigation a judge] must convene a hearing to which defence counsel and the prosecutor and, if necessary, the detained person shall be called.”

The Code in force since 24 June 1998 makes obligatory the attendance of the detainee at the remand hearings.

Article 109-1 (in force from 21 June 1996 to 24 June 1998) reads:

“An arrested person or his counsel shall have the right during the pre-trial investigation to lodge [with an appellate court] an appeal against the detention on remand ... . With a view to examining the appeal, there may be convened a hearing, to which the arrested person and his counsel or only counsel shall be called. The presence of a prosecutor is obligatory at such a hearing.

The decision taken by [the appellate judge] is final and cannot be the subject of a cassation appeal.

A further appeal shall be determined when examining the extension of the term of the detention on remand.”

Pursuant to the amended Article 109-1 (in force from 24 June 1998 to 1 May 2003), an appeal may be submitted to a higher court, which would hold a hearing against a decision ordering or extending the term of detention both at the stage of pre-trial investigation and trial, in the presence of the detainee and his counsel, or only his counsel.

Article 226 § 6 (in force until 24 June 1998) reads:

“The period when the accused and his counsel have access to the case-file is not counted towards the overall term of pre-trial investigation and detention. Where there are several accused persons, the period during which all the accused and their counsel have access to the case-file is not counted towards the overall term of pre-trial investigation and detention.”

Since 24 June 1998 this period is no longer relevant for remand decisions.

Article 372 § 4 (in force until 1 January 1999) reads:

“Decisions of courts ... ordering, varying or revoking a remand measure ... cannot be the subject of appeal ...”

Pursuant to the general provision of Article 399, a first instance decision was not effective pending the time-limit for an appeal against that decision or during the appeal proceedings. Only those decisions against which no appeal was possible, including remand decisions under the former Article 372 § 4, became effective and were executed on the date when they were taken. Pursuant to the amended Article 104-3 § 3 (version in force from 21 December 1999 until 1 May 2003), all decisions of detention on remand become effective and are executed on the date when they are taken, regardless of the fact that an appeal is possible against any such decision under the amended Article 109-1 (as in force from 24 June 1998 to 1 May 2003, see above).

Other relevant provisions of the Code of Criminal Procedure which was in force until 1 May 2003:

Article 52 § 2 (3) and (8) and Article 58 § 2 (8) and (10) provide, respectively, that the accused and their counsel have the right to “submit requests” and to “appeal against acts and decisions of an interrogator, investigator, prosecutor and court.”

Article 249 § 1 reads:

“A judge individually or a court in a directions hearing, in deciding whether to commit the accused for trial, shall determine ...

(11) whether the remand measure has been selected appropriately.”

Article 250 § 1 reads:

“After having decided, that there is a sufficient basis to commit the accused for trial, a judge individually or a court in a directions hearing shall determine the questions ...

(2) of the remand measure in respect of the accused ... .”

Article 267 § 1 reads:

“The defendant has the right to ... 3) submit requests; ...

(11) appeal against the judgment and decisions of a court.”

Article 277 reads:

“In the course of the trial, a court may decide to order, vary or revoke a remand measure in respect of the defendant.”


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award

The applicant was born in 1941 and lives in Vienna.

The applicant had been an employee of the embassy of the United States of America in Vienna since March 1978. From January 1981 onwards she had a contract of indefinite duration and worked as a photographer at the embassy. Following an accident in 1983 the competent authority issued a decision stating that she qualified for protection under the Disabled Persons (Employment) Act (Invalideneinstellungsgesetz). Following a further accident, classified as work-related, the embassy dismissed her in September 1987.

Her dismissal was declared void by the Vienna Labour and Social Court (Arbeits- und Sozialgericht) on the ground that it required the prior agreement of the competent authority under the Disabled Persons (Employment) Act. The court dismissed the argument submitted by the United States that it lacked jurisdiction on account of the United States’ immunity. It found that, while foreign States enjoyed immunity with regard to acta iure imperii, they came within the jurisdiction of the domestic courts with regard to acta iure gestionis. The conclusion and performance of an employment contract fell within the latter category. The Supreme Court (Oberster Gerichthof) upheld that judgment on 21 November 1990, noting that the United States had not maintained the objection of State immunity in the further course of the proceedings.

As a result of the above proceedings, the applicant continued to have a valid employment contract with the United States embassy in Vienna. However, the latter refused to make use of her services. Instead, on 31 January 1991, they applied to the Vienna Committee for Disabled Persons requesting retroactive approval of the applicant’s dismissal or, alternatively, agreement to a future dismissal. The Committee refused to grant retroactive approval for the applicant’s dismissal of September 1987 but gave its approval for a future dismissal. The competent Federal Ministry upheld that decision. On 13 September 1994 the Administrative Court, ruling on a complaint by the applicant, set aside the decision to grant approval for the applicant’s future dismissal, finding that the authorities had failed to establish relevant facts and had not duly weighed the parties’ interests. The case was referred back to the Committee. On 16 January 1996 the United States withdrew its application, stating that it had always maintained that the application of the Disabled Persons (Employment) Act to employees of the embassy interfered with the country’s sovereignty.

Meanwhile, the applicant brought proceedings against the United States requesting payment of her salary. In a first set of proceedings, concerning salary payments up to June 1995, the United States unsuccessfully raised an objection of jurisdictional immunity. Subsequently, the United States paid the applicant salary arrears of 3.7 million Austrian schillings (approximately 269,000 euros (EUR)). On the occasion of the payment, the lawyer who had represented the United States in the proceedings informed the applicant by a letter dated 16 October 1996 that the payment did not imply any acceptance of the Austrian courts’ judgments and that the United States considered her employment contract to be terminated and would, if she raised any further claims, “make use of its diplomatic rights and immunities”.

Further proceedings relating to the payment of salary from July 1995 to August 1996 led to a final default judgment by the Vienna Labour and Social Court. However, the United States did not pay the amount awarded to the applicant.

The applicant also unsuccessfully brought proceedings against the United States claiming reimbursement of the social security contributions which she had been ordered to pay by the Austrian authorities and a part of which the employer was, under her employment contract, obliged to refund. In those proceedings the United States authorities refused to serve the summons to attend the hearing. The Austrian courts dismissed the applicant’s request for a judgment in default. Their position was upheld by the Supreme Court’s judgment of 11 June 2001 (see below, paragraph 28).

On 29 December 1998 the applicant brought an action against the United States of America before the Vienna Labour and Social Court, claiming salary payments from September 1996 onwards. The court scheduled a first hearing for 20 October 1999.

An attempt to serve the applicant’s action and the summons to the hearing on the United States through the Austrian Ministry of Foreign Affairs, under section 11(2) of the Service Act (Zustellgesetz), failed. According to the file a staff member of the Austrian embassy in Washington handed these documents over to a staff member of the United States Department of State. However, by letter of 25 January 2000 the Ministry of Foreign Affairs informed the Ministry of Justice, which in turn informed the Vienna Labour and Social Court, that the United States authorities had refused to serve the summons and had returned the documents at issue to the Austrian embassy in Washington. The letter was accompanied by a note from the United States Department of State informing the Austrian Ministry of Foreign Affairs that the United States wished to assert its immunity in any case brought by the applicant. In a letter of 4 February 2000 the Ministry of Foreign Affairs also informed the applicant accordingly.

On 18 February 2000 the Vienna Labour and Social Court dismissed the applicant’s request for a judgment in default, noting that it had been impossible to summon the defendant. An appeal by the applicant to the Vienna Court of Appeal (Oberlandesgericht) was unsuccessful.

The Supreme Court dismissed her appeal on points of law on 5 September 2001. Referring to its judgment of 11 June 2001 in a parallel case brought by the applicant (see paragraph 28 below), it noted that the summons had not been duly served on the defendant, namely the United States Department of Justice. Consequently, the conditions for giving a judgment in default were not fulfilled.

By a decision of 29 October 2001 the Vienna Labour and Social Court held that the applicant’s action and the summons to the hearing had not been served on account of the manifest refusal of the United States to comply with the request for service. It followed that further attempts to summon the defendant did not have any prospects of success.

Subsequently, the applicant requested that the summons be served by means of publication under Article 121 § 2 of the Code of Civil Procedure (Zivilprozeßordnung) or, alternatively, that it be served on a court-appointed representative (Curator) under Article 116 of the Code.

By decision of 25 April 2002 the Vienna Labour and Social Court appointed a lawyer, Dr G., to represent the United States of America. It noted that the foreign authorities had refused to serve the summonses in any of the proceedings brought by the applicant. In the court’s view the United States had wrongly relied on its alleged immunity.

On 18 November 2002 the Vienna Court of Appeal, following an appeal by Dr. G., quashed that decision. The relevant part of its decision reads as follows:

“In acting on a request for service, the State to which the request is made is exercising sovereign powers. This applies even if the court documents in question are addressed to that State and the authority responsible for acting on the request for assistance (in this instance the Department of State) refuses to forward them to the authority empowered to represent the State in private-law proceedings (in this instance the Department of Justice). This is not a case of refusal to accept service (§ 20 of the Service Act) but rather a case of refusal to comply with a request for legal assistance. Such refusal is a sovereign right of the foreign State, against which a remedy can be sought only through diplomatic channels ...

The Supreme Court endorsed this legal stance (8ObA 201/00t), stressing that, as international law currently stands, compliance or refusal to comply with a request for legal assistance is to be regarded as a sovereign act, irrespective of the subject-matter of the claim. The nature of the act is the defining factor. It is beyond doubt that the service of documents in court proceedings falls within the scope of so-called acta iure imperii and not acta iure gesionis, as a private individual cannot perform an act of this nature. Although negotiations have been in progress for some time on an international agreement concerning service of process on foreign States (which might make it sufficient for the action to be served on the country’s foreign ministry), no such agreement has to date been concluded, with the result that the issue remains unregulated by any treaty between Austria and the United States.

In a commentary on this decision, which had been published in JBl 2002, 57, Hintersteininger observed, inter alia, that, while the restrictive theory of service of process applied by the Supreme Court might be appropriate for the purposes of avoiding disagreements between States, it was not a requirement under international law. The author concluded that section 11 of the Service Act – at least as currently applied to judicial proceedings instituted in Austria against foreign States – amounted to a “self-imposed shackle” as a result of which the standard of protection of individuals’ legal interests was subordinated to international-law considerations. Unless and until the Austrian courts saw fit to apply a different interpretation of the provision in question – the fact that the Supreme Court, in its 2001 ruling, continued to apply its case-law from 1963 indicated that this was unlikely – there was an urgent need for the legislature to enact amending legislation in order to provide a practical solution to the problem of service of process.

Referring to Hintersteiniger’s international-law argument, the appellant raises the possibility of transmitting the action and an explanation of the legal circumstances, together with a translation into the country’s official language, to the US Department of State through diplomatic channels. In this case the defendant State would have no justification for returning the copy of the action at will; in the event of a refusal to accept service, it should be deemed to have received the request. This would make effective service possible and would remove the need to appoint a representative.

The objection to this line of argument is that such a procedure – which from a general international-law perspective is possible – is incompatible with the applicable legal provisions in Austria. As clarified in 8 ObA 201/00t, the action has to be served on a competent body within the Department of Justice, which is the authority representing the United States in the present employment-related proceedings. It is not sufficient for the document to have somehow reached another authority which appears to be responsible for forwarding the request for service. Accordingly, it is incorrect to speak of a refusal to accept service if the document was never transmitted to the competent authority. In this connection the Supreme Court stressed that, conversely, it would not be sufficient, in order to institute legal proceedings, for an action against the Republic of Austria to be received by the Foreign Ministry if, for whatever reason, it was not forwarded to the Attorney-General’s Office as the competent authority representing the State in such matters. The first-instance court already acknowledged that a further request for service would have little prospect of success in view of the earlier comments of the US authorities.

Nevertheless, the (definitive) refusal of the US Department of State to forward court documents concerning the appellant to the Department of Justice does not justify the appointment of a representative for the defendant in accordance with Article 116 of the Code of Civil Procedure. As the appellate court explained in detail in its decision 8 Ra 23/00t, cited above, service of process on a foreign State is (also) based on section 11(2) of the Service Act. Hence, for the purpose of performing it, recourse is to be had in any event to the Federal Ministry of Foreign Affairs. On the basis of this provision, which takes precedence, service via any means other than the diplomatic channels to which it refers – for instance, on a court-appointed representative – is ruled out. In view of the principle whereby a remedy against a refusal to comply with a request for legal assistance, which flows from the sovereign power of the foreign State, can be sought only through diplomatic channels (see SZ 36/26, EvBl 1963/210; for a critical perspective, see Schreuer, Die Durchsetzung zivilrechtlicher Ansprüche gegen ausländische Staaten, ÖJZ 1991, 41 et seq. [49]), the impugned decision lacks any legal basis.”

On 7 May 2003 the Supreme Court dismissed an appeal on points of law by the applicant. It started by referring to its decision of 11 June 2001 (see paragraph 28 below) in a previous case brought by the applicant against the United States. It followed from that decision that the action brought by the applicant had to be served through diplomatic channels. It held that Article 121 § 2 of the Code of Civil Procedure, although it concerned the service of summonses abroad, was not applicable in a case like the present one in which the person or legal entity to be summoned relied on their immunity. The applicant’s interpretation of the provision in question would undermine the concept of immunity.

Only section 11(2) of the Service Act was applicable. The applicant did not contest the fact that foreign States came within the scope of that provision as they enjoyed “privileges and immunities” under international law. In that context the Supreme Court went on to state as follows:

“No agreement exists between Austria and the defendant concerning service of process from the perspective of State immunity from jurisdiction. In the absence of such agreement the generally recognised rules of international law (Article 9 of the Federal Constitution), together with section IX of the Introductory Act to the Austrian Jurisdictional Statute (EGJN) and the principles developed in this connection by the case-law and by legal commentators, must apply. On that basis it is unanimously agreed that foreign States enjoy immunity in the exercise of their sovereign powers and are to that extent exempt from the jurisdiction of the domestic courts (see, among other authorities, SZ 23/143; Herndl, JBl 1962, 15; JBl 1962, 43; Heß, JBl 1989, 285; ZfRV 1990, 300 [Seidl-Hohenveldern]; Schreuer, ÖJZ 1991, 41; Fischer, NZ 1991, 154; DRdA 1991/53 [Simotta]; Neuhold/Hummer/Schreuer, Österreichisches Handbuch des Völkerrechts Bd 1³ para. 834, 837; Seidl-Hohenveldern, Völkerrecht 9 paras. 1462 et seq.; Matscher, loc. cit, Art IX EGJN para. 2, 115 et seq., 196 et seq.; Mayr in Rechberger, ZPO² Art IX EGJN para. 3 et seq.). The service of process abroad, as a sovereign act, amounts – in the absence of an agreement between the States concerned governing the relevant procedure – to interference with the sovereign rights of the foreign State in question. For that reason it is a requirement in such cases to have recourse to the Federal Ministry of Foreign Affairs, which maintains close contact with the milieu concerned and is competent to take account of the relevant international-law considerations (RV 162 BlgNR XV.GP 10), as the appellant correctly points out. However, contrary to her assertion, exclusive recourse to the Federal Ministry of Foreign Affairs is not merely recommended, but is required by statute (the mandatory “shall” in section 32(3) of the Jurisdictional Statute and section 11(2) of the Service Act). The service of documents by any other means would be in breach of the law (Walter/Mayer, op. cit., section 11 Service Act, footnote 15).

Although Hintersteininger, in her commentary on 8 ObA 201/00t (JBl 2002, 57) concludes that the “restrictive theory of service of process” is appropriate for the purpose of avoiding international disagreements, she nevertheless calls on the legislature to amend section 11 of the Service Act, as she sees evidence of a “self-imposed shackling” at least in the way in which that provision is applied. The legislature has not taken any action to date. It should further be observed that the strict approach to diplomatic immunity can be traced back to the Jurisdictional Statute, according to which the violation of immunity renders the proceedings in question null and void, in a manner which cannot be remedied even by the parties (except by a waiver of immunity) (§ 42 JN; Ballon, op. cit., § 42 JN para. 3, 14 et seq.; Mayr, op. cit., § 42 JN para. 2, 7).

Contrary to the appellant’s assertion, her request for the action to be served on the defendant by publication or by the appointment of a representative does not fall in the present case within the “classic scenario” under Article 121(2) of the Code of Civil Procedure, but is governed by the exception thereto and undermines the defendant’s claim to diplomatic immunity. Accordingly it is not possible, precisely in this case, to proceed on the basis of that provision. On the contrary – in so far as the proceedings against the defendant in Austria are concerned – exclusive recourse must be had to diplomatic channels, as reasoned by the Supreme Court in case 8 ObA 201/00t.”

The Supreme Court’s decision was served on the applicant’s counsel on 3 July 2003.

In April 2002 the applicant reached pensionable age. She gave the United States embassy in Vienna notice of her intention to terminate her employment contract and applied to the competent Pensions Insurance Office for an old-age pension from 1 May 2002.

Subsequently, the applicant extended her claim in the above-mentioned proceedings to salary payments from September 1996 to April 2002. She requested again that the defendant be summoned to a hearing. In that context she referred to the 2004 United Nations Convention on Jurisdictional Immunities of States and their Property (see paragraphs 30 to 34 below), and argued that, according to Article 22, transmission of the documents to the United States Department of State through diplomatic channels would be sufficient to effect service. The summons was handed over to a staff member of the United States Department of State but was again returned to the Austrian embassy in Washington with the remark that the United States wished to assert its immunity in any case brought by the applicant.

On 17 July 2006 the Vienna Court of Appeal upheld the first-instance court’s decision refusing to give a default judgment. Referring to the Supreme Court’s case-law, it held that the refusal to serve a summons was an act of sovereign power. It noted, inter alia, that the Convention relied on by the applicant did not apply to proceedings which had been initiated before its entry into force and added that there were no rules of customary international law to indicate that States could not rely on immunity in the context of the service of a summons. No further appeal on points of law lay against this decision.

Section 11 of the Service Act (Zustellgesetz) deals with the service of official documents abroad and the service of official documents on foreign nationals and foreign States or international organisations enjoying privileges and immunities under international law. It provides as follows:

“1. Service of process abroad shall be effected in accordance with existing international agreements or as provided for by the laws or other legal provisions of the State in which service is to be effected or by international custom, if necessary with the cooperation of the Austrian diplomatic authorities.

Service of process on foreign nationals or international organisations which enjoy international privileges and immunities shall be effected through the intermediary of the Federal Ministry of Foreign Affairs, irrespective of where their place of residence or headquarters is located.”

The relevant provisions of the Code of Civil Procedure (Zivilprozeßordnung) read as follows:

“In the case of persons on whom process can only be served by publication because their address is unknown, the court shall appoint a representative (Article 9), on application or of its own motion, if the persons concerned would have to perform a step in the proceedings as a result of being served with the documents, and in particular if the documents to be served contain a summons.”

“1. In the case of service on persons outside the country who do not fall into the categories of recipients referred to in section 11(2) and (3) of the Service Act, the Federal Minister of Justice, in agreement with the Federal Chancellor, may order service to be effected by post, using the system of advice of receipt customarily used for international postal deliveries, to countries in which service in accordance with section 11(1) of the Service Act is not possible or gives rise to difficulties.

If no confirmation is received within a reasonable time that process has been served on an individual outside the country, the applicant party may request, depending on the circumstances, that service be effected by publication (section 25 of the Service Act) or by the appointment of a representative under Article 116. This shall also apply in cases where an unsuccessful attempt has been made to serve process abroad or where the request for service has no prospect of success owing to a manifest refusal by the authorities of the foreign State to comply with the request for legal assistance.”

In a judgment of 11 June 2001 (8ObA 201/00) in a related case concerning claims for reimbursement of social security contributions brought by the applicant against the United States (see paragraph 11 above), the Supreme Court held as follows:

“The appellate court was correct in taking the view that, as international law currently stands, the decision to comply with or refuse a request for legal assistance is a sovereign act, irrespective of the subject-matter of the request. The nature of the act is the defining factor. It is beyond doubt that the service of documents in court proceedings falls within the scope of acta iure imperii and not acta iure gesionis, as a private individual cannot perform an act of this nature (Seidl-Hohenfeldern, Völkerrecht 317 et seq., esp. paras. 1472-79; Neuhold/Hummer/Schreuer, Österreichisches Handbuch des Völkerrechts3, para. 837).

The criticism of the current legal situation raised by the appellant, relying on Schreuer (ÖJZ 1991, 41 et seq. [esp. 48 et seq.], does not alter the fact that, although negotiations have been in progress for some time on an international agreement concerning service of process on foreign States (which might make it sufficient for the action to be served on the country’s foreign ministry), no such agreement has to date been concluded, with the result that the issue remains unregulated by any treaty between Austria and the United States. It is not disputed that, under American Federal law, the United States is represented by the Department of Justice in matters which are to be regarded as acta iure gestionis (compare 9 ObA 244/90 = SZ 63/206 with further references concerning the employment contract between the claimant and the defendant). The action must therefore be served – as correctly requested by the appellant herself – on a body within that authority. It is not sufficient – as the appellant has claimed in the appeal proceedings – for the document to have somehow reached another authority which is meant to be responsible for forwarding the request for service (the Department of State (Foreign Ministry)). Conversely, it would not be sufficient, in order to institute legal proceedings, for an action against the Republic of Austria to be received by the Foreign Ministry if, for whatever reason, it was not forwarded to the Attorney-General’s Office, which is the competent authority in such matters.”

The 1972 European Convention on State Immunity (“the Basle Convention”) entered into force on 11 June 1976 after its ratification by three States. It has been ratified by eight States (Austria, Belgium, Cyprus, Germany, Luxembourg, the Netherlands, Switzerland and the United Kindgom) and signed by one State (Portugal). On 11 June 1976 it entered into force in respect of Austria, which had ratified it on 10 July 1974. The relevant provisions read as follows:

“1. A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if the proceedings relate to a contract of employment between the State and an individual where the work has to be performed on the territory of the State of the forum.

Paragraph 1 shall not apply where:

a) the individual is a national of the employing State at the time when the proceedings are brought;

b) at the time when the contract was entered into the individual was neither a national of the State of the forum nor habitually resident in that State; or

c) the parties to the contract have otherwise agreed in writing, unless, in accordance with the law of the State of the forum, the courts of that State have exclusive jurisdiction by reason of the subject-matter. ... ”

“1. In proceedings against a Contracting State in a court of another Contracting State, the following rules shall apply.

The competent authorities of the State of the forum shall transmit

the original or a copy of the document by which the proceedings are instituted;

a copy of any judgment given by default against a State which was defendant in the proceedings,

through the diplomatic channel to the Ministry of Foreign Affairs of the defendant State, for onward transmission, where appropriate, to the competent authority. These documents shall be accompanied, if necessary, by a translation into the official language, or one of the official languages, of the defendant State.

Service of the documents referred to in paragraph 2 is deemed to have been effected by their receipt by the Ministry of Foreign Affairs. ...”

State immunity from jurisdiction is governed by customary international law, the codification of which is enshrined in the United Nations Convention on Jurisdictional Immunities of States and their Property of 2 December 2004 (“the 2004 Convention”). The principle is based on the distinction between acts of sovereignty or authority (acta jure imperii) and acts of commerce and administration (acta jure gestionis) (see Sabeh El Leil v. France [GC], no. 34869/05, §§ 18-23, 29 June 2011; see also Cudak v. Lithuania [GC], no. 15869/02, §§ 25-33, ECHR 2010).

The Convention was opened for signature on 17 January 2005 and has not yet entered into force. Austria signed the Convention on 17 January 2005 and ratified it on 14 September 2006. The United States has not ratified the 2004 Convention, but did not vote against it when it was adopted in the General Assembly of the United Nations.

The draft text of the Convention was prepared by the United Nations International Law Commission (ILC) which, in 1979, was given the task of codifying and gradually developing international law in matters of jurisdictional immunities of States and their property. It produced a number of drafts that were submitted to States for comment. The Draft Articles that were used as the basis for the text adopted in 2004 dated back to 1991. They were subsequently further revised by the Sixth Committee of the United Nations General Assembly. States were again given an opportunity to comment.

Article 11 (contracts of employment) of the 2004 Convention reads as follows:

“1. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State.

Paragraph 1 does not apply if:

(a) the employee has been recruited to perform particular functions in the exercise of governmental authority;

(b) the employee is:

(i) a diplomatic agent, as defined in the Vienna Convention on Diplomatic Relations of 1961;

(ii) a consular officer, as defined in the Vienna Convention on Consular Relations of 1963;

(iii) a member of the diplomatic staff of a permanent mission to an international organization or of a special mission, or is recruited to represent a State at an international conference; or

(iv) any other person enjoying diplomatic immunity;

(c) the subject-matter of the proceeding is the recruitment, renewal of employment or reinstatement of an individual;

(d) the subject-matter of the proceeding is the dismissal or termination of employment of an individual and, as determined by the head of State, the head of Government or the Minister for Foreign Affairs of the employer State, such a proceeding would interfere with the security interests of that State;

(e) the employee is a national of the employer State at the time when the proceeding is instituted, unless this person has the permanent residence in the State of the forum; or

(f) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject-matter of the proceeding.”

Article 22 (Service of process) of the 2004 Convention reads as follows:

“1. Service of process or writ or other document instituting a proceeding against a State shall be effected:

(a) in accordance with any applicable international convention binding on the State of the forum and the State concerned; or

(b) in accordance with any special arrangement for service between the claimant and the State concerned, if not precluded by the law of the State of forum; or

(c) in the absence of such a convention or special arrangement:

(i) by transmission through diplomatic channels to the Ministry of Foreign Affairs of the State concerned; or

(ii) by any other means accepted by the State concerned, if not precluded by the law of the State of forum.

Service of process referred to in paragraph (1) (c) (i) is deemed to have been effected by receipt of the documents by the Ministry of Foreign Affairs.

These documents shall be accompanied, if necessary, by a translation into the official language, or one of the official languages, of the State concerned.

Any State that enters an appearance on the merits in a proceeding instituted against it may not thereafter assert that service of process did not comply with the provisions of paragraphs 1 and 3.”

In the Draft Articles on Jurisdictional Immunities of States and their Property, adopted by the International Law Commission at its forty-third session in 1991, and submitted to the General Assembly at that session, Article 11 read as follows:

Paragraph 1 does not apply if:

(a) the employee has been recruited to perform functions closely related to the exercise of governmental authority;

(b) the subject of the proceeding is the recruitment, renewal of employment or reinstatement of an individual;

(c) the employee was neither a national nor a habitual resident of the State of the forum at the time when the contract of employment was concluded;

(d) the employee is a national of the employer State at the time when the proceeding is instituted; or

(e) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject-matter of the proceeding.”

In the commentary on the International Law Commission’s Draft Articles of 1991, it was stated that the rules formulated in Article 11 appeared to be consistent with the trend in legislative and treaty practice in a growing number of States (ILC Yearbook, 1991, Vol. II, Part 2, p. 44, § 14).

In the Draft Articles of 1991, Article 20 (service of process) read as follows:

“1. Service of process or writ or other document instituting a proceeding against a State shall be effected:

(a) in accordance with any applicable international convention binding on the State of the forum and the State concerned; or

(b) in the absence of such a convention:

(i) by transmission through diplomatic channels to the Ministry of Foreign Affairs of the State concerned; or

(ii) by any other means accepted by the State concerned, if not precluded by the law of the State of forum.

Service of process referred to in paragraph 1 (b) (i) is deemed to have been effected by receipt of the documents by the Ministry of Foreign Affairs.

These documents shall be accompanied, if necessary, by a translation into the official language, or one of the official languages, of the State concerned.

The International Law Commission’s commentary on that Article (ILC Yearbook, 1991, Vol. II, Part 2, p. 60, §§ 1-3), in so far as relevant in the present context, stated as follows:

“(1) Article 20 relates to a large extent to the domestic rules of civil procedure of States. It takes into account the difficulties involved if States are called upon to modify their domestic rules on civil procedure. At the same time, it does not provide too liberal or generous a regime of service of process, which could result in an excessive number of judgments in default of appearance by the defendant State. The article therefore proposes a middle ground so as to protect the interests of the defendant State and those of the individual plaintiff.

Paragraph 1

(2) Paragraph 1 is designed to indicate the normal ways in which service of process can be effected when a proceeding is instituted against a State. Three categories of means by which service of process is effected are provided: first, if an applicable international convention binding upon the State of the forum and the State concerned exists, service of process shall be effected in accordance with the procedures provided for in the convention. Then, in the absence of such a convention, service of process shall be effected either (a) by transmission through diplomatic channels or (b) by any other means accepted by the State concerned. Thus, among the three categories of the means of service of process provided under paragraph 1, an international convention binding both States is given priority over the other two categories. The variety of means available ensures the widest possible flexibility, while protecting the interests of the parties concerned.

Paragraphs 2 and 3

(3) Since the time of service of process is decisive for practical purposes, it is further provided in paragraph 2 that, in the case of transmission through diplomatic channels or by registered mail, service of process is deemed to have been effected on the day of receipt of the documents by the Ministry of Foreign Affairs. Paragraph 3 further requires that the documents be accompanied, if necessary, by a translation into the official language, or one of the official languages of the State concerned. ...”

In respect of Article 20 § 1 the commentary also gives numerous examples of relevant provisions in national legislation. In addition it refers to Article 16 §§ 1-3 of the European Convention on State Immunity.

During the drafting process the United States commented on Article 20 of the 1991 Draft Articles (which became Article 22 of the 2004 Convention). It did not object to the rules enshrined in Article 22 (1) (c) (i) and Article 22 (2).