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issued by the Registrar of the Court ECHR 146 (2014) 27.05.2014 Croatian courts were right to bring war crime charges against army commander nearly nine years after terminating first trial against him The case of Margus v. Croatia (application no. 4455/10) concerned the conviction, in 2007, of a former commander of the Croatian army of war crimes against the civilian population committed in 1991. He complained in particular: that his right to be tried by an impartial tribunal and to defend himself in person had been violated; and, that the criminal offences of which he had been convicted were the same as those which had been the subject of proceedings against him terminated in 1997 in application of the General Amnesty Act. In today's Grand Chamber judgment in the case, which is final1, the European Court of Human Rights held: unanimously, that there had been no violation of Article 6 �� 1 and 3 (c) (right to a fair trial) of the European Convention on Human Rights, and by a majority, that Article 4 of Protocol No. 7 (right not to be tried or punished twice) to the Convention was not applicable in respect of the charges relating to the offences which had been the subject of proceedings against Mr Margus terminated in 1997 in application of the General Amnesty Act. At the same time, the Court, unanimously, declared inadmissible the complaint under Article 4 of Protocol No. 7 to the Convention as regards Mr Margus' right not to be tried or punished twice in respect of the charges dropped by the prosecutor in January 1996. The Court held in particular that there was a growing tendency in international law to see the granting of amnesties in respect of grave breaches of human rights as unacceptable. It concluded that by bringing a new indictment against Mr Margus and convicting him of war crimes against the civilian population, the Croatian authorities had acted in compliance with the requirements of Article 2 (right to life) and Article 3 (prohibition of torture and inhuman or degrading treatment) of the Convention and consistent with the recommendations of various international bodies. Principal facts The applicant, Fred Margus, is a Croatian national who was born in 1961 and is currently serving a prison term in Lepoglava State Prison (Croatia). A first set of criminal proceedings was brought against him in April 1993 by the Osijek Military Prosecutor on charges of a number of serious offences against civilians, including murder, allegedly committed in November and December 1991 as a member of the Croatian army. In January 1996, the Osijek Deputy Military Prosecutor dropped the charges concerning the alleged killing of two persons in December 1991 and added the charge of having seriously wounded a child in November 1991. In June 1997, the Osijek County Court terminated the proceedings in respect of the alleged killing of two persons in November 1991, and in respect of the serious wounding of the child, on the 1 Grand Chamber judgments are final (Article 44 of the Convention). All final judgments are transmitted to the Committee of Ministers of the Council of Europe for supervision of their execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution basis of the General Amnesty Act. The Act had entered into force in September 1996 and was to be applied to criminal offences committed during the war in Croatia between 1990 and 1996 except for acts amounting to the gravest breaches of humanitarian law or to war crimes. On 19 September 2007, the Supreme Court, deciding on a request for the protection of legality lodged by the State Attorney, found the decision to terminate the proceedings to be in violation of the Amnesty Act. It held in particular that Mr Margus had committed the alleged offences as a member of the reserve forces after his tour of duty had terminated. Accordingly, there had not been a significant link between the alleged offences and the war, as required by the Act, as otherwise the amnesty would encompass all offences committed by members of the Croatian army between August 1990 and August 1996, which had not been the legislature's intention. In the meantime, in April 2006, Mr Margus was indicted on charges of war crimes against the civilian population. The charges included the alleged acts of killing four persons in November and December 1991 and of seriously wounding a child in November 1991 which had been the subject of the first set of criminal proceedings against him. The proceedings before the County Court were conducted by a three-judge panel, which included one judge, M.K., who had also presided over the panel that had terminated the earlier proceedings. During the closing arguments of the parties, Mr Margus was removed from the courtroom, after having interrupted the Deputy State Attorney and having been warned twice. His lawyer remained in the courtroom. In a judgment of 21 March 2007, the Osijek County Court convicted Mr Margus of war crimes against the civilian population and sentenced him to 14 years' imprisonment. On appeal, the Supreme Court, on 19 September 2007, upheld the conviction and increased the sentence to 15 years' imprisonment. The Supreme Court found that while the offences of which he was convicted included the acts which had been the subject of the earlier proceedings against him, the factual background referred to in the second set of proceedings was significantly wider in scope. In the latter proceedings he had been charged with a violation of international law, in particular the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, in that he had killed and tortured Serbian civilians, had treated them in an inhuman manner, had unlawfully arrested them, had ordered the killing of a civilian and robbed the assets of the civilian population. On 30 September 2009, Mr Margus' constitutional complaint was dismissed. Complaints, procedure and composition of the Court Relying on Article 6 �� 1 and 3 (c) (right to a fair trial by an independent and impartial tribunal), Mr Margus complained that the same judge had participated in the proceedings terminated in 1997 and those in which he was later found guilty, and that he had been deprived of the right to give closing arguments. Relying on Article 4 of Protocol No. 7 (right not to be tried or punished twice), he complained that the criminal offences which had been the subject of the proceedings terminated in 1997 and those of which he had later been convicted were the same. The application was lodged with the European Court of Human Rights on 31 December 2009. In its Chamber judgment of 13 November 2012, the Court unanimously held that there had been no violation of Article 6 �� 1 and 3 (c) and no violation of Article 4 of Protocol No. 7. On 18 March 2013 the case was referred to the Grand Chamber at Mr Margus' request. A Grand Chamber hearing took place in public in the Human Rights Building, Strasbourg, on 26 June 2013. Third-party comments were received from a group of academic experts associated with Middlesex University London, which had been granted leave by the President of the Grand Chamber to intervene in the written procedure. Judgment was given by the Grand Chamber of 17 judges, composed as follows: Dean Spielmann (Luxembourg), President, Josep Casadevall (Andorra), Guido Raimondi (Italy), Ineta Ziemele (Latvia), Mark Villiger (Liechtenstein), Isabelle Berro-Lef�vre (Monaco), Corneliu B�rsan (Romania), J�n Sikuta (Slovakia), Ann Power-Forde (Ireland), Iil Karaka (Turkey), Nebojsa Vucini (Montenegro), Kristina Pardalos (San Marino), Angelika Nu�berger (Germany), Helena J�derblom (Sweden), Krzysztof Wojtyczek (Poland), Faris Vehabovi (Bosnia and Herzegovina), Dmitry Dedov (Russia), and also Lawrence Early, Deputy Grand Chamber Registrar. Decision of the Court Article 6 �� 1 and 3 As regards the question of whether the trial court had been impartial for the purpose of Article 6 because judge M.K. had participated in both sets of criminal proceedings against Mr Margus, the Court noted in particular that in the first set of proceedings the judge had not adopted a judgment and no evidence relevant for the question of determining his guilt had been examined. In those circumstances, there were no ascertainable facts to justify doubts as to the judge's impartiality. There had accordingly been no violation of Article 6 � 1 in that respect. As regards Mr Margus' removal from the courtroom, the Court fully endorsed the reasoning of the Chamber judgment in the case. It accepted that the closing arguments were an important stage of the trial. However, where the accused disturbed the order in the courtroom, the trial court could not be expected to remain passive and to allow such behaviour. Mr Margus had been removed from the courtroom only after having twice been warned not to interrupt the closing arguments presented by the Deputy State Attorney. His defence lawyer had remained in the courtroom and had presented his closing arguments. Mr Margus had therefore not been prevented from making use of the opportunity to have the final view of the case given by his defence and he had been legally represented throughout the proceedings. Against this background, and viewing the proceedings as a whole, the Court considered that his removal from the courtroom had not prejudiced his defence rights to a degree incompatible with Article 6 �� 1 and 3 (c). There had accordingly been no violation of that provision in this regard. Article 4 of Protocol No. 7 The Court acknowledged that in both sets of proceedings Mr Margus had been prosecuted for the same offences, namely the killing of four persons and the alleged wounding of another person in November and December 1991. The Court further noted that there were two distinct situations as regards the charges brought against Mr Margus in the first set of proceedings which were also the subject of the second set of proceedings. First, in January 1996, the prosecutor had dropped the charges concerning the alleged killing of two persons in December 1991. Second, in June 1997, the trial court in the first set of proceedings had, on the basis of the General Amnesty Act, terminated the proceedings in respect of the alleged killing of two people and wounding another in November 1991. In its case-law, the Court had already held that the discontinuance of criminal proceedings by a public prosecutor did not amount to either a conviction or an acquittal, and that therefore Article 4 of Protocol No. 7 did not find application in that situation. Accordingly, the discontinuance of the proceedings by the prosecutor concerning the killings in December 1991 did not fall under Article 4 of Protocol No. 7. It followed that Mr Margus' complaint as regards his conviction of those offences was incompatible with the Convention and therefore inadmissible. As regards his complaint concerning the remaining charges, the Court noted that Mr Margus had been granted amnesty for acts which amounted to grave breaches of fundamental human rights, namely the intentional killing of civilians and inflicting grave bodily injury on a child. The allegations in the criminal proceedings against him had involved these civilians' right to life protected under Article 2 of the Convention and, arguably, their rights under Article 3 (prohibition of torture and inhuman or degrading treatment) of the Convention. The Court underlined that Articles 2 and 3 ranked as the most fundamental provisions in the Convention. In its case-law the Court had held that where a State official was charged with crimes involving torture or ill-treatment, it was of key importance that criminal proceedings and sentencing were not time-barred and that the granting of an amnesty or pardon should not be permissible. While Mr Margus' case did not concern alleged violations of Articles 2 and 3 of the Convention, but of Article 4 of Protocol No. 7, the Court underlined that the Convention and its Protocols had to be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between their various provisions. Furthermore, the Court observed that there was a growing tendency in international law to see the granting of amnesties in respect of grave breaches of human rights as unacceptable. It was true that so far no international treaty explicitly prohibited the granting of such amnesties. However, the possibility for a State to grant an amnesty in respect of grave breaches of human rights might be circumscribed by treaties to which the State is a party. The Court noted, in particular, that the InterAmerican Court of Human Rights had found that granting amnesties in respect of perpetrators of war crimes and crimes against humanity was incompatible with States' obligations under international law to investigate and prosecute war crimes. Several international conventions, in particular the Geneva Conventions of 1949 for the Protection of Victims of Armed Conflicts and their Additional Protocols, provided for a duty to prosecute such crimes. Moreover, various international bodies, in particular the United Nations Commission on Human Rights and the Inter-American Commission on Human Rights, had issued resolutions, recommendations and comments concerning impunity and the granting of amnesty in respect of grave breaches of human rights, generally agreeing that amnesties should not be granted to those who had committed such violations of human rights and international humanitarian law. The Court therefore considered that by bringing a fresh indictment against Mr Margus and convicting him of war crimes against the civilian population, the Croatian authorities had acted in compliance with the requirements of Articles 2 and 3 of the Convention and in a manner consistent with the requirements and recommendations of those international mechanisms and instruments. Against that background, the Court concluded that Article 4 of Protocol No. 7 to the Convention was not applicable in the circumstances of the case. Separate opinions Judges Spielmann, Power-Forde and Nu�berger expressed a joint concurring opinion; Judges Ziemele, Berro-Lef�vre and Karaka expressed a joint concurring opinion; Judges Sikuta, Wojtyczek and Vehabovi expressed a joint concurring opinion; Judge Vucini expressed a concurring opinion; Judge Dedov expressed a partly dissenting opinion. These separate opinions are annexed to the judgment. The judgment is available in English and French. This press release is a document produced by the Registry. It does not bind the Court. Decisions, judgments and further information about the Court can be found on www.echr.coe.int. To receive the Court's press releases, please subscribe here: www.echr.coe.int/RSS/en or follow us on Twitter @ECHRpress. 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