FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY
OF
Application no.
51891/99
by Mladen NALETILIĆ
against Croatia
The European
Court of Human Rights (Fourth Section), sitting on 4 May 2000 as a Chamber
composed of
Mr G. Ress, President,
Mr I. Cabral Barreto,
Mr V. Butkevych,
Mrs N. Vajić,
Mr J. Hedigan,
Mr M. Pellonpää,
Mrs S. Botoucharova, judges,
and Mr V. Berger, Section Registrar,
Having regard to
the above application introduced on 15 October 1999 and registered on 18 October
1999,
Having deliberated, decides as follows:
THE FACTS
The applicant is
a Croatian citizen, born in 1946 and presently in the penitentiary of the
International Criminal Tribunal for the Former Yugoslavia (ICTY) at The Hague,
the Netherlands. He is represented before the Court by Mr Krešimir Krsink, a
lawyer practising in Zagreb (Croatia).
The facts of the
case, as submitted by the applicant, may be summarised as follows.
At the time when
he lodged his application with the Court the applicant was in custody in Zagreb
District Penitentiary, Hospital for Detained Persons, in the context of criminal
proceedings pending against him before the Zagreb County Court (Županijski
sud u Zagrebu) for kidnapping, murder and participation in a group that
committed a crime.
On 21 December
1998 the applicant was indicted by the ICTY on seventeen counts including crimes
against humanity, grave breaches of the Geneva Conventions and violations of the
laws and customs of war.
On 1 September
1999 the Zagreb County Court ordered that the applicant be handed over to the
ICTY. Both the Supreme and Constitutional Courts, upon the applicant’s appeal,
upheld that decision.
On 15 October
1999 the applicant lodged with the Court a Rule 39 request which was not granted
by decision of the President of the Fourth Section of the same day.
He is presently
in custody in the penitentiary of the ICTY at The Hague, the Netherlands, in the
context of criminal proceedings pending against him.
COMPLAINTS
The applicant
complains under Article 6 § 1 of the Convention that in case of his extradition
to the ICTY, criminal proceedings against him in Croatia would necessarily be
suspended which would amount to a violation of his right to be tried within a
reasonable time.
He further
complains also under Article 6 § 1 of the Convention, that the ICTY is not an
independent and impartial tribunal established by law.
He also
complains, under Article 7 of the Convention that in Croatia he could have been
sentenced to a maximum prison term of twenty years, while the ICTY may sentence
him to life imprisonment.
THE LAW
1. The applicant raises
two separate issues under Article 6 § 1 of the Convention, the relevant parts of
which provide:
“In the determination
of ... any criminal charge against him, everyone is entitled to a fair and
public hearing within a reasonable time by an independent and impartial tribunal
established by law...”
a. Firstly, the
applicant complains that in the case of his “extradition” to the ICTY, criminal
proceedings against him in Croatia would have to be suspended and that this
would amount to a violation of his right to be tried within a reasonable time.
The Court notes
that the applicant does not complain about the length of the proceedings that
have been instituted against him in Croatia prior to the decision to hand him
over to the ICTY. He complains as to the fact that - because of his extradition
to the ICTY - the present criminal proceedings pending against him in Croatia
would in future necessarily exceed a reasonable time within the meaning of
Article 6 § 1 of the Convention. In this respect the Court notes that even the
possibility of such future proceedings is doubtful, because they might be
continued only in the event the applicant is acquitted by the Hague Tribunal or
if the proceedings before the ICTY are stayed for some reason.
As it is
uncertain whether any future proceedings against the applicant before the
Croatian courts would take place, and as the Court cannot take into
consideration the length of some hypothetical future proceedings, this part of
the application is manifestly ill-founded within the meaning of Article 35 § 3
of the Convention and, therefore, must be rejected in accordance with Article 35
§ 4.
b. Secondly, the
applicant complains that the ICTY is not an impartial and independent tribunal
established by law.
The Court recalls
that exceptionally, an issue might be raised under Article 6 of the Convention
by an extradition decision in circumstances where the applicant risks suffering
a flagrant denial of a fair trial. However, it is not an act in the nature of an
extradition which is at stake here, as the applicant seems to think. Involved
here is the surrender to an international court which, in view of the content of
its Statute and Rules of Procedure, offers all the necessary guarantees
including those of impartiality and independence.
Accordingly, no
issue arises under Article 6 § 1 in this respect.
It follows that
this part of the application is manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention and, therefore, must be rejected in accordance
with Article 35 § 4.
2. The applicant
further complains under Article 7 of the Convention that he might be sentenced
to a heavier penalty by the ICTY than by the domestic courts.
Article 7 reads
as follows:
“1. No one shall be
held guilty of any criminal offence on account of any act or omission which did
not constitute a criminal offence under national or international law at the
time when it was committed. Nor shall a heavier penalty be imposed than the one
that was applicable at the time the criminal offence was committed.
2. This article shall
not prejudice the trial and punishment of any person for any act or omission
which, at the time when it was committed, was criminal according to the general
principles of law recognised by civilised nations.”
As to the
applicant’s contention that he might receive a heavier punishment by the ICTY
than he might have received by domestic courts if the latter exercised their
jurisdiction to finalise the proceedings against him, the Court notes that, even
assuming Article 7 of the Convention to apply to the present case, the specific
provision that could be applicable to it would be paragraph 2 rather than
paragraph 1 of Article 7 of the Convention. This means that the second sentence
of Article 7 § 1 of the Convention invoked by the applicant could not apply.
It follows that
this part of the application is also manifestly ill-founded within the meaning
of Article 35 § 3 of the Convention and, therefore, must be rejected in
accordance with Article 35 § 4.
For these
reasons, the Court, unanimously,
DECLARES THE
APPLICATION INADMISSIBLE.
Vincent Berger Georg Ress
Registrar President
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