CASE OF SANADER v. CROATIA
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
6. The applicant was born in 1957 and lives in Vrdnik, Serbia. 7. On 19 November 1991 the Sisak Police Department (Policijska uprava Sisak) lodged a criminal complaint against the applicant alleging that he had participated in a group of members of the Serb paramilitary forces who, in September 1991, had shot twenty-seven prisoners of war in Petrinja, killing twenty-two and severely injuring five of them. The police noted in their report that the applicant could not be apprehended because he lived in an area of Croatia which was, at the time, outside the country’s effective control. 8. On 8 January 1992 an investigating judge of the Sisak County Court (Županijski sud u Sisku) opened an investigation in respect of the applicant, his brother, D. Sanader, and two others, M.D. and S.D., in connection with a suspicion that they had committed war crimes against the prisoners of war. As all the suspects were at large, the judge ordered their pre-trial detention and issued arrest warrants. 9. During the investigation the investigating judge questioned a number of witnesses. Several of them testified about the applicant’s brother’s involvement in the killings and his position as commander of the paramilitary group. They also named M.D. as a direct perpetrator of the killings. One of the witnesses, D.P., testified that after the killings he had heard people saying that “Sanader’s group” had committed the crime and he had later seen the applicant with that group. Another witness, M.Ž., who had survived the shootings, testified that after the event he had been shown the applicant’s photo and it had appeared to him that the applicant had also been there and had personally killed three people. Another survivor of the shooting, I.B., testified that after the crime one of the newspapers in Croatia had published photos of the applicant and his brother. He had recognised the applicant’s brother as one of the participants in the shooting but he had not recognised the applicant as having been at the scene. 10. On 25 November 1992 the Sisak County State Attorney’s Office (Županijsko državno odvjetništvo u Sisku) indicted the applicant, D.Sa., M.D. and S.D. in the Sisak County Court on charges of war crimes against prisoners of war. 11. On the same day the Sisak County State Attorney’s Office asked the Sisak County Court to try the applicant and the other accused, who lived on the occupied territory of Croatia, in absentia, as they were not available to the Croatian authorities, and requested that warrants for their arrest be issued. 12. On 15 December 1992 a three-judge panel of the Sisak County Court ordered the applicant’s detention pending trial and issued an arrest warrant. 13. It also granted the request for the applicant’s trial in absentia on 30 December 1992. The relevant part of the decision reads: “On 25 November 1992 D. Sanader and others were indicted in this court on a reasonable suspicion that they had committed the offence [specified] under Article 144 of the Criminal Code. The State Attorney further requested that they be tried in absentia. The request is granted. The accused are at large and a detention and arrest warrant have been issued, as noted in the police report. Since the accused have been indicted for a crime against humanity and international law – a war crime against prisoners of war under Article 144 of the Criminal Code, and given that they are at large, [this court] considers that highly justified reasons for their trial in absentia exist.” 14. On 5 January 1993 the President of the Sisak County Court appointed the applicant and the other accused a legal-aid lawyer, E.F. 15. At a hearing on 21 January 1993 the trial court heard eight witnesses, including M.Ž. and I.B. (see paragraph 9 above). They all confirmed the statements they had made to the investigating judge. The Deputy State Attorney and the applicant’s legal-aid lawyer asked no questions and made no objections to their statements. The parties also agreed that the written records of statements by thirteen other witnesses, including D.P. (see paragraph 9 above), be admitted in evidence without those witnesses having been questioned at the trial. In his closing statement, the applicant’s legal-aid lawyer stated: “The defence notes that the pre-trial and trial procedure has been thorough and invites the court to assess all the evidence adduced, in particular each witness statement taken alone and in conjunction with other statements, and, based on that assessment, to deliver a decision in accordance with the law.” 16. On the same day the applicant was convicted as charged and sentenced to twenty years’ imprisonment. The trial court considered that the witness statements provided sufficient evidence for conviction and noted that the legal-aid lawyer had made no objections to those statements. 17. The applicant’s legal-aid lawyer lodged an appeal with the Supreme Court (Vrhovni sud Republike Hrvatske) on 26 February 1993 arguing that the first-instance judgment was not sufficiently reasoned. 18. On 24 May 1995 the Supreme Court allowed the appeal, quashed the first-instance judgment and remitted the case for retrial on the grounds that the first-instance judgment lacked sufficient reasoning 19. In the resumed proceedings, three hearings, scheduled for 7 and 8 November 1995 and 2 July 1996 were adjourned, because the defence lawyer could not be summoned. A further hearing scheduled for 11 September 1996 was adjourned owing to the absence of one of the members of the trial panel. During this period the trial court also obtained a number of autopsy reports concerning the victims of the crime at issue. 20. At a hearing held on 3 March 1999 the trial court, with the approval of the parties, read out the evidence from the case file and concluded the hearing. The legal-aid lawyer reiterated his previous closing statement (see paragraph 15 above). 21. On the same day the trial court found the applicant guilty and sentenced him to twenty years’ imprisonment. It based its judgment on the witness statements and the autopsy reports concerning the victims of the crime. 22. On 30 April 1999 the legal-aid lawyer lodged an appeal with the Supreme Court arguing that the first-instance judgment lacked sufficient reasoning. 23. On 2 August 2000 one of the accused, S.D., was apprehended and brought before the investigating judge, who informed him of the proceedings and ordered his pre-trial detention. 24. On 6 September 2000 the Supreme Court upheld the first-instance judgment of the Sisak County Court in the part which concerned the applicant, D. Sanader and M.D., and quashed it and ordered a retrial in respect of S.D., on the grounds that the latter had been apprehended and that therefore he had the right to a fresh trial in his presence. 25. On 16 January 2004, after the applicant’s conviction had become final, a sentence-execution judge of the Sisak County Court issued an arrest warrant for the applicant’s arrest and imprisonment. 26. Meanwhile, the applicant learned through a lawyer in Croatia about his criminal conviction in the Sisak County Court. 27. On 9 November 2009 the applicant asked the Sisak County Court to reopen the proceedings on the grounds that he had learned about the judgment of 3 March 1999 only in December 2008 and that he had not committed the crime at issue. He argued that the witnesses had just mentioned his name and that the only witness statement directly implicating him in the crime, that of M.Ž., had not been properly interpreted in the judgment. He stressed that he would be prepared to take part in a witness confrontation with any of those who had testified against him or counter any evidence against him. He also asked that a number of witnesses be heard on his behalf, and that the possibility of trying him before a war crimes tribunal in Belgrade be considered. Together with his request the applicant submitted certified statements by six people excluding the possibility of his involvement in the crime on the grounds that at the relevant time he had not been in Petrinja. 28. Based on the information provided by the applicant, and given that the witnesses at issue lived in Serbia, the Sisak County Court asked the Serbian authorities to question them. During their questioning the witnesses reiterated their statements excluding the possibility that the applicant had been in Petrinja at the time of the events. 29. After receiving the witness statements from the Serbian authorities in July 2010, the Sisak County Court forwarded the case file to the Sisak County State Attorney’s Office for their observations on the applicant’s request for a retrial. 30. On 24 August 2010 the Sisak County State Attorney’s Office submitted their observations on the applicant’s request for a retrial which, in the relevant part, read: “Given that the trial proceedings in the case at issue were fair and given that the first and second-instance courts gave sufficient reasons for their judgments, we consider that the request for a retrial in the absence of the second accused Mile Sanader should not be granted because none of the witnesses ... confirmed the arguments from the request for retrial ...” 31. On 30 August 2010 a three-judge panel of the Sisak County Court dismissed the applicant’s request on the grounds that he had failed to show that there were any new facts which could alter his conviction. The relevant part of this decision reads: “... this panel of the Sisak County Court considers that Mile Sanader’s request for a retrial does not contain any new facts or evidence which could, in themselves or in conjunction with the previously adduced evidence, lead to his acquittal or his conviction under more lenient law. All the witnesses stated that they had known Mile Sanader from the period before the war. Although they all, and in particular witnesses M.Žil. and V.V., attempted to exclude the possibility of the convict’s presence in the area where the killings of the Croatian soldiers took place in September 1991, this panel considers that these statements are not sufficiently credible or precise to completely exclude the possibility of the convict’s participation in the massacre. In the proceedings before the Sisak County Court Mile Sanader was found guilty of the offence under Article 122 of the Criminal Code and the Supreme Court upheld that judgment. Based on the comprehensively and correctly established facts [the trial court] found beyond reasonable doubt that the massacre of the Croatian soldiers had been committed by the so-called ‘Sanader group’ and that the leader of that group had been the convict’s brother, D. Sanader. Witness M.T., who had been a soldier in the paramilitary group, testified that the third convict, M.D., had told him that he had killed the prisoners at the request of D. Sanader, while witness M.Ž., one of the survivors of the shooting, testified that he had recognised D. Sanader as the perpetrator of the crime from a photo and Mile Sanader as having killed three prisoners while they had been lying face down on the ground with their hands on their heads. Against this background, the panel considers that the second convict, Mile Sanader, has not managed to cast doubt on the facts established during the trial which led to his conviction for the offence under Article 122 of the Criminal Code and his sentencing to twenty years’ imprisonment.” 32. The applicant lodged an appeal with the Supreme Court on 8 September 2010, arguing that the relevant domestic law required an automatic reopening of proceedings where an accused had been tried in absentia and then sought a fresh hearing, a fact to which the Sisak County Court had given no consideration. He also argued that the evidence suggested that he was not guilty of the offences he had been convicted of. 33. On 19 January 2011 the Supreme Court dismissed the applicant’s request on the grounds that he could not rely on the provision granting automatic reopening of the proceedings since he lived in Serbia and was not available to the Croatian judicial authorities. It examined, therefore, whether any new facts warranted the reopening of the proceedings and found that no such facts existed. Accordingly, the applicant’s request was dismissed. 34. The applicant lodged a complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) on 5 December 2011, arguing that he had not been able to obtain a retrial and that during the proceedings conducted in his absence he had not been effectively represented. 35. On 23 February 2012 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the grounds that the constitutional complaint concerned the proceedings for the reopening of the criminal proceedings and not any criminal charge against the applicant.