SARIC v. DENMARK
Inadmissible
Christos Rozakis
The applicant is a Bosnian citizen, born in 1963. When introducing his application he was serving an eight-year prison sentence in Denmark. Before the Court he is represented by Mr Thomas Rørdam, a lawyer practising in Copenhagen. On 27 January 1994 the applicant arrived in Denmark together with his family. They were accommodated at the asylum centre Avnstrup, Zealand. The applicant’s arrival caused disturbances at the asylum centre as some of the refugees, coming also from the former Yugoslavia, thought to have recognised the applicant as a perpetrator of violent acts committed in July and August 1993 in the prison camp of Dretelj during the armed conflict in the former Yugoslavia. (The prison camp of Dretelj was situated in the municipality of Čaplinja in the southern part of what is now the Republic of Bosnia and Herzegovina. It appears that this area was Croatian controlled territory at the time of the alleged offences.) The Danish police authorities were notified by the management of the asylum centre and during the following weeks a number of former prisoners from the prison camp, at that time residing in Denmark, were interrogated by the police. On 16 February 1994 the applicant was arrested and charged with having illtreated and killed prisoners in the aforementioned prison camp. The applicant denied the charges. On 17 February 1994 the City Court of Roskilde (Retten i Roskilde) decided to detain the applicant on remand as there were reasons to suspect that he had committed acts amounting to grievous bodily harm (legemsangreb af særlig rå, brutal eller farlig karakter) within in the meaning of Section 245 of the Danish Penal Code under particularly aggravating circumstances (særdeles skærpende omstændigheder) within the meaning of Section 246 of the Penal Code. Furthermore, his detention on remand was based on the fear that he would evade prosecution or impede the investigations if he were at large during the proceedings. On 28 March 1994 counsel for the applicant requested the Chief of Police of Roskilde (Politimesteren i Roskilde) to identify a number of assumed witnesses to the acts with which the applicant was charged, in order to interrogate them about the general conditions of the prison camp and their knowledge of the applicant’s conduct in the camp. The witnesses included three former prisoners from the camp, Z.F., M.B. and A.S.; two former police officers who served in the camp while the applicant was there, C.J. and V.P., and the director of the camp during the applicant’s stay there, T.S. In addition, the testimony of a person alleged to have been working with the applicant in the kitchen of the camp, F.S., was requested. These witnesses were presumed to reside in specific cities or villages in the former Yugoslavia and, with regard to some of the witnesses, a telephone number was mentioned. However, no precise addresses were submitted. On 12 April 1994 the Police of Roskilde requested the Danish Embassy in Vienna to contact the Croatian and Bosnian authorities in order to obtain their assistance in identifying and finding the aforementioned persons. It appears that the Chief of Interpol Zagreb informed the Embassy, on 18 May 1994 by phone and on 4 July 1994 by fax, that it was not possible to identify the named persons since they were citizens of Bosnia and Herzegovina and since the criminal acts had not taken place in Croatia. Furthermore, on 25 August 1994, Interpol Sarajevo informed the Embassy that for the time being they had no opportunity to contact the persons in question. On 18 August 1994 counsel reminded the police that the aforementioned witnesses be summoned and requested that one more witness, H.P., be identified and interrogated. The letter contains no further information about this person. Furthermore, on 19 August 1994 counsel requested a lawyer practising in Bosnia to assist in providing the required evidence. On 15 September 1994 the Police of Roskilde again requested the Embassy in Vienna to provide information about three witnesses, including H.P. and F.S. On the same day a similar request was made to the Bosnian/Herzegovinian Information Office in Copenhagen. It appears that the police never received a reply to any of these requests. On 19 October 1994 an indictment (amended on 4 November 1994) was served on the applicant charging him with twenty-five counts of grievous bodily harm committed against prisoners in the camp during July and August 1993, on two occasions causing the deaths of the victims. In a letter dated 25 October 1994 the Bosnian lawyer informed counsel that he had requested the local judicial authorities to interrogate the witnesses in question. However, due to the state of war in the area and lack of judges, the local authorities had not been able to carry out the interrogations required. The Bosnian lawyer had obtained, however, a written statement from T.S., which read, inter alia, as follows: (Translation) “I, [T.S.], ... give, at the request of V. Jovanović from Čaplinja, this Testimony: In the period between 1 June 1993 and 21 January 1994 I served as a prison camp director in Dretelj, Čaplinja ... I have known [the applicant] from July 1993 to 20 August 1993. In the beginning of July the military authorities sent him to the camp in Dretelj ... When he arrived to the camp he told me that he was a waiter of profession and that he had been working as such in Neum. As there was no trained staff in the kitchen in Dretelj I sent him to work there and he was there all the time while he was in the camp. Thus, he has not been a guard - or a gaoler in the camp of Dretelj, but worked as a prisoner in the kitchen ... [The applicant] is married to D. Jovanović from Čaplinja, daughter of I. Jovanović, ... [D]uring the last period I noticed that Moslems from the Stolac area expressed doubts as to his loyalty to the Moslems as he had married a catholic ... and on several occasions there were fights between Moslems from the Čaplinja area and Moslems from the Stolac area... [The applicant] ... had during his stay in the camp neither opportunity, nor competence to ill-treat ... Moslem prisoners and he has not done so. In the camp of Dretelj the Moslem prisoners were separated in that one group of Moslems expressed European tendencies and behaved as such, whereas another group from Stolac expressed obvious fundamentalist tendencies and due to this there were more frequent conflicts. They soon learned that [the applicant] ... had married D. Jovanović, ... [T]his group of Moslems from Stolac, who expressed obvious fundamentalist tendencies, despised him, humiliated him and threatened him with physical harm as he had married the catholic D. Jovanović and had given the children ... Croatian names. ... He had ... no authorisation from me, as director of the camp, to ... impose disciplinary sanctions and he could not have done so because the camp management would not have allowed it. The group of prisoners from Stolac and from Bosnia addresses him as prison guard but he has never exercised such function ... he had the same rights and duties as all other prisoners. ... The following witnesses can testify that [the applicant] ... did not, during his compulsorily detention in [the camp] ... , in any way ill-treat any Moslem... : [H.P.] ... [F.S.] ... [Z.F.] ... [A.S.] ... [M.B.] ... [V.P.] and [C.J.] ... and by these witnesses I have been told that they are willing to give testimony in court in the Republic of Croatia or in Bosnia-Herzegovinia in the case against [the applicant] and I am as director of the camp even willing to go to Denmark and ... under oath give testimony... I stress that as a prison director I had an organised corps [under my command] which was necessary in order to meet the needs of the camp and, furthermore, I arranged ... a system in order to obtain information so that I would be informed of all events in [the camp]. However, in the period between 1 July and 20 August 1993 I was not informed one single time that [the applicant] was supposed to have ill-treated other prisoners while I had not been present. To my profound belief this charge is raised against [the applicant] by fundamentalist Moslems from the Stolac area, who have not been able to come to terms with the fact that [the applicant] is married to a Croat and has given his children Croatian names... I solemnly declare that my statements in this testimony are correct and this ... testimony I am also prepared to give under oath before a court in Denmark. ...” It is unclear from the material submitted whether this information was mentioned to the prosecution prior to the trial. On 15 September and 27 October 1994 the applicant’s counsel reminded the police of the request that the aforementioned witnesses be summoned to trial. On 2 November 1994 the Police of Roskilde urged the Danish Embassy in Vienna to contact the Bosnian authorities and request their assistance in order to find the eight witnesses and to summon them to appear before the High Court of Eastern Denmark (Østre Landsret) on 18 November 1994. At the same time the police requested that three other witnesses, also residing in former Yugoslavia, be summoned on behalf of the prosecution. These three witnesses - two of whom had previously been interrogated by the police while residing in Denmark - appeared at the hearing before the High Court. On 3 November 1994 the Police of Roskilde, apparently occasioned by a negative reply from the Embassy in Vienna, forwarded their request to the Bosnian authorities for the summoning of the defence’s witnesses through Interpol in Copenhagen. The case was heard by the High Court of Eastern Denmark from 7 November until 22 November 1994, the Court sitting with three professional judges and a jury. During the hearing the applicant and twenty-five witnesses were heard and written evidence was submitted, including a report prepared by the Medico-Legal Council (Retslægerådet). This report stated that the applicant was probably not insane prior to his arrival in Denmark but that he subsequently developed a psychosis caused by external factors. Among the aforementioned twenty-five witnesses who were heard by the High Court, there appears to have been witnesses called on the part of the prosecutor as well as the defence. Most of the witnesses were eyewitnesses to the events they gave evidence about. With regard to the two most serious counts of violence committed against E.R. and O.K. and leading to the death of the victims, several witnesses testified that the applicant had actively contributed to the violence committed against E.R, whereas only one witness had personally seen O.K. being ill-treated by the applicant. With regard to the aforementioned eight witnesses requested by the defence the transcripts from the proceedings in the High Court on 18 November 1994 read as follows: (Translation) “... As regards [Z.F., M.B., A.S., C.J., H.P., V.P., T.S., F.S.] no information has been submitted as to where they are presently residing. [The applicant’s counsel] requested that the hearing be adjourned for the purpose of obtaining further information as to whether and when these witnesses can be called. He referred in that respect to Section 880 subsection 2, and Section 881 of the Administration of Justice Act (retsplejeloven The State Prosecutor objected to the principal request as well as to the alternative. He referred to exhibit ... and added that the police subsequent thereto and as late as this morning had been on the line to Interpol in Sarajevo, who merely refers to the state of war. Everything possible has been attempted to reach the witnesses requested by counsel and under these circumstances [it serves no purpose] to adjourn the proceedings. In the opinion of the prosecution the conditions of Section 877, subsection 3, of the Administration of Justice Act are not fulfilled. ... Having deliberated [the Court] ... made the following Decision: It is established that prior to and during the hearing the prosecution has availed itself of all possible means in order to reach the witnesses. As it must be considered improbable, in the light of the conditions in Bosnia, that an adjournment of the hearing will lead to the completion of the testimonial evidence within a foreseeable period of time, the request for adjournment is denied. As there exists in the present case quite extraordinary difficulties for the defence in the production of evidence, its request [to read out the documents] is exceptionally granted. It is decided: The hearing is not adjourned. It is allowed to read out in court [the aforementioned documents]. ... [The documents] were read out. ...” The statement by T.S was the one given to the Bosnian lawyer (cf. above). After the hearing of evidence and the parties’ closing arguments the prosecution declared that it dropped the charges concerning five of the twenty-five counts for which the applicant was accordingly acquitted. The jury was then asked to consider, primarily, whether the applicant was guilty in the twenty remaining counts charging him with having committed acts, in the prison camp in July and August 1993, amounting to grievous bodily harm within the meaning of Section 245 of the Danish Penal Code under particularly aggravated circumstances within the meaning of Section 246 of the Penal Code and Articles 129 and 130 of the Third Geneva Convention and Articles 146 and 147 of the Fourth Geneva Convention. In the alternative they were asked to consider whether the acts in question amounted to grievous bodily harm within the meaning of Section 245 of the Penal Code and the aforementioned Articles of the Geneva Conventions, only. In addition, the jury was asked whether, pursuant to Section 88, subsection 1, of the Penal Code, the applicant’s sentence ought to exceed the maximum penalty of any of the provisions with which he was charged, with up to the half of the maximum. The jury answered in the negative to the primary questions as well as to the alternative ones with regard to six counts for which counts the applicant was subsequently acquitted. They answered in the affirmative to the primary questions with regard to three of the counts and in the affirmative to the alternative questions with regard to the remaining eleven counts. The jury also answered in the affirmative to the additional question relating to the applicant’s sentence. By judgment of 22 November 1994 the applicant was accordingly convicted of fourteen counts in accordance with the jury’s verdict. He was sentenced to eight years’ imprisonment. It was, furthermore, decided that the applicant be committed to a mental hospital until his prison sentence could be executed. Finally, it was decided that he be expelled from Denmark subsequent to having served his prison sentence. The applicant appealed against the High Court’s judgment to the Supreme Court (Højesteret) which in the circumstances was only competent to determine whether procedural errors had been committed and to determine the sentence. The Supreme Court was on the other hand not empowered to determine the applicant’s guilt. On 30 November 1994 the applicant’s counsel requested the Prosecutor General to make another attempt to find the eight witnesses in question. On 23 December 1994 the applicant’s counsel submitted to the Supreme Court, inter alia, that the applicant be acquitted of twelve counts and that the remainder of the High Court’s judgment be quashed and remitted to the High Court. In support of the claim he argued that the High Court had made a procedural error by deciding not to adjourn the case in order to call in the eight witnesses. He invoked Article 6 § 1 and § 3 (d) of the Convention. It appears from the material submitted that, on 17 January 1995, the Police of Roskilde requested Interpol Copenhagen to establish, through Interpol Sarajevo and Interpol Zagreb, a contact with the eight witnesses. On 6 February 1995 a similar request was made to the Bosnian/Herzegovinian Information Office in Copenhagen. The latter apparently never replied. On 25 January 1995 Interpol Copenhagen received a fax from Interpol Zagreb reading as follows: “Regarding your request, please be informed that we are unable to identify the witnesses, based on the given data, therefore we are also unable to contact them. Furthermore, we know nothing about the information indicated in your message saying that allegedly, the members of the MP of [the] Croatian army served in the prisoners’ camp in Dretelj in summer 1993. In view of the above, we suggest [y]ou contact the Ministry of the Interior of Bosnia and Herzegovinia through NBC Interpol Sarajevo. ...” Upon a request from the applicant’s counsel the Chief of Police of Roskilde issued a note, on 10 February 1995, describing the efforts to get in contact with the eight witnesses. It read, inter alia, as follows: (Translation) “... [The eight witnesses] are either former prisoners in the camp [Z.F., M.B., A.S.] or Croatian police officers/police soldiers [C.J., V.P., F.S.] and the director of the camp [T.S.]. According to counsel, [H.P.] is a former prisoner, which piece of information [we] cannot confirm, or deny. Information in the file concerning the persons in question is very sporadic and scant as they are merely briefly mentioned by their names by a few of the witnesses questioned. [C.J., V.P., T.S., F.S.] must be considered having committed criminal acts of violence in the camp. ... On the basis of counsel’s letter of 30 November 1994 to the Prosecutor General, to whom I have responded on an earlier occasion, I have again attempted to have the witnesses identified, cf. my enclosed note of 10 January 1995 continued on 17 January 1995, although one will probably have to realise that the prospects of success are limited due to the fact that all the witnesses must be assumed to reside either in Croatia or in a Croatian dominated area of Bosnia. Counsel has in my opinion no basis whatsoever for his remarks that the witnesses ‘have a good knowledge of the conditions in the camp’ and will be able to ‘contribute with information as to the circumstances surrounding the deaths of [E.R. and O.K]’ as it is completely uncertain what they have observed - if anything at all. The value of testimonies from [C.J., V.P., T.S., F.S.] will in anticipation have to be distrusted as they very well may have participated in the violent acts in question or in other violent acts against the prisoners. It is in that respect notable that the written testimony from ... [T.S.], which counsel had the opportunity to read out [in the High Court] ... appears untrustworthy and invented. The declaration was, it appears, given by [T.S.] at the request of [the applicant’s] mother-in-law. [The Police of Roskilde] have no knowledge about the former prisoners in the camp [Z.F., M.B., A.S. and possibly H.P.]. It can hardly be ruled out that the said persons held a position in the camp similar to that of [the applicant] (in charge of keeping order) or enjoyed privileges similar to him, for which reason the credibility of their testimonies would be poor. In case of the persons in question being “real” prisoners it is plausible that a testimony from each of them would merely say that they did not observe any violence committed by [the applicant] against the prisoners. The value of such a statement would be very poor as the persons in question had a limited outlook from the buildings ... and a limited possibility of observing [the applicant] who was able to move freely around in the camp. Thus, counsel has in no way rendered it probable that the requested examination of witnesses is required in order to clarify the matter ... However, as I have already mentioned I have again, through Interpol, requested that the efforts to identify the witnesses be continued. If the persons in question are identified I find it of the utmost importance that they give evidence in court in Denmark as witness statements obtained in Croatia or Bosnia in the circumstances hardly will have much probative force. ...” On 13 February 1995 counsel sent a letter to the Prosecutor General reading, inter alia, as follows: (Translation) “... For your information I hereby enclose a copy of a letter of 30 January 1995 from [the aforementioned lawyer practising in Bosnia]. I draw your attention to the fact that the statements made by the witnesses in question are made in court without my presence. Thus, I have not had the opportunity to clarify the factual proposition, which the evidence tends to establish. Had I had that opportunity I would have made sure that [the witnesses] were asked about the deaths of [E.R. and O.K.]. It is, however, evident from the material that it is possible to get in contact with the witnesses whom I have requested being heard. ...” The letter of 30 January 1995 from the Bosnian lawyer reads inter alia: (Translation) “Referring to your request of 19 August 1994 ... the Public Prosecutor of Čapljina has requested the investigation judge at the City Court of Čapljina to hear witnesses, and the witnesses [T.S., M.B., and F.S.] have been heard. I forward the original transcript containing the testimonies. The investigation judge ... will examine another five witnesses, the testimonies of whom we will subsequently forward to you. ...” The testimony of T.S. reads, inter alia, as follows: (Translation) “... In [the prison camp of Dretelj] I served as the director of [the camp] from 21 June to 17 December 1993. I knew personally one of the inmates, [the applicant], and I am willing to declare under oath that he did not during the period in question, when he was in [the camp], ill-treat or beat anyone, nor did he kill anyone. He worked in the kitchen as an assistant to the chef and I had as the director the monitoring function over [the camp] and he has, as I said, not beaten or killed anyone, nor has he in any way ill-treated anyone. If such things had happened I would have known as I was monitoring all inmates. I further declare that no ill-treatment, fights or physical ill-treatment whatsoever took place in this [camp], while I was the director of [the camp]. ...” The testimonies of M.B., F.S., and further testimony given by C.J., read in essence the same in that they maintained that they had not witnessed that the applicant had ill-treated other prisoners. It appears that these testimonies were given in the City Court of Čapljina on 16 January 1995, - except that of T.S. which was given on 17 January 1995 - before an investigation judge and with a prosecutor being present. Before testifying, each witness were impressed with the duty to speak the truth and were told about the consequences of making false statements. On 20 March 1995 the police authorities in Denmark received a radiogram from Interpol Sarajevo reading as follows: “... Concerning your message, please be advised that ... we were not able to find the mentioned persons and contact ... them. These persons are in Republic of Croatia and at this territory of our country ... because of consequences of war ... the legal authorities are not yet able to [carry out their] ... functions. We also mention that these persons were indirectly involved in tragic events in camp “Dretelj” ... [W]e advised you about these details earlier. We suppose that these persons for that reason avoid to stay at [the] territory of our country. ...” On 30 March 1995 the applicant’s counsel sent a letter to the Prosecutor General, which reads as follows: (Translation) “Referring to your letter of 24 March 1995 I shall hereby address [the note] of 10 February 1995 from the Chief of Police of Roskilde. Of the eight witnesses I mention in my letter of 23 December 1994 to the Supreme Court there is, through [the Bosnian lawyer], established a contact to four, i.e. [M.B., C.J., T.S. and F.S.]. ... . In the High Court’s decision concerning the adjournment of the case in order to examine the eight witnesses nothing is said about the relevance of the witnesses for the case. The High Court’s decision is solely reasoned by the difficulties which had been involved - and are presumed to continue to be involved - in getting in contact with the witnesses. Already at an early stage the applicant wanted the hearing of the eight witnesses, whom he firmly believes can contribute with essential information, not least in order to illuminate the circumstances concerning the deaths of [E.R. and O.K.]. The letters to [the Bosnian lawyer] show that it has been possible to get in contact with, so far, four out of the eight witnesses and, therefore, to my mind a continued effort to call these witnesses cannot be considered futile. Furthermore, I refer to the possibility of having a court hearing of the witnesses in their home country with the participation of a Danish prosecutor and myself. Such a hearing can clarify whether the witnesses have any relevant information and, if so, what. The remark made by the police that a number of the witnesses, whom I have requested be heard, possibly had a position in the camp similar to that of [the applicant] or privileges similar to his is in my opinion without substance. I maintain, therefore, that the efforts to get in contact with the eight witnesses and obtain their testimony be continued. ...” From a letter of 2 August 1995 from the Chief of Police of Roskilde to the Prosecutor General it appears that the police had not then received any further information about the witnesses. In reply to a letter from the applicant’s counsel requesting further information relating to the deaths of E.R. and O.K., the Bosnian lawyer replied, on 8 August 1995, inter alia, as follows: (Translation) “... The public prosecutor has informed me that [the applicant] ... was an ordinary prisoner and that, during his stay in [the camp], he had no special authority. ... As regards the death of [E.R.] it has been established that he died on 5 August 1993 and that he was hit in the head with a wooden club by a person named Bunda, a prisoner who was a Moslem and it has been established that this person had been insane for several years ... This piece of information can be confirmed by the City Court of Čapljina. In the second half of 1993 the same, Bunda, ... hit [O.K.] and he died also in [the camp] from the strokes. The accused in both cases, for killing [E.R.] and [O.K.], is the insane man ... Bunda and the case has been investigated by the judicial authorities. The investigation judge at the City Court of Čapljina has told me that they no longer have the competence to interrogate and supervise the defence for [the applicant] as there has been set up an International Tribunal in the Hague for war crimes committed in former Yugoslavia and as the national courts at the request of the Court in the Hague are obliged to initiate certain investigations. ...” On 15 August 1995 the Supreme Court upheld the High Court’s judgment. The judgment reads inter alia: (Translation) “... As regards the claim that the High Court’s judgment be quashed and the case remitted to the High Court, [the applicant] has argued that the High Court’s decision of 18 November 1994 not to adjourn the case in order to find and hear [the eight witnesses], amounts to a procedural error pursuant to Section 943 of the Administration of Justice Act and Section 880, subsection 2, of the Act in conjunction with Article 6 § 1 and § 3 (d) of the Convention. [The applicant] claims, furthermore, that the High Court erred by not employing the special standard of proof adopted in the judgment ..., having regard to [the applicant’s] mental state. ... The Supreme Court’s reasoning: As the Supreme Court agrees with the reasoning of the High Court, in its decision of 18 November 1994, the Supreme Court finds that no procedural error has been committed by the High Court by proceeding with the case on the basis of the testimonies in their possession, cf. Section 943 of the Administration of Justice Act. Nor has the High Court erred in relation to the standard of proof adopted in judgment ..., which must be considered to express a general principle in criminal procedure that the accused must enjoy the benefit of all reasonable doubt. Thus, [the applicant’s] claim that the judgment be quashed and the case remitted [to the High Court] is rejected. It is ordered: The High Court’s judgment is upheld. ...”