CASE OF MARGUŠ v. CROATIA
Preliminary objection dismissed (Article 35-3 - Ratione temporis);Remainder inadmissible;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;Article 6-3-c - Defence in person)
Anatoly Kovler;André Potocki;Angelika Nußberger;Ann Power-Forde;Corneliu Bîrsan;Dean Spielmann;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Guido Raimondi;Helena Jäderblom;Ineta Ziemele;Isabelle Berro-Lefèvre;Ján Šikuta;Josep Casadevall;Khanlar Hajiyev;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Mark Villiger;Nebojša Vučinić;Peer Lorenzen;Zdravka Kalaydjieva;Ksenija Turković
12. The applicant was born in 1961 and is currently serving a prison sentence in Lepoglava State Prison. 13. 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. 14. 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 reads: “The first accused, Fred Marguš 1. 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; ... 2. 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; ... 3. 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; ... 4. At the same place and time as under (3) fired at Ne.V. with an automatic gun ... as a result of which she died; ... 6. On 28 August 1991 at about 3 a.m. threw an explosive device into business premises in Čepinski Martinovec ... causing material damage; ... 7. On 18 November 1991 at 00.35 a.m. in Čepin placed an explosive device in a house ... causing material damage ...; ... 8. 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 ...; ... 9. 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. 15. 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. The former count 8 of the indictment thus became count 4. 16. 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 27 below). 17. 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 ruling 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 section 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 the 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 conflicts .... 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 conflicts and which are not connected with the aggression, armed rebellion or armed conflicts 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 1991, 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 actions of the accused, in view of the time and place of the events in issue, were closely connected with the aggression, armed rebellion and armed conflicts 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 ...” 18. 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. 19. On 19 September 2007 the Supreme Court, when deciding upon the above request, established that the above ruling of the Osijek County Court of 24 June 1997 violated section 3(2) of the General Amnesty Act. The relevant parts of the Supreme Court’s ruling read: “... Section 1(1) of the General Amnesty Act provides for a general amnesty from criminal prosecution and trial for the perpetrators of criminal offences committed in connection with the aggression, armed rebellion or armed conflicts ... 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 conflicts. 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. Hence, the expression ‘in connection with the aggression, armed rebellion or armed conflicts’ 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 ... 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 ruling, 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 conflicts in Croatia, or that they were committed in connection with them. ...” 20. 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. 21. 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 warned the accused Marguš orally, 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. ...” 22. 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. 23. 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 Protocol Additional 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 Serb 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 Corps 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, [acted as follows] with the intention of killing Serb civilians; 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. to sustain 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 set, 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. ...” 24. 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 ruling of a lower court or if he participated in adopting the impugned ruling. 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 ruling ... 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 the number 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 ruling 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 the number 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 criminal proceedings in 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 the number 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 Protocol Additional 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 Serb 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 in 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 ...” 25. 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.