Judgment (Merits and Just Satisfaction) of Court (Grand Chamber), May 27, 2014

Judge:SABOLIC P.
Defense:CASE OF SACE ELEKTRİK TİCARET VE SANAYİ A.Ş. v. TURKEY
Resolution Date:May 27, 2014
Issuing Organization:Court (Grand Chamber)
SUMMARY

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)

 
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GRAND CHAMBER CASE OF MARGUŠ v. CROATIA (Application no. 4455/10) JUDGMENT STRASBOURG 27 May 2014 This judgment is final but it may be subject to editorial revision.In the case of Marguš v. Croatia,The European Court of Human Rights, sitting as a Grand Chamber composed of: Dean Spielmann, President,
Josep Casadevall,
Guido Raimondi,
Ineta Ziemele, ad hoc judge,
Mark Villiger,
Isabelle Berro-Lefèvre,
Corneliu Bîrsan,
Ján Šikuta,
Ann Power-Forde,
Işıl Karakaş,
Nebojša Vučinić,
Kristina Pardalos,
Angelika Nußberger,
Helena Jäderblom,
Krzysztof Wojtyczek,
Faris Vehabović,
Dmitry Dedov, judges,
and Lawrence Early, Jurisconsult,Having deliberated in private on 26 June and 23 October 2013 and 19 March 2014,Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1. The case originated in an application (no. 4455/10) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Fred Marguš (“the applicant”), on 31 December 2009.

2. The applicant, who had been granted legal aid, was represented by Mr P. Sabolić, a lawyer practising in Osijek. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3. The applicant alleged, in particular, that his right to a fair trial had been violated in that the same judge had presided over both sets of criminal proceedings against him and he had been removed from the courtroom at the concluding hearing in the second set of proceedings. He also complained that his right not to be tried twice had been violated.

4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). On 5 September 2011 the Vice-President of the Section decided to give notice of the application to the Government.

5. On 13 November 2012 a Chamber composed of A. Kovler, President, N. Vajić, P. Lorenzen, E. Steiner, K. Hajiyev, L-A. Sicilianos, E. Møse, judges, and also of S. Nielsen, Section Registrar, delivered its judgment. It unanimously declared the complaint under Article 6 of the Convention concerning the impartiality of judge M.K. and the applicant’s removal from the courtroom, as well as the complaint under Article 4 of Protocol No. 7, admissible and held unanimously that there had been no violation of any of these provisions.

6. On 27 December 2012 the applicant requested that the case be referred to the Grand Chamber in accordance with Article 43 of the Convention, and the panel of the Grand Chamber accepted the request on 18 March 2013.

7. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court.

8. The applicant and the Government each filed further written observations (Rule 59 § 1) on the merits.

9. In addition, 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 (Article 36 § 2 of the Convention and Rule 44 § 2).

10. A hearing took place in public in the Human Rights Building, Strasbourg, on 26 June 2013 (Rule 59 § 3).There appeared before the Court:(a) for the Government
Ms Š. Stažnik, Agent,
Ms J. Dolmagić,
Ms N. Katić, Advisers;(b) for the applicant
Mr P. Sabolić, Counsel. The Court heard addresses by Mr Sabolić and Ms Stažnik, as well as their replies to questions put by Judges Kalaydjieva, Vučinić and Turković.

11. After the hearing it was decided that Ksenija Turković, the judge elected in respect of Croatia, was unable to sit in the case (Rule 28). The Government accordingly appointed Ineta Ziemele, the judge elected in respect of Latvia, to sit in her place (Article 26 § 4 of the Convention and Rule 29 § 1). In consequence the first substitute, Judge Ann Power-Forde became a full member of the Grand Chamber. Judge Zdravka Kalaydjieva withdrew from the case and was replaced by the second substitute, Judge Ján Šikuta. Judge André Potocki withdrew from the case and was replaced by the third substitute, Judge Angelika Nuβberger (Rule 28).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

12. The applicant was born in 1961 and is currently serving a prison term in Lepoglava State Prison.

A. The first set of criminal proceedings against the applicant (no. K‑4/97)

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 Marguš1. 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....ReasoningThe 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...

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