EHRM, 12-07-2007, nr. 74613/01

In 1969 the applicant, a national of Bosnia and Herzegovina of Serb origin, entered Germany, where he legally resided until the beginning of 1992. He then returned to Kostajnica, which forms part of the city of Doboj in Bosnia, where he was born.

On 16 December 1995 the applicant was arrested when entering Germany and placed in pre-trial detention on the ground that he was strongly suspected of having committed acts of genocide.

On 28 February 1997 the applicant's trial, on the charge of having committed genocide in the Doboj region between May 1992 and September 1992, started before the Düsseldorf Court of Appeal (Oberlandesgericht) acting as a court of first instance.

In the course of the proceedings the Court of Appeal heard evidence from six witnesses called by the prosecution, who had to be summoned abroad.

On 18 June 1997 the applicant requested the Court of Appeal to call and hear evidence from eight witnesses from Kostajnica for the purpose of proving the fact that he had been placed in pre-trial detention in Doboj between 14 May and 15 August 1992 and could not therefore have committed the crimes he was accused of. On 10 July 1997 the applicant sought leave to summon another seventeen witnesses from Kostajnica to prove his allegation.

On 18 August 1997 the Court of Appeal dismissed the applicant's requests to summon these witnesses. Relying on Article 244 § 5, second sentence, of the Code of Criminal Procedure (see paragraph 39 below), it considered the testimony of these witnesses to be of little evidential value. Seven of these witnesses had made written statements which had already been read out in court. Only one of them had actually claimed to have visited the applicant in prison. Having regard to the evidence already taken, the court could exclude the possibility that the testimony of the witnesses named by the applicant, if heard in person, might influence the court's assessment of the evidence. It pointed out that more than twenty witnesses who had already been heard in court, including two journalists who had not been victims of the crimes the applicant was accused of, had seen the applicant in different places outside prison during the time he claimed to have been detained. The documents submitted by the applicant in relation to the beginning and end of his detention in Doboj did not warrant a different conclusion, as they had obviously been signed by a person whom the applicant knew well.

On 8 September 1997 the applicant requested the court to call three witnesses from Doboj in order to prove that he had been detained between 14 May and 15 August 1992. He also requested an inspection of the scene of the crime (Augenscheinseinnahme) in Grabska or, alternatively, that a topographical map be drawn up in order to prove that the witnesses' statements concerning his purported acts in Grabska were untrustworthy.

On 12 September 1997 the Court of Appeal rejected the applicant's requests. As regards the refusal to summon the three witnesses named, the court, relying again on Article 244 § 5 of the Code of Criminal Procedure, found that the testimony of these witnesses would be of little evidential value. Having heard the evidence given by other witnesses, it was satisfied that the applicant had not been detained at the material time. It further considered an inspection of the scene of the crime or the drawing-up of a topographical map thereof to be unobtainable evidence (unerreichbare Beweismittel) within the meaning of Article 244 § 3 of the Code of Criminal Procedure (see paragraph 38 below), which it therefore did not have to take.

In its judgment of 26 September 1997 the Düsseldorf Court of Appeal convicted the applicant on eleven counts of genocide (Article 220a nos. 1 and 3 of the Criminal Code — see paragraph 34 below) and for the murder of twenty-two people in one case, seven people in another case, one person in a third case; and on several counts of dangerous assault and deprivation of liberty in the remaining cases. It sentenced the applicant to life imprisonment and stated that his guilt was of a particular gravity

(see paragraph 37 below).

The court found that the applicant had set up a paramilitary group, with whom he had participated in the ethnic cleansing ordered by the Bosnian Serb political leaders and the Serb military in the Doboj region.

He had in particular participated in the arrest, detention, assault and ill-treatment of male Muslims of three villages in Bosnia in the beginning of May and June 1992. He had killed several inhabitants of these villages.

He had in particular shot twenty-two inhabitants of the village of Grabska — women and disabled and old people — in June 1992. Subsequently, the applicant, together with the paramilitary group he had led, had chased some forty men from their home village and had ordered them to be ill-treated and six of them to be shot. A seventh injured person had died from being burnt with the corpses of the six people shot. In September 1992 the applicant had killed a prisoner, who was being ill-treated by soldiers in the Doboj prison, with a wooden truncheon in order to demonstrate a new method of ill-treatment and killing.

The court stated that it had jurisdiction over the case pursuant to Article 6 no. 1 of the Criminal Code (see paragraph 34 below). There was a legitimate link for criminal prosecution in Germany, as this was in accordance with Germany's military and humanitarian missions in Bosnia and Herzegovina and the applicant had resided in Germany for more than twenty years and had been arrested there. Furthermore, agreeing with the findings of an expert in public international law, the court found that the German courts were not debarred under public international law from trying the case. In particular, neither Article VI of the Convention on the Prevention and Suppression of the Crime of Genocide (Genocide Convention) (1948), nor Article 9 of the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY Statute) (1993)(see paragraphs 48–49 below) excluded the jurisdiction of German courts over acts of genocide committed outside Germany by a foreigner against foreigners. The court considered that this view was confirmed by the fact that the International Criminal Tribunal for the Former Yugoslavia (ICTY) had stated that it was not willing to take over the applicant's prosecution.

Furthermore, the court found that the applicant had acted with intent to commit genocide within the meaning of Article 220a of the Criminal Code. Referring to the views expressed by several legal writers, it stated that the ‘destruction of a group’ within the meaning of Article 220a of the Criminal Code meant destruction of the group as a social unit in its distinctiveness and particularity and its feeling of belonging together (‘Zerstörung der Gruppe als sozialer Einheit in ihrer Besonderheit und Eigenart und ihrem Zusammengehörigkeitsgefühl’); a biological-physical destruction was not necessary. It concluded that the applicant had therefore acted with intent to destroy the group of Muslims in the North of Bosnia, or at least in the Doboj region.

On 30 April 1999 the Federal Court of Justice, following an appeal by the applicant on points of law and after a hearing, convicted the applicant on one count of genocide and thirty counts of murder. It sentenced him to life imprisonment and stated that his guilt was of a particular gravity.

Endorsing the reasons given by the Court of Appeal, it found that German criminal law was applicable to the case and that the German courts consequently had jurisdiction over it by virtue of Article 6 no. 1 of the Criminal Code. It found, in particular, that no rule of public international law prohibited the applicant's conviction by the German criminal courts in accordance with the principle of universal jurisdiction (Universalitäts- / Weltrechtsprinzip) enshrined in that Article. It conceded that the said principle had not been expressly laid down in Article VI of the Genocide Convention, despite earlier drafts of the Genocide Convention in which it had been proposed to do so. However, the said Article did not prohibit persons charged with genocide from being tried by national courts other than the tribunals of the State in the territory of which the act was committed. Any other interpretation would not be reconcilable with the erga omnes obligation undertaken by the Contracting States in Article I of the Genocide Convention to prevent and punish genocide (see paragraph 48 below). The aforesaid interpretation of the Genocide Convention was also confirmed by Article 9 § 1 of the ICTY Statute, which provided for concurrent jurisdiction of the ICTY and all other national courts.

Moreover, the Federal Court of Justice found that the German courts also had jurisdiction pursuant to Article 7 § 2 no. 2 of the Criminal Code (see paragraph 34 below).

The Federal Court of Justice did not expressly deal with the applicant's complaint that the Court of Appeal, in its decision of 18 August 1997, had refused to summon abroad any of the defence witnesses he had named on the basis of Article 244 § 5 of the Code of Criminal Procedure. However, it referred in general to the submissions of the Federal Public Prosecutor (Generalbundesanwalt), who had argued that the applicant's appeal was inadmissible in this respect, as he had failed to set out the relevant facts in sufficient detail. As regards the applicant's complaint that the Court of Appeal, in its decision of 12 September 1997, had refused to summon three further defence witnesses abroad, the Federal Court of Justice considered his complaint to be inadmissible, as he had not sufficiently set out the relevant facts and had not provided sufficient reasons in his appeal. The court further referred to the Federal Public Prosecutor's submissions regarding the applicant's complaint that the Court of Appeal had refused to have a topographical map drawn up. According to the Federal Public Prosecutor, the applicant's complaint was ill-founded in this respect, especially as the Court of Appeal already had a video of the relevant locality.

The Federal Court of Justice upheld the Court of Appeal's finding that the applicant had intended to commit genocide within the meaning of Article 220a of the Criminal Code, but found that his actions as a whole had to be considered as only one count of genocide. It referred to the wording of Article 220a § 1 no. 4 (imposition of measures which are intended to prevent births within the group) and no. 5 (forcible transfer of children of the group into another group) in support of its view that genocide did not necessitate an intent to destroy a group physically, but that it was sufficient to intend its destruction as a social unit.

On 12 December 2000 the Federal Constitutional Court declined to consider the applicant's constitutional complaint.

According to the Constitutional Court, the criminal courts had not violated any provision of the Basic Law by establishing their jurisdiction pursuant to Article 6 no. 1 of the Criminal Code, taken in conjunction with Article VI of the Genocide Convention. The principle of universal jurisdiction afforded a reasonable link to deal with subject matter arising outside the territory of Germany, while observing the duty of non-intervention (Interventionsverbot) under public international law.

The competent courts' reasoning, namely, that Article 6 no. 1 of the Criminal Code taken in conjunction with Article VI of the Genocide Convention entitled them to examine the applicant's case, was not arbitrary. It could properly be reasoned that the Genocide Convention, while not expressly regulating the principle of universal jurisdiction, provided that the Contracting Parties were not obliged to prosecute perpetrators of genocide, but had jurisdiction to do so. In fact, genocide was the classic subject matter to which the principle of universal jurisdiction applied. The criminal courts' reasoning did not interfere with Bosnia and Herzegovina's personal or territorial sovereignty, as that State had expressly refrained from requesting the applicant's extradition.

Pointing out that in the case of an admissible constitutional complaint, it was entitled to examine the act complained of under all constitutional angles, the Federal Constitutional Court further found that the applicant's right to a fair trial as guaranteed by the Basic Law had not been violated. There was no doubt that Article 244 §§ 3 and 5 of the Code of Criminal Procedure were constitutional. The legislature was not obliged to set up specific rules of procedure for certain criminal offences. The right to a fair trial did not grant the applicant a right to have certain evidence taken, such as calling witnesses who had to be summoned abroad.

In respect of the interpretation of Article 220a of the Criminal Code, the Federal Constitutional Court found that there had been no violation of the principle that criminal law was not to be applied retroactively as guaranteed by Article 103 § 2 of the Basic Law. It stated that the way in which the Court of Appeal and the Federal Court of Justice had construed the notion of ‘intent to destroy’ in the said Article was foreseeable. Moreover, the interpretation conformed to that of the prohibition of genocide in public international law — in the light of which Article 220a of the Criminal Code had to be construed — by the competent tribunals, several scholars and as reflected in the practice of the United Nations, as expressed, inter alia, in Resolution 47/121 of the General Assembly (see paragraph 41 below).

On 3 July 2002 the Düsseldorf Court of Appeal declared inadmissible a request by the applicant to reopen the proceedings. The fact that one of the witnesses who had been examined by the Court of Appeal, and who was the only person claiming to have eyewitnessed the applicant murdering twenty-two people in Grabska, was suspected of perjury, did not warrant a reopening. Even assuming that the said witness had invented the allegations against the applicant, the latter would still have to be sentenced to life imprisonment for genocide and on eight counts of murder.

On 20 December 2002 (decision served on 28 January 2003) the Federal Court of Justice decided that the applicant's request to reopen the proceedings was admissible in so far as it concerned the murder of twenty-two people in Grabska. It pointed out, however, that, even assuming that the applicant's conviction on twenty-two counts of murder was not upheld, his conviction for genocide and on eight counts of murder, and therefore his life sentence, including the finding that his guilt was of a particular gravity, would prevail.

In a constitutional complaint of 28 February 2003 the applicant claimed that the decisions of the Düsseldorf Court of Appeal and the Federal Court of Justice concerning the reopening of the proceedings violated his right to liberty as guaranteed by the Basic Law. He argued that they had erred in their finding that, in the proceedings to have the case reopened, the question whether the applicant's guilt was of a particular gravity did not have to be assessed anew.

On 22 April 2003 the Federal Constitutional Court refused to admit the applicant's constitutional complaint.

On 21 June 2004 the Düsseldorf Court of Appeal decided to reopen the proceedings in respect of the applicant's conviction for shooting twenty-two people in Grabska. It found that the only person claiming to have eyewitnessed these murders was guilty of perjury at least in respect of some other statements. Therefore, it could not rule out the possibility that the judges then adjudicating the case would have acquitted the applicant on that charge if they had known that some statements by this witness had been false.

In so far as the applicant's request to reopen the proceedings was granted, the Court of Appeal discontinued the proceedings. It argued that the sentence to be expected by the applicant, if he was again found guilty of having murdered twenty-two people in Grabska, was not significantly greater than the sentence which had already been imposed upon him with binding effect for genocide. Consequently, the judgment of the Düsseldorf Court of Appeal of 26 September 1997 remained final regarding the applicant's conviction for genocide and on eight counts of murder, including the court's finding that his guilt was of a particular gravity.