Galić v. the Netherlands (dec.)

Information Note on the Court’s case-law No. 120

June 2009

Galić v. the Netherlands (dec.) - 22617/07

Decision 9.6.2009 [Section III]

Article 35

Article 35-3

Ratione personae

Complaints of procedural unfairness in an international criminal tribunal established by UN Security Council Resolution: inadmissible

Article 1

Responsibility of states

Complaints of procedural unfairness in an international criminal tribunal established by UN Security Council Resolution: inadmissible

[This summary also covers the decision in the case of Blagojević v. the Netherlands, no. 49032/07, 9 June 2009]

The applicants in these two cases were convicted of crimes against humanity and war crimes by the International Criminal Tribunal for the Former Yugoslavia (ICTY) and given lengthy prison sentences. The trials took place at the ICTY’s seat at The Hague. In their complaints to the European Court, the applicants alleged, inter alia, that the ICTY had violated their rights under Article 6 of the Convention and that the responsibility of the Netherlands was thereby engaged.

The ICTY was established by United Nations Security Council Resolution S/RES/827 of 25 May 1993 for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia between certain dates. By virtue of Article 31 of its Statute the ICTY’s seat was to be at The Hague. The United Nations entered into a separate agreement with the Netherlands (the Headquarters Agreement) to regulate matters relating to or arising out of the establishment and functioning of the ICTY in the Netherlands. The preamble to that agreement stated that the ICTY was established as a “subsidiary organ” of the United Nations.

Inadmissible: It was beyond dispute that the matters complained of had resulted from acts or omissions of the ICTY and evident from the manner of its creation and the preamble to the Headquarters Agreement that the ICTY was a “subsidiary organ” of the Security Council. Its acts and omissions were thus attributable in principle to the United Nations, an intergovernmental international organisation with a legal personality separate from that of its members states and which was not itself a Contracting Party to the Convention. It followed that the Court lacked jurisdiction ratione personae to examine complaints against the United Nations or, by extension, the ICTY itself.

Furthermore, as the Court had stated in Behrami and Behrami v. France and Saramati v. France, Germany and Norway, the Convention could not be interpreted in a manner that would subject the acts and omissions of Contracting Parties covered by Security Council Resolutions to the Court’s scrutiny, as to do so would interfere with the fulfilment of the UN’s key mission to secure international peace and security, so that the responsibility of the Netherlands could not be engaged on that account.

It was, however, implicit in the applicants’ submissions that they nevertheless considered themselves to have been within the “jurisdiction” of the Netherlands for the purposes of Article 1 of the Convention, either on account of their physical presence there, or additionally (in Galić) on the basis of the Headquarters Agreement.

As regards the “physical presence” argument, the Court noted that there were exceptions to the general rule that physical presence on the territory brought an individual within the jurisdiction of the Contracting State concerned. Thus, restrictions had been accepted on fundamental-rights protection on the basis of immunity accorded to States or international organisations in certain situations. Similarly, it was not axiomatic that a criminal trial had to engage the responsibility under public-international law of the State on whose territory it was held. This was demonstrated by the provisions in the NATO Status of Forces Agreement engaging the responsibility of the sending, not the receiving, State when a State exercised criminal jurisdiction over its forces overseas and by the arrangements made for the Lockerbie trial of two Libyan nationals accused of a terrorist attack on an aircraft in Scotland to be held in the Netherlands. The sole fact that the ICTY had its seat and premises in The Hague could not, therefore, constitute sufficient grounds to attribute the matters complained of to the Netherlands. Indeed, the applicants’ cases involved an international tribunal established by an international organisation founded on the principle of respect for fundamental human rights and whose organisation and procedure were purposely designed to provide indictees with all appropriate guarantees. As to the Headquarters Agreement, although voluntarily entered into and ratified by the Netherlands, it was clearly no more than a document intended to give practical effect to actions of the Security Council and subject to its approval: incompatible ratione personae.

See also: Behrami and Behrami v. France and Saramati v. France, Germany and Norway (dec.) [GC] nos. 71412/01 and 78166/01, 2 May 2007, Information Note no. 97; Berić and Others v. Bosnia and Herzegovina, nos. 36357/04 et seq., ECHR 2007-XI, Information Note no. 101.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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