FOURTH SECTION
DECISION
Application no. 51552/10
Boban ŠIMŠIĆ
against Bosnia and Herzegovina
The European Court of Human Rights (Fourth Section), sitting on 10 April 2012 as a Chamber composed of:
Lech Garlicki, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Zdravka Kalaydjieva,
Nebojša Vučinić,
Ljiljana Mijović, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 26 August 2010,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Boban Šimšić, is a citizen of Bosnia and Herzegovina who was born in 1967. He is currently serving his sentence in Foča Prison. He was represented before the Court by Mr V. Ćivša, a lawyer practising in Sokolac.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. From April to July 1992, as a part of a widespread and systematic attack against the Bosniac civilian population of the Višegrad Municipality, being aware of that attack, the applicant persecuted Bosniacs on political, national, ethnic, cultural and religious grounds by committing murders, incarceration, torture, enforced disappearances and aiding and abetting rapes.
4. After having surrendered, the applicant was remanded in custody on 24 January 2005. On 13 May 2005 a Pre-Trial Chamber of the Court of Bosnia and Herzegovina (“the State Court”) decided to take over the case from the Istočno Sarajevo District Court in view of its sensitivity and a sympathetic attitude of the local police towards the applicant, a police officer, which had been manifested in their failure to arrest him despite an international arrest warrant against the applicant. The decision entered into force in June 2005.
5. On 11 July 2006 a Trial Chamber of the State Court found the applicant guilty of aiding and abetting rapes and enforced disappearances as crimes against humanity under Article 172 § 1 (g) and (i) of the 2003 Criminal Code[1] and sentenced him to five years’ imprisonment.
6. On 5 January 2007 an Appeals Chamber of that court quashed the first-instance judgment and scheduled a fresh hearing. On 7 August 2007 it found the applicant guilty of persecution as a crime against humanity under Article 172 § 1 (h) in conjunction with sub-paragraphs (a), (e), (f), (g) and (i) of the 2003 Criminal Code and sentenced him to 14 years’ imprisonment.
7. On 24 December 2007 the applicant filed a constitutional appeal. On 14 April 2010 the Constitutional Court examined the case under Articles 6, 7 and 13 of the Convention and Article 2 of Protocol No. 7 to the Convention. It found no violation.
B. Relevant international law
1. Charter of the International Military Tribunal (1945)
8. The relevant part of Article 6 of the Charter reads as follows:
“The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes.
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
...
(c) ‘Crimes against humanity’: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.”
2. Resolution 95 (I) of the United Nations General Assembly on the Affirmation of the Principles of International Law recognised by the Charter of the Nuremberg Tribunal (1946)
9. The Resolution reads as follows:
“The General Assembly,
Recognizes the obligation laid upon it by Article 13, paragraph 1, sub-paragraph (a), of the Charter, to initiate studies and make recommendations for the purpose of encouraging the progressive development of international law and its codification;
Takes note of the Agreement for the establishment of an International Military Tribunal for the prosecution and punishment of the major war criminals of the European Axis signed in London on 8 August 1945, and of the Charter annexed thereto, and of the fact that similar principles have been adopted in the Charter of the International Military Tribunal for the trial of the major war criminals in the Far East, proclaimed at Tokyo on 19 January 1946;
Therefore,
Affirms the principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal;
Directs the Committee on the codification of international law established by the resolution of the General Assembly of 11 December 1946, to treat as a matter of primary importance plans for the formation, in the context of a general codification of offences against the peace and security of mankind, or of an International Criminal Code, of the principles recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal.”
3. Principles of International Law Recognized in the Charter and the Judgment of the Nuremberg Tribunal (1950)
10. In 1950 the International Law Commission adopted the following seven Nuremberg Principles:
“Principle I: Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment.
Principle II: The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.
Principle III: The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.
Principle IV: The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.
Principle V: Any person charged with a crime under international law has the right to a fair trial on the facts and law.
Principle VI: The crimes hereinafter set out are punishable as crimes under international law:
...
(c) Crimes against humanity: Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.
Principle VII: Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.”
4. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (1968)
11. In November 1968 the UN General Assembly adopted this Convention in response to fears expressed that alleged war criminals (Second World War) not yet apprehended might escape prosecution with the passage of time. The Convention entered into force on 11 November 1970. It was ratified by the Socialist Federal Republic of Yugoslavia on 9 June 1970. The relevant part thereof reads as follows:
“The States Parties to the present Convention,
...
Considering that war crimes and crimes against humanity are among the gravest crimes in international law,
Convinced that the effective punishment of war crimes and crimes against humanity is an important element in the prevention of such crimes, the protection of human rights and fundamental freedoms, the encouragement of confidence, the furtherance of co-operation among peoples and the promotion of international peace and security,
Noting that the application to war crimes and crimes against humanity of the rules of municipal law relating to the period of limitation for ordinary crimes is a matter of serious concern to world public opinion, since it prevents the prosecution and punishment of persons responsible for those crimes,
Recognizing that it is necessary and timely to affirm in international law, through this Convention, the principle that there is no period of limitation for war crimes and crimes against humanity, and to secure its universal application,
Have agreed as follows:
Article 1
No statutory limitation shall apply to the following crimes, irrespective of the date of their commission:
...
(b) Crimes against humanity whether committed in time of war or in time of peace as they are defined in the Charter of the International Military Tribunal, Nurnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, ... even if such acts do not constitute a violation of the domestic law of the country in which they were committed.
Article 2
If any of the crimes mentioned in article I is committed, the provisions of this Convention shall apply to representatives of the State authority and private individuals who, as principals or accomplices, participate in or who directly incite others to the commission of any of those crimes, or who conspire to commit them, irrespective of the degree of completion, and to representatives of the State authority who tolerate their commission.
Article 3
The States Parties to the present Convention undertake to adopt all necessary domestic measures, legislative or otherwise, with a view to making possible the extradition, in accordance with international law, of the persons referred to in article II of this Convention.
...”
5. Statute of the ICTY (1993)
12. In response to atrocities then taking place in Bosnia and Herzegovina, on 25 May 1993 the United Nations Security Council passed resolution 827 establishing the International Criminal Tribunal for the former Yugoslavia (“the ICTY”) headquartered in The Hague. Article 5 of its Statute provides the following definition of crimes against humanity:
“The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:
(a) murder;
(b) extermination;
(c) enslavement;
(d) deportation;
(e) imprisonment;
(f) torture;
(g) rape;
(h) persecutions on political, racial and religious grounds;
(i) other inhumane acts.”
6. Statute of the ICC (1998)
13. Article 7 § 1 of the Rome Statute of the International Criminal Court of 17 July 1998 defines crimes against humanity as follows:
“For the purpose of this Statute, crime against humanity means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”
C. Relevant domestic law and practice
1. State Court
14. On 12 November 2000 the High Representative[2] imposed the State Court Act 2000[3] establishing the State Court. The Parliamentary Assembly of Bosnia and Herzegovina subsequently endorsed that Act.
15. Following joint conclusions of the High Representative and the ICTY of 21 February 2003, the United Nations Security Council Resolution 1503 of 28 August 2003 and amendments to the State Court Act 2000 enacted by the Parliamentary Assembly of Bosnia and Herzegovina, special chambers for war crimes were established within the State Court on 9 March 2005.
2. Jurisdiction over war crimes cases
16. Domestic war crimes cases can be divided into two categories.
Old cases (reported before 1 March 2003) remain with Entity courts if an indictment entered into force before 1 March 2003. If an indictment did not enter into force before 1 March 2003, they remain with Entity courts unless the State Court decides to take over any such case because of its sensitivity or complexity (see Article 449 of the 2003 Code of Criminal Procedure[4]).
New cases (reported after 1 March 2003) fall under the jurisdiction of the State Court, but it may transfer less sensitive and complex cases to Entity courts (Article 27 of the same Code).
17. As a rule, in war crimes cases, Entity courts apply the 1976 Criminal Code[5] (see, however, the 2008 judgment in the Vlahovljak case in which the Supreme Court of the Federation of Bosnia and Herzegovina applied the 2003 Criminal Code), whereas the State Court applies the 2003 Criminal Code (see, however, the 2009 judgment in the Kurtović case in which the State Court applied the 1976 Criminal Code). Moreover, Entity courts on average impose lighter sentences than the State Court (see “Moving towards a Harmonised Application of the Law Applicable in War Crimes Cases before Courts in Bosnia and Herzegovina”, published by the OSCE in 2008), but this may be due to the fact that the State Court deals with more sensitive and complex cases (see the 2008 National War Crimes Strategy).
3. Applicable substantive law in war crimes cases
18. The 2003 Criminal Code introduced crimes against humanity in domestic law. It has been in force since 1 March 2003. Article 172 § 1 thereof reads as follows:
“Whoever, as part of a widespread or systematic attack directed against any civilian population, being aware of that attack, perpetrates any of the following acts:
a) Murder;
b) Extermination;
c) Enslavement;
d) Deportation or forcible transfer of population;
e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
f) Torture;
g) Coercing another by force or by threat of immediate attack upon his or her life or limb, or the life or limb of a person close to the victim, to sexual intercourse or an equivalent sexual act (rape), sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation or any other form of sexual violence of comparable gravity;
h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognised as impermissible under international law, in connection with any offence listed in this paragraph, any offence listed in this Code or any offence falling under the competence of the [State Court];
i) Enforced disappearance of persons;
j) The crime of apartheid;
k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health,
shall be punished by imprisonment for a term not less than ten years or long-term imprisonment.”
19. The general range of imprisonment is from 30 days to 20 years and of long-term imprisonment from 20 to 45 years (Article 42 of the Code).
COMPLAINTS
20. The applicant complained under Article 7 of the Convention that crimes against humanity, of which he had been held guilty, had not constituted a criminal offence under national law during the 1992-95 war. He further complained under Article 2 of Protocol No. 7 that he had not been entitled to have the second-instance judgment reviewed by a higher criminal tribunal although that judgment reversed his acquittal in the first instance in respect of persecution as a crime against humanity. Lastly, he complained under Article 1 of Protocol No. 12 to the Convention because the State Court took over his case, unlike some other cases, from the competent Entity court.
THE LAW
A. As regards Article 7 of the Convention
21. Article 7 reads as follows:
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”
22. The Court reiterates that the guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection. This is underlined by the fact that no derogation from it is permissible under Article 15 in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, so as to provide effective safeguards against arbitrary prosecution, conviction and punishment (see Kononov v. Latvia [GC], no. 36376/04, § 185, ECHR 2010). The Court is clearly not called upon to rule on the applicant’s individual criminal responsibility, that being primarily a matter for assessment by the domestic courts. Its function under Article 7 § 1 is to consider whether the applicant’s acts, at the time when they were committed, constituted an offence defined with sufficient accessibility and foreseeability by domestic or international law (Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 51, ECHR 2001‑II; K.-H.W. v. Germany [GC], no. 37201/97, § 46, ECHR 2001‑II; and Korbely v. Hungary [GC], no. 9174/02, § 73, ECHR 2008).
23. The Court observes that the present applicant was convicted in 2007 of persecution as a crime against humanity with regard to acts which had taken place in 1992. While the impugned acts had not constituted a crime against humanity under domestic law until the entry into force of the 2003 Criminal Code, it is evident from the documents cited in paragraph 8-13 above that the impugned acts constituted, at the time when they were committed, a crime against humanity under international law. In that regard, it is noted that all the constituent elements of a crime against humanity were satisfied in this case: the impugned acts were committed within the context of a widespread and systematic attack targeting a civilian population and the applicant was aware of that attack (contrast Korbely, cited above, §§ 83-85).
24. The applicant argued that he could not have foreseen that his acts could have constituted a crime against humanity under international law. It is noted, however, that the applicant committed those acts as a police officer. The Court has held that persons carrying on a professional activity must proceed with a high degree of caution when pursuing their occupation and can be expected to take special care in assessing the risks that such activity entails (see Kononov, cited above, § 235). Furthermore, having in mind the flagrantly unlawful nature of his acts, which included murders and torture of Bosniacs within the context of a widespread and systematic attack against the Bosniac civilian population of the Višegrad Municipality, even the most cursory reflection by the applicant would have indicated that they risked constituting a crime against humanity for which he could be held criminally accountable.
25. The Court concludes that the applicant’s acts, at the time when they were committed, constituted an offence defined with sufficient accessibility and foreseeability by international law.
This complaint is therefore manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
B. As regards Article 2 of Protocol No. 7 to the Convention
26. Article 2 of Protocol No. 7 reads as follows:
“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.
2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.”
27. The first paragraph guarantees the right of everyone convicted of a criminal offence by a tribunal to have his conviction or sentence reviewed by a higher tribunal. However, the second paragraph permits exceptions.
28. The present applicant complained that he had not been entitled to have a second-instance judgment reviewed by a higher criminal tribunal although that judgment reversed his acquittal in the first instance in respect of persecution as a crime against humanity. As the situation in issue clearly falls under the exceptions envisaged in the second paragraph of Article 2 of Protocol No. 7, this complaint is equally manifestly ill-founded.
It must therefore be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
C. As regards Article 1 of Protocol No. 12 to the Convention
29. Article 1 of Protocol No. 12 provides:
“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”
30. It is noted that the applicant failed to raise this issue in his constitutional appeal. It is also noted that it is open to discussion whether a constitutional appeal offered reasonable prospects of success in view of its jurisprudence on this issue (see the Constitutional Court’s decision of 19 June 2006 in the Maktouf case finding no violation of the prohibition of discrimination and a number of subsequent cases in which the same reasoning had been applied). However, the Court is not required to decide whether the present applicant should have used that domestic remedy since it finds that this complaint is, in any event, manifestly ill-founded for the following reasons.
31. The notion of discrimination has been interpreted consistently in the Court’s jurisprudence regarding Article 14 of the Convention. In particular, this jurisprudence has made it clear that “discrimination” means treating differently, without an objective and reasonable justification, persons in similar situations. The authors used the same term, discrimination, in Article 1 of Protocol No. 12. Notwithstanding the difference in scope between those provisions, the meaning of this term in Article 1 of Protocol No. 12 was intended to be identical to that in Article 14 (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 55, ECHR 2009).
32. In view of the large number of war crimes cases in post-war Bosnia and Herzegovina, it is inevitable that the burden must be shared between Entity courts and the State Court. Otherwise, the respondent State would not be able to honour its Convention obligation to bring to justice those responsible for serious violations of international humanitarian law within a reasonable time (see Palić v. Bosnia and Herzegovina, no. 4704/04, 15 February 2011). Since the State Court decided to take over this case from an Entity court on the basis of objective and reasonable criteria (such as, the sensitivity and complexity of the case) rather than on the basis of the applicant’s personal characteristics (such as, his origin or religion), there is no appearance of a breach of Article 1 of Protocol No. 12 (see, by analogy, Magee v. the United Kingdom, no. 28135/95, § 50, ECHR 2000‑VI).
Therefore, this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Lawrence EarlyLech Garlicki
RegistrarPresident
[1]1. Official Gazette of Bosnia and Herzegovina nos. 3/03, 37/03, 32/03, 54/04, 61/04, 30/05, 53/06, 55/06, 32/07 and 8/10.
[2]. In December 1995 the United Nations Security Council authorised the establishment of an international administrator for Bosnia and Herzegovina (the High Representative) by an informal group of States actively involved in the peace process (the Peace Implementation Council – “the PIC”) as an enforcement measure under Chapter VII of the United Nations Charter (Resolution 1031 of 15 December 1995). Since the powers initially entrusted to the High Representative (outlined in the Peace Agreement) were not fully clear, the PIC has subsequently elaborated on his mandate. Perhaps the most far-reaching step was the adoption, in 1997, of the Conclusions of the Bonn Peace Implementation Conference, by which the PIC approved the High Representative’s authority to remove from office public officials considered to be violating the Peace Agreement and his power to impose interim legislation in situations where the domestic institutions fail to do so (for more details, see Berić and Others v. Bosnia and Herzegovina (dec.), nos. 36357/04 et al., ECHR 2007‑XII).
[3]. A consolidated version thereof published in Official Gazette of Bosnia and Herzegovina no. 49/09, amendments published in Official Gazette nos. 74/09 and 97/09.
[4]. Official Gazette of Bosnia and Herzegovina nos. 3/03, 36/03, 32/03, 26/04, 63/04, 13/05, 48/05, 46/06, 76/06, 29/07, 32/07, 53/07, 76/07, 15/08, 58/08, 12/09, 16/09 and 93/09.
[5]. Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 44/76, 36/77, 56/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90 and 45/90.
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