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);No violation of Article 6 - Right to a fair trial (Article 6-3-c - Defence in person);No violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Acquittal;Conviction)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant was born in DATE and is currently serving a prison term in LOC .

On DATE ORG lodged a criminal complaint against the applicant and CARDINAL other persons with ORG , alleging that the applicant , a member of ORG , had killed several civilians .

On DATE the Act on ORG from Criminal Prosecution and Proceedings in Respect of Criminal Offences Committed during ORG Zakon o oprostu od krivičnog progona i postupka za krivična djela počinjena u oružanim sukobima i u ratu protiv PERSON ) was enacted .

On DATE ORG indicted the applicant before ORG on charges of murder , inflicting grievous bodily harm , causing a risk to life and assets , and theft . The relevant part of the indictment read :

“ the first accused , PERSON

on DATE at TIME ... fired CARDINAL times at GPE with an automatic gun ... as a result of which PERSON died ;

at the same time and place as under ( CARDINAL ) ... fired several times at FAC with an automatic gun ... as a result of which GPE died ;

on DATE took ORG to the “ NORP ” forest between PERSON and NORP ... and fired at him twice with an automatic gun ... as a result of which GPE died ;

at the same place and time as under ( CARDINAL ) fired at GPE . PERSON with an automatic gun ... as a result of which she died ;

on CARDINAL DATE at TIME threw an explosive device into business LOC in LOC ... causing material damage ;

on DATE at TIME in PERSON placed an explosive device in a house ... causing material damage ... ;

on DATE at TIME in Čepin ... fired at GPE , causing him slight bodily injury and then ... kicked GPE ... causing him grievous bodily injury ... and also kicked GPE ... causing him further slight bodily injuries ... ;

DATE and DATE in Čepin ... stole several guns and bullets ... ;

He was further charged with appropriating several tractors and other machines belonging to other persons .

On DATE the NORP Deputy Military Prosecutor dropped the charges under counts ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) 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 DATE at TIME , at a child , ORG . PERSON , causing him grievous bodily injury .

On DATE 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 GPE DATE and DATE , 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 CARDINAL below ) .

On DATE ORG , sitting as a panel presided over by judge PERSON , terminated the proceedings pursuant to LAW . The relevant part of this decision reads :

“ ORG ... on DATE has decided as follows : the criminal proceedings against the accused PERSON on CARDINAL charges of murder ... inflicting grievous bodily harm ... and causing a risk to life and assets ... instituted on the indictment lodged by the GPE State Attorney ’s Office ... on DATE are to be concluded under sections CARDINAL(CARDINAL ) and ( CARDINAL ) and section CARDINAL(CARDINAL ) of LAW .

The indictment of the Osijek Military State Attorney ’s Office no . Kt-CARDINAL/CARDINAL of DATE charged PERSON with CARDINAL offences of aggravated murder under LAW of LAW ; one offence of aggravated murder under LAW ) of LAW ; CARDINAL criminal offences of causing a risk to life and assets ... under LAW of LAW ; CARDINAL criminal offence of inflicting grievous bodily harm under LAW ; one criminal offence of theft of weapons or other fighting equipment under LAW CARDINAL of LAW ; and CARDINAL criminal offence of aggravated theft under LAW of LAW ...

The above indictment was significantly altered at a hearing held on DATE before ORG , when the Deputy Military Prosecutor withdrew some of the charges and altered the factual and legal description and legal classification of some of the offences .

Thus , the accused PERSON was indicted for CARDINAL offences of murder under LAW , one criminal offence of inflicting grievous bodily harm under LAW and one criminal offence of causing a risk to life and assets ... under LAW ...

After the military courts had been abolished , the case file was forwarded to the GPE State Attorney ’s ORG , which took over the prosecution on the same charges and asked that the proceedings be continued before ORG . The latter forwarded the case file to a CARDINAL - 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 CARDINAL(CARDINAL ) and ( CARDINAL ) and section CARDINAL(CARDINAL ) of LAW have been met and that the accused is not excluded from amnesty .

The above - mentioned LAW provides for a general amnesty in respect of criminal offences committed during the aggression , armed rebellion or armed conflict .... in GPE . The general amnesty concerns criminal offences committed between CARDINAL DATE and DATE .

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 CARDINAL of LAW . It also excludes the perpetrators of other criminal offences under LAW ... which were not committed during the aggression , armed rebellion or armed conflict and which are not connected with the aggression , armed rebellion and armed conflict in GPE .

The accused , PERSON , is indicted for CARDINAL criminal offences committed in PERSON on DATE and CARDINAL criminal offence committed in Čepin on DATE .

The first CARDINAL of these offences concern the most difficult period and the time of the most serious attacks on GPE and LOC immediately after the fall of ORG , and the time of the most severe battles for GPE . 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 FAC of the CARDINALth Brigade of ORG , who was his superior officer at that time .

In the critical period concerning the first CARDINAL criminal offences , the accused was acting in his capacity as a member of ORG ; 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 DATE , when the accused was acting in his capacity as an on - duty member of ORG in Čepin and was dressed in military camouflage uniform and using military weapons . The accused had joined ORG in DATE , after the well - known events and the beginning of the armed rebellion in the village of ORG , close to GPE .

The actions of the accused , in view of the time and place of the events at issue , were closely connected with the aggression , armed rebellion and armed conflict in GPE , and were carried out during the period referred to in the General LAW .

Against this background , this court finds that all the statutory conditions for application of LAW have been met ... ”

On an unspecified date the ORG Attorney lodged a request for the protection of legality ( zahtjev za zaštitu zakonitosti ) with ORG , asking it to establish that section CARDINAL(CARDINAL ) of the General Amnesty Act had been violated .

On DATE ORG , when deciding upon the above request , established that the above decision of ORG of DATE violated section CARDINAL(CARDINAL ) of the General Amnesty Act . The relevant part of that decision reads :

Section CARDINAL(CARDINAL ) of the General Amnesty Act provides for a general amnesty from criminal prosecution and proceedings for the perpetrators of criminal offences committed in connection with the aggression , armed rebellion or armed conflict ... in GPE . Under paragraph CARDINAL of the same section the amnesty concerns criminal offences committed DATE and DATE . ...

For the correct interpretation of these provisions DATE apart from the general condition that the criminal offence in question had to have been committed in the period DATE and DATE ( 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 conflict . 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 LAW in question was enacted . Therefore , the expression ‘ in connection with the aggression , armed rebellion or armed ORG used in LAW , 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 PERSON is charged in counts CARDINAL , CARDINAL and CARDINAL of the indictment , which suggests some connection with the aggression against GPE or armed rebellion and armed conflicts in GPE , relates to the arrival of the victims of these offences PERSON , GPE and the minor ORG . DATE in PERSON , together with their neighbours , after they had all fled the village of NORP on account of the attack by the so - called ‘ Y[ugoslav ] GPE ] ORG . It should be stressed that it is not in dispute that the accused PERSON was a member of ORG . However , these circumstances are not such as to amount to a direct link with the aggression , armed rebellion or armed conflicts in GPE which is required for the General Amnesty Act to apply .

The factual description of the criminal offences under count CARDINAL of the indictment states that the accused committed these acts as a member of ORG 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 DATE and DATE by members of ORG or the enemy units ( save for those specifically listed in section CARDINAL ) of LAW ) ; this was certainly not the intention of the legislature .

Finally , the accused ’s war career , described in detail in the impugned decision , can not 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 conflict in GPE , or that they were committed in connection with them .

On DATE the GPE State Attorney ’s Office indicted the applicant on charges of war crimes against the civilian population . The proceedings were conducted by a CARDINAL - judge panel of ORG , including judge PERSON During the entire proceedings the applicant was represented by a lawyer .

A concluding hearing was held on DATE 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 ORG interrupted the GPE Deputy ORG Attorney ( “ the Deputy ORG 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 orally warned the accused ORG , the latter continued to comment on the closing arguments of the Deputy ORG Attorney . The panel therefore decides , and the president of the panel orders , that the accused ORG be removed from the courtroom until the pronouncement of the judgment .

The applicant was subsequently removed from the courtroom and the Deputy ORG Attorney , the lawyers for the victims , the defence lawyers and CARDINAL of the accused gave their closing arguments .

NORP The pronouncement of the judgment was scheduled for DATE and the hearing was concluded . The applicant was present at the pronouncement of the judgment . He was found guilty as charged and sentenced to CARDINAL years’ imprisonment . The relevant part of the judgment reads as follows :

The accused PERSON ...

and

the accused ORG ...

are guilty [ in that ]

in the period DATE in PERSON and its surroundings , contrary to LAW in Time of War of CARDINAL DATE and LAW and MONEY ) and LAW to LAW of CARDINAL DATE Relative to ORG ) of DATE , while defending that territory from armed attacks by the local rebel NORP population and the so - called ORG in their joint attack on the constitutional legal order and territorial integrity of GPE , PERSON , in his capacity as the commander of ORG in LAW of the CARDINALth brigade of the NORP army , and the accused PERSON , as a member of ORG under the command of PERSON , with the intention of killing NORP civilians [ acted as follows ] ;

the accused PERSON

( a ) on DATE at TIME , recognised PERSON and GPE who were standing ... in front of ORG in GPE and were fleeing their village because of the attacks by ORG , ... fired at them with an automatic gun ... which caused PERSON a gunshot wound to the head ... and neck as a result of which PERSON immediately died , while PERSON was wounded and fell to the ground . The accused then drove away and soon afterwards came back , and , seeing that PERSON was still alive and accompanied by his DATE son ORG . PERSON and ... his wife PERSON , again fired the automatic gun at them , and thus shot PERSON twice in the head ... twice in the arm ... as a result of which GPE soon died while Sl . PERSON was shot in the leg ... which amounted to grievous bodily harm ;

( b ) in the period DATE in PERSON , arrested GPE and GPE . ORG , threatening them with firearms , appropriated their FAC 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 station , and during that time prevented other members of the ORG from helping them ... after which he took them out of PERSON to a forest ... where they were shot with several bullets from firearms ... as a result of which GPE ... and GPE . PERSON died ;

( c ) on DATE at TIME at the coach terminal in PERSON , arrested PERSON and ORG and their relative Lj . PERSON 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 PERSON and ORG [ acting ] together

( d ) on DATE at TIME in PERSON , on seeing PERSON driving his Golf vehicle ... stopped him at the request of PERSON ... ... and drove him to a field ... where ... PERSON ordered ORG to shoot PERSON , [ an order ] which ORG obeyed , shooting PERSON once ... after which PERSON shot him several times with an automatic gun ... as a result of which PERSON ... died and PERSON appropriated his vehicle .

The applicant ’s conviction was upheld by ORG on DATE and his sentence was increased to DATE imprisonment . The relevant part of the judgment by ORG reads as follows :

“ Under LAW ( CARDINAL ) of LAW ( ORG ) a judge is exempted from performing judicial functions if he or she participated in the same case in the adoption of a decision of a lower court or if he participated in adopting the impugned decision .

It is true that judge GPE participated in the proceedings in which the impugned judgment was adopted . He was the president of a panel of ORG which adopted the decision ... of DATE by which the proceedings against the accused PERSON were terminated under LAW ) and CARDINAL ) of LAW ...

Even though both sets of proceedings were instituted against the same accused , it was not the same case . The judge in question participated in CARDINAL different cases before ORG against the same accused . In the case in which the present appeal has been lodged , judge PERSON 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 LAW and LAW ORG 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 DATE shows that the accused PERSON interrupted the [ GPE Deputy ORG 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 LAW ORG . The accused PERSON started to disturb order in the courtroom during the closing arguments of the [ GPE Deputy ] ORG 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 DATE .

Since the trial court complied fully with LAW of the ORG , 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 PERSON 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 ORG under no . K-CARDINAL/CARDINAL against the accused PERSON in respect of , inter alia , CARDINAL criminal offences ... of murder ... committed against GPE , GPE , GPE and GPE . V , as well as the criminal offence ... of creating a risk to life and assets ... These proceedings were terminated by final decision of ORG no . Kv MONEY ( K-CARDINAL/CARDINAL ) of DATE on the basis of ORG ...

Despite the fact that the consequences of the criminal offences which were the subject of the proceedings conducted before ORG under no . K CARDINAL/CARDINAL , namely the deaths of GPE , GPE , GPE and GPE . ORG and the grievous bodily injury of ORG . PERSON , 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 CARDINAL sets of the criminal proceedings at 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 ORG under no . K-CARDINAL/CARDINAL . [ In the present case ] the accused PERSON is charged with violation of the rules of LAW to ORG in Time of War of CARDINAL DATE and of LAW to LAW of DATE Relative to ORG ) of DATE , in that , in the period CARDINAL , while defending that territory from armed attacks by the local rebel NORP population and the so - called ORG in their joint attack on the constitutional legal order and territorial integrity of GPE , 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 LAW .

Since the factual background to the criminal offence at 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 PERSON is significantly wider and different from the previous case ( case - file no . K-CARDINAL/CARDINAL ) , the matter is not res judicata ... ”

A subsequent constitutional complaint by the applicant was dismissed by ORG on DATE . ORG endorsed the views of ORG .

The relevant provisions of LAW ( Zakon o kaznenom postupku – Official Gazette nos . PERCENT , CARDINAL/CARDINAL , CARDINAL , CARDINAL and CARDINAL , ORG and DATE ) provide as follows :

“ ( CARDINAL ) Where the accused ... disturbs order at a hearing or does not comply with the orders of the presiding judge , the latter shall warn the accused ... The panel may order that the accused be removed from the courtroom ...

( CARDINAL ) The panel may order that the accused be removed from the courtroom for a limited time . Where the accused again disturbs the order [ he or she may be removed from the courtroom ] until the end of the presentation of evidence . Before the closure of the presentation of evidence the presiding judge shall summon the accused and inform him about the conduct of the trial . If the accused continues to disturb order and insults the dignity of the court , the panel may again order that he be removed from the courtroom . In that case the trial shall be concluded in the accused ’s absence and the presiding judge or another member of the panel shall inform him or her about the judgment adopted , in the presence of a typist .

“ ( CARDINAL ) A grave breach of criminal procedure shall be found to exist where

a hearing has been held without a person whose presence is obligatory under the law ...

The relevant part of the Act on ORG from Criminal Prosecution and Proceedings in Respect of Criminal Offences Committed during ORG of DATE ( ORG no . CARDINAL , Zakon o oprostu od krivičnog progona i postupka za krivična djela počinjena u oružanim sukobima i u ratu protiv PERSON ) reads as follows :

“ Criminal prosecution of perpetrators of criminal offences [ committed ] during the armed conflicts , the war against GPE or in connection with these conflicts or war , committed DATE when this LAW comes into force , shall be discontinued . In respect of these offences no criminal prosecution or criminal proceedings shall be instituted . Where criminal proceedings have been instituted , a court shall terminate them of its own motion . Where a person concerned by the amnesty ... has been detained , he or she shall be released . ”

“ No amnesty under LAW shall be granted to perpetrators of the criminal offences in respect of which GPE is obliged to prosecute under international law . ”

“ A state attorney may lodge an appeal within TIME from the service of a decision under section CARDINAL ... of this Act , where she or he considers that the decision contravenes section QUANTITY . ”

NORP The relevant part of the amendments to LAW of DATE reads as follows :

“ In section CARDINAL , paragraph CARDINAL of the Act on ORG from Criminal Prosecution and Proceedings in Respect of Criminal Offences Committed during ORG no . CARDINAL ) the words ‘ DATE when this Act comes into force’ are to be replaced by the words ‘ CARDINAL DATE . ”

The relevant part of LAW of DATE ( ORG no . CARDINAL/CARDINAL , PERSON o općem oprostu ) reads as follows :

“ This Act grants general amnesty from criminal prosecution and proceedings to the perpetrators of criminal offences committed during the aggression , armed rebellion or armed conflicts and in connection with the aggression , armed rebellion or armed conflicts in GPE .

No amnesty shall apply to the execution of final judgments in respect of perpetrators of the criminal offences under paragraph CARDINAL of this section .

ORG from criminal prosecution and proceedings shall apply to offences committed DATE and DATE . ”

“ No criminal prosecution or criminal proceedings shall be instituted against the perpetrators of the criminal offences under LAW .

Where a criminal prosecution has already commenced it shall be discontinued and where criminal proceedings have been instituted a court shall issue a decision terminating the proceedings of its own motion .

Where a person granted amnesty under paragraph CARDINAL of this section has been detained , he or she shall be released . ”

“ No amnesty under LAW shall be granted to perpetrators of the gravest breaches of humanitarian law , which have the character of war crimes , namely , the criminal offence of genocide under LAW ( ORG no . CARDINAL/CARDINAL , consolidated text , ORG . CARDINAL , DATE , CARDINAL and ORG ) ; war crimes against the civilian population under LAW ; war crimes against the wounded and sick under LAW ; war crimes against prisoners of war under LAW ; organising groups [ with the purpose of committing ] or aiding and abetting genocide and war crimes under LAW ; unlawful killing and wounding of the enemy under LAW ; unlawful taking of possessions from the dead or wounded on the battleground under LAW ; use of unlawful means of combat under LAW ; offences against negotiators under LAW ; cruel treatment of the wounded , sick and prisoners of war under LAW ; unjustified delay in repatriation of prisoners of war under LAW ; destruction of cultural and historical heritage under LAW ; inciting war of aggression under LAW ; abuse of international symbols under LAW ; racial and other discrimination under LAW ; establishing slavery and transferring slaves under LAW ; international terrorism under LAW ; putting at risk persons under international protection under LAW ; taking hostages under LAW ; and the criminal offence of terrorism under the provisions of international law .

No amnesty shall be granted to perpetrators of other criminal offences under LAW of GPE ( Official Gazette no . CARDINAL/CARDINAL , consolidated text , nos . CARDINAL , DATE , CARDINAL and ORG ) and LAW ( ORG no . CARDINAL/CARDINAL , consolidated text , nos . CARDINAL , ORG and ORG ) which were not committed during the aggression , armed rebellion or armed conflicts and are not connected with the aggression , armed rebellion or armed conflicts in GPE .

“ A state attorney may lodge an appeal against a court decision under LAW where a court has granted amnesty in favour of the perpetrators of criminal offences in respect of which this Act grants amnesty within the legal classification of the criminal offence by a state attorney . ”

The relevant part of common LAW of DATE reads :

“ In the case of armed conflict not of an international character occurring in the territory of CARDINAL of the High Contracting Parties , each ORG to the conflict shall be bound to apply , as a minimum , the following provisions :

( CARDINAL ) Persons taking no active part in the hostilities , including members of armed forces who have laid down their arms and those placed hors de combat by sickness , wounds , detention , or any other cause , shall in all circumstances be treated humanely , without any adverse distinction founded on race , colour , religion or faith , sex , birth or wealth , or any other similar criteria .

To this end , the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above - mentioned persons

( a ) violence to life and person , in particular murder of all kinds , mutilation , cruel treatment and torture ;

( b ) taking of hostages ;

( c ) outrages upon personal dignity , in particular humiliating and degrading treatment ;

( d ) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court , affording all the judicial guarantees which are recognized as indispensable by civilized peoples .

NORP The relevant parts of FAC in the Field . GPE , CARDINAL DATE hereafter “ the LAW ” ) read :

“ The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing , or ordering to be committed , any of the grave breaches of the present Convention defined in the following Article .

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed , or to have ordered to be committed , such grave breaches , and shall bring such persons , regardless of their nationality , before its own courts . It may also , if it prefers , and in accordance with the provisions of its own legislation , hand such persons over for trial to another High Contracting Party concerned , provided such High Contracting ORG has made out a prima facie case .

“ Grave breaches to which the preceding Article relates shall be those involving any of the following acts , if committed against persons or property protected by the Convention : wilful killing , torture or inhuman treatment , including biological experiments , wilfully causing great suffering or serious injury to body or health , and extensive destruction and appropriation of property , not justified by military necessity and carried out unlawfully and wantonly . ”

Articles DATE and CARDINAL of the Convention ( II ) for the Amelioration of the Condition of Wounded , Sick and Shipwrecked Members of ORG , CARDINAL DATE hereafter “ the LAW ” ) contain the same text as Articles DATE of LAW .

Articles CARDINAL and CARDINAL of the Convention ( III ) relative to ORG ( GPE , CARDINAL DATE hereafter “ FAC ” ) contain the same text as ORG DATE and CARDINAL of LAW .

Articles CARDINAL and CARDINAL of the Convention ( IV ) relative to ORG in Time of War ( GPE , CARDINAL DATE – hereafter “ the LAW ” ) contain the same text as Articles DATE of LAW .

The relevant part of LAW ( II ) to LAW , relating to ORG , DATE ) reads :

“ CARDINAL . All persons who do not take a direct part or who have ceased to take part in hostilities , whether or not their liberty has been restricted , are entitled to respect for their person , honour and convictions and religious practices . They shall in all circumstances be treated humanely , without any adverse distinction . It is prohibited to order that there shall be no survivors .

Without prejudice to the generality of the foregoing , the following acts against the persons referred to in paragraph I are and shall remain prohibited at any time and in any place whatsoever :

( a ) violence to the life , health and physical or mental well - being of persons , in particular murder as well as cruel treatment such as torture , mutilation or any form of corporal punishment ; ... ”

“ CARDINAL . The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations . To give effect to this protection , the following rules shall be observed in all circumstances .

The civilian population as such , as well as individual civilians , shall not be the object of attack . Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited .

NORP shall enjoy the protection afforded by this part , unless and for such time as they take a direct part in hostilities . ”

Mandated by the GPE convened at the CARDINALth International Conference of the Red Cross and Red Crescent , ORG ( ORG ) presented in DATE a Study on LAW ( J .- M. Henckaerts and PERSON ( eds . ) , LAW , GPE , ORG , DATE ) . The Study contains a list of customary rules of international humanitarian law . Rule CARDINAL which refers to non - international armed conflicts reads :

“ At the end of hostilities , the authorities in power must endeavour to grant the broadest possible amnesty to persons who have participated in a non - international armed conflict , or those deprived of their liberty for reasons related to the armed conflict , with the exception of persons suspected of , accused of or sentenced for war crimes . ”

“ ORG :

Urges the Government of GPE to eliminate ambiguities in implementation of LAW , and to implement it fairly and objectively in accordance with international standards , in particular by concluding all investigations of crimes covered by the amnesty and undertaking an immediate and comprehensive review with ORG and local NORP participation of all charges outstanding against individuals for serious violations of international humanitarian law which are not covered by the amnesty in order to end proceedings against all individuals against whom there is insufficient evidence ;

The relevant text of the ORG on human rights in the world and ORG human rights policy for DATE reads :

“ ORG

Believes that the problem of impunity ... can take the form of amnesty , immunity , extraordinary jurisdiction and constrains democracy by effectively condoning human rights infringements and distressing victims ;

Affirms that there should be no question of impunity for those responsible for war crimes in the former GPE ... ”

ORG noted in DATE in its General Comment No . CARDINAL on LAW that some States had granted amnesty in respect of acts of torture . It went on to state that “ [ a]mnesties are generally incompatible with the duty of GPE to investigate such acts ; to guarantee freedom from such acts within their jurisdiction ; and to ensure that they do not occur in the future . States may not deprive individuals of the right to an effective remedy , including compensation and such full rehabilitation as may be possible ” .

“ CARDINAL . Where the investigations referred to in paragraph CARDINAL reveal violations of certain LAW Parties must ensure that those responsible are brought to justice . As with failure to investigate , failure to bring to justice perpetrators of such violations could in and of itself give rise to a separate breach of the LAW . These obligations arise notably in respect of those violations recognized as criminal under either domestic or international law , such as torture and similar cruel , inhuman and degrading treatment ( article CARDINAL ) , summary and arbitrary killing ( article CARDINAL ) and enforced disappearance ( articles CARDINAL and CARDINAL and , frequently , CARDINAL ) . Indeed , the problem of impunity for these violations , a matter of sustained concern by ORG , may well be an important contributing element in the recurrence of the violations . When committed as part of a widespread or systematic attack on a civilian population , these violations of the LAW are crimes against humanity ( see Rome Statute of ORG , article CARDINAL ) .

Accordingly , where public officials or ORG agents have committed violations of the LAW rights referred to in this paragraph , the GPE Parties concerned may not relieve perpetrators from personal responsibility , as has occurred with certain amnesties ( see General Comment DATE ) ) and prior legal immunities and indemnities . Furthermore , no official status justifies persons who may be accused of responsibility for such violations being held immune from legal responsibility ;

“ ORG :

Also emphasizes the importance of taking all necessary and possible steps to hold accountable perpetrators , including their accomplices , of violations of international human rights and humanitarian law , recognizes that amnesties should not be granted to those who commit violations of international humanitarian and human rights law that constitute serious crimes and urges GPE to take action in accordance with their obligations under international law ;

“ ORG :

Also recognizes that amnesties should not be granted to those who commit violations of human rights and international humanitarian law that constitute crimes , urges GPE to take action in accordance with their obligations under international law and welcomes the lifting , waiving , or nullification of amnesties and other immunities .

“ ORG :

Also recognizes that amnesties should not be granted to those who commit violations of human rights and international humanitarian law that constitute crimes , urges GPE to take action in accordance with their obligations under international law and welcomes the lifting , waiving , or nullification of amnesties and other immunities , and recognizes as well the Secretary - General ’s conclusion that ORG - endorsed peace agreements can never promise amnesties for genocide , crimes against humanity , war crimes , or gross violations of human rights .

In DATE , in the conclusions and recommendations of his fifth report on the question of the human rights of all persons subjected to any form of detention or imprisonment , in particular , torture and other cruel , inhuman or degrading treatment or punishment , the Special Rapporteur of ORG Human Rights stated with respect to LAW for an ORG :

The relevant part of the PERSON case ( judgment of DATE ) reads :

“ CARDINAL . The fact that torture is prohibited by a peremptory norm of international law has other effects at the inter - state and individual levels . At the inter - state level , it serves to internationally de - legitimise any legislative , administrative or judicial act authorising torture . It would be senseless to argue , on the one hand , that on account of the jus cogens value of the prohibition against torture , treaties or customary rules providing for torture would be null and void ab initio , and then be unmindful of a ORG say , taking national measures authorising or condoning torture or absolving its perpetrators through an amnesty law . If such a situation were to arise , the national measures , violating the general principle and any relevant treaty provision , would produce the legal effects discussed above and in addition would not be accorded international legal recognition . Proceedings could be initiated by potential victims if they had locus standi before a competent international or national judicial body with a view to asking it to hold the national measure to be internationally unlawful ; or the victim could bring a civil suit for damage in a foreign court , which would therefore be asked inter alia to disregard the legal value of the national authorising act . What is even more important is that perpetrators of torture acting upon or benefiting from those national measures may nevertheless be held criminally responsible for torture , whether in a foreign ORG , or in their own ORG under a subsequent regime . In short , in spite of possible national authorisation by legislative or judicial bodies to violate the principle banning torture , individuals remain bound to comply with that principle . As ORG at GPE put it : “ individuals have international duties which transcend the national obligations of obedience imposed by the individual ORG . ”

In DATE , in a report on a case with respect to the GPE massacres in GPE in DATE during which CARDINAL persons were allegedly killed by members of the NORP armed forces with the participation of members of ORG , and which had led to a petition before ORG , the latter held that :

“ ... the application of [ GPE DATE Law on ORG to Achieve National Reconciliation ] constitutes a clear violation of the obligation of ORG to investigate and punish the violations of the rights of the GPE victims , and to provide compensation for damages resulting from the violations ... The present amnesty law , as applied in these cases , by foreclosing the possibility of judicial relief in cases of murder , inhumane treatment and absence of judicial guarantees , denies the fundamental nature of the most basic human rights . It eliminates perhaps the single most effective means of enforcing such rights , the trial and punishment of offenders . ”

In DATE , in a report on the situation of human rights in GPE , ORG stated , with regard to GPE General Amnesty Law for Consolidation of Peace , as follows :

“ ... regardless of any necessity that the peace negotiations might pose and irrespective of purely political considerations , the very sweeping General PERSON [ for ORG ] passed by GPE ORG constitutes a violation of the international obligations it undertook when it ratified LAW , because it makes possible a ‘ reciprocal GPE without first acknowledging responsibility ... because it applies to crimes against humanity , and because it eliminates any possibility of obtaining adequate pecuniary compensation , primarily for victims . ”

In DATE , in a report of a case concerning GPE DATE General Amnesty Law for Consolidation of Peace , ORG on Human Rights stated :

“ CARDINAL . The Commission should emphasize that [ this law ] was applied to serious human rights violations in GPE DATE , and DATE , including those examined and established by ORG . In particular , its effect was extended , among other things , to crimes such as summary executions , torture , and the forced disappearance of persons . Some of these crimes are considered of such gravity as to have justified the adoption of special conventions on the subject and the inclusion of specific measures for preventing impunity in their regard , including universal jurisdiction and inapplicability of the statute of limitations ...

ORG also notes that LAW [ this law ] was apparently applied to all violations of common LAW [ of the DATE LAW ] and of [ the DATE LAW ] , committed by agents of the ORG during the armed conflict which took place in GPE .

... in approving and enforcing the General Amnesty Law , the NORP State violated the right to judicial guarantees enshrined in DATE ) of the [ DATE ORG ] , to the detriment of the surviving victims of torture and of the relatives of ... who were prevented from obtaining redress in the civil courts ; all of this in relation to LAW ...

... in promulgating and enforcing the Amnesty Law , GPE has violated the right to judicial protection enshrined in LAW DATE ORG ] , to the detriment of the surviving victims ... ”

In its conclusions , ORG on Human Rights stated that GPE “ has also violated , with respect to the same persons , common LAW of DATE and LAW ] ” . Moreover , in order to safeguard the rights of the victims , it recommended that GPE should , “ if need be , ... annul that law ex - tunc ” .

In its judgment in the GPE case in DATE involving the question of the legality of NORP amnesty laws , ORG stated :

“ CARDINAL . ORG considers that all amnesty provisions , provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible , because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture , extrajudicial , summary or arbitrary execution and forced disappearance , all of them prohibited because they violate non - derogable rights recognized by international human rights law .

ORG , in accordance with the arguments put forward by ORG and not contested by the ORG , considers that the amnesty laws adopted by GPE prevented the GPE next of kin and the surviving victims in this case from being heard by a judge ... they violated the right to judicial protection ... they prevented the investigation , capture , prosecution and conviction of those responsible for the events that occurred in GPE , thus failing to comply with LAW DATE ORG ] , and they obstructed clarification of the facts of this case . Finally , the adoption of self - amnesty laws that are incompatible with the [ DATE ORG ] meant that GPE failed to comply with the obligation to adapt internal legislation that is embodied in LAW [ DATE ORG ] .

The ORG considers that it should be emphasized that , in the light of the general obligations established in ORG ) and CARDINAL of the [ DATE ORG ] , GPE Parties are obliged to take all measures to ensure that no one is deprived of judicial protection and the exercise of the right to a simple and effective recourse , in the terms of LAW of the [ DATE ORG ] . Consequently , GPE Parties to the [ DATE ORG ] which adopt laws that have the opposite effect , such as self - amnesty laws , violate Articles CARDINAL and DATE , in relation to ORG ) and CARDINAL of the [ DATE ORG ] . Self - amnesty laws lead to the defenselessness of victims and perpetuate impunity ; therefore , they are manifestly incompatible with the aims and spirit of the Convention . This type of law precludes the identification of the individuals who are responsible for human rights violations , because it obstructs the investigation and access to justice and prevents the victims and their next of kin from knowing the truth and receiving the corresponding reparation .

Owing to the manifest incompatibility of self - amnesty laws and LAW , the said laws lack legal effect and may not continue to obstruct the investigation of the grounds on which this case is based or the identification and punishment of those responsible , nor can they have the same or a similar impact with regard to other cases that have occurred in GPE , where the rights established in the [ DATE ORG ] have been violated . ”

In his concurring opinion , Judge PERSON added :

“ CARDINAL . The international responsibility of the ORG for violations of internationally recognized human rights , – including violations which have taken place by means of the adoption and application of laws of self - amnesty , DATE and the individual penal responsibility of agents perpetrators of grave violations of human rights and of International Humanitarian Law , are CARDINAL faces of the same coin , in the fight against atrocities , impunity , and injustice . It was necessary to wait DATE to come to this conclusion , which , if it is possible DATE , is also due , DATE may I insist on a point which is very dear to me , – to the awakening of the universal juridical conscience , as the material source par excellence of GPE itself . ”


Violation of Art. 5-1;Violation of Art. 5-4

The second applicant is the first applicant 's uncle .

The second applicant , who then had a criminal record of CARDINAL previous convictions , was arrested on DATE and questioned in the context of criminal proceedings for theft . He was released on DATE .

The first applicant , then having a criminal record of CARDINAL convictions , was arrested on DATE and questioned in the context of another set of criminal proceedings for theft . He was released on DATE .

On DATE the second applicant was arrested in the context of criminal proceedings for murder of ORG , a third person . On DATE ORG ordered his detention on remand for DATE on the ground that he might abscond from the investigation and commit fresh crimes .

On DATE the second applicant was charged with murder .

On DATE the first applicant was arrested in the context of criminal proceedings for attempted robbery .

On DATE ORG ordered the first applicant 's detention on remand for DATE because of the danger of his absconding , committing fresh crimes and obstructing the investigation .

On DATE the second applicant was also questioned in the attempted robbery case .

On DATE a prosecutor charged the first applicant with attempted robbery .

On DATE ORG ordered compulsory psychiatric examination of the second applicant .

On DATE ORG rejected the first applicant 's appeal against the detention order .

On DATE the CARDINAL criminal cases for murder and attempted robbery were joined .

On DATE ORG extended the term of the second applicant 's remand in custody until DATE on the same grounds .

On DATE ORG extended the first applicant 's remand in custody until DATE on the same grounds .

On DATE CARDINAL more criminal cases , concerning unlawful possession of firearms and robbery , were joined to the criminal proceedings against the applicants .

On DATE ORG extended the term of the second applicant 's detention until DATE on the ground that he may abscond from the investigation , commit fresh crimes and influence witnesses .

On DATE the court prolonged the first applicant 's remand in custody for DATE on the same grounds .

On DATE ORG extended the term of both applicants ' detention on remand until DATE because of the danger of their absconding and influencing the investigation .

On DATE , DATE and DATE a number of new alleged episodes from other criminal cases , namely in relation to damaging property of another , assault , unlawful possession of weapons , causing bodily harm , aggravated murder , attempted robbery and theft were joined in the criminal proceedings against the applicants .

On DATE the investigation was concluded , and the applicants and their defense counsel had access to the case - file .

On DATE a prosecutor rejected the applicants ' request to discontinue the proceedings .

On DATE the bill of indictment was confirmed , and the case was sent to ORG .

On DATE ORG committed the applicants for trial . It further stated in the decision that their remand measures should remain unchanged pending the adoption of a judgment in the case .

On DATE ORG returned the case to the prosecutors for further investigative measures to be carried out . Thereafter the courts extended the term applicant 's detention on various occasions .

A new bill of indictment was confirmed on DATE .

On DATE the case was transmitted to ORG .

On DATE the court returned the case for further investigation to be carried out in view of the prosecutors ' request to bring a fresh charge against the first applicant . Subsequently , the charges against the applicants were again reformulated .

On DATE a new bill of indictment was confirmed , and the case was sent to ORG .

On DATE the applicants were convicted : a ) the first applicant on CARDINAL count of attempted robbery ; b ) the second applicant on CARDINAL counts of murder , attempted robbery , causing bodily harm , and unlawful possession of CARDINAL types of weapons .

On DATE ORG amended the first applicant 's conviction , but his sentence of imprisonment remained unchanged . ORG also reclassified the second applicant 's actions to aggravated murder , sentencing him to DATE imprisonment .

On DATE ORG quashed the decision of ORG insofar as it concerned the second applicant 's conviction for aggravated murder , reinstating his sentence of DATE and DATE imprisonment as it had been imposed by the first instance court .

On an unspecified date the second applicant completed the sentence , and was released from prison .

The provisions of LAW ( ORG proceso kodeksas ) applicable at the material time ( repealed by entry into force of LAW DATE ) :

Article ORG ( in force from DATE ) reads :

“ Detention on remand shall be used only ... in cases where a statutory penalty of DATE imprisonment is envisaged .

The grounds for detention on remand shall be the reasoned suspicion that the accused will :

( CARDINAL ) abscond from the investigation and trial ;

( CARDINAL ) obstruct the determination of the truth in the case [ influence other parties or destroy evidence ] ;

( CARDINAL ) commit new offences ... whilst suspected of having committed crimes provided in ORG ... [ CARDINAL ] [ cheating , ] CARDINAL [ embezzlement ] of LAW ... ”

Article CARDINAL - CARDINAL ( in force from DATE to DATE ) reads :

“ ... [ T]he arrested person shall be brought before a judge within not more than CARDINAL hours ... The judge must hear the person as to the grounds of the arrest . The prosecutor and counsel for the arrested person may take part in the inquiry . After having questioned the arrested person , the judge may maintain the arrest order by designating the term of detention , or may vary or revoke the remand measure . ...

After the case has been transmitted to the court ... [ it ] can order , vary or revoke the detention on remand . ”

Pursuant to the amended LAW in force from DATE until DATE ) , the prosecutor and defence counsel must take part in the first judicial inquiry of the arrested person , unless the judge decides otherwise . The amended provision also permits the court to extend the detention on remand before its expiry .

Article CARDINAL § CARDINAL ( in force from DATE to DATE ) reads :

“ For the purpose of extending the term of detention on remand [ at the stage of pre - trail investigation a judge ] must convene a hearing to which defence counsel and the prosecutor and , if necessary , the detained person shall be called . ”

The LAW in force since DATE makes obligatory the attendance of the detainee at the remand hearings .

“ An arrested person or his counsel shall have the right during the pre - trial investigation to lodge [ with an appellate court ] an appeal against the detention on remand ... . With a view to examining the appeal , there may be convened a hearing , to which the arrested person and his counsel or only counsel shall be called . The presence of a prosecutor is obligatory at such a hearing .

The decision taken by [ the appellate judge ] is final and can not be the subject of a cassation appeal .

A further appeal shall be determined when examining the extension of the term of the detention on remand . ”

Pursuant to the amended LAW in force from DATE to CARDINAL DATE ) , an appeal may be submitted to a higher court , which would hold a hearing against a decision ordering or extending the term of detention both at the stage of pre - trial investigation and trial , in the presence of the detainee and his counsel , or only his counsel .

Article CARDINAL § CARDINAL ( in force until DATE ) reads :

“ The period when the accused and his counsel have access to the case - file is not counted towards the overall term of pre - trial investigation and detention . Where there are several accused persons , the period during which all the accused and their counsel have access to the case - file is not counted towards the overall term of pre - trial investigation and detention . ”

Since DATE this period is no longer relevant for remand decisions .

“ Decisions of courts ... ordering , varying or revoking a remand measure ... can not be the subject of appeal ... ”

Pursuant to the general provision of LAW , a first instance decision was not effective pending the time - limit for an appeal against that decision or during the appeal proceedings . Only those decisions against which no appeal was possible , including remand decisions under the former LAW , became effective and were executed on DATE when they were taken . Pursuant to the amended LAW ( version in force from LAW DATE until DATE ) , all decisions of detention on remand become effective and are executed on the date when they are taken , regardless of the fact that an appeal is possible against any such decision under the amended LAW as in force from DATE to CARDINAL DATE , see above ) .

Other relevant provisions of LAW which was in force until DATE :

LAW ( CARDINAL ) and ( CARDINAL) and LAW ( CARDINAL) and ( CARDINAL ) provide , respectively , that the accused and their counsel have the right to “ submit requests ” and to “ appeal against acts and decisions of an interrogator , investigator , prosecutor and court . ”

Article CARDINAL § CARDINAL reads :

“ A judge individually or a court in a directions hearing , in deciding whether to commit the accused for trial , shall determine ...

( CARDINAL ) whether the remand measure has been selected appropriately . ”

LAW reads :

“ After having decided , that there is a sufficient basis to commit the accused for trial , a judge individually or a court in a directions hearing shall determine the questions ...

( CARDINAL ) of the remand measure in respect of the accused ... . ”

Article CARDINAL § CARDINAL reads :

“ The defendant has the right to ... CARDINAL ) submit requests ; ...

( CARDINAL ) appeal against the judgment and decisions of a court . ”

Article CARDINAL reads :

“ In the course of the trial , a court may decide to order , vary or revoke a remand measure in respect of the defendant . ”


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award

The applicant was born in DATE and lives in GPE .

The applicant had been an employee of the embassy of GPE in GPE since DATE . From DATE onwards she had a contract of indefinite duration and worked as a photographer at the embassy . Following an accident in DATE the competent authority issued a decision stating that she qualified for protection under GPE ( Invalideneinstellungsgesetz ) . Following a further accident , classified as work - related , the embassy dismissed her in DATE .

Her dismissal was declared void by ORG ( Arbeits- und ORG ) on the ground that it required the prior agreement of the competent authority under ORG . The court dismissed the argument submitted by GPE that it lacked jurisdiction on account of the United States’ immunity . It found that , while foreign GPE enjoyed immunity with regard to acta iure imperii , they came within the jurisdiction of the domestic courts with regard to acta iure gestionis . The conclusion and performance of an employment contract fell within the latter category . ORG ( Oberster Gerichthof ) upheld that judgment on DATE , noting that GPE had not maintained the objection of ORG immunity in the further course of the proceedings .

As a result of the above proceedings , the applicant continued to have a valid employment contract with GPE embassy in GPE . However , the latter refused to make use of her services . Instead , on DATE , they applied to ORG requesting retroactive approval of the applicant ’s dismissal or , alternatively , agreement to a future dismissal . ORG refused to grant retroactive approval for the applicant ’s dismissal of DATE but gave its approval for a future dismissal . The competent ORG upheld that decision . On DATE ORG , ruling on a complaint by the applicant , set aside the decision to grant approval for the applicant ’s future dismissal , finding that the authorities had failed to establish relevant facts and had not duly weighed the parties’ interests . The case was referred back to the ORG . On DATE GPE withdrew its application , stating that it had always maintained that the application of ORG to employees of the embassy interfered with the country ’s sovereignty .

Meanwhile , the applicant brought proceedings against GPE requesting payment of her salary . In a first set of proceedings , concerning salary payments up to DATE , GPE unsuccessfully raised an objection of jurisdictional immunity . Subsequently , GPE paid the applicant salary arrears of CARDINAL NORP schillings ( CARDINAL ( ORG ) ) . On the occasion of the payment , the lawyer who had represented GPE in the proceedings informed the applicant by a letter dated DATE that the payment did not imply any acceptance of the NORP courts’ judgments and that GPE considered her employment contract to be terminated and would , if she raised any further claims , “ make use of its diplomatic rights and immunities ” .

Further proceedings relating to the payment of salary from DATE to DATE led to a final default judgment by ORG . However , GPE did not pay the amount awarded to the applicant .

The applicant also unsuccessfully brought proceedings against GPE claiming reimbursement of the social security contributions which she had been ordered to pay by the NORP authorities and a part of which the employer was , under her employment contract , obliged to refund . In those proceedings GPE authorities refused to serve the summons to attend the hearing . The NORP courts dismissed the applicant ’s request for a judgment in default . Their position was upheld by ORG judgment of DATE ( see below , paragraph CARDINAL ) .

On DATE the applicant brought an action against GPE before ORG , claiming salary payments from DATE . The court scheduled a first hearing for DATE .

An attempt to serve the applicant ’s action and the summons to the hearing on GPE through ORG , under section CARDINAL(CARDINAL ) of LAW ) , failed . According to the file a staff member of the NORP embassy in GPE handed these documents over to a staff member of ORG . However , by letter of DATE ORG informed ORG , which in turn informed ORG , that GPE authorities had refused to serve the summons and had returned the documents at issue to the NORP embassy in GPE . The letter was accompanied by a note from ORG informing ORG that GPE wished to assert its immunity in any case brought by the applicant . In a letter of CARDINAL DATE ORG also informed the applicant accordingly .

On DATE ORG dismissed the applicant ’s request for a judgment in default , noting that it had been impossible to summon the defendant . An appeal by the applicant to ORG ( Oberlandesgericht ) was unsuccessful .

ORG dismissed her appeal on points of law on DATE . Referring to its judgment of DATE in a parallel case brought by the applicant ( see paragraph CARDINAL below ) , it noted that the summons had not been duly served on the defendant , namely ORG . Consequently , the conditions for giving a judgment in default were not fulfilled .

By a decision of DATE ORG held that the applicant ’s action and the summons to the hearing had not been served on account of the manifest refusal of GPE to comply with the request for service . It followed that further attempts to summon the defendant did not have any prospects of success .

Subsequently , the applicant requested that the summons be served by means of publication under LAW ( Zivilprozeßordnung ) or , alternatively , that it be served on a court - appointed representative ( Curator ) LAW CARDINAL of the Code .

By decision of DATE ORG appointed a lawyer , PERSON , to represent GPE . It noted that the foreign authorities had refused to serve the summonses in any of the proceedings brought by the applicant . In the court ’s view GPE had wrongly relied on its alleged immunity .

On DATE ORG , following an appeal by Dr. PERSON , quashed that decision . The relevant part of its decision reads as follows :

“ In acting on a request for service , the ORG to which the request is made is exercising sovereign powers . This applies even if the court documents in question are addressed to that ORG and the authority responsible for acting on the request for assistance ( in this instance ORG ) refuses to forward them to the authority empowered to represent the ORG in private - law proceedings ( in this instance ORG ) . This is not a case of refusal to accept service ( § CARDINAL of LAW ) but rather a case of refusal to comply with a request for legal assistance . Such refusal is a sovereign right of the foreign State , against which a remedy can be sought only through diplomatic channels ...

ORG endorsed this legal stance ( CARDINAL CARDINAL/CARDINAL t ) , stressing that , as international law currently stands , compliance or refusal to comply with a request for legal assistance is to be regarded as a sovereign act , irrespective of the subject - matter of the claim . The nature of the act is the defining factor . It is beyond doubt that the service of documents in court proceedings falls within the scope of so - called acta iure imperii and not acta iure gesionis , as a private individual can not perform an act of this nature . Although negotiations have been in progress for some time on an international agreement concerning service of process on foreign States ( which might make it sufficient for the action to be served on the country ’s foreign ministry ) , no such agreement has to date been concluded , with the result that the issue remains unregulated by any treaty between GPE and GPE .

In a commentary on this decision , which had been published in DATE , DATE , Hintersteininger observed , inter alia , that , while the restrictive theory of service of process applied by ORG might be appropriate for the purposes of avoiding disagreements between GPE , it was not a requirement under international law . The author concluded that section CARDINAL of the Service Act – at least as currently applied to judicial proceedings instituted in GPE against foreign States – amounted to a “ self - imposed shackle ” as a result of which the standard of protection of ORG legal interests was subordinated to international - law considerations . Unless and until the NORP courts saw fit to apply a different interpretation of the provision in question – the fact that ORG , in its DATE ruling , continued to apply its case - law from DATE indicated that this was unlikely DATE there was an urgent need for the legislature to enact amending legislation in order to provide a practical solution to the problem of service of process .

Referring to ORG international - law argument , the appellant raises the possibility of transmitting the action and an explanation of the legal circumstances , together with a translation into the country ’s official language , to ORG through diplomatic channels . In this case the defendant ORG would have no justification for returning the copy of the action at will ; in the event of a refusal to accept service , it should be deemed to have received the request . This would make effective service possible and would remove the need to appoint a representative .

The objection to this line of argument is that such a procedure – which from a general international - law perspective is possible – is incompatible with the applicable legal provisions in GPE . As clarified in CARDINAL ObA CARDINAL/CARDINAL t , the action has to be served on a competent body within ORG , which is the authority representing GPE in the present employment - related proceedings . It is not sufficient for the document to have somehow reached another authority which appears to be responsible for forwarding the request for service . Accordingly , it is incorrect to speak of a refusal to accept service if the document was never transmitted to the competent authority . In this connection ORG stressed that , conversely , it would not be sufficient , in order to institute legal proceedings , for an action against GPE to be received by ORG if , for whatever reason , it was not forwarded to the Attorney - ORG as the competent authority representing the ORG in such matters . The first - instance court already acknowledged that a further request for service would have little prospect of success in view of the earlier comments of the GPE authorities .

Nevertheless , the ( definitive ) refusal of ORG to forward court documents concerning the appellant to ORG does not justify the appointment of a representative for the defendant in accordance with LAW . As the appellate court explained in detail in its decision CARDINAL Ra CARDINAL/CARDINAL t , cited above , service of process on a foreign ORG is ( also ) based on section CARDINAL(CARDINAL ) of the Service Act . Hence , for the purpose of performing it , recourse is to be had in any event to ORG . On the basis of this provision , which takes precedence , service via any means other than the diplomatic channels to which it refers – for instance , on a court - appointed representative DATE is ruled out . In view of the principle whereby a remedy against a refusal to comply with a request for legal assistance , which flows from the sovereign power of the foreign State , can be sought only through diplomatic channels ( see FAC , PERSON CARDINAL/CARDINAL ; for a critical perspective , see ORG , PERSON zivilrechtlicher FAC ausländische ORG , ORG DATE , CARDINAL et seq . [ DATE ] ) , the impugned decision lacks any legal basis . ”

On DATE ORG dismissed an appeal on points of law by the applicant . It started by referring to its decision of DATE ( see paragraph CARDINAL below ) in a previous case brought by the applicant against GPE . It followed from that decision that the action brought by the applicant had to be served through diplomatic channels . It held that LAW , although it concerned the service of summonses abroad , was not applicable in a case like the present one in which the person or legal entity to be summoned relied on their immunity . The applicant ’s interpretation of the provision in question would undermine the concept of immunity .

Only section CARDINAL(CARDINAL ) of LAW was applicable . The applicant did not contest the fact that foreign GPE came within the scope of that provision as they enjoyed “ privileges and immunities ” under international law . In that context ORG went on to state as follows :

“ No agreement exists between GPE and the defendant concerning service of process from the perspective of ORG immunity from jurisdiction . In the absence of such agreement the generally recognised rules of international law ( LAW ) , together with section IX of the Introductory Act to LAW ( ORG ) and the principles developed in this connection by the case - law and by legal commentators , must apply . On that basis it is unanimously agreed that foreign GPE enjoy immunity in the exercise of their sovereign powers and are to that extent exempt from the jurisdiction of the domestic courts ( see , among other authorities , ORG CARDINAL/CARDINAL ; PERSON , JBl DATE , CARDINAL ; JBl DATE , CARDINAL ; Heß , JBl DATE , CARDINAL ; ORG , CARDINAL [ ORG ] ; ORG , ORG DATE , CARDINAL ; ORG , GPE DATE , CARDINAL ; DRdA CARDINAL [ GPE ] ; PERSON , ORG des Völkerrechts Bd CARDINAL para . CARDINAL , CARDINAL ; ORG , PERSON paras . CARDINAL et seq . ; PERSON , loc . cit , PERSON para . CARDINAL , CARDINAL et seq . , CARDINAL et seq . ; PERSON in GPE , ZPO² PERSON para . CARDINAL et seq . ) . The service of process abroad , as a sovereign act , amounts – in the absence of an agreement between the GPE concerned governing the relevant procedure – to interference with the sovereign rights of the foreign ORG in question . For that reason it is a requirement in such cases to have recourse to ORG , which maintains close contact with the milieu concerned and is competent to take account of the relevant international - law considerations ( ORG BlgNR XV.GP CARDINAL ) , as the appellant correctly points out . However , contrary to her assertion , exclusive recourse to ORG is not merely recommended , but is required by statute ( the mandatory “ shall ” in section PERSON ) of LAW and section CARDINAL ) of the Service Act ) . The service of documents by any other means would be in breach of the law ( ORG , op . cit . , LAW , footnote CARDINAL ) .

Although PERSON , in her commentary on CARDINAL ObA CARDINAL/CARDINAL t ( JBl DATE , CARDINAL ) concludes that the “ restrictive theory of service of process ” is appropriate for the purpose of avoiding international disagreements , she nevertheless calls on the legislature to amend LAW , as she sees evidence of a “ self - imposed shackling ” at least in the way in which that provision is applied . The legislature has not taken any action to date . It should further be observed that the strict approach to diplomatic immunity can be traced back to LAW , according to which the violation of immunity renders the proceedings in question null and void , in a manner which can not be remedied even by the parties ( except by a waiver of immunity ) ( § QUANTITY ; GPE , op . cit . , § PERSON para . CARDINAL , CARDINAL et seq . ; PERSON , op . cit . , § CARDINAL JN para . CARDINAL , CARDINAL ) .

Contrary to the appellant ’s assertion , her request for the action to be served on the defendant by publication or by the appointment of a representative does not fall in the present case within the “ classic scenario ” under LAW , but is governed by the exception thereto and undermines the defendant ’s claim to diplomatic immunity . Accordingly it is not possible , precisely in this case , to proceed on the basis of that provision . On the contrary – in so far as the proceedings against the defendant in GPE are concerned – exclusive recourse must be had to diplomatic channels , as reasoned by ORG in case CARDINAL ObA CARDINAL/CARDINAL t . ”

ORG decision was served on the applicant ’s counsel on DATE .

In DATE the applicant reached pensionable age . She gave the GPE embassy in GPE notice of her intention to terminate her employment contract and applied to the competent ORG for an old - age pension from DATE .

Subsequently , the applicant extended her claim in the above - mentioned proceedings to salary payments from DATE to DATE . She requested again that the defendant be summoned to a hearing . In that context she referred to ORG and their Property ( see paragraphs CARDINAL below ) , and argued that , according to LAW , transmission of the documents to ORG through diplomatic channels would be sufficient to effect service . The summons was handed over to a staff member of ORG but was again returned to the NORP embassy in GPE with the remark that GPE wished to assert its immunity in any case brought by the applicant .

On DATE ORG upheld the first - instance court ’s decision refusing to give a default judgment . Referring to ORG case - law , it held that the refusal to serve a summons was an act of sovereign power . It noted , inter alia , that the LAW relied on by the applicant did not apply to proceedings which had been initiated before its entry into force and added that there were no rules of customary international law to indicate that GPE could not rely on immunity in the context of the service of a summons . No further appeal on points of law lay against this decision .

Section CARDINAL of the Service Act ( Zustellgesetz ) deals with the service of official documents abroad and the service of official documents on foreign nationals and foreign GPE or international organisations enjoying privileges and immunities under international law . It provides as follows :

“ CARDINAL . Service of process abroad shall be effected in accordance with existing international agreements or as provided for by the laws or other legal provisions of the ORG in which service is to be effected or by international custom , if necessary with the cooperation of the NORP diplomatic authorities .

Service of process on foreign nationals or international organisations which enjoy international privileges and immunities shall be effected through the intermediary of ORG , irrespective of where their place of residence or headquarters is located . ”

The relevant provisions of LAW ( Zivilprozeßordnung ) read as follows :

“ In the case of persons on whom process can only be served by publication because their address is unknown , the court shall appoint a representative ( Article CARDINAL ) , on application or of its own motion , if the persons concerned would have to perform a step in the proceedings as a result of being served with the documents , and in particular if the documents to be served contain a summons . ”

“ CARDINAL . In the case of service on persons outside the country who do not fall into the categories of recipients referred to in CARDINAL ) and ( CARDINAL ) of LAW , LAW , in agreement with ORG , may order service to be effected by post , using the system of advice of receipt customarily used for international postal deliveries , to countries in which service in accordance with section CARDINAL(CARDINAL ) of LAW is not possible or gives rise to difficulties .

If no confirmation is received within a reasonable time that process has been served on an individual outside the country , the applicant party may request , depending on the circumstances , that service be effected by publication ( section CARDINAL of LAW ) or by the appointment of a representative under LAW . This shall also apply in cases where an unsuccessful attempt has been made to serve process abroad or where the request for service has no prospect of success owing to a manifest refusal by the authorities of the foreign State to comply with the request for legal assistance . ”

In a judgment of DATE ( CARDINAL CARDINAL/CARDINAL ) in a related case concerning claims for reimbursement of social security contributions brought by the applicant against GPE ( see paragraph CARDINAL above ) , ORG held as follows :

“ The appellate court was correct in taking the view that , as international law currently stands , the decision to comply with or refuse a request for legal assistance is a sovereign act , irrespective of the subject - matter of the request . The nature of the act is the defining factor . It is beyond doubt that the service of documents in court proceedings falls within the scope of acta iure imperii and not acta iure gesionis , as a private individual can not perform an act of this nature ( PERSON , FAC et seq . , esp . paras . CARDINAL ; PERSON , ORG , para . CARDINAL ) .

The criticism of the current legal situation raised by the appellant , relying on ORG ( ORG DATE , CARDINAL et seq . [ esp . CARDINAL et seq . ] , does not alter the fact that , although negotiations have been in progress for some time on an international agreement concerning service of process on foreign GPE ( which might make it sufficient for the action to be served on the country ’s foreign ministry ) , no such agreement has to date been concluded , with the result that the issue remains unregulated by any treaty between GPE and GPE . It is not disputed that , under NORP Federal law , GPE is represented by ORG in matters which are to be regarded as acta iure gestionis ( compare CARDINAL ObA CARDINAL/CARDINAL = ORG CARDINAL/CARDINAL with further references concerning the employment contract between the claimant and the defendant ) . The action must therefore be served – as correctly requested by the appellant herself – on a body within that authority . It is not sufficient – as the appellant has claimed in the appeal proceedings – for the document to have somehow reached another authority which is meant to be responsible for forwarding the request for service ( ORG ) ) . Conversely , it would not be sufficient , in order to institute legal proceedings , for an action against GPE to be received by ORG if , for whatever reason , it was not forwarded to the Attorney - ORG , which is the competent authority in such matters . ”

The DATE European Convention on State Immunity ( “ the Basle Convention ” ) entered into force on DATE after its ratification by CARDINAL States . It has been ratified by MONEY ( GPE , GPE , GPE , GPE , GPE , the GPE , GPE and GPE ) and signed by CARDINAL ORG ( GPE ) . On DATE it entered into force in respect of GPE , which had ratified it on DATE . The relevant provisions read as follows :

“ CARDINAL . A Contracting State can not claim immunity from the jurisdiction of a court of ORG if the proceedings relate to a contract of employment between the ORG and an individual where the work has to be performed on the territory of the ORG of the forum .

Paragraph CARDINAL shall not apply where :

a ) the individual is a national of the employing ORG at the time when the proceedings are brought ;

b ) at the time when the contract was entered into the individual was neither a national of the State of the forum nor habitually resident in that ORG ; or

c ) the parties to the contract have otherwise agreed in writing , unless , in accordance with the law of the State of the forum , the courts of that ORG have exclusive jurisdiction by reason of the subject - matter . ... ”

“ CARDINAL . In proceedings against a ORG in a court of ORG , the following rules shall apply .

NORP The competent authorities of the State of the forum shall transmit

the original or a copy of the document by which the proceedings are instituted ;

a copy of any judgment given by default against a ORG which was defendant in the proceedings ,

through the diplomatic channel to ORG of the defendant ORG , for onward transmission , where appropriate , to the competent authority . These documents shall be accompanied , if necessary , by a translation into the official language , or one of the official languages , of the defendant ORG .

Service of the documents referred to in paragraph CARDINAL is deemed to have been effected by their receipt by ORG . ... ”

State immunity from jurisdiction is governed by customary international law , the codification of which is enshrined in LAW and their Property of DATE ( “ the DATE Convention ” ) . The principle is based on the distinction between acts of sovereignty or authority ( acta jure imperii ) and acts of commerce and administration ( acta jure gestionis ) ( see PERSON v. GPE [ ORG ] , no . CARDINAL/CARDINAL , § § DATE , DATE ; see also PERSON v. GPE [ ORG ] , no . CARDINAL , § § DATE , ECHR DATE ) .

The Convention was opened for signature on DATE and has not yet entered into force . GPE signed the Convention on DATE and ratified it on DATE . GPE has not ratified LAW , but did not vote against it when it was adopted in ORG of ORG .

The draft text of the Convention was prepared by ORG ( ILC ) which , in DATE , was given the task of codifying and gradually developing international law in matters of jurisdictional immunities of GPE and their property . It produced a number of drafts that were submitted to GPE for comment . ORG that were used as the basis for the text adopted in DATE dated back to DATE . They were subsequently further revised by ORG . States were again given an opportunity to comment .

DATE ( contracts of employment ) of the DATE Convention reads as follows :

“ CARDINAL . Unless otherwise agreed between the GPE concerned , a ORG can not invoke immunity from jurisdiction before a court of another ORG which is otherwise competent in a proceeding which relates to a contract of employment between the ORG and an individual for work performed or to be performed , in whole or in part , in the territory of that other ORG .

Paragraph CARDINAL does not apply if :

( a ) the employee has been recruited to perform particular functions in the exercise of governmental authority ;

( b ) the employee is :

( i ) a diplomatic agent , as defined in LAW ;

( ii ) a consular officer , as defined in LAW of DATE ;

( iii ) a member of the diplomatic staff of a permanent mission to an international organization or of a special mission , or is recruited to represent a ORG at an international conference ; or

( iv ) any other person enjoying diplomatic immunity ;

( c ) the subject - matter of the proceeding is the recruitment , renewal of employment or reinstatement of an individual ;

( d ) the subject - matter of the proceeding is the dismissal or termination of employment of an individual and , as determined by the head of ORG , the head of ORG or the Minister for ORG of the employer State , such a proceeding would interfere with the security interests of that State ;

( e ) the employee is a national of the employer ORG at the time when the proceeding is instituted , unless this person has the permanent residence in the ORG of the forum ; or

( f ) the employer ORG and the employee have otherwise agreed in writing , subject to any considerations of public policy conferring on the courts of the ORG of the forum exclusive jurisdiction by reason of the subject - matter of the proceeding . ”

Article CARDINAL ( Service of process ) of the CARDINAL Convention reads as follows :

“ CARDINAL . Service of process or writ or other document instituting a proceeding against a ORG shall be effected :

( a ) in accordance with any applicable international convention binding on the State of the forum and the ORG concerned ; or

( b ) in accordance with any special arrangement for service between the claimant and the ORG concerned , if not precluded by the law of the ORG of forum ; or

( c ) in the absence of such a convention or special arrangement :

( i ) by transmission through diplomatic channels to ORG of the ORG concerned ; or

( ii ) by any other means accepted by the ORG concerned , if not precluded by the law of the ORG of forum .

Service of process referred to in paragraph ( CARDINAL ) ( c ) ( i ) is deemed to have been effected by receipt of the documents by ORG .

These documents shall be accompanied , if necessary , by a translation into the official language , or CARDINAL of the official languages , of the ORG concerned .

Any State that enters an appearance on the merits in a proceeding instituted against it may not thereafter assert that service of process did not comply with the provisions of paragraphs CARDINAL and CARDINAL . ”

In the Draft Articles on Jurisdictional Immunities of States and their ORG , adopted by ORG at its CARDINAL session in DATE , and submitted to ORG at that session , Article CARDINAL read as follows :

Paragraph CARDINAL does not apply if :

( a ) the employee has been recruited to perform functions closely related to the exercise of governmental authority ;

( b ) the subject of the proceeding is the recruitment , renewal of employment or reinstatement of an individual ;

( c ) the employee was neither a national nor a habitual resident of the State of the forum at the time when the contract of employment was concluded ;

( d ) the employee is a national of the employer ORG at the time when the proceeding is instituted ; or

( e ) NORP the employer ORG and the employee have otherwise agreed in writing , subject to any considerations of public policy conferring on the courts of the ORG of the forum exclusive jurisdiction by reason of the subject - matter of the proceeding . ”

In the commentary on ORG of DATE , it was stated that the rules formulated in LAW appeared to be consistent with the trend in legislative and treaty practice in a growing number of States ( ILC Yearbook , DATE , PERSON . II , Part CARDINAL , p. CARDINAL , § CARDINAL ) .

In the Draft Articles of DATE , LAW service of process ) read as follows :

“ CARDINAL . Service of process or writ or other document instituting a proceeding against a ORG shall be effected :

( a ) in accordance with any applicable international convention binding on the State of the forum and the ORG concerned ; or

( b ) in the absence of such a convention :

( i ) by transmission through diplomatic channels to ORG of the ORG concerned ; or

( ii ) by any other means accepted by the ORG concerned , if not precluded by the law of the ORG of forum .

Service of process referred to in paragraph CARDINAL ( b ) ( i ) is deemed to have been effected by receipt of the documents by ORG .

ORG commentary on that Article ( ILC Yearbook , DATE , PERSON . II , Part CARDINAL , p. CARDINAL , § § CARDINAL - CARDINAL ) , in so far as relevant in the present context , stated as follows :

“ ( CARDINAL ) Article CARDINAL relates to a large extent to the domestic rules of civil procedure of GPE . It takes into account the difficulties involved if GPE are called upon to modify their domestic rules on civil procedure . At the same time , it does not provide too liberal or generous a regime of service of process , which could result in an excessive number of judgments in default of appearance by the defendant ORG . The article therefore proposes a middle ground so as to protect the interests of the defendant ORG and those of the individual plaintiff .

Paragraph CARDINAL

( CARDINAL ) Paragraph CARDINAL is designed to indicate the normal ways in which service of process can be effected when a proceeding is instituted against a ORG . CARDINAL categories of means by which service of process is effected are provided : first , if an applicable international convention binding upon the ORG of the forum and the ORG concerned exists , service of process shall be effected in accordance with the procedures provided for in the convention . Then , in the absence of such a convention , service of process shall be effected either ( a ) by transmission through diplomatic channels or ( b ) by any other means accepted by the ORG concerned . Thus , among the CARDINAL categories of the means of service of process provided under paragraph CARDINAL , an international convention binding both GPE is given priority over the other CARDINAL categories . The variety of means available ensures the widest possible flexibility , while protecting the interests of the parties concerned .

Paragraphs CARDINAL and CARDINAL

( CARDINAL ) NORP Since the time of service of process is decisive for practical purposes , it is further provided in paragraph QUANTITY that , in the case of transmission through diplomatic channels or by registered mail , service of process is deemed to have been effected on DATE of receipt of the documents by ORG . Paragraph CARDINAL further requires that the documents be accompanied , if necessary , by a translation into the official language , or one of the official languages of the ORG concerned . ... ”

In respect of LAW the commentary also gives numerous examples of relevant provisions in national legislation . In addition it refers to LAW CARDINAL of LAW .

During the drafting process GPE commented on LAW DATE ORG ( which became LAW ) . It did not object to the rules enshrined in LAW ) ( c ) ( i ) and LAW ) .


The applicant , Mr. PERSON , is a NORP national who was born in DATE and lives in GPE .

On DATE ORG ( kansaneläkelaitos , folkpensionsanstalten ) of PERSON decided that as of DATE the NORP social security legislation did not apply to the applicant as he was not considered to be permanently resident in GPE .

The applicant appealed to ORG ( tarkastuslautakunta , prövningsnämnden ) which rejected the appeal on DATE . The decision of ORG was sent to the applicant ’s address in GPE , but allegedly the applicant never received it . He had allegedly requested the authorities to send the decision to his address in GPE .

The applicant alleged that he became aware of the decision of ORG in DATE when ORG asked him to return some wrongly paid social benefits . By that time the decision of ORG had already gained legal force and he was not able to appeal against it to ORG ( vakuutusoikeus , försäkringsdomstolen ) . At that time he allegedly asked advice from ORG and ORG , without any helpful response .

Under LAW of ORG ( hallintolainkäyttölaki , förvaltningsprocesslagen ORG ) an expired time - limit may be restored to a person who has a legal excuse or who for another strong reason was unable to observe a prescribed time - limit in lodging an appeal against a decision .

Under section CARDINAL of the said Act an application for the restoration of an expired time - limit shall be lodged with ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) within DATE of the expiry of the original time - limit , at the latest . For a very strong reason the time - limit may be restored even after that period .

In a decision of DATE ( no CARDINAL ) ORG decided to restore an expired time - limit for A in order to lodge an appeal to ORG against a decision of ORG in a case where the decision of ORG was not given to him as required by section CARDINAL , subsection CARDINAL of LAW ( ympäristönsuojelulaki , miljöskyddslagen ) .