The definition of bis
II. RELEVANT DOMESTIC LAW AND PRACTICE A. Relevant law 26. The relevant part of the Croatian Constitution ( Ustav Republike Hrvatske, Official Gazette nos. 41/2001 and 55/2001) reads as follows : Article 31 “ ... 2. No one shall be liable to be tried or punished again in criminal proceedings for an offence of which he has already been finally acquitted or convicted in accordance with the law. Only the law may, in accordance with the Constitution or an international agreement, prescribe the situations in which proceedings may be reopened under paragraph 2 of this Article and the grounds for reopening. .. .” 27. The relevant provisions of the Code of Criminal Procedure ( Zakon o kaznenom postupku – Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 62/2003, 178/2004 and 115/2006) provide as follows: Article 300 “ 1. 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 ... 2. The panel may order that the accused be removed from the courtroom for a limited time. Where the accused again disturbs 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. ...” Article 350 (former Article 336) “ 1. A judgment may refer only to the accused and the offence which are the subject of the indictment as initially submitted or as altered at the hearing. 2. The court is not bound by the prosecutor ’ s legal classification of the offence.” [1] Types of judgments Article 352 “ 1. A judgment shall dismiss the charges, acquit the accused or find him or her guilty. ... ” Article 354 “ A judgment acquitting the accused shall be adopted when : (1) the offence with which the accused is charged is not a criminal offence under the law; (2) there are circumstances that exclude the accused ’ s guilt; (3) it has not been proved that the accused committed the criminal offence with which he or she is charged .” Article 355 “1. A judgment finding the accused guilty shall contain the following details : (1) the offence of which the accused is found guilty, stating the facts and circumstances constituting the specific ingredients of a given criminal offence as well as those on which the application of a specific provision of the Criminal Code depends; (2) the statutory name and description of the criminal offence and the provisions of the Criminal Code which have been applied; (3) the sentence to be applied or whether, under the provisions of the Criminal Code, a sentence is not to be applied or imprisonment is to be substituted by community service; (4) any decision on suspended sentence; (5) any decision on security measures and confiscation of material gains; ... (7) the decision on costs and on any civil claim and whether a final judgment is to be published in the media. ... ” Article 367 “ 1. A grave breach of criminal procedure shall be found to exist where ... (3) a hearing has been held without a person whose presence is obligatory under the law ... ...” Reopening of proceedings Article 401 “Criminal proceedings concluded by a final ruling or a final judgment may be reopened at the request of an authorised person, only in the circumstances and under the conditions set out in this Code.” Article 406 “ 1. Criminal proceedings concluded by a final judgment dismissing the charges may exceptionally be reopened to the detriment of the accused: ... (5) where it has been established that amnesty, pardon, statutory limitation or other circumstances excluding criminal prosecution are not applicable to the criminal offence referred to in the judgment dismissing the charges. ... ” Article 408 “ 1. The court competent to decide upon a request for the reopening of the proceedings is the one which adjudicated the case at first instance ... 2. The request for reopening shall contain the statutory basis for reopening and evidence supporting the request ... ... ” Request for the protection of legality Article 418 “ 1. The State Attorney may lodge a request for the protection of legality against final judicial decisions and court proceedings preceding such decisions in which a law has been violated. 2. The State Attorney shall lodge a request for the protection of legality against a judicial decision adopted in proceedings in which fundamental human rights and freedoms guaranteed by the Constitution, statute or international law have been violated. ... ” Article 419 “ 1. The Supreme Court of the Republic of Croatia shall determine requests for the protection of legality. ... ” Article 420 “ 1. When determining a request for the protection of legality the [Supreme] Court shall assess only those violations of the law relied on by the State Attorney. ... ” Article 422 “ ... 2. Where a request for the protection of legality has been lodged to the detriment of the accused and the [Supreme] Court establishes that it is well founded, it shall merely establish that there has been a violation of the law, without altering a final decision.” 28. Under the Criminal Code ( Kazeni zakon, Offcial Gazette nos. 53/1991, 39/1992 and 91/1992) the circumstances excluding an individual ’ s guilt are lack of accountability ( neubrojivost ), error in law or error in fact. 29. The relevant part of the General Amnesty Act of 24 September 1996 (Official Gazette no. 80/1996, Zakon o općem oprostu ) reads as follows: Section 1 “This Act grants general amnesty from criminal prosecution and trial 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 the Republic of Croatia. No amnesty shall apply to the execution of final judgments in respect of perpetrators of the criminal offences under paragraph 1 of this section. Amnesty from criminal prosecution and trial shall apply to offences committed between 17 August 1990 and 23 August 1996.” Section 2 “No criminal prosecution or trial proceedings shall be instituted against the perpetrators of the criminal offences under section 1 of this Act. Where a criminal prosecution has already commenced it shall be discontinued and where trial proceedings have been instituted a court shall issue a ruling terminating the proceedings of its own motion. Where a person granted amnesty under paragraph 1 of this section has been detained, he or she shall be released.” Section 3 “No amnesty under section 1 of this Act 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 Article 119 of the Basic Criminal Code of the Republic of Croatia (Official Gazette no. 31/1993, consolidated text, nos. 35/1993, 108/1995, 16/1996 and 28/1996); war crimes against the civilian population under Article 120; war crimes against the wounded and sick under Article 121; war crimes against prisoners of war under Article 122; organising groups [with the purpose of committing] or aiding and abetting genocide and war crimes under Article 123; unlawful killing and wounding of the enemy under Article 124; unlawful taking of possessions from the dead or wounded on the battleground under Article 125; use of unlawful means of combat under Article 126; offences against negotiators under Article 127; cruel treatment of the wounded, sick and prisoners of war under Article 128; unjustified delay in repatriation of prisoners of war under Article 129; destruction of the cultural and historical heritage under Article 130; inciting war of aggression under Article 131; abuse of international symbols under Article 132; racial and other discrimination under Article 133; establishing slavery and transferring slaves under Article 134; international terrorism under Article 135; putting at risk persons under international protection under Article 136; taking hostages under Article 137; and the criminal offence of terrorism under the provisions of international law. No amnesty shall be granted to perpetrators of other criminal offences under the Basic Criminal Code of the Republic of Croatia (Official Gazette no. 31/1993, consolidated text, nos. 35/1993, 108/1995, 16/1996 and 28/1996) and the Criminal Code of the Republic of Croatia (Official Gazette no. 32/1993, consolidated text, nos. 38/1993, 28/1996 and 30/1996) 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 the Republic of Croatia. ...” Section 4 “A State Attorney may not lodge an appeal against a court decision under section 2 of this Act where the court granted amnesty in favour of the perpetrator of a criminal offence covered by this Act on the basis of the legal classification given to the offence by a State Attorney.” B. Relevant practice 1. Practice of the Constitutional Court 30. In its decision no. U-III/543/1999 of 26 November 2008 the Constitutional Court held, in so far as relevant, as follows: “6. The question before the Constitutional Court is whether there was a second trial concerning an event constituting the offence for which the General Amnesty Act was applied, and thus whether the proceedings concerned a ‘ same offence ’ in respect of which, under Article 31 § 2 of the Constitution, it is not possible to institute a new, separate and unrelated set of proceedings. Such proceedings would infringe [the principle of] legal certainty and permit multiple sanctions to be imposed for one and the same conduct which may be the subject of only one criminal sanction. In answering this question, the Constitutional Court should examine two issues: (a) the similarity between the descriptions of the events constituting the offences with which the appellant was charged in the first and second set of proceedings, in order to verify whether the decision on the application of amnesty and the final conviction in the subsequent proceedings concern the same subject, that is, the same ‘ criminal quantity ’, irrespective of whether they concern the same historical events; and after that ... (b) whether the case in issue concerns a situation in which it was not possible to bring fresh charges in relation to the facts already adjudicated in the first decisions of the courts (applying the amnesty), but in which, under Article 31 § 3 of the Constitution, it was possible to seek the reopening of the proceedings as provided for by the relevant law. Article 406 § 1 (5) of the Code of Criminal Procedure allows for the reopening of proceedings which were terminated by a final judgment dismissing the charges, where ‘ it has been established that amnesty, pardon, statutory limitation or other circumstances excluding criminal prosecution are not applicable to the criminal offence referred to in the judgment dismissing the charges ’. 6.1. The Constitutional Court can examine the similarity between the descriptions of the events constituting the offences only by reference to the normative standards. In so doing it is bound, just like the lower courts, by the constituent elements of the offences, irrespective of their legal classification. The descriptions of the events forming the basis for the charges in the judgment of the Bjelovar Military Court (no. K-85/95-24) and the Supreme Court (no. IKž-257/96), and the impugned judgments of the Sisak County Court (no. K-108/97) and the Supreme Court (no. I Kž-211/1998-3), undoubtedly suggest that they concern the same events, which were merely given different legal classifications. All the relevant facts had been established by the Bjelovar Military Court (which finally terminated the proceedings) and no other new facts were established in the subsequent proceedings before the Sisak County Court. The only difference in the description of the charges was in the time of the commission of the offences, which does not suggest that the events were different but rather that the courts were unable to establish the exact time of the offences. As regards the identical nature of the events, it is also relevant to note that the Supreme Court emphasised in the impugned judgment that the events were the same, so there is no doubt about this aspect. 6.2. In the impugned judgment the Supreme Court held that the conduct in issue constituted not only the offence of armed rebellion under Article 235 § 1 of the Criminal Code of the Republic of Croatia, in respect of which the judgment dismissing the charges was adopted, but also the offence of war crimes against the civilian population under Article 120 §§ 1 and 2 of the Basic Criminal Code of the Republic of Croatia, the offence of which [the appellant] was later convicted. It follows from this reasoning of the Supreme Court that the same conduct constituted the elements of two offences and that the situation was one of a single act constituting various offences. 6.3. The Constitutional Court finds that in the impugned judgment the Supreme Court erred in finding that the same perpetrator, after a final judgment had been adopted in respect of a single act constituting one offence, could be tried again in the new set of proceedings for the same act constituting another offence. Under Article 336 § 2 of the Code of Criminal Procedure the court is not bound by the prosecutor ’ s classification of the offence. The Bjelovar Military Court, if it considered that the facts underlying the charges constituted the offence of war crimes against the civilian population under Article 120 § 1 of the Basic Criminal Code of the Republic of Croatia, should therefore have found that it had no competence to determine the case (because it had no competence to try war crimes), and should have forwarded the case to the competent court, which could have convicted [the appellant] of the offence of war crimes against the civilian population, in respect of which no amnesty could be applied. Since the Bjelovar Military Court did not act in such a manner, it follows that, owing to the final nature of its judgment, the decision dismissing the charges became res judicata. The subsequent conviction in this case is a violation of the ne bis in idem rule, irrespective of the fact that the operative part of the first judgment did not concern ‘ the merits ’, sometimes understood simply as a resolution of the question whether the accused committed the offence or not. The formal distinction between an acquittal and a judgment dismissing the charges cannot be the only criterion for the resolution of the question whether a new and unrelated set of criminal proceedings may be instituted in respect of the same ‘ criminal quantity ’ : although it is contained in the judgment dismissing the charges, the decision on the application of amnesty, in the legal sense, creates the same legal consequences as an acquittal, and in both judgments a factual issue remains unproven. 6.4. Therefore the Constitutional Court cannot accept the reasoning of the Supreme Court ’ s judgment no. I Kž-211/1998-3 of 1 April 1999, according to which the judgment or ruling on the discontinuance of the proceedings for the offence of armed rebellion concerning the same event does not exclude the possibility of a subsequent prosecution and conviction for the offence of war crimes against the civilian population on the ground that the latter offence endangers not only the values of the Republic of Croatia but also humanity in general and international law. In any event, the Supreme Court later departed from that position in case no. I Kž-8/00-3 of 18 September 2002, finding that the judgment dismissing the charges ‘ without any doubt concerns the same event, in terms of the time, place and manner of commission; the event was simply given a different classification in the impugned judgment than in the ruling of the Zagreb Military Court ’. It also stated the following: ‘ When, as in the case in issue, the criminal proceedings have been discontinued in respect of the offence under Article 244 § 2 of the Criminal Code of the Republic of Croatia, and where the actions ... are identical to those of which [the accused] was found guilty in the impugned judgment ... under the ne bis in idem principle provided for in Article 32 § 2 of the Constitution, new criminal proceedings cannot be instituted because the matter has been adjudicated. ’ ... ” 31. Constitutional Court decision no. U-III-791/1997 of 14 March 2001 referred to a situation where the criminal proceedings against the accused had been terminated under the General Amnesty Act. Its relevant parts read as follows : “16. The provision of the Constitution which excludes the possibility of an accused being tried again for an offence of which he or she has already been ‘ finally acquitted or convicted in accordance with the law ’ refers exclusively to a situation where a judgment has been adopted in criminal proceedings which acquits the accused or finds him or her guilty of the charges brought against him or her in the indictment. ... 19. ... a ruling which does not finally acquit the accused but terminates the criminal proceedings cannot form the basis for application of the constitutional provisions concerning the prohibition on being tried or punished again ... ” 2. Practice of the Supreme Court 32. The relevant part of ruling no. I Kž-533/00-3 of 11 December 2001 reads as follows : “Under Article 336 § 2 of the Code of Criminal Procedure the court is not bound by the prosecutor ’ s legal classification of the offence, and it was therefore empowered to decide upon a different criminal offence since that offence is more favourable [ to the accused] ... ” 33. The relevant part of ruling no. I Kž 257/02-5 of 12 October 2005 reads as follows : “Since under Article 336 § 2 of the Code of Criminal Procedure the court is not bound by the prosecutor ’ s legal classification of the offence, and given that the possible sentence for the criminal offence of incitement to abuse of authority in financial affairs under Article 292 § 2 is more lenient than the possible sentence for the criminal offence under Article 337 § 4 of the Criminal Code, the first - instance court was empowered to classify the acts in question as the criminal offence under Article 292 § 2 of the Criminal Code ... ” 34. The relevant part of ruling no. I Kž 657/10-3 of 27 October 2010 reads as follows : “Even though the first - instance court correctly stated that a court is not bound by the prosecutor ’ s legal classification of the offence, the terms of the indictment were nevertheless exceeded because the first - instance court put the accused in a less favourable position by convicting him of two criminal offences instead of one ... ” III. RELEVANT INTERNATIONAL LAW MATERIALS A. The Vienna Convention of 1969 on the Law of Treaties 35. The relevant part of the Vienna Convention on the Law of Treaties of 23 May 1969 (“the Vienna Convention”) provides: Section 3. Interpretation of treaties Article 31 General rule of interpretation “1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.” Article 32 Supplementary means of interpretation “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.” Article 33 Interpretation of treaties authenticated in two or more languages “1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail. 2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree. 3. The terms of the treaty are presumed to have the same meaning in each authentic text. 4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.” B. The Geneva Conventions of 1949 for the Protection of Victims of Armed Conflicts and their Additional Protocols 36. The relevant part of common Article 3 of the Geneva Conventions of 1949 reads: Article 3 “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) 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. ...” 37. The relevant parts of the Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva, 12 August 1949 – hereinafter “the First Geneva Convention”) read: Chapter IX. Repression of Abuses and Infractions Article 49 “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 Party has made out a ‘ prima facie ’ case. ...” Article 50 “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.” 38. Articles 50 and 51 of the Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Geneva, 12 August 1949) contain the same text as Articles 49 and 50 of the First Geneva Convention. 39. Articles 129 and 130 of the Convention (III) relative to the Treatment of Prisoners of War (Geneva, 12 August 1949) contain the same text as Articles 49 and 50 of the First Geneva Convention. 40. Articles 146 and 147 of the Convention (IV) relative to the Protection of Civilian Persons in Time of War (Geneva, 12 August 1949) contain the same text as Articles 49 and 50 of the First Geneva Convention. 41. The relevant part of the Additional Protocol (II) to the Geneva Conventions, relating to the Protection of Victims of Non-International Armed Conflicts (Geneva, 8 June 1977) reads: Article 4 “1. 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. 2. 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; ...” Article 6 “ ... 5. At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.” Article 13 “1. 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. 2. 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. 3. Civilians shall enjoy the protection afforded by this part, unless and for such time as they take a direct part in hostilities.” C. Convention on the Prevention and Punishment of the Crime of Genocide [2] 42. The relevant parts of this Convention read as follows: Article 1 “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.” Article 4 “Persons committing genocide or any of the other acts enumerated in Article 3 shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.” Article 5 “The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in Article 3.” D. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity [3] 43. The relevant part of this Convention reads as follows: Article I “No statutory limitation shall apply to the following crimes, irrespective of the date of their commission: (a) War crimes as they are defined in the Charter of the International Military Tribunal, Nürnberg, 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, particularly the ‘ grave breaches ’ enumerated in the Geneva Conventions of 12 August 1949 for the protection of war victims; (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, Nürnberg, 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, eviction by armed attack or occupation and inhuman acts resulting from the policy of apartheid, and the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, even if such acts do not constitute a violation of the domestic law of the country in which they were committed.” Article II “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 III “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.” Article IV “The States Parties to the present Convention undertake to adopt, in accordance with their respective constitutional processes, any legislative or other measures necessary to ensure that statutory or other limitations shall not apply to the prosecution and punishment of the crimes referred to in articles I and II of this Convention and that, where they exist, such limitations shall be abolished.” E. Rome Statute of the International Criminal Court 44. Article 20 of the Statute reads: Ne bis in idem “1. Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court. 2. No person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court. 3. No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court: (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.” F. Customary Rules of International Humanitarian Law 45. Mandated by the States convened at the 26th International Conference of the Red Cross and Red Crescent, the International Committee of the Red Cross (ICRC) presented in 2005 a Study on Customary International Humanitarian Law [4] (J.-M. Henckaerts and L. Doswald -Beck (eds.), Customary International Humanitarian Law, 2 Volumes, Cambridge University Press & ICRC, 2005). This Study contains a list of customary rules of international humanitarian law. Rule 159, 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.” G. United Nations Security Council Resolution on the situation in Croatia, 1120 (1997), 14 July 1997 46. The relevant part of the Resolution reads: “The Security Council, ... 7. Urges the Government of the Republic of Croatia to eliminate ambiguities in implementation of the Amnesty 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 United Nations and local Serb 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; ... ” H. The International Covenant on Civil and Political Rights 47. Article 7 of the International Covenant on Civil and Political Rights (ICCR) 1966 provides: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.” THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 6 § § 1 AND 3 OF THE CONVENTION 69. The applicant complained that the same judge had participated both in the proceedings terminated in 1997 and in those in which he had been found guilty in 2007. He further complained that he had been deprived of the right to give his closing arguments. He relied on Article 6 §§ 1 and 3 of the Convention, the relevant parts of which read as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ... ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...” A. The Chamber ’ s conclusions 70. The Chamber observed that in both sets of criminal proceedings at issue judge M.K. had taken part at the first-instance stage. In the first set of proceedings the facts of the case had not been assessed, nor had the question of the applicant ’ s guilt been examined, and judge M.K. had not expressed an opinion on any aspect of the merits of the case. 71. Therefore, in the Chamber ’ s view, there was no indication of any lack of impartiality on the part of judge M.K. 72. As to the removal of the applicant from the courtroom, the Chamber held that, given that he had twice been warned not to interrupt the closing arguments presented by the prosecution and that his defence lawyer had remained in the courtroom and presented his closing arguments, the applicant ’ s removal had not violated his right to defend himself in person. B. The parties ’ submissions to the Grand Chamber 1. The applicant 73. The applicant argued that judge M.K., who had first adopted a ruling terminating the criminal proceedings against him on the basis of the General Amnesty Act and had then also participated in the criminal proceedings in which the applicant had been convicted of some of the same acts, could not be seen as impartial. 74. The applicant argued that after the hearing held on 19 March 2007 had been going on for several hours he had, owing to his mental illness and diabetes, been unable to control his reactions. However, there had been no physician present at the hearing to monitor his condition. While the State Attorney was presenting his closing arguments the applicant had said something incomprehensible, but had not insulted or interrupted the State Attorney. Contrary to the Government ’ s contention, he had not been warned twice by the presiding judge before being removed from the courtroom. He had not been asked back to the courtroom when his turn to present his closing arguments had come. The fact that his defence counsel had been able to present his closing arguments could not remedy the fact that the applicant himself had not been able to do so. The accused in criminal proceedings might confess or show remorse, which could be judged as mitigating factors, and a defence lawyer could not replace the accused in that respect. The trial court should have had the opportunity to hear his closing arguments from him in person. 2. The Government 75. The Government agreed that judge M.K. had participated in both sets of criminal proceedings against the applicant. As to the issue of subjective impartiality, the Government contended that the applicant had not adduced any evidence capable of rebutting the presumption of impartiality in respect of judge M.K. 76. As to the objective test of impartiality, the Government submitted that in the first set of proceedings neither the facts of the case nor the merits of the murder charges against the applicant had been assessed. Thus, judge M.K. had not in those proceedings expressed any opinion as to the applicant ’ s actions which could have prejudged his conduct in the second set of proceedings. Furthermore, the first set of proceedings had ended favourably for the applicant. Only in the second set of proceedings had a judgment been adopted on the merits involving an assessment of the facts of the case and the applicant ’ s guilt. In both sets of proceedings judge M.K. had participated only at first instance, and he had had no input regarding the examination of either of the cases at the appeal stage. 77. The Government submitted that the applicant had been informed of the charges and evidence against him. He had been represented by a legal ‑ aid defence lawyer throughout the proceedings, and whenever he had objected to the manner in which a lawyer was approaching the case the lawyer had been changed. The applicant and his lawyer had had ample opportunity to prepare his defence and to communicate confidentially. They had both been present at all the hearings and had had every opportunity to respond to the prosecution arguments. 78. As to the concluding hearing, the Government submitted that the applicant and his defence counsel had both been present at the beginning of the hearing. However, during the hearing the applicant had continually cursed and shouted. The presiding judge had warned him twice, and only when that had yielded no results had he ordered that the applicant be removed from the courtroom. 79. The removal of the applicant from the courtroom had thus been a measure of last resort by the presiding judge, designed to preserve order in the courtroom. 80. Had the applicant wanted to confess or show remorse, he had had ample opportunity to do so during the trial. 81. By the time the applicant had been removed from the courtroom all the evidence had already been presented. 82. Lastly, the applicant ’ s defence counsel had remained in the courtroom and had presented his closing arguments. 83. Against the above background, the Government argued that the applicant ’ s right to defend himself in person and through legal assistance had not been impaired. C. The Grand Chamber ’ s assessment 1. Impartiality of judge M.K. 84. The Chamber ’ s assessment, in so far as relevant, reads as follows : “ 43. The Court reiterates that there are two tests for assessing whether a tribunal is impartial within the meaning of Article 6 § 1: the first consists in seeking to determine the personal conviction of a particular judge in a given case and the second in ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see, among other authorities, Gautrin and Others v. France, § 58, 20 May 1998, Reports of Judgments and Decisions 1998-III). 44. As regards the subjective test, the Court first notes that the personal impartiality of a judge must be presumed until there is proof to the contrary (see Wettstein v. Switzerland, no. 33958/96, § 43, ECHR 2000-XII). In the instant case, the Court is not convinced that there is sufficient evidence to establish that any personal bias was shown by judge M.K. when he sat as a member of the Osijek County Court which found the applicant guilty of war crimes against the civilian population and sentenced him to fourteen years ’ imprisonment. 45. As regards the objective test, it must be determined whether, quite apart from the judge ’ s conduct, there are ascertainable facts which may raise justified doubts as to his or her impartiality. This implies that, in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see Ferrantelli and Santangelo v. Italy, 7 August 1996, § 58, Reports 1996-III; Wettstein, cited above, § 44; and Micallef v. Malta, no. 17056/06, § 74, 15 January 2008). In this respect even appearances may be of a certain importance or, in other words, ‘ justice must not only be done, it must also be seen to be done ’ (see De Cubber v. Belgium, 26 October 1984, § 26, Series A no. 86; Mežnarić v. Croatia, no. 71615/01, § 32, 15 July 2005; and Micallef, cited above, § 75). 46. As to the present case, the Court notes that judge M.K. indeed participated both in the criminal proceedings conducted before the Osijek County Court under case number K-4/97 and in the criminal proceedings conducted against the applicant before the same court under case number K ‑ 33/06. The charges against the applicant in these two sets of proceedings overlapped to a certain extent (see § 66 below). 47. The Court further notes that both sets of proceedings were conducted at first instance, that is to say, at the trial stage. The first set of proceedings was terminated on the basis of the General Amnesty Act, since the trial court found that the charges against the applicant fell within the scope of the general amnesty. In those proceedings the facts of the case were not assessed, nor was the question of the applicant ’ s guilt examined. Thus, judge M.K. did not express an opinion on any aspect of the merits of the case.” 85. The mere fact that a trial judge has made previous decisions concerning the same offence cannot be held as in itself justifying fears as to his impartiality (see Hauschildt v. Denmark, 24 May 1989, § 50, Series A no. 154, and Romero Martin v. Spain ( dec. ), no. 32045/03, 12 June 2006 concerning pre-trial decisions; Ringeisen v. Austria, 16 July 1971, Series A no. 13, § 97; Diennet v. France, 26 September 1995, Series A no. 325 ‑ A, § 38; and Vaillant v. France, no. 30609/04, §§ 29-35, 18 December 2008, concerning the situation of judges to whom a case was remitted after a decision had been set aside or quashed by a higher court; Thomann v. Switzerland, 10 June 1996, §§ 35-36, Reports of Judgments and Decisions 1996 ‑ III, concerning the retrial of an accused convicted in absentia; and Craxi III v. Italy ( dec. ), no. 63226/00, 14 June 2001, and Ferrantelli and Santangelo v. Italy, 7 August 1996, § 59, Reports 1996 ‑ III, concerning the situation of judges having participated in proceedings against co-offenders). 86. No ground for legitimate suspicion of a lack of impartiality can be discerned in the fact that the same judge participates in adopting a decision at first instance and then in fresh proceedings when that decision is quashed and the case is returned to the same judge for re-consideration. It cannot be stated as a general rule resulting from the obligation to be impartial that a superior court which sets aside a judicial decision is bound to send the case back to a differently composed panel (see Ringeisen, cited above, § 97). 87. In the present case the first decision was not set aside and the case remitted for retrial following an ordinary appeal; instead, a fresh indictment was brought against the applicant on some of the same charges. However, the Court considers that the principles set out in paragraph 85 are equally valid with regard to the situation which arose in the applicant ’ s case. The mere fact that judge M.K. participated both in the criminal proceedings conducted before the Osijek County Court under case number K-4/97 and in the criminal proceedings conducted against the applicant before the same court under case number K ‑ 33/06 should not in itself be seen as incompatible with the requirement of impartiality under Article 6 of the Convention. What is more, in the present case judge M.K. did not adopt a judgment in the first set of proceedings finding the applicant guilty or innocent and no evidence relevant for the determination of these issues was ever assessed (see paragraph 17 above). Judge M.K. was solely concerned with ascertaining whether the conditions for the application of the General Amnesty Act obtained in the applicant ’ s case. 88. The Court considers that in these circumstances there were no ascertainable facts which could give rise to any justified doubt as to M.K. ’ s impartiality, nor did the applicant have any legitimate reason to fear this. 89. The foregoing considerations are sufficient to enable the Court to conclude that there has been no violation of Article 6 § 1 of the Convention as regards the question of the impartiality of judge M.K. 2. Removal of the applicant from the courtroom 90. The Chamber made the following assessment of the applicant ’ s complaint : “ 50. The Court firstly observes that its task is not to resolve the dispute between the parties as to whether the Osijek County Court acted in accordance with the relevant provisions of the Croatian Code of Criminal Procedure when it removed the applicant from the courtroom during the concluding hearing. The Court ’ s task is rather to make an assessment as to whether, from the Convention point of view, the applicant ’ s defence rights were respected to a degree which satisfies the guarantees of a fair trial under Article 6 of the Convention. In this connection the Court reiterates at the outset that the requirements of paragraph 3 of Article 6 are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1 (see, among other authorities, Balliu v. Albania, no. 74727/01, § 25, 16 June 2005). On the whole, the Court is called upon to examine whether the criminal proceedings against the applicant, in their entirety, were fair (see, among other authorities, Imbrioscia v. Switzerland, 24 November 1993, Series A no. 275, § 38; S.N. v. Sweden, no. 34209/96, § 43, ECHR 2002-V; and Vanyan v. Russia, no. 53203/99, § 63-68, 15 December 2005). 51. The Court accepts that the closing arguments are an important stage of the trial, where the parties have their only opportunity to orally present their view of the entire case and all the evidence presented at trial and to give their assessment of the result of the trial. However, where the accused disturbs order in the courtroom the trial court cannot be expected to remain passive and to allow such behaviour. It is a normal duty of the trial panel to maintain order in the courtroom and the rules envisaged for that purpose apply equally to all present, including the accused. 52. In the present case the applicant was twice warned not to interrupt the closing arguments presented by the Osijek County Deputy State Attorney. Only afterwards, since he failed to comply, he was removed from the courtroom. However, his defence lawyer remained in the courtroom and presented his closing arguments. Therefore, the applicant was not prevented from making use of the opportunity to have the final view of the case given by his defence. In that connection the Court also notes that the applicant, who was legally represented throughout the proceedings, had ample opportunity to develop his defence strategy and to discuss with his defence lawyer the points for the closing arguments in advance of the concluding hearing. 53. Against this background, and viewing the proceedings as a whole, the Court considers that the removal of the applicant from the courtroom during the final hearing did not prejudice the applicant ’ s defence rights to a degree incompatible with the requirements of a fair trial. 54. Therefore, the Court considers that there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention in this regard.” 91. The Grand Chamber endorses the Chamber ’ s reasons and finds that there has been no violation of Article 6 § § 1 and 3 (c) of the Convention as regards the applicant ’ s removal from the courtroom. II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION 92. The applicant complained that the criminal offences which had been the subject of the proceedings terminated in 1997 and those of which he had been found guilty in 2007 were the same. He relied on Article 4 of Protocol No. 7 to the Convention, which reads as follows: “1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. 3. No derogation from this Article shall be made under Article 15 of the Convention.” A. Compatibility ratione temporis 1. The Chamber ’ s conclusions 93. In its judgment of 13 November 2012 the Chamber found that the complaint under Article 4 of Protocol No. 7 to the Convention was compatible ratione temporis with the Convention. It held as follows: “ 58. The Court notes that the first set of criminal proceedings against the applicant did indeed end prior to the entry into force of the Convention in respect of Croatia. However, the second set of criminal proceedings in which the applicant was found guilty of war crimes against the civilian population was conducted and concluded after 5 November 1997, when Croatia ratified the Convention. The right not to be tried or punished twice cannot be excluded in respect of proceedings conducted before ratification where the person concerned was convicted of the same offence after ratification of the Convention. The mere fact that the first set of proceedings was concluded prior to that date cannot therefore preclude the Court from having temporal jurisdiction in the present case.” 2. The parties ’ submissions to the Grand Chamber 94. The Government submitted that the ruling granting the applicant amnesty had been adopted on 24 June 1997 and had been served on him on 2 July 1997, whereas the Convention had come into force in respect of Croatia on 5 November 1997. Therefore, the ruling in question lay outside the Court ’ s temporal jurisdiction. 95. The applicant made no submissions in that regard. 3. The Grand Chamber ’ s assessment 96. The ruling granting the applicant amnesty was adopted on 24 June 1997, whereas the Convention come into force in respect of Croatia on 5 November 1997 and Protocol No. 7 on 1 February 1998. Therefore, the issue of the Court ’ s competence ratione temporis has to be addressed. 97. The Grand Chamber endorses the findings of the Chamber as to the compatibility ratione temporis with the Convention of the applicant ’ s complaint under Article 4 of Protocol No. 7. It further points to the Commission ’ s reasoning in the case of Gradinger v. Austria ( 19 May 1994, opinion of the Commission, §§ 67-69, Series A no. 328-C ) : “ 67. The Commission recalls that, in accordance with the generally recognised rules of international law, the Convention and its Protocols are binding on the Contracting Parties only in respect of facts occurring after the entry into force of the Convention or the Protocol in respect of that party. 68. It is the nature of the right enunciated in Article 4 of Protocol No. 7 that two sets of proceedings must have taken place: a first set, in which the person concerned was ‘ finally acquitted or convicted ’, and thereafter a further set, in which a person was ‘ liable to be tried or convicted again ’ within the same jurisdiction. 69. The Commission further recalls that, in determining the fairness of proceedings, it is entitled to look at events prior to the entry into force of the Convention in respect of a State where the findings of those earlier events are incorporated in a judgment which is given after such entry into force ( see X v. Portugal, no. 9453/81, Commission decision of 13 December 1982, DR 31, p. 204. at p. 209). The essential element in Article 4 of Protocol No. 7 is the liability to be tried or punished ‘ again ’. The first set of proceedings merely provides the background against which the second set is to be determined. In the present case, the Commission finds that, provided the final decision in the second set of proceedings falls after the entry into force of Protocol No. 7, it may deal with the complaint ratione temporis. As Protocol No. 7 entered into force on 1 November 1988 and on 30 June 1989 Austria made a declaration under Article 7 § 2 of that Protocol which did not exclude retroactive effect ( see X v. France, no. 958 7/81, Commission decision of 13 December 1982, DR 29, p. 228, at p. 238), and the final decision of the Administrative Court is dated 29 March 1989, the Commission finds that it is not prevented ratione temporis from examining this aspect of the case.” 98. Accordingly, the Grand Chamber sees no reason to depart from the Chamber ’ s conclusion that the Government ’ s plea of inadmissibility on the ground of lack of jurisdiction ratione temporis must be dismissed. B. Applicability of Article 4 of Protocol No. 7 1. The Chamber ’ s conclusions 99. The Chamber concluded, firstly, that the offences for which the applicant had been tried in the first and second set of proceedings had been the same. It left open the question whether the ruling granting the applicant amnesty could be seen as a final conviction or acquittal for the purposes of Article 4 of Protocol No. 7 and proceeded to examine the complaint on the merits under the exceptions contained in paragraph 2 of Article 4 of Protocol No. 7. The Chamber agreed with the conclusions of the Supreme Court to the effect that the General Amnesty Act had been erroneously applied in the applicant ’ s case and found that the granting of amnesty in respect of acts that amounted to war crimes committed by the applicant represented a “fundamental defect” in those proceedings, which made it permissible for the applicant to be retried. 2. The parties ’ submissions to the Grand Chamber (a) The applicant 100. The applicant argued that the offences in the two sets of criminal proceedings against him had been factually the same and that the classification of the offences as war crimes in the second set of proceedings could not alter the fact that the charges were substantively identical. 101. He further contended that a ruling granting amnesty to the accused was a final decision which precluded a retrial. (b) The Government 102. In their written observations the Government argued that in the first set of proceedings the Osijek County Court had applied the General Amnesty Act without establishing the facts of the case and without deciding on the applicant ’ s guilt. The ruling thus adopted had never given an answer to the question whether the applicant had committed the crimes he had been charged with, nor had it examined the charges in the indictment. Therefore, that ruling did not have the quality of res judicata (see paragraph 33 of the Government ’ s observations ). However, they went on to state that it did fulfil all the requirements of res judicata and could be considered as a final acquittal or conviction within the meaning of Article 4 of Protocol No. 7. ( see the Government ’ s observations, paragraph 37). 103. The Government further contended, relying extensively on the Chamber ’ s findings, that no amnesty could be granted in respect of war crimes and that the granting of an amnesty had amounted to a fundamental defect in the proceedings. 104. After the first set of proceedings had been discontinued new facts had emerged, namely that the victims had been arrested and tortured before being killed. These new elements had been sufficient for the acts in issue to be classified as war crimes against the civilian population and not as “ordinary” murders. 105. The General Amnesty Act had been enacted with the purpose of meeting Croatia ’ s international commitments arising from the Agreement on the Normalization of Relations between the Federal Republic of Yugoslavia and the Republic of Croatia (23 August 1996), and its primary aim had been to promote reconciliation in Croatian society at a time of ongoing war. It explicitly excluded its application to war crimes. 106. In the applicant ’ s case the General Amnesty Act had been applied contrary to its purpose as well as contrary to Croatia ’ s international obligations, including those under Articles 2 and 3 of the Convention. 107. As to the procedures followed by the national authorities, the Government maintained that the proceedings against the applicant had been fair, without advancing any arguments as to whether the procedures were in accordance with the provisions of the Code of Criminal Procedure. (c) The third-party interveners 108. The group of academic experts maintained that no multilateral treaty expressly prohibited the granting of amnesties for international crimes. The interpretation of the International Committee of the Red Cross (ICRC) of Article 6 § 5 of the second Additional Protocol to the Geneva Conventions suggested that States might not grant amnesty to persons suspected of, accused of or sentenced for war crimes. However, an analysis of the travaux préparatoires of that Article showed that the only States which had referred to the question of perpetrators of international crimes, the former USSR and some of its satellite States, had linked that issue to that of foreign mercenaries. It was curious that the ICRC had interpreted Article 6 § 5 as excluding only war criminals and not perpetrators of other international crimes from its ambit, since the statements of the former USSR on which the ICRC relied had specifically provided for the prosecution of perpetrators of crimes against humanity and crimes against peace. It was difficult to see what arguments would justify the exclusion of war criminals but not of perpetrators of genocide and crimes against humanity from the potential scope of application of an amnesty. Furthermore, the ICRC referred to instances of non-international conflicts such as those in South Africa, Afghanistan, Sudan and Tajikistan. However, the amnesties associated with those conflicts had all included at least one international crime. 109. The interveners pointed to the difficulties in negotiating treaty clauses dealing with amnesty ( they referred to the 1998 Rome conference on the establishment of the International Criminal Court (ICC); the negotiations of the International Convention for the Protection of All Persons from Enforced Disappearance; and the 2012 Declaration of the High-Level Meeting of the General Assembly on the Rule of Law at the National and International Levels). The difficulties confirmed the lack of any consensus among States on that issue. 110. The interveners relied on a line of legal doctrine on amnesties [7] which argued that since the Second World War States had increasingly relied on amnesty laws. Although the number of new amnesty laws excluding international crimes had increased, so too had the number of amnesties including such crimes. Amnesties were the most frequently used form of transitional justice. The use of amnesties within peace accords between 1980 and 2006 had remained relatively stable. 111. Even though several international and regional courts had adopted the view that amnesties granted for international crimes were prohibited by international law, their authority was weakened by inconsistencies in those judicial pronouncements as to the extent of the prohibition and the crimes it covered. For example, while the Inter -American Court of Human Rights had adopted the position in the above-cited Barrios Altos case that all amnesty provisions were inadmissible because they were intended to prevent the investigation and punishment of those responsible for human rights violations, the President of that court and four other judges, in The Massacres of El Mozote and Nearby Places (cited above), had nuanced that position by accepting that even where gross violations of human rights were in issue, the requirement to prosecute was not absolute and had to be balanced against the requirements of peace and reconciliation in post-war situations. 112. Furthermore, a number of national Supreme Courts had upheld their countries ’ amnesty laws because such laws contributed to the achievement of peace, democracy and reconciliation. The interveners cited the following examples: the finding of the Spanish Supreme Court in the trial of Judge Garzón in February 2012; the ruling of the Ugandan Constitutional Court upholding the constitutionality of the 2000 Amnesty Act; the Brazilian Supreme Court ’ s ruling of April 2010 refusing to revoke the 1979 Amnesty Law; and the ruling of the South African Constitutional Court in the AZAPO case upholding the constitutionality of the Promotion of National Unity and Reconciliation Act of 1995 which provided for a broad application of amnesty. 113. The interveners accepted that the granting of amnesties might in certain instances lead to impunity for those responsible for the violation of fundamental human rights and thus undermine attempts to safeguard such rights. However, strong policy reasons supported acknowledging the possibility of the granting of amnesties where they represented the only way out of violent dictatorships and interminable conflicts. The interveners pleaded against a total ban on amnesties and for a more nuanced approach in addressing the issue of granting amnesties. 3. The Grand Chamber ’ s assessment (a) Whether the offences for which the applicant was prosecuted were the same 114. In Sergey Zolotukhin v. Russia, the Court took the view that Article 4 of Protocol No. 7 had to be understood as prohibiting the prosecution or trial of a second “offence” in so far as it arose from identical facts or facts which were substantially the same ([GC], no. 14939/03, § 82, ECHR 2009). 115. In the present case the applicant was accused in both sets of proceedings of the following: (a) killing S.B. and V.B. and seriously wounding Sl.B. on 20 November 1991; (b) killing N.V. and Ne.V. on 10 December 1991. 116. Therefore, in so far as both sets of proceedings concerned the above charges, the applicant was prosecuted twice for the same offences. (b) The nature of the decisions adopted in the first set of proceedings 117. There are two distinct situations as regards the charges brought against the applicant in the first set of proceedings which were also preferred against him in the second set of proceedings. 118. Firstly, on 25 January 1996 the prosecutor withdrew the charges concerning the alleged killing of N.V. and Ne.V. on 10 December 1991 (see paragraphs 120 -21 below). 119. Secondly, the proceedings in respect of the alleged killing of S.B. and V.B. and the serious wounding of Sl.B. on 20 November 1991 were terminated by a ruling adopted by the Osijek County Court on 24 June 1997 on the basis of the General Amnesty Act (see paragraphs 122 et seq. below). ( i ) The withdrawal of charges by the prosecutor 120. The Court has already held that the discontinuance of criminal proceedings by a public prosecutor does not amount to either a conviction or an acquittal, and that therefore Article 4 of Protocol No. 7 finds no application in that situation (see Smirnova and Smirnova v. Russia ( dec. ), nos. 46133/99 and 48183/99, 3 October 2002, and Harutyunyan v. Armenia ( dec. ), no. 34334/04, 7 December 2006). 121. Thus, the discontinuance of the proceedings by the prosecutor concerning the killing of N.V. and Ne.V. does not fall under Article 4 of Protocol No. 7 to the Convention. It follows that this part of the complaint is incompatible ratione materiae. ( ii ) The discontinuance of the proceedings under the General Amnesty Act 122. As regards the remaining charges ( the killing of V.B. and S.B. and the serious wounding of Sl.B .), the first set of criminal proceedings against the applicant was terminated on the basis of the General Amnesty Act. 123. The Court shall start its assessment as regards the ruling of 24 June 1997 by establishing whether Article 4 of Protocol No. 7 applies at all in the specific circumstances of the present case, where the applicant was granted unconditional amnesty in respect of acts which amounted to grave breaches of fundamental human rights. ( α ) The position under the Convention 124. The Court notes that the allegations in the criminal proceedings against the applicant included the killing and serious wounding of civilians and thus involved their right to life protected under Article 2 of the Convention and, arguably, their rights under Article 3 of the Convention. In this connection the Court reiterates that Articles 2 and 3 rank as the most fundamental provisions in the Convention. They enshrine some of the basic values of the democratic societies making up the Council of Europe (see, among many other authorities, Andronicou and Constantinou v. Cyprus, 9 October 1997, § 171, Reports 1997-VI, and Solomou and Others v. Turkey, no. 36832/97, § 63, 24 June 2008). 125. The obligations to protect the right to life under Article 2 of the Convention and to ensure protection against ill-treatment under Article 3 of the Convention, read in conjunction with the State ’ s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also require by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others v. the United Kingdom, 27 September 1995, § 161, Series A no. 324, and Kaya v. Turkey, 19 February 1998, § 86, Reports 1998-I) or ill-treated (see, for example, El ‑ Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 182, ECHR 2012). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and to ensure the accountability of the perpetrators. 126. The Court has already held that, where a State agent has been charged with crimes involving torture or ill-treatment, it is of the utmost importance that criminal proceedings and sentencing are not time-barred and that the granting of an amnesty or pardon should not be permissible (see Abdülsamet Yaman v. Turkey, no. 32446/96, § 55, 2 November 2004; Okkalı v. Turkey, no. 52067/99, § 76, ECHR 2006 -XII; and Yeşil and Sevim v. Turkey, no. 34738/04, § 38, 5 June 2007). It has considered in particular that the national authorities should not give the impression that they are willing to allow such treatment to go unpunished (see Egmez v. Cyprus, no. 30873/96, § 71, ECHR 2000-XII, and Turan Cakir v. Belgium, no. 44256/06, § 69, 10 March 2009). In its decision in the case of Ould Dah v. France (( dec. ), no. 13113/03, ECHR 2009) the Court held, referring also to the United Nations Human Rights Committee and the International Criminal Tribunal for the former Yugoslavia, that an amnesty was generally incompatible with the duty incumbent on States to investigate acts such as torture and that the obligation to prosecute criminals should not therefore be undermined by granting impunity to the perpetrator in the form of an amnesty law that might be considered contrary to international law. 127. The obligation of States to prosecute acts such as torture and intentional killings is thus well established in the Court ’ s case-law. The Court ’ s case-law affirms that granting amnesty in respect of the killing and ill-treatment of civilians would run contrary to the State ’ s obligations under Articles 2 and 3 of the Convention since it would hamper the investigation of such acts and necessarily lead to impunity for those responsible. Such a result would diminish the purpose of the protection guaranteed under Articles 2 and 3 of the Convention and render illusory the guarantees in respect of an individual ’ s right to life and the right not to be ill-treated. The object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective (see McCann and Others, cited above, § 146). 128. While the present case does not concern alleged violations of Articles 2 and 3 of the Convention, but of Article 4 of Protocol No. 7, the Court reiterates that the Convention and its Protocols must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between their various provisions (see Stec and Others v. the United Kingdom ( dec. ) [GC], nos. 65731/01 and 65900/01, § 48, ECHR 2005-X, and Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 54, ECHR 2012). Therefore, the guarantees under Article 4 of Protocol No. 7 and States ’ obligations under Articles 2 and 3 of the Convention should be regarded as parts of a whole. ( β ) The position under international law 129. The Court should take into account developments in international law in this area. The Convention and its Protocols cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law of which they form part. Account should be taken, as indicated in Article 31 § 3 (c) of the 1969 Vienna Convention on the Law of Treaties, of “any relevant rules of international law applicable in the relations between the parties”, and in particular the rules concerning the international protection of human rights (see Al- Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI; Demir and Baykara v. Turkey [GC], no. 34503/97, § 67, ECHR 2008; Saadi v. the United Kingdom [GC], no. 13229/03, § 62, ECHR 2008; Rantsev v. Cyprus and Russia, no. 25965/04, §§ 273-74, ECHR 2010; and Nada v. Switzerland [GC], no. 10593/08, § 169, ECHR 2012 ). 130. The Court notes the Chamber ’ s observations to the effect that “ [ g ] ranting amnesty in respect of ‘ international crimes ’ – which include crimes against humanity, war crimes and genocide – is increasingly considered to be prohibited by international law” and that “ [ t ] his understanding is drawn from customary rules of international humanitarian law, human rights treaties, as well as the decisions of international and regional courts and developing State practice, as there has been a growing tendency for international, regional and national courts to overturn general amnesties enacted by Governments”. 131. It should be observed that so far no international treaty explicitly prohibits the granting of amnesty in respect of grave breaches of fundamental human rights. While Article 6 § 5 of the second Additional Protocol to the Geneva Conventions, relating to the protection of victims of non-international conflicts, provides that “ [a] t the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict ... ”, the interpretation of the Inter-American Court of Human Rights of that provision excludes its application in respect of the perpetrators of war crimes and crimes against humanity (see paragraph 66 above, judgment in The Massacres of El Mozote and Nearby Places, § 286). The basis for such a conclusion, according to the Inter-American Court of Human Rights, is found in the obligations of the States under international law to investigate and prosecute war crimes. The Inter-American Court found that therefore “persons suspected or accused of having committed war crimes cannot be covered by an amnesty ”. The same obligation to investigate and prosecute exists as regards grave breaches of fundamental human rights and therefore the amnesties envisaged under Article 6 § 5 of the second Additional Protocol to the Geneva Conventions are likewise not applicable to such acts. 132. The possibility for a State to grant an amnesty in respect of grave breaches of human rights may be circumscribed by treaties to which the State is a party. There are several international conventions that provide for a duty to prosecute crimes defined therein (see the Geneva Conventions of 1949 for the Protection of Victims of Armed Conflicts and their Additional Protocols, in particular common Article 3 of the Geneva Conventions; Articles 49 and 50 of the Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Articles 50 and 51 of the Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Articles 129 and 130 of the Convention (III) relative to the Treatment of Prisoners of War; and Articles 146 and 147 of the Convention (IV) relative to the Protection of Civilian Persons in Time of War. See also Articles 4 and 13 of the Additional Protocol (II) to the Geneva Conventions (1977), relating to the Protection of Victims of Non-International Armed Conflicts; Article 5 of the Convention on the Prevention and Punishment of the Crime of Genocide; and the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment ). 133. The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity proscribes statutory limitations in respect of crimes against humanity and war crimes. 134. Various international bodies have issued resolutions, recommendations and comments concerning impunity and the granting of amnesty in respect of grave breaches of human rights, generally agreeing that amnesties should not be granted to those who have committed such violations of human rights and international humanitarian law (see paragraphs 45, 47-49, 51-53 and 56-58 above). 135. In their judgments, several international courts have held that amnesties are inadmissible when they are intended to prevent the investigation and punishment of those responsible for grave human rights violations or acts constituting crimes under international law (see paragraphs 5 4 and 5 9 - 6 8 above). 136. Although the wording of Article 4 of Protocol No. 7 restricts its application to the national level, it should be noted that the scope of some international instruments extends to retrial in a second State or before an international tribunal. For instance, Article 20 of the Rome Statute of the International Criminal Court contains an explicit exception to the ne bis in idem principle as it allows for prosecution where a person has already been acquitted in respect of the crime of genocide, crimes against humanity or war crimes if the purpose of the proceedings before the other court was to shield the person concerned from criminal responsibility for crimes within the jurisdiction of the International Criminal Court. 137. The Court notes the interveners ’ argument that there is no agreement among States at the international level when it comes to a ban on granting amnesties without exception for grave breaches of fundamental human rights, including those covered by Articles 2 and 3 of the Convention. The view was expressed that the granting of amnesties as a tool in ending prolonged conflicts may lead to positive outcomes (see the interveners ’ submissions summarised in paragraphs 1 08- 13 above). 138. The Court also notes the jurisprudence of the Inter-American Court of Human Rights, notably the above - cited cases of Barrios Altos, Gomes Lund et al. , Gelman and The Massacres of El Mozote and Nearby Places, where that court took a firmer stance and, relying on its previous findings, as well as those of the Inter-American Commission on Human Rights, the organs of the United Nations and other universal and regional organs for the protection of human rights, found that no amnesties were acceptable in connection with grave breaches of fundamental human rights since any such amnesty would seriously undermine the States ’ duty to investigate and punish the perpetrators of such acts (see Gelman, § 195, and Gomes Lund et al. , § 171, both cited above ). It emphasised that such amnesties contravene irrevocable rights recognised by international human rights law (see Gomes Lund et al. , § 171 ). ( γ ) The Court ’ s conclusion 139. In the present case the applicant was granted amnesty for acts which amounted to grave breaches of fundamental human rights such as the intentional killing of civilians and inflicting grave bodily injury on a child, and the County Court ’ s reasoning referred to the applicant ’ s merits as a military officer. A growing tendency in international law is to see such amnesties as unacceptable because they are incompatible with the unanimously recognised obligation of States to prosecute and punish grave breaches of fundamental human rights. Even if it were to be accepted that amnesties are possible where there are some particular circumstances, such as a reconciliation process and/ or a form of compensation to the victims, the amnesty granted to the applicant in the instant case would still not be acceptable since there is nothing to indicate that there were any such circumstances. 140. The Court considers that by bringing a fresh indictment against the applicant and convicting him of war crimes against the civilian population, the Croatian authorities acted in compliance with the requirements of Articles 2 and 3 of the Convention and in a manner consistent with the requirements and recommendations of the above-mentioned international mechanisms and instruments. 141. Against the above background, the Court concludes that Article 4 of Protocol No. 7 to the Convention is not applicable in the circumstances of the present case.
The Court held that Article 4 of Protocol No. 7 was not applicable in respect of the charges relating to the offences which had been the subject of proceedings against the applicant terminated in 1997 in application of the General Amnesty Act. It noted in particular that there was a growing tendency in international law to see the granting of amnesties in respect of grave breaches of human rights as unacceptable and found that by bringing a new indictment against the applicant and convicting him of war crimes against the civilian population, the Croatian authorities had acted in compliance with the requirements of Article 2 (right to life) and Article 3 (prohibition of torture and inhuman or degrading treatment) of the Convention and consistent with the recommendations of various international bodies.