Former Republika Srpska Leader Acquitted on Genocide Charge; Trial Will Continue as to Remaining Charges

A trial chamber of the International Criminal Tribunal for the Former Yugoslavia dismissed Radovan Karadzic's oral motion for acquittal as to ten counts of the indictment but granted his motion as to the first count, which charged Karadzic with genocide for crimes committed March-December 1992 in certain municipalities in Bosnia and Herzegovina.

The ruling was delivered pursuant to Rule 98 bis, which provides:

"At the close of the Prosecutor’s case, the Trial Chamber shall, by oral decision and after hearing the oral submissions of the parties, enter a judgement of acquittal on any count if there is no evidence capable of supporting a conviction."

The Prosecution charged Karadzic, former President of Republika Srpska and Supreme Commander of its forces, with genocide, crimes against humanity, and violations of the laws or customs of war committed in Bosnia and Herzegovina between 1992 and 1995. 

Count one charged Karadzic with genocide for crimes committed between March 31 and December 31, 1992, against Bosnian Muslims and Bosnian Croats in certain municipalities in Bosnia and Herzegovina.

The Chamber reviewed the evidence regarding the killing of, serious bodily harm to, forcible displacement of, and conditions of life inflicted on Bosnian Muslims and/or Bosnian Croats in the relevant municipalities and found that, the evidence, even if taken in the most favorable light, does not reach the level from which a reasonable trier of fact could infer that genocide occurred.  The definition of the term genocide, found in Article 4 of the Updated Statute of the International Criminal Tribunal for the Former Yugoslavia (2009), requires that specified acts be committed with the "intent to destroy, in whole or in part, a national, ethnical, racial or religious group...."  Although the Chamber had heard evidence of acts systematically committed against Bosnian Muslims and/or Bosnian Croats, the nature, scale, and context of the acts did not rise to the level from which a reasonable trier of fact could infer that they were committed with genocidal intent. 

The Chamber dismissed Karadzic's request for acquittal as to the remaining ten counts of the indictment.
 
Karadzic was first indicted on July 25, 1995.  Despite the issuance of an arrest warrant in 1995 , Karadzic was not arrested until 2008.  The trial began on October 26, 2009. 

The Defense case is scheduled to commence on October 16, 2012.

ECHR Decision Says Slovenia Did Not Do Enough to Address Situation of "Erased" People

Kurić and Others v. Slovenia (26828/06)

The applicants are members of a group called the "erased."  The names of the "erased" were removed from the Register of Permanent residents after Slovenia's declaration of independence in 1991; they were no longer legally resident in Slovenia.  The Court found that, despite efforts made since 1999, the Slovenian Government failed to provide an adequate remedy with the requisite promptness.*  The Court unanimously held that violations of Articles 8, 13, and 14 of the European Convention on Human Rights had occurred.
The eight applicants are Mustafa Kurić and Velimir Dabetić, both stateless persons; Ana Mezga, a Croatian national; Tripun Ristanović, a citizen of Bosnia and Herzegovina; Ljubenka Ristanović, Ali Berisha, and Zoran Minić, all Serbian nationals; and Ilfan Sadik Ademi, now a citizen of the "former Yugoslav Republic of Macedonia."

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Background

The Socialist Federal Republic of Yugoslavia (SFRY) was a federal state consisting of six republics: Bosnia and Herzegovina, Croatia, Serbia, Slovenia, Montenegro, and Macedonia.  Nationals were citizens of both the SFRY and one of the constituent republics.  Prior to 1947, a separate Register of Citizenship was kept at the republic level and not at the federal level.  Beginning in 1974, citizenship data for newborns was entered in the Register of Births.  Beginning in 1984, entry in the Register of Citizenship ended, and all citizenship data was entered in the Register of Births.  With respect to citizenship in the republics, a child generally acquired the citizenship of his or her parents.

SFRY citizens were allowed free movement within Yugoslavia.  They were permitted to register as permanent residents anywhere in Yugoslavia.  With permanent residence came civil, political, economic, and social rights.

During the dissolution of the SFRY, Slovenia took measures toward independence.

Prior to June 25, 1991, when Slovenia gained independence, the applicants were nationals of the SFRY and one of its republics other than Slovenia.  They were permanent residents in Slovenia.  However, on February 26, 1992, their names were erased from the Slovenia Register of Permanent Residents because they had not applied for citizenship by the legal deadline (December 25, 1991).  Of 200,000 residents in Slovenia who were citizens of other former SFRY republics, 171,132 applied for and were granted Slovenian citizenship.  Those who failed to apply for or were denied Slovenian citizenship became aliens or stateless persons illegally residing in Slovenia.

The Slovenian Government asserts that those people were informed of the change in their status.  Applicants denied receiving notice, but say they learned by chance that their status changed.  The applicants pointed out that no special procedure was provided to give notice and no official documents were issued.

The applicants contend that their "erasure" had serious and enduring consequences. In many cases, their identity papers were taken.  Some were evicted, could not work or travel, lost personal possessions, and lived in poor conditions for years.  Some were expelled from Slovenia.

Timeline

December 6, 1990   Assembly of Republic of Slovenia adopts "Statement of Good Intentions", which        guarantees opportunity to acquire Slovenian citizenship for all permanent residents who desire it.
June 25, 1991         Slovenia declares independence and passes "the independence legislation," a series of laws which include the Citizenship of the Republic of Slovenia Act ("the Citizenship Act"), the Aliens Act, the National Border Control Act, and the Passports of the Citizens of Slovenia Act.
February 26, 1992   Municipal Authorities removed those who had not applied for or obtained citizenship from the Register of Permanent Residents and, according to the Government, transferred them to the Register of Aliens Without a Residence Permit.
1999                         Constitutional Court finds provisions of the Aliens Act unconstitutional because it did not regulate the situation of the "erased."  The Act did not set conditions for those who were subject to section 81(2) to get permanent residence, and there was no legal basis for the authorities to strike those individuals from the Register of Permanent Residents and add them to the Register of Aliens.  The Constitutional Court noted that nationals of former SFRY republics were in a less favorable legal position than other aliens living in Slovenia.
July 8, 1999            Legal Status Act is passed to regulate situation of the "erased."
2003                        The Constitutional Court finds the Legal Status Act partially unconstitutional because it fails to grant the "erased" retroactive permanent residence permits, to define the meaning of "actually residing in Slovenia," and to regulate the acquisition of permanent residence by deported persons. 
July 24, 2010          The Amended Legal Status Act, adopted in response to the 2003 Constitutional Court decision, becomes effective.

Summary of Applicable Laws

Section 13 of the 1991 Constitutional Law--Citizens of other former SFRY republics who, on December 23, 1990, were registered as permanent residents and actually lived in Slovenia, held equal rights and duties to citizens, with the exception of acquisition of property, until they acquired citizenship under section 40 of the Citizenship Act or until expiry of the time limit in section 81 of the Aliens Act.

Section 40 of the Citizenship Act--former SFRY citizens who were not Slovenian Citizens could acquire citizenship if they met three requirements: 1) acquired permanent residence in Slovenia by December 23, 1990, 2) were actually residing in Slovenia, and 3) had applied for citizenship within the six months after the Citizenship Act was in force (in other words, by December 25, 1991).

Section 81(2) of the Aliens Act--Citizens of former SFRY republics who failed to apply for citizenship within the prescribed time or whose requests were denied became aliens.

ICC Promises to Investigate Detained Staff Members

The International Criminal Court has promised to investigate alleged misconduct by members of its staff following the return of the four ICC staff members now detained in Libya.  The staff members had travelled to Zintan to meet Saif Al-Islam Gaddafi with the aim of preserving his rights as a defendant before the ICC. 

Libyan authorities allege that ICC staff endangered national security.  More specifically, they state that attorney Melinda Taylor conveyed a coded message to Gaddafi from a former aide.  The staff members have been detained since June 7.  The ICC stated that it would investigate in accordance with ICC procedures and sanction anyone found responsible for misconduct.  The Court intends to seek further background information from the Libyan authorities. 

The Court expressed its regret for "any events that may have given rise to concerns on the part of the Libyan authorities" and stated that it had "no intention of doing anything that would undermine the national security of Libya."

ECJ: Workers Who Become Ill During Annual Leave May Take Leave Later

In Case C-78/11, the Court of Justice of the European Union (ECJ) has ruled that a worker who becomes unfit for work during his annual paid leave is entitled at a later point in time to a period of leave of the same duration as that of his sick leave, irrespective of the point at which the incapacity arose. 

The Working Time Directive (2003/88/EC) states, in part:

Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.

Trade unions brought suits before the Spanish courts seeking recognition of the right of certain workers to paid annual leave even where the leave coincides with periods of sick leave owing to temporary incapacity for work.  Spanish law explicitly provides that workers are entitled to take annual leave at a later time if scheduled annual leave coincides with a period of temporary incapacity resulting from pregnancy, labor, or breastfeeding.

The Spanish Supreme Court stayed the proceedings before it to refer this question to the ECJ for a preliminary ruling:

Does Article 7(1) of Directive 2003/88 … preclude an interpretation of national legislation which does not permit interruption of a period of leave so that the full period – or the remaining period – can be taken at a later time if a worker is temporarily incapacitated when he is on leave?

The Court held in a previous case that a worker who was unfit for work before his or her period of annual leave begins is entitled to take that leave at another time, separate from the period of sick leave. In holding that the right applies irrespective of when the incapacity arises, the Court noted that it would be arbitrary and contrary to the purpose of the annual leave entitlement to grant the worker that right only if he is unfit for work when the annual leave period commences.

ECHR Decision: Christian Teodorescu v. Romania (No. 22883/05)

A chamber of the Third Section of the ECHR found that Article 5 § 1 (right to liberty and security) of the Convention had been violated by the involuntary psychiatric hospitalization of a secondary school teacher in Braila, Romania.

The applicant, Mr. Teodorescu, was a physics teacher and the president of the local branch of the World Union of Free Romanians.  He claimed that his father had been under surveillance by the former communist regime.  Mr. Teodorescu filed several criminal complaints, claiming that he was under surveillance and that acts of sabotage had been committed against him.  On December 8, 2004, police questioned Mr. Teodorescu about one of the criminal complaints he had filed and about his private life.  Although Mr. Teodorescu was not violent and had no history of psychiatric episodes, the police transported him to a psychiatric facility in Braila, where he was involuntarily hospitalized.  After a psychiatric examination, Mr. Teodorescu was released on December 9, 2004.  The Court found that Mr. Teodorescu was deprived of his liberty and that the deprivation could not be justified under Article 5 § 1(e).  The applicant was awarded EUR 4500 in non-pecuniary damages.

ICTR Sentences Former Military Officer

Ildéphonse Nizeyimana was sentenced to life imprisonment by the International Criminal Tribunal for Rwanda.  The tribunal found Nizeyimana guilty of war crimes.  The summary of judgment is available here.

ECHR Chamber Judgment in Communist Party of Russia and Others v. Russia: No Violation

In a Chamber judgment of June 19, 2012, the ECHR held in Communist Party of Russia and Others v. Russia (Application No. 29400/05) that there had been no violation of Article 13 of the European Convention on Human Rights (right to an effective remedy) and no violation of Article 3 of Protocol No. 1 (right to free elections) to the Convention.

            The case was initiated by Russian political opposition parties and politicians who complained that, because of unequal media coverage by the five major nationwide television companies in Russia, the 2003 parliamentary elections had not been free.

            The Court found that the laws and procedures existing in Russia during the relevant time guaranteed the opposition free minimum access to television and provided for the neutrality of state-controlled media.  Although television coverage had not been equal during the 2003 elections, that fact was not sufficient to find that the elections were not “free” within the meaning of the Convention.

Background

           The case was brought by two political parties registered under Russian law, namely, the “Communist Party of the Russian Federation” and the Russian Democratic Party "Yabloko," and six individuals: Sergey Ivanenko, Yevgeniy Kiselyev, Dmitriy Muratov, Vladimir Ryzhkov, Vadim Solovyev, and Irina Khakamada.  The applicants participated in the December 2003 Parliamentary elections as opposition candidates, and the individual applicants also participated as voters.

          The individual applicants were represented before the Court by politician and former world chess champion Gary Kasparov.  The Russian Government was represented by G. Matyushkin, the Representative of the Russian Federation at the ECHR.  

            All major television companies in Russia (including the five main nationwide broadcasters: Channel One, TV Centre, VGTRK, NTV, and REN TV) covered the elections.  Three of the five main nationwide broadcasting companies were directly controlled by the State.  The other two were affiliated with the State indirectly.

            During the campaign, all candidate parties received the same amount of free airtime on national and regional television.  Furthermore, all parties could purchase a certain amount of airtime for political campaigning.  The Communist Party did not purchase airtime.  Yabloko bought time on “Channel One” to show two one-minute video clips.  All parties bought space in the federal print media.

            Television companies also provided media coverage of the elections.  The applicants claimed that the media coverage of the December 2003 electoral campaign was unfair to opposition parties and candidates and that the television channels campaigned for the ruling party, United Russia, under the pretext of media coverage.

            The applicants submitted that United Russia received more coverage than the opposition parties and that the information broadcast during the campaign had not been neutral.  The applicants also asserted that most coverage of the Communist Party had been negative.  They submitted data on media coverage which showed bias of television companies in favor of United Russia. 

            The applicants also referred to tacit campaigning by high-level officials, including then-President Putin.

              On September 10, 2003, Mr. Mitrokhin, then deputy chairperson of Yabloko, wrote a complaint to the Central Electoral Commission (CEC) about unfair media coverage of the 2003 campaign.  The CEC chairman replied on September 29, 2003, acknowledging that several television broadcasts and press reports contained elements of unlawful campaigning against Yabloko. 

            Some of the applicants lodged complaints with the CEC, the CEC Working Group on Information Disputes, and the prosecuting authorities about the television coverage of the 2003 campaign.  

On October 31, 2003, the Working Group issued a report noting that VGTRK “had displayed a tendency towards deliberate and systematic dissemination of neutral or positive, or even complimentary, information about the events related to the activities of the United Russia party, while providing mainly negative coverage of the activities of the Communist Party”.  It also found that “Channel One displayed a tendency towards deliberate and systematic dissemination of neutral or positive information about the events related to the activities of United Russia, while providing mainly negative coverage - or news items accompanied by negative comments - of the activities of the Communist Party”.  The Working Group called on Channel One and VGTRK to comply with the Duma Elections Act.

 The CEC asked the Ministry of Mass Media to monitor the content of major information programs on the five nationwide television channels.

In the December 2003 elections, United Russia obtained a majority of the votes and formed the biggest group in Parliament (224 seats).  The Communist Party obtained 52 seats, and Yabloko did not obtain any seats.  Applicant Mr. Ryzhkov was elected as an individual member of Parliament.  Applicants Mr. Ivanenko and Ms. Khakamada were not elected.

On September 28, 2004, the applicants lodged a complaint with the Supreme Court to invalidate the December 2003 parliamentary election results, which had been certified by the CEC.  The CEC was the defendant in those proceedings.  The applicants submitted voluminous transcripts and video recordings, among other materials, in support of their claim that television coverage had been biased.  The case was tried by Justice Zaytsev, sitting in single-judge formation.  The applicants lodge several procedural motions.  The applicants claim that the court denied nearly all of those motions without good reason or in breach of procedural rules.  The government denied those assertions.  The applicants challenged the judge on four occasions, but he refused to withdraw from the case. 

The Supreme Court dismissed the claim in December 2004, finding that no violation of the electoral law capable of undermining the genuine will of the voters had occurred.  The Supreme Court noted that Russian electoral law did not limit the number of election-related events during campaigns, that there had been other mass media coverage of the 2003 Parliamentary election in addition to the television coverage, and that there was no direct correlation between the amount of television coverage and the number of votes a party received. 

The applicants appealed.  They complained that the court of the first instance only examined around five percent of the transcripts and less than 1.5 percent of the video recordings.  They argued that this violated the principle of direct examination of evidence.  The Supreme Court, sitting as a court of appeal, dismissed their claim

Relying on Article 3 of Protocol No. 1 to the Convention and Articles 13, 6 § 1 (right to a fair trial) and 14 (prohibition of discrimination) of the Convention, the applicants complained that the television media coverage of the 2003 Parliamentary election had been biased against opposition parties and candidates; that, as opposition candidates, they had been discriminated against and did not have effective remedies; and that their complaints had been examined in proceedings that had not been “fair” within the meaning of the Convention.  The application was lodged with the ECHR on August 1, 2005.  The Court decided to rule on admissibility and merits of the application at the same time.

The Law

Article 3 of Protocol 1 to the Convention reads:  “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

Article 13 of the Convention states: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Decision
Article 13 (Right to an effective remedy)
The Court stated that it was “not convinced that the remedies used by the applicants during the electoral campaign were sufficient to address” a problem of the magnitude complained of by the applicants.  However, the applicants attempted to have the results of the elections invalidated, and it was within the power of the Supreme Court to annul the results if it had detected serious breaches of electoral law.  The Government demonstrated that such a remedy had been successfully used at least once.  Therefore, at least in theory, applicants had access to a legal remedy capable of satisfying their claim.

Applicants argued that, although they had made use of the remedy, it had proved ineffective because examination of their complaints was procedurally flawed.  The Court noted that “not every procedural shortcoming results in the ‘ineffectiveness’ of the remedy in question.” 

The applicants’ allegations were reviewed by the Supreme Court at two levels of jurisdiction.  The Supreme Court had full jurisdiction and was entitled to invalidate the results of the election.  The independence of the Supreme Court was not called into question, and the Court did not consider the Supreme Court's impartiality to be an issue.  The fact that the Supreme Court examined only a sample of the materials submitted by the applicants did not make the remedy ineffective.  The Supreme Court heard the applicants and delivered a reasoned judgment.  Therefore, the Court concluded that the proceedings before the Supreme Court were an effective remedy in accordance with Article 13.  Consequently, Article 13 was not breached.

Article 3 of Protocol No 1 (Right to free election)

The applicants did not deny that Russian law guaranteed neutrality of the broadcasting companies; rather, they claimed that the law was not complied with in practice.  Specifically, they claimed that television coverage on the five main channels had been largely hostile to opposition parties and candidates, that executive authorities and/or United Russia had influenced the television companies to promote United Russia, and that biased television coverage had affected public opinion to such an extent that the elections were not “free” within the meaning of Article 3.

The Court concluded that the Supreme Court’s findings on the issue of government manipulation of the television companies had not been irrational.  The applicants did not present direct proof of Government manipulation of the television companies involved.  Under Article 10 of the Convention, journalists and news editors enjoy a wide discretion with respect to comments on political matters.  The Court stated that the applicants did not explain how, based on the available information, Government-induced propaganda could be distinguished from genuine political journalism or routine reporting on activities of State officials.  The Court concluded that it did not have sufficient evidence to discard the Supreme Court’s findings and that the applicants’ allegations of abuse by the Government were not sufficiently proven.

The Court concluded that the system of electoral appeals in place in the present case was sufficient to comply with the State’s positive procedural obligation.  It noted that the applicants’ complaint about unequal media coverage was examined by an independent body in a procedure that afforded basic procedural guarantees and that a reasoned judgment was given.  The State was under a duty to intervene to open up the media to different viewpoints.  In this case, candidates were provided with free and paid airtime without regard to political affiliation.  Furthermore, although the main nationwide broadcasters had favored United Russia, voters who sought information could obtain it from various sources.  The Court stated that the applicants did not sufficiently substantiate their claims that the principles of neutrality and editorial independence of public media had not been complied with in practice.

The Court concluded that the Government had taken action to guarantee some visibility of opposition parties and candidates on Russian television and secure editorial independence and neutrality of the media.  Although the arrangements probably did not secure de facto equality among political competitors on television media, the State, in view of its broad discretion in under Article 3 of Protocol 1, had not failed to meet its obligations to such an extent that it violated that provision.

The Court declared that the other complaints in the application were inadmissible. 

ECHR Issues Decision in Mangadash v. Ukraine

On June 14, 2012, the ECHR (Fifth Section) issued a decision in the case of Mangadash and Others v. Ukraine (Nos. 14018/08, 14835/08, and 31423/08).  Each of the joined cases stemmed from a land-related dispute.  The applicants claimed that the length of the proceedings in their cases did not meet the “reasonable time” requirement set forth in Article 6 § 1 of the Convention. 

The first applicant initiated proceedings on February 14, 2000.  Those proceedings were resolved on September 5, 2007, after eight adjournments caused by the defendant company and one adjournment caused by the applicant’s absence. 

The second and third applicants initiated proceedings on December 1, 1995.  The final ruling against the applicants was issued on November 20, 2007. The Court determined that the period to be taken into consideration with regard to the second and third applicants began on September 11, 1997, the effective date of Ukraine’s recognition of the right of individual petition.

The fourth applicant initiated proceedings on November 13, 2000.  In 2008, the Supreme Court remitted the case to the court of first instance, where it remained pending at the time the ECHR’s decision was issued.

The Government contended that the applicants had lengthened the proceedings with adjournments and procedural requests.  In addition, the Government contended that, in the case of applicants 2 and 3, the proceedings were complex, as demonstrated by the number of expert examinations.  The Court rejected these arguments, noting that the applicants’ conduct could not justify the length of the proceedings and stating that “no particular complexity [was] discernible” in the land disputes.  The Court determined, based on its prior case law, that Article 6 § 1 had been violated.  The applicants’ other claims, mostly addressing the alleged unfairness and the outcome of the proceedings, were dismissed. 

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