Human Rights Committee

Decision adopted by the Committee under the Optional Protocol, concerning communication No.2859/2016 * , **

Communication submitted by:D.V. (represented by counsel, Sladana Čanković and Goran Cvetic)

Alleged victim:The author

State party:Croatia

Date of communication:14 July 2016 (initial submission)

Date of adoption of decision:6 April 2018

Subject matter:Arbitrary detention; fair trial; ill-treatment; non-discrimination; lack of effective remedy

Procedural issues:Exhaustion of domestic remedies; compatibility with the provisions of the Covenant; substantiation of claims

Substantive issues:Arbitrary detention; fair trial; ill-treatment; non-discrimination

Articles of the Covenant: 2, 7, 9 (1) and (4), 10 (1), 14, 15 and 26

Articles of the Optional Protocol:3 and 5 (2) (b)

1.The author of the communication is D.V., a citizen of Australia and Serbia, born on 12 December 1954. The author claims that Croatia has violated his rights under articles 2, 7, 9 (1) and (4), 10 (1), 14, 15 and 26 of the Covenant. The Optional Protocol to the Covenant entered into force for Croatia on 12 January 1996. The author is represented by counsel, Sladana Čanković and Goran Cvetic.

1.2The author has been charged in Croatia for war crimes, due to the killing of Croatian prisoners of war and civilians, committed when he was a commander of a Serbian paramilitary group in the territory of Croatia in 1991 and 1993. He was arrested in Australia on the basis of an extradition request by Croatia in January 2006 and placed in detention in anticipation of extradition to Croatia for prosecution. He was extradited to Croatia on 8 July 2015, after losing his thirteenth appeal in Australia, and his trial is ongoing. The author requested that the Committee issue interim or protection measures by requesting his immediate unconditional or conditional release on bail by Croatia.

1.3On 16 November 2016, the Committee, acting through its Special Rapporteur on new communications and interim measures, registered the case, but did not grant the author’s request for interim or protection measures, given that the criminal trial for war crimes remained pending in Croatia and that the author had not prima facie substantiated that he would face any reprisals or discrimination while in detention pending the proceedings on the merits of the crimes alleged.

Facts as submitted by the author

2.1In 1969, the author moved from Serbia, Socialist Federal Republic of Yugoslavia, to Australia, where he acquired Australian citizenship in 1975. The author returned to Yugoslavia in 1990. According to the Croatian authorities, he took part in the armed conflict in the Western Balkan region as a commander of a special purpose unit of Serbian paramilitary troops, which was involved in an armed conflict with the armed forces of Croatia in defence of the Serbian population living in the Krajina region in the territory of Croatia.

2.2The author submits that, when he moved to Australia in 2004, he did not know of any intended criminal charges for the offences that he had reportedly committed in 1991 and 1993 in Croatia. In January 2006, Croatia requested that Australia extradite the author to face prosecution in Croatia for charges of war crimes that he had allegedly committed as commander of Serbian paramilitary troops in 1991 and 1993. The author was arrested in Sydney, Australia, on 19 January 2006, pursuant to a provisional arrest warrant issued under the Australian Extradition Act of 1988, and remanded in custody in Australia on 20 January 2006. The provisions of the Act apply when no extradition treaty has been concluded between the requesting and extraditing States. The author asserts that he was not formally charged by Croatia for any allegedly committed acts until 8 January 2016, six months after his extradition to Croatia. At the time of his initial communication, the author was in prison in Split to stand trial, which commenced on 20 September 2016.

2.3The author spent 8 years, 9 months and 10 days in extradition detention in Australian prisons, due to an extremely lengthy extradition procedure before the Australian courts. The author made three unsuccessful applications for bail, on 27 January and 3 March 2006 and 12 December 2007.

2.4On 12 April 2007, the Sydney Local Court ruled that the author was eligible for extradition to Croatia. On 2 September 2009, a full bench of the Federal Court of Australia granted the author’s appeal and reversed the extradition decision, on the basis that he had established a substantial or real chance of facing prejudice if he were to be sent to Croatia to stand trial. The author was released on 4 September 2009, after over three years and seven months in prison. The Government of Croatia appealed the decision before the High Court of Australia. On 30 March 2010, the Federal Court again ruled that the author was to be extradited to Croatia. On 12 May 2010, the author was again arrested by the Australian Federal Police. On 16 November 2012, the Government of Australia decided to extradite the author to Croatia. The author lodged complaints about the unlawfulness of his extradition on various grounds before the High Court of Australia, the Federal Court and before the full bench of the Federal Court, which were all rejected. On 2 January 2015, the Minister of Justice of Serbia sent a letter to the Minister of Justice of Australia requesting that Serbia be allowed to prosecute the author, referring to its right to prosecute its own citizens and questioning the Croatian judiciary’s ability to ensure a fair trial of the author. That request was also rejected.

2.5Upon the author’s extradition to Croatia on 8 July 2015, he was immediately placed in an investigative detention for more than 12 months awaiting trial, on the basis of the decision by the Sibenik County Court of 12 December 2005. All his appeals were ultimately rejected by the Constitutional Court of Croatia on 5 April 2016.

2.6The indictment of the author of 8 January 2016 was formally confirmed on 13 June 2016, and the preparatory hearing took place on 14 July 2016. The author claims that all domestic remedies were exhausted on 5 April 2016.

Complaint

3.1The author claims that Croatia has violated articles 2, 7, 9 (1) and (4), 10 (1), 14, 15 and 26 of the Covenant. The author claims a continuous nature of violations of his rights by the State party.

3.2 Regarding article 9 (1) and (4), the author alleges that his rights have been violated due to the unlawful, excessively long and therefore arbitrary detention in both Australia and Croatia, which was also in breach of his right to presumption of innocence, given that he was denied bail and the right to effectively challenge the legality of his detention, having not been tried until July 2016. He claims that his unlawful and arbitrary detention in Australia and Croatia have the same legal basis, source and purpose, namely, his prosecution in Croatia.

3.3Regarding the claims of a violation of article 14 (1), (2) and (5), the author asserts that the examination of his detention was ill-founded in both Australia and Croatia, given that he was not notified about the correspondence between the two countries.

3.4The author claims that Croatia has violated his rights under articles 2 (3), 7, 9 (1) and (4) and 14 (1), because he considers all the decisions of the Croatian courts on the investigative detention to be illegal, arbitrary and developed in abstracto. He claims that there has been no risk that he would abscond or disturb the conduct of the criminal proceedings. He further submits that the Constitutional Court did not address the alleged shortcomings, including the absence of explanation as to how he could be “on the run” while in detention in Australia, why his request for bail was not acceptable or why an amount of bail that would be satisfactory was never set, in violation of the Code of Criminal Procedure of Croatia. The Supreme Court of Croatia, however, held that the trial court had given clear and sufficient and valid reasons to justify the need for investigative detention. The author also claims to be a victim of discrimination under article 26 of the Covenant, because he is being held in investigative detention, due to being a foreigner who could never meet the conditions referred to by the Supreme Court.

3.5The author requests that he be immediately released from detention and also requests the payment of compensation by Croatia for the suffering inflicted by his unlawful and arbitrary detention, including the legal costs incurred.

Issues and proceedings before the Committee

4.1Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 93 of its rules of procedure, whether it is admissible under the Optional Protocol.

4.2The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol that the same matter is not being examined under another procedure of international investigation or settlement.

4.3The Committee notes that the author’s allegations under articles 2 (3), 7, 9 (1) and (4), 10 (1), 14, 15 and 26 of the Covenant concern mainly the author’s pretrial detention owing to the courts’ determination that he posed a risk of absconding and to the gravity of the criminal charges faced by the author for war crimes, the absence of the author’s release on bail and the alleged discriminatory nature of placing him in detention, on the basis of his being a foreigner. In that context, the Committee takes note of the author’s claim that he has never attempted to abscond. The Committee also takes note of the author’s allegations that he has exhausted all available domestic remedies with regard to the articles invoked, by way of appeals against the decision of the Sibenik County Court of 12 December 2005, which authorized his investigative detention, and including a complaint lodged with the Constitutional Court of Croatia, which was rejected on 5 April 2016. In the circumstances of the present case, the Committee considers, however, that it is not in a position to review the current grounds for the author’s detention in Croatia while his case remains pending a decision on the merits of criminal charges against him, taking into account that he has been detained in compliance with domestic law, as part of the relevant criminal proceedings. The Committee is generally not in a position to review facts and evidence or the application of domestic legislation in a given case made by domestic courts, unless the author of the communication can demonstrate that such evaluation or application was clearly arbitrary or amounted to a manifest error or denial of justice or that the courts otherwise violated their obligation of independence and impartiality. The Committee therefore finds the author’s claims inadmissible under article 5 (2) (b) of the Optional Protocol, for failure to exhaust domestic remedies, given that a decision on the merits of the criminal charges against him remains pending, and under article 3 of the Optional Protocol, as incompatible with the provisions of the Covenant, given that the author’s appeals against his investigative detention were examined by the State party’s courts and nothing on file suggests that the decisions of the courts were arbitrary or amounted to a denial of justice.

5.The Committee therefore decides:

(a)That the communication is inadmissible under articles 3 and 5 (2) (b) of the Optional Protocol;

(b)That the decision shall be transmitted to the State party and to the author.