Communicated on 23 November 2020 Published on 14 December 2020

FIRST SECTION

Application no. 33351/20 Vladimir MILANKOVIĆ against Croatia lodged on 24 July 2020

SUBJECT MATTER OF THE CASE

The application concerns the criminal proceedings against the applicant, in which he, in his capacity as the commander of police forces in the broader area of Sisak and Banovina and Deputy Head of the Sisak Police, had been found guilty of command responsibility for war crimes against Serbian civilian population and war prisoners, which had occurred on the Croatian territory in the period between mid-July 1991 and mid-June 1992.

The applicant complains, under Article 7 § 1 of the Convention, that as regards the charges against him for war crimes on the basis of command responsibility for the period between mid-July 1991 and 8 October 1991 (during which the armed conflict in Croatia was still of a non-international character), the domestic courts had applied the First Protocol Additional to the Geneva Conventions (Protocol I) in his case, although that Protocol was applicable only to the situations of international armed conflicts, which had started in Croatia after 8 October 1991, the date on which the Croatian Parliament severed all ties with former Yugoslavia. On the other hand, command responsibility was not included in the Second Protocol Additional to the Geneva Conventions (Protocol II), which was applicable to non ‑ international armed conflicts. Consequently, the acts for which he was convicted did not, at the time of their commission, constitute a criminal offence under domestic or international law. In the applicant ’ s view, criminal law had thus been applied retroactively to his disadvantage.

The applicant further alleges that he was convicted, although he had not been a military commander.

QUESTION S TO THE PARTIES

In view of the applicant ’ s conviction of war crimes on the basis of his command responsibility in the period between mid-July 1991 and 8 October 1991, did the acts for which he was convicted constitute a criminal offence under national or international law at the time when they were committed, as envisaged by Article 7 of the Convention (see in that connection Kononov v. Latvia [GC], no. 36376/04, §§ 200, 211-13, 227 and 235-244, ECHR 2010 and Šimišić v. Bosnia and Herzegovina ( dec. ) no. 51552/10, §§ 22-25, 10 April 2012) ?

In particular:

(a) Was there a sufficiently clear legal basis for the applicant ’ s conviction for command responsibility for war crimes , considering that he had been the Deputy Head of a police unit?

(b) Could the applicant have reasonably foreseen that he would be held criminally liable for war crimes on the basis of his command responsibility ?

(c) Was there in the present case any retroactive application of criminal law to the applicant ’ s disadvantage?