CONCURRING OPINION OF JUDGE VUČINIĆ

I voted with the majority in finding that Article 4 of Protocol No. 7 to the Convention is not applicable in the particular circumstances of the case. The applicant was granted amnesty for acts which amounted to grave breaches of fundamental human rights. The grant of amnesty was contrary to the increasing tendency in contemporary international law in this area as well as to Contracting States ’ obligations under Articles 2 and 3 of the Convention. The grant of amnesty to the applicant also amounted to a fundamental defect in the first set of proceedings within the me aning of paragraph 2 of Article 4 of Protocol No. 7.

I am not however fully satisfied with the reasoning of the judgment. This case is more complicated and more important from the legal point of view than might appear at first sight. In my opinion, there were several consecutive fundamental defects in the first set of proceedings which should be seen as interconnected and interdependent. In the final analysis, these defects, for me, inevitably lead to the conclusion that Article 4 of Protocol No. 7 cannot be considered applicable.

The first and most fundamental defect in this case, one which was at the origin of all other defects, was the decision of the Osijek Military Prosecutor to regard obvious war crimes committed by a member of the Croatian Army against the civilian population during the armed conflict in Croatia in 1991, as “ ordinary killings”. Such a legal qualification of the offences in question was regrettably accepted by the Osijek County Court in 1993. This qualification and its acceptance were wrong in law. At the material time there was a general and widely accepted political belief in Croatia that considerations related to the legitimate self-defence of the State in the face of foreign aggression could not justify the commission by members of its armed forces of war crimes or crimes against humanity. This political attitude was then transformed into a judicial practice whereby obvious war crimes committed by members of the Croatian armed forces were wrongly qualified in law as “ordinary killings”.

The General Amnesty Act was subsequently applied in respect of such “legal qualifications” of obvious war crimes against the civilian population notwithstanding the very clear provision in the Act that it was not to be applied to any acts which amounted to grave breaches of humanitarian law or to war crimes.

Finally, as a consequence of the two previous defects the first set of criminal proceedings against the applicant (no. K-4/97) was terminated in the form of a “discontinuance of criminal proceedings”, and not in the form of a “final acquittal or conviction” within the meaning of paragraph 2 of Article 4 of Protocol No. 7. It is quite clear that the Croatian authorities were responsible for several fundamental defects in the previous proceedings, contrary to national, international and Convention law. In my view, this resulted in the absolute inapplicab ility of Article 4 of Protocol No. 7 in this case.

Against that background, the retrial and final conviction of the applicant ha ve to be understood as a legal and legitimate effort on the part of the Croatian authorities to correct the previously mentioned defects in the domestic proceedings. This, I believe, is fully in accordance with the letter and spirit of Article 4 of Protocol No.7. That provision cannot in any case be interpreted or applied to thwart or to act as a bar to the punishment of war crimes and crimes against humanity or to a Contracting State ’ s obligations under Articles 2 and 3 of the Convention.