PARTLY DISSENTING OPINION OF JUDGE DEDOV

1. In the present case the Court has rigorously applied the principles of international humanitarian law to an amnesty granted for acts which amounted to war crimes, and has found “such amnesties [to be] unacceptable because they are incompatible with the unanimously recognised obligation of States to prosecute and punish grave breaches of fundamental human rights” (see paragraph 139 of the judgment). Accordingly, such an amnesty cannot serve as a barrier to the above-mentioned obligation. I completely agree with the above position of the majority of judges, as this assessment is based on the Convention (see paragraphs 124 ‑ 28 ) and on international law (see paragraphs 129- 38 ).

However, I regret that I cannot share the conclusion reached by the majority in paragraph 141 of the judgment, according to which “Article 4 of Protocol No. 7 to the Convention ... is not applicable in the circumstances of the present case”. This conclusion is not self-evident, as the Court did not assess whether Article 4 of Protocol No. 7 was applicable to the circumstances of the present case. From the standpoint of legal certainty and the quality of judgments, however, the assessment of the circumstances is a precondition for any conclusion regarding the applicability of Article 4 of Protocol No. 7.

The Court cannot ignore the following circumstances of the present case. The Osijek County Court established all the facts (see paragraph 17 of the judgment) and applied the national amnesty law, and its ruling became final; the applicant ’ s case was subsequently reopened, he was tried twice for the same offences (see paragraph 116 ) and was punished. Paragraph 1 of Article 4 of Protocol No. 7 provides that “[n]o 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”. Its wording demonstrates beyond doubt that Article 4 of Protocol No. 7 should apply in the above-mentioned circumstances. I would make my position even stronger: the Court should have applied Article 4 of Protocol No. 7 even if there were some doubts as to its applicability. I shall explain why.

It should be noted that in paragraph 128 of the judgment the Court concludes that “the guarantees under Article 4 of Protocol No. 7 and States ’ obligations under Article s 2 and 3 of the Convention should be regarded as parts of a whole” and “interpreted in such a way as to promote internal consistency and harmony between their various provisions”. If these Articles are integral components of the Convention protection system, none of them may be withdrawn from the system as a whole. The Court ’ s principal findings refer to the “obligation of States to prosecute and punish grave breaches of fundamental human rights”, which ranks equally with the obligations under Articles 2 and 3 referred to in paragraphs 124 to 140.

Whereas Articles 2 and 3 establish what kind of substanti ve rights should be protected under the Convention, Article 4 of Protocol No. 7 contains procedural guarantees ( ne bis in idem ) against arbitrariness, including those provided for by Article 6 of the Convention. Article 4 of Protocol No. 7 has its own dimension which is independent from Articles 2 and 3 and is governed by the rule of law and legal certainty. That is why the applicant sought protection under Article 4 of Protocol No. 7 .

As regards any doubts there may be, they are not decisive. Firstly, if t his Article provides safeguards against being tried and punished a second time, then its scope cannot be formally limited to acquittal or conviction, thereby excluding amnesty granted by a court whose judgment is final. This is because both acquittal and amnesty amount to absolution from criminal responsibility. Secondly, when determining a request for the protection of legality under Article 422 of the Code of Criminal Procedure, the Supreme Court can merely establish that there has been a violation of the law (see paragraph 27 of the judgment). However, the absence of a national criminal procedure allowing the case to be reopened cannot itself serve as a barrier to rectifying the fundamental defect in accordance with paragraph 2 of Article 4 of Protocol No. 7.

Therefore, Article 4 of Protocol No. 7 is applicable in the present case.

2. Was there a violation of Article 4 of Protocol No. 7 by the respondent State? Although there are strong safeguards against being tried and convicted a second time, an exception to the enjoyment of such guarantees (where there has been a fundamental defect) is provided for by paragraph 2 of this Article. In my view, the Chamber ’ s approach was rightly influenced by this exception (see paragraph 76 of the Chamber judgment), although it left the general principle applicable under Article 4 of Protocol No. 7 unclarified.

The application of the ne bis in idem guarantee was assessed by the “old” Court from the standpoint of an alleged violation of the right to a fair trial under Article 6 § 1 of the Convention (see X. v . the Netherlands , no. 9433/81, Commission decision of 11 December 1981, Decisions and Reports (DR) 27, p. 233, and S. v. Germany , no. 8945/80, Commission decision of 13 December 1983, DR 39, p. 43). Furthermore, according to the “ n ew” Court ’ s well-established case-law in terms of Article 6 § 1, only exceptional circumstances (that is, a “fundamental defect”) warrant the quashing of a final judicial decision by way of supervisory review (see, among many other authorities, Ryabykh v. Russia , no. 52854/99, ECHR 2003- IX ; Brumărescu v. Romania [GC], no. 28342/95, ECHR 1999 ‑ VII ; and Kot v. Russia, no. 20887/03, 18 January 2007 ).

Considering that the “fundamental defect” concept is applicable under the head of Article 6 § 1 for the same purpose (reopening of the case), it is easy to come to the conclusion that Article 4 of Protocol No. 7 regulates a specific aspect of the following fundamental principle enshrined in Article 6 § 1 and stated, for instance, in Kot , cited above , §§ 23 and 24 :

“The Court reiterates that the right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which declares, in its relevant part, the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania , 28 October 1999, § 61, Reports of Judgments and Decisions 1999-VII ).

This principle insists that no party is entitled to seek reopening of the proceedings merely for the purpose of a rehearing and a fresh decision of the case. Higher courts ’ power to quash or alter binding and enforceable judicial decisions should be exercised for correction of fundamental defects. The mere possibility of two views on the subject is not a ground for re-examination. Departures from that principle are justified only when made necessary by circumstances of a substantial and compelling character (see, mutatis mutandis , Ryabykh v. Russia , no. 52854/99, § 52, ECHR 2003- IX ; and Pravednaya v. Russia , no. 69529/01, § 25, 18 November 2004).”

The proceedings in the present case were reopened on account of the application of the General Amnesty Act in contradiction with the principles of international law and with the respondent State ’ s obligations under the Convention. Obviously, these are “circumstances of a substantial and compelling character” and, therefore, the reopening of the proceedings was justified to rectify a fundamental defect.

Against the above background, I believe that Article 4 of Protocol No. 7 is applicable and that there was no violation of that Article in the circumstances of the present case.

[1] . See the Supreme Court’s practice in respect of this provision in paragraphs 32 to 34 below.

[2] . Adopted by Resolution 260 (III) A of the United Nations General Assembly on 9 December 1948.

[3] . Adopted on 26 November 1968; entry into force on 11 November 1970. It was ratified by Croatia on 12 October 1992.

[4] . J.-M. Henckaerts and L. Doswald -Beck (eds.), Customary International Humanitarian Law, vols. I and II, Cambridge University Press and ICRC, 2005 .

[5] . Adopted and opened for signature, ratification and accession by United Nations General As sembly R esolution 39/46 of 10 December 1984 ; entry into force 26 June 1987.

[6] . Adopted at the Inter-American Specialized Conference on Human Rights, San José, Costa Rica, 22 November 1969.

[7] . The interveners relied on the following sources: Louise Mallinder , Amnesty, Human Rights and Political Transitions : Bridging the Peace and Justice Divide (Hart Publishing , 2008); Louise Mallinder , “ Amnesties’ Challenge to the Global Accountability Norm? Interpreting Regional and International Trends in Amnesty Enactment ” , in Francesca Lessa and Leigh A. Payne, Amnesty in the Age of Human Rights Accountability : Comparative and International Perspectives (Cambridge University Press, 2012); Tricia D. Olsen, Leigh A. Payne and Andrew G. Reiter, Transitional Justice in Balance, Comparing Processes, Weighing Efficacy (United States Institute of Peace Press , 2010); Leslie Vinjamuri and Aaron P. Boesenecker , Accountability and Peace Agreements, Mapping trends from 1980 to 2006 ( Geneva: Center for Humanitarian Dialogue, 2007).