If a trial for international crimes is stopped due to an amnesty, would a subsequent retrial violate the double jeopardy principle? The European Court of Human Rights addressed the question in its recent judgment in Margus v. Croatia. The court took a seemingly unprecedented but attractive approach in finding that prior application of an amnesty does not preclude reopening prosecutions. Cases involving the prior application of an amnesty to international crimes, the judgment argues, fall within an exception to the protection from double jeopardy.
In the case, Fred Margus, a Croatian national, was first indicted in 1993 on four charges—including murder, inflicting bodily harm, causing risk to life and assets, and theft—for his role in the execution of four civilians and the shooting and beatings of four others. At the time of the offenses, Margus was first acting in his capacity as a commander of the Croatian Army and later in his capacity as an on-duty member of the Reserve Forces (dressed in military uniform and using military weapons).
Before trial began, Croatia enacted the 1996 General Amnesty Act, applying a general amnesty for all criminal offenses committed in connection with the war in Croatia between August 17, 1990, and August 23, 1996. In Margus’s case, the court of first instance held that the “actions of the accused, in view of the time and place of the events at issue, were closely connected with the aggression, armed rebellion and armed conflict in Croatia, and were carried out during the period referred to in the General Amnesty Act.” As a result, it found the amnesty applied and terminated the criminal proceedings against Margus.
The prosecutor took Margus’s case to Croatia’s Supreme Court, which held that for the amnesty to apply “there must exist a direct and significant connection between the criminal offense and the aggression, armed rebellion or armed conflict,” which it found missing because the record did “not show that the acts in question were committed during the aggression, armed rebellion or armed conflict in Croatia, or that they were committed in connection with them.”
In 2006, Margus was indicted again for the same acts, this time on charges of war crimes against the civilian population. He was convicted and the conviction was upheld in appeals to the Supreme Court and Constitutional Court.
In his application to the European Court, Margus complained that he had been tried twice for the same offenses, in violation of the protection against double jeopardy found in Article 4 of Protocol No. 7 to the European Convention. (He also complained of additional fair trial violations involving his right to be tried by an impartial tribunal and to defend himself in person. This blog focuses only on the court’s analysis of the question of double jeopardy).
In its analysis, the European Court did not focus on whether Margus had been “finally acquitted” for the purposes of paragraph 1 of Article 4 of Protocol No. 7, but instead examined whether the exception provided in paragraph 2 applied—that there was a “fundamental defect” in the first proceedings—and the accused could be re-tried for the same conduct.
The court noted its prior holdings in Abdulsamet Yaman v. Turkey and Yesil and Sevim v. Turkey that criminal proceedings for charges of torture and ill-treatment should not be time-barred or subject to an amnesty or pardon. It reasoned that its holding in Ould Dah v. France—that an amnesty is generally incompatible with the duty to investigate and prosecute serious crimes—logically extends to war crimes. Finally, it reasoned that, because granting amnesty in respect of international crimes is “increasingly considered to be prohibited by international law,” granting amnesty to Margus in respect of acts characterized as war crimes amounted to a fundamental defect.
The court therefore found that the Croatia’s Amnesty Act was erroneously applied, amounting to a fundamental defect, and unanimously held that there was thus no violation of Article 4 of Protocol No. 7. It also rejected Margus’s other, unrelated fair trial arguments.
This case has recently been referred to the court’s Grand Chamber. If the reasoning withstands review, it will represent an attractive option that national authorities can apply to reopening prosecutions of perpetrators of the most serious crimes.