Case pending for a decision on merits of charges for war crimes- considered inadmissible by the HR Committee

Facts

The author, a citizen of the Republic of Serbia and Australia, claims that the State party has violated his rights under articles 2, 7, 9 (1) and (4), 10 (1), 14, 15 and 26 of the Covenant.

According to the Croatian authorities, the author was a  commander of the Special Purpose Unit of Serbian Paramilitary Troops which were involved in an armed conflict with Croatia in defence of the Serbian population living in Croatia. Subsequently, Croatia issued a request to Australia for the author’s extradition to face prosecution in Croatia for charges of war crimes. Hence, pursuant to a warrant issued under the Australian Extradition Act, he was arrested. The author spent eight years, nine months in extradition detention and his subsequent bail applications were unsuccessful.

On 12 April 2007,  the Sydney Local Court ruled that he was eligible for surrender to Croatia. The Australian Federal Court granted the author’s appeal and reversed the decision, thus releasing the author after three years in prison. The Croatian government again appealed the decision before the Australian High Court and the Court again ruled that the author was to be extradited, hence, he was arrested. Upon his extradition to Croatia, he was placed in investigative detention for more than 12 months, awaiting trial, on the basis of the Decision by the Sibenik County Court of 2005. All his appeals were rejected, ultimately by the Constitutional Court of Croatia in 2016 and his indictment was confirmed. The author claims that all his domestic remedies were exhausted in Australia and in Croatia. The author alleges his rights under article 9 (1) and (4) have been violated due to unlawful, excessively long arbitrations both in Australia and Croatia, also in breach of his right to presumption of innocence as he was denied bail and right to effectively challenge detention.

 

Admissibility

the Committee notes the author’s allegations under articles 2 (3), 7, 9 (1) and (4), 10 (1), 14, 15 and 26 of the Covenanant mainly concern the imperssibility  of his pre-trial detention due to the risk of absconding and the gravity of the criminal charges for war crimes; the absence of release on bail and the alleged discrimination in placing him in detention as a foreigner. The Committee however considers that it is not in a position to review the current grounds for the author’s detention in Croatia while his case remains pending on the merits of a criminal charge against him.  Hence the Committee finds that the claims are inadmissible for failure to exhaust domestic remedies and as under article 3 of the Optional Protocol, as incompatible with the provisions of the Covenant since the author’s appeals against the investigative detention  were examined by the State party’s courts and nothing on file suggests that the decisions were arbitrary or amounted to denial of justice.

Implementation

Deadline is 3rd October 2018.

By Aakrishti Kumar