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Grand Chamber hearing Behrami v. France and Saramati v. France, Germany and Norway

/noticias.info/ The European Court of Human Rights is holding a Grand Chamber hearing today 15 November 2006 at 9 a.m., in the case of Behrami v. France (application no. 71412/01) and Saramati v. France, Germany and Norway (no. 78166/01).

The applicants

The applicants in the first case are Agim Behrami, born in 1962, and his son, Bekir Behrami, born in 1990. Both live in the municipality of Mitrovica, Kosovo, in the then Federal Republic of Yugoslavia (FRY) (now the Republic of Serbia). Agim Behrami also applied on behalf of another of his sons, Gadaf Behrami, born in 1988, who is now deceased.

The applicant in the second case is Ruzhdi Saramati who was born in 1950. He is from Kosovo and of Albanian origin.

Summary of the facts

Behrami v. France

At the relevant time (March 2000) Mitrovica was within the sector of Kosovo for which a multinational brigade led by France was responsible; it was one of four brigades making up the international security force (KFOR) presence in Kosovo, mandated by UN Security Council Resolution 1244 of June 19991.

On 11 March 2000 Gadaf and Bekim Behrami were playing with some other boys in the hills in the Sipolje area of Mitrovica. They found a number of undetonated cluster bombs, which had been dropped during the bombardment of FRY by NATO in 1999, and began playing with them. One of the children threw a bomb into the air; it detonated and killed Gadaf Behrami. Bekim Behrami was also seriously injured and later had numerous eye operations.

The UN Interim Administration for Kosovo (UNMIK) - mandated by the same Resolution 1244 – investigated the incident and reported, on 18 March 2000, that Gadaf Behrami had died from numerous injuries following a cluster bomb explosion and that the incident amounted to “an unintentional homicide committed by imprudence”.

On 22 May 2000 Agim Behrami was informed that no criminal prosecution was to be brought because the bomb did not explode during the NATO bombardment. He was also informed that he had the right to pursue a criminal prosecution within eight days.

On 25 October 2001 Agim Behrami complained to the Kosovo Claims Office that France had not respected the provisions (concerning de-mining) of Resolution 1244. The claim was ultimately rejected on the ground that mine clearance had been the responsibility of the UN since 5 July 1999.

Saramati v. France, Germany and Norway

In April 2001 the applicant was arrested by UNMIK police and later detained. On 23 May 2001 a prosecutor filed an indictment accusing the applicant of attempted murder, causing serious bodily harm, unlawful possession of weapons or exploding substances, causing minor bodily injury and violent behaviour. He appealed successfully against a further detention order and was released.

On 13 July 2001 he was arrested by two UNMIK police officers (German). A German KFOR officer orally issued the arrest order and informed the applicant that he was being arrested by order of the KFOR Commander (COMKFOR), a Norwegian officer at that time. He was taken to a KFOR camp under escort by American KFOR soldiers. On 14 July 2001 the COMKFOR authorised the applicant’s further detention for 30 days.

On 26 July 2001, and in response to a letter from the applicant’s representatives taking issue with the legality of his detention, the KFOR Legal Adviser advised that KFOR had the authority to detain under Resolution 1244 as it was necessary “to maintain a safe and secure environment” and to protect KFOR troops. KFOR had information concerning the applicant’s involvement with armed groups operating in the border region between Kosovo and the Former Yugoslav Republic of Macedonia and was satisfied that the applicant represented a threat to the security of KFOR and to those residing in Kosovo.

On 11 August 2001 the applicant’s detention was again extended.

On 6 September 2001 the applicant’s case was transferred to the district court for trial. During each trial hearing from 17 September 2001 to 23 January 2002 the applicant’s representatives requested his release and the trial court responded that his detention was the responsibility of KFOR. On 3 October 2001 a French General became the COMKFOR.

On 23 January 2002 the applicant was convicted of attempted murder under Article 30 § 2(6) of the Criminal Code of Kosovo in conjunction with Article 19 of the Criminal Code of the FRY. On 26 January 2002 he was transferred by KFOR to the UNMIK detention facilities in Pristina.

On 9 October 2002 the Supreme Court of Kosovo quashed the applicant’s conviction and his case was sent for re-trial to Pristina District Court. His release from detention was ordered. A re-trial has yet to be fixed.

Complaints

The applicants in the first case allege that Gadaf Behrami’s death and Bekir Behram’s injuries were caused by the failure of the French KFOR troops to mark and/or defuse the un-detonated cluster bombs which KFOR knew to be present on the site in question. They rely on Article 2 (right to life) of the Convention

The applicant in the second case complains under Article 5 (right to liberty and security) and Article 13 (right to an effective remedy) of the Convention, about his detention by KFOR between 13 July 2001 and 26 January 2002. He further complains under Article 6 § 1 (right to a fair trial) that he did not have access to court and, under Article 1 (obligation to respect human rights), that France, Germany and Norway failed to guarantee the Convention rights of individuals living in Kosovo.

Procedure

The application in the case of Behrami v. France was lodged with the European Court of Human Rights on 28 September 2000 and the application in the case of Saramati v. France, Germany and Norway was lodged with the Court on 28 September 2001. On 13 June 2006 the Chamber of the Court dealing with the cases relinquished jurisdiction in favour of the Grand Chamber, under Article 302 of the Convention.

Composition of the Court

The cases will be heard by the Grand Chamber composed as follows:

Christos Rozakis (Greek), President,
Jean-Paul Costa (French),
Nicolas Bratza (British),
Boštjan M. Zupančič (Slovenian),
Peer Lorenzen (Danish),
Ireneu Cabral Barreto (Portuguese),
Matti Pellonpää (Finnish),
András Baka (Hungarian),
Kristaq Traja (Albanian),
Snejana Botoucharova (Bulgarian),
Mindia Ugrekhelidze (Georgian),
Antonella Mularoni (San Marinese),
Elisabet Fura-Sandström (Swedish),
Alvina Gyulumyan (Armenian),
Egbert Myjer (Dutch),
Danutė Jočienė (Lithuanian),
Dragoljub Popović (Serbian), judges,
Karel Jungwiert (Czech),
Rait Maruste (Estonian),
Josep Casadevall (Andorran), substitute judges,

and also Michael O’Boyle, Deputy Registrar.

Representatives of the parties

French Government: Edwige Belliard, Agent,
Anne-Françoise Tissier, Mostafa Mihraje, Advisers;

German Government: Hans-Jörg Behrens, Deputy Agent,
Christian Tomuschat, Counsel;

Norwegian Government: Rolf Einar Fife, Therese Steen Agents,
Torfinn Rislaa Arntsen, Adviser;

Applicants: Gazmend Nushi, Representative of Messrs Behrami,
Hazer Susuri, Representative of Mr Saramati,
Keir Starmer, Paul Troop, Counsel of the applicants,
Nuala Mole, David Norris, Ahmed Hasolli, Advisers.

Agim Behrami will also attend the hearing.

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After the hearing the Court will begin its deliberations, which are held in private.

Press contacts
Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15)
Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54)
Beverley Jacobs (telephone: 00 33 (0)3 90 21 54 21)

The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.

1 Resolution No. 1244 provided for the establishment of KFOR under UN auspices with “substantial NATO participation” under “unified command and control”. Each multinational brigade had a national commander, with disciplinary powers over the troops, who applied national rules of engagement. However, KFOR command retained operational control and command of the brigades.
2 Where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or the protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court, the Chamber may, at any time before it has rendered its judgment, relinquish jurisdiction in favour of the Grand Chamber, unless one of the parties to the case objects. notas_de_prensa_archivo