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Supreme Court, 13 July 1994

A Bosnian Serb who had been arrested in Austria for having allegedly committed genocide and other crimes (murder and arson) in the former Yugoslavia challenged the legality of his detention before the Regional Supreme Court (Linz). On 1 June 1994, this court ruled that he was lawfully detained and asserted the competence of Austrian jurisdictions in connection with the acts he had allegedly committed. The suspect subsequently lodged an appeal before the Supreme Court, arguing mainly, at this stage, that Austria was not competent to try him for the acts concerned and that such acts were in any case not punishable under the law applicable to him at the time, including the law of war. The Supreme Court rejected these arguments and confirmed the decision of the lower jurisdiction.

The appellant argued that the lower jurisdiction had erred in referring to Art. 64 of the Penal Code (acts committed abroad which are punished without consideration for the law in force in the place where they were committed) instead of to Art. 65 (acts committed abroad which are only punished if they are punishable under the law in force in the place where they were committed) to establish the competence of Austrian courts. The Supreme Court briefly replied that article 65 was in any case the only provision to take into consideration since all previous decisions established the competence of Austrian courts on the basis of Art. 65, para. 1.2.

The Supreme Court then indicated that the acts allegedly committed were indeed punishable under the criminal law in force in the place where they had been committed (Bosnia-Herzegovina) and that they could not be justified under the law of war (the Geneva Conventions and their Protocols and the Hague Conventions). It added that a further requirement of Art. 65, para. 1.2, had been met since extradition was impossible – not because of the nature of the alleged crimes, but for practical reasons alone. On this last point, the Supreme Court referred to Art. 7 of the UN Convention on Genocide, which states that "[g]enocide and the other acts enumerated in article III [conspiracy, incitement and attempt to commit genocide, and complicity in genocide] shall not be considered as political crimes for the purpose of extradition".

As for the appellant's concern that he might be tried three times for the same alleged acts (in Austria, in Bosnia-Herzegovina and by the International Criminal Tribunal for the former Yugoslavia), the Supreme Court replied by referring to Art. 10 of the Statute of the International Criminal Tribunal for the former Yugoslavia (Non-bis-in-idem) and to Art. 96 of the Yugoslav criminal code, which states that sentences served in a foreign country for the same acts should be taken into account by the national judge.

For all these reasons, the Supreme Court dismissed this appeal based on the claim that a fundamental right (personal liberty) had been violated.