The sentence passed by the Oberlandesgericht Düsseldorf on September 26, 1997 held Nikola Jorgic responsible for 11 counts of genocide. Three of these instances coincided with the murder of 30 persons, eight of them with grave bodily harm and/ or deprivation of liberty. He was found to deserve life imprisonment in four cases and prison sentences of seven to nine years in the remaining 8 instances. Overall, the Court passed a single sentence of life imprisonment. The Oberlandesgericht found that the guilt of the defendant weighed particularly heavy.
Jorgic’s appeal was rejected on 30 April 1999 by the Bundesgerichtshof (case no. 3 StR 215/98), and the life sentence for genocide was confirmed. The Court stated that the lower instance had rightly asserted the jurisdiction of the German judiciary and had correctly concluded that Jorgic had committed genocide. The International Criminal Court for the Former Yugoslavia had previously declined to take over Jorgic’s case.
For legal reasons, the Bundesgerichtshof considered, instead of 11 counts, only one count of genocide in coincidence with the murder of 30 persons, but also handed down a life sentence. It assumed only one count of genocide, because Jorgic’s various actions were to be seen as one integral course of conduct. In the Court’s view, this did however not affect the sentence to be handed down.
The Court further confirmed the lower instance’s finding that the accused’s guilt weighed particulary heavy – which forestalls an early release after 15 years.
The Bundesgerichtshof also stated that genocide, according to the genocide convention of 9 November 1948 (which Germany has ratified), was a crime that could legaly be prosecuted by all states.
Jorgic appealed to the German Constitutional Court, which however declined to rule on the issue (case no. 2 BvR 1290/99 12.12.2000). As a result, Jorgic’s sentence became final.
Jorgic brought the case before the European Court of Human Rights in Strasbourg on 23 May 2001, claiming violation of his rights under articles 5, 6 and 7 of the European Convention on Human Rights.
Jorgic alleged that the German courts had not had jurisdiction to convict him. Moreover, he complained that his conviction for genocide was in breach of Article 7 § 1 (no punishment without law) in particular because the national courts’ wide interpretation of that crime had no basis in German or public international law.
On 12 July 2007, the Court rendered its judgment.
The Court held unanimously that there had been:
· no violation of Article 6 § 1 (right to a fair trial) of the Convention
· no violation of Article 5 § 1 (right to liberty and security) of the Convention concerning Mr. Jorgic’s complaint about the German courts’ lack of jurisdiction to try him on charges of genocide; and,
· no violation of Article 7 (no punishment without law).