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EUROPSKI SUD ZA LJUDSKA PRAVA
PRVI ODJEL
PREDMET NJEŽIĆ I ŠTIMAC protiv HRVATSKE
(Zahtjev br. 29823/13)
PRESUDA STRASBOURG
9. travnja 2015.
Ova presuda postaje konačna pod okolnostima navedenima u članku 44. stavku 2. Konvencije. Može biti podvrgnuta uredničkim izmjenama.
U predmetu Nježić i Štimac protiv Hrvatske, Europski sud za ljudska prava (Prvi odjel), zasjedajući u vijeću u sastavu:
Elisabeth Steiner, predsjednica,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, suci,
te André Wampach, zamjenik tajnika
nakon vijećanja zatvorenog za javnost 17. ožujka 2015. godine donosi sljedeću presudu koja je usvojena ovog datuma:
POSTUPAK
ČINJENICE
I. OKOLNOSTI PREDMETA
II.MJERODAVNO DOMAĆE PRAVO I IZVJEŠĆA
A. Hrvatska
1.Ustav
„Svako ljudsko biće ima pravo na život. (...)”
2.Krivični zakon
3. Zakon o kaznenom postupku
„(...) da može odlučiti hoće li zahtijevati provođenje istrage (...) državni će odvjetnik (...) zahtijevati od redarstvenih vlasti da prikupe potrebne obavijesti i poduzmu druge mjere radi otkrivanja [dotičnog] kaznenog djela i počinitelja (...)”
Članak 177.„Ako postoje osnove sumnje da je počinjeno kazneno djelo za koje se progoni po službenoj dužnosti, redarstvene vlasti dužne su poduzeti potrebne mjere da se pronađe počinitelj kaznenog djela (...) te da prikupe sve obavijesti koje bi mogle biti od koristi za uspješno vođenje kaznenog postupka.”
Članak 187.„(1) Istraga se pokreće protiv određene osobe kad postoji osnovana sumnja da je počinila kazneno djelo.
(2) U istrazi će se prikupiti dokazi i podaci koji su potrebni da bi se moglo odlučiti hoće li se podignuti optužnica ili obustaviti postupak (...).”
4. Državno odvjetništvoB. Srbija
1. Zakon o organizaciji i nadležnosti državnih organa u postupku za ratne zločine iz 2003.
2. Zakon o međunarodnoj pravnoj pomoći u krivičnim stvarima iz 2009.
PRAVO
NAVODNA POVREDA ČLANKA 2. KONVENCIJE„1. Pravo svakoga na život zaštićeno je zakonom. Nitko ne smije biti namjerno lišen života osim u izvršenju sudske presude na smrtnu kaznu za kaznena djela za koje je ta kazna predviđena zakonom.
2. Nije u suprotnosti s odredbama ovoga članka lišenje života proizašlo iz upotrebe sile koja je bila nužno potrebna:
(a)pri obrani bilo koje osobe od protupravnog nasilja;
(b)pri zakonitom uhićenju ili pri sprječavanju bijega osobe zakonito lišene slobode;
(c)radi suzbijanja pobune ili ustanka u skladu sa zakonom."
A. Dopuštenost
1.Tvrdnje stranaka
(b) Poštovanje šestomjesečnog roka
(c) Zaključci o dopuštenosti
B. Osnovanost
1. Tvrdnje stranaka
2. Ocjena Suda
(a) Opća načela
(b) Primjena ovih načela na ovaj predmet
IZ TIH RAZLOGA SUD JEDNOGLASNO
1. Utvrđuje da je zahtjev dopušten;
2. Presuđuje da nije došlo do povrede članka 2. Konvencije.
Sastavljeno na engleskome jeziku i otpravljeno u pisanom obliku dana 9. travnja 2015. u skladu s pravilom 77. stavcima 2. i 3. Poslovnika Suda.
André Wampach Elisabeth Steiner
Zamjenik tajnika Predsjednica
_____________________________________________________
Prevod presude preuzet sa stranice Zastupnika Republike Hrvatske pred Evropskim sudom za ljudska prava
https://uredzastupnika.gov.hr/
FIRST SECTION
CASE OF NJEŽIĆ AND ŠTIMAC v. CROATIA
(Application no. 29823/13)
JUDGMENT
STRASBOURG
9 April 2015
FINAL
09/07/2015
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Nježić and Štimac v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Elisabeth Steiner, President,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 17 March 2015, Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 29823/13) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Croatian nationals, Ms Marija Nježić and Ms Ana Štimac (“the applicants”), on 11 April 2013.
2. The applicants were represented by Mr K. Kraus, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š Stažnik.
3. The applicants alleged, in particular, that contrary to the procedural requirement under Article 2 of the Convention, there had been no adequate response by the national authorities to the killing of their close relatives.
4. On 5 September 2013 the complaint concerning the procedural aspect of Article 2 of the Convention was communicated to the Government and the remainder of the application was declared inadmissible.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants were born in 1956 and 1957 respectively and live in Zagreb.
6. On 16 October 1991 the Gospić police learned that seven civilians had been killed that day in the village of Bukovac. Their bodies were transported to the Pathology Department of the Gospić Medical Centre by the members of the Croatian Army who had found them. Two of the bodies were identified as the applicants’ parents, Mile and Ana Pocrnić, and the third as their grandmother, Marija Pocrnić. An investigating judge of the Gospić County Court was informed of the killings. The investigating judge decided that it was not possible to carry out an on-site inspection because of the danger of further attacks by unidentified persons from Široka Kula.
7. On the same day a pathologist performed an autopsy on the corpses and drew up a post-mortem report. He established that the applicants’ parents and their grandmother had been shot dead.
8. On 28 December 1991 the Gospić police lodged a criminal complaint with the Gospić County State Attorney’s Office against persons unknown on charges of murder in connection with the killing of seven inhabitants of the Bukovac village on 16 October 1991, including the applicants’ parents, Mile and Ana Pocrnić, and their grandmother Marija Pocrnić.
9. On 11 September 1992 the Gospić police interviewed I.P., who had been living in Podlapača, a village near Bukovac, during the critical period. On an unspecified date in December 1991 three members of the Serbian paramilitary forces, M.B., R.Š. and J.G., had fired at him, but he had escaped into the woods. While visiting one of his neighbours on 26 October 1991 he had met B. and Č., who had said that they had killed some people in Bukovac. When the police showed him photographs of some members of the Serbian paramilitary forces he recognised B.G. and Č.B. as B. and Č., the persons he had met at his neighbour’s house.
10. On 14 September 1992 the police interviewed P.J. and I.J., who were brothers. P.J. said that he had met B.G., Č.B. and another man in a prison in Knin. When he had asked B.G. why they had been imprisoned he had told him that they had killed some civilians in Korenica. However, I.J. and P.J. thought that this had not happened in Korenica but in one of the Croatian villages near Lički Osik.
11. On 15 September 1992 the Gospić police sent a report to the Karlovac Military Prosecutor stating that B.G. and Č.B may have been among the perpetrators of the killings in Bukovac.
12. Immediately before the Croatian Army military action “Storm” which started on 4 August 1995, the vast majority of the Serbian paramilitary forces fled Croatia, firstly to Bosnia and then to Serbia in some cases.
13. In 1996 the United Nations Security Council established the United Nations Transitional Administration in Eastern Slavonia, Baranja and Western Sirmium (the “UNTAES”). On 15 January 1998 the UNTAES mandate ceased and the transfer of power to the Croatian authorities began.
14. On 19 March 1996 the second applicant handed the police a letter sent to her by her relative D.P.
15. In 2001 the police interviewed the second applicant.
16. On 23 August 2001 the Service for the Protection of the Constitutional Order (Služba za zaštitu ustavnog poretka) sent a report to the Ministry of Justice and the Gospić County State Attorney’s Office on the killing of the applicants’ parents and grandmother, allegedly by members of the Serbian paramilitary forces. The report stated that the only survivors who had any information about the killings were D.P. and J.P., who both lived in Canada. A letter of 19 March 1996, drafted by D.P., was also enclosed, as well as a letter drafted by D.P. and his father J.P. on an unspecified date and sent to the Service for the Protection of the Constitutional Order. D.P. alleged that on 16 October 1991 a group of members of the Serbian paramilitary forces from Široka Kula had come to their village, Bukovac, and killed several people. He named D.L., M.Su., M.O., D.V., M.Se., Bo.K., Da.M., N.M., Du.M., Br.K., Ma.U., S.G., Mi.U. and T.G. as those personally known to him. He openly named commanders of various formations of these forces as: P.R., M.O., S.Č. or Ɖ., Mi.Se. and M.K. The only survivors had been himself and his parents. They had been taken from Bukovac to a prison in Korenica. His mother had died in the meantime while he and his father J.P. had emigrated to Canada after the war.
17. On 1 October 2001 the Gospić County State Attorney’s Office lodged a request for an investigation with the Gospić County Court and asked that D.P. and J.P. be heard as witnesses.
18. On 15 January 2004 the police interviewed S.Ɖ. and D.S., former members of the Serbian paramilitary forces, in the Zagreb Prison Hospital. S.Ɖ. said that a formation of Serbian paramilitary forces under the command of Mi.S. and D.L. had carried out “actions”, inter alia, in the area of Bukovac. He named several members of that formation. D.S. described various actions in which members of Serbian paramilitary forces had killed civilians in Croatian villages in the broader area of Široka Kula and Lički Osik, including Bukovac, but had no information about the killing of the applicants’ relatives.
19. On 23 January 2004 the police interviewed B.Č., also a former member of the Serbian paramilitary forces, who described various actions in which members of Serbian paramilitary forces had killed civilians in Croatian villages in the broader area of Široka Kula and Lički Osik, including Bukovac, but had no information about the killing of the applicants’ relatives.
20. On 2 May 2006 an investigating judge of the Gospić County Court asked the Gospić County State Attorney’s Office whether they still insisted on interviews with D.P. and J.P. since their address was “uncertain”. On 29 June 2006 the investigating judge asked the Gospić Counter-Information Service for the address of D.P. and J.P. On 9 August 2006 the Centre provided the investigating judge with the address of D.P. and J.P. in Canada.
21. On 16 September 2008 the Department for War Crimes of the Ministry of the Interior sent a detailed report about the possible suspects to the Ličko-senjska Police Department.
22. On 16 July 2010 the Gospić County State Attorney’s Office sent a report to the State Attorney’s Office on the killing of seven civilians in Bukovac in 1991. The Gospić County Court had informed them that the Canadian Ministry of Justice had invited D.P. and J.P. on three occasions to give their statements, which they had refused to do with the explanation that they had already given their statements in writing. They had almost certainly been referring to a letter to their relatives in Croatia and the one sent to the Service for the Protection of the Constitutional Order.
23. On 14 September 2010 an investigating judge of the Gospić County Court heard evidence from M.Ć., who confirmed that members of the Serbian paramilitary forces had captured D.P. in 1991. As to the killing of the seven persons in Bukovac, he had heard about that from one I.K., who had died in the meantime.
24. On 24 October 2011 the police interviewed M.P., I.J. and P.J. M.P. had no relevant information about the killing of the civilians in Bukovac. I.J. and P.J. repeated their earlier statements (see paragraph 10 above).
25. On 25 October 2011 the police again interviewed I.P., who repeated his statement of 11 September 1992 (see paragraph 9 above). On the same day the police also interviewed N.P., a neighbour of I.P., who admitted that B.G. and Č.B. had visited him in 1991 but said that they had not mentioned the killing of civilians in Bukovac.
26. On 26 October 2011 the police noted that in March 2011 B.G. and Č.B. had been convicted of war crimes in connection with the killing of R.’s family in Lički Osik, Croatia, and sentenced to twelve years’ imprisonment by a court in Belgrade.
27. In 2011 the police interviewed the second applicant again.
28. On 20 January 2011 the police interviewed D.M., one of the Croatian soldiers who had found the bodies in Bukovac. He had no relevant information about the killing of the civilians in Bukovac.
29. On 21 January 2011 the police interviewed B.Č., a former member of the Serbian paramilitary forces. He repeated his earlier statement (see paragraph 19 above).
30. On 22 August 2011 the Belgrade Interpol Office informed the Zagreb Interpol Office that one of the suspects, D.V., had been placed in pre-trial detention in connection with a different set of criminal proceedings. He had in the meantime become a Serbian citizen.
31. On 2 February 2012 the Ličko-senjska Police Department sent a report to the Karlovac County State Attorney’s Office informing it that two of the persons mentioned in D.P.’s letter (see paragraph 14 above), namely D.L. and M.S., had died. A report drawn up by M.Š., a member of the Serbian paramilitary forces was enclosed. It stated that on 16 October 1991 “they had killed seven people”. A list of the members of the paramilitary forces from the Teslingrad area was also enclosed.
32. On 21 September 2012 the Rijeka County State Attorney’s Office sent a criminal complaint against B.G. and Č.B. to the Serbian Prosecutor for War Crimes and asked him for the address of another suspect, M.Š., indicating that he should be questioned about the report he had allegedly drawn up on the events of 16 October 1991 in Bukovac.
33. On 28 January 2013 the Rijeka County State Attorney’s Office forwarded a report on the interviews with B.G., Č.B. and M.Š., carried out by the Serbian authorities, to the Ličko-senjska Police Department. They denied any involvement in the killing of the applicants’ relatives.
34. Between 21 February and 5 March 2013 the Ličko-senjska Police Department interviewed P.J., I.J., D.P., M.P., I.P. and N.P., M.P. and D.P. had no relevant information about the killing of the applicants’ relatives. The others repeated their earlier statements.
35. On 27 February and 8 March 2013 the Ličko-senjska Police Department sent a report to the Rijeka County State Attorney’s Office listing the suspected perpetrators of the killings in Bukovac on 16 October 1991. Four of them had died, fourteen had moved to Serbia, three to the United States and in respect of two of them there was no relevant information.
36. On 15 March 2013 the Rijeka County State Attorney’s Office sent the report of 8 March 2013 to the Serbian Prosecutor for War Crimes and asked him to interview the suspects living in Serbia.
37. In April 2013 the police learned that one of the suspects, I.S., had died.
II. RELEVANT DOMESTIC LAW AND REPORTS
A. Croatia
1. Constitution
38. Article 21 of the Constitution (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000 and 28/2001) reads as follows:
“Every human being has the right to life.
...”
2. Criminal Code
39. Article 34 of the Criminal Code (Krivični zakon, Official Gazette nos. 25/1977, 50/1978, 25/1984, 52/1987, 43/1989, 8/1990, 8/1991, and 53/1991) prescribes imprisonment of at least five years for murder. Aggravated murder was punishable by up to twenty years’ imprisonment.
40. Article 120 of the Basic Criminal Code of the Republic of Croatia (Osnovni krivični zakon Republike Hrvatske, Official Gazette nos. 53/1991, 39/1992 and 91/1992) prescribes imprisonment of at least five years, or twenty years, for war crimes against the civilian population.
3. Code of Criminal Procedure
41. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002) provide:
Article 174 § 2
“In order to ... decide whether to request an investigation ... the State Attorney shall order the police to gather the necessary information and take other measures concerning the crime [at issue] with a view to identifying the perpetrator ...”
Article 177
“Where there is a suspicion that a criminal offence liable to public prosecution has been committed, the police shall take the necessary measures with a view to identifying the perpetrator ... and gather all information of possible relevance for the conduct of the criminal proceedings ...”
Article 187
“(1) An investigation shall be opened against a particular individual where there is a suspicion that he or she has committed a criminal offence.
(2) During the investigation evidence and information necessary for deciding whether an indictment is to be brought or the proceedings are to be discontinued shall be gathered ...”
4. State Attorney’s Office
42. The report on the work of the State Attorney’s Office for the year 2012, submitted to Parliament in September 2013, states that in the period between 1991 and 31 December 2012 there were 13,749 reported victims of the war in Croatia, of whom 5,979 had been killed. Thus far, the Croatian authorities had opened investigations in respect of 3,436 alleged perpetrators. There had been 557 convictions for war-related crimes.
5. Agreement on cooperation in respect of prosecution of war crimes, crimes against humanity and genocide
43. On 13 October 2006 the War Crimes Prosecutor of the Republic of Serbia and the State Attorney of the Republic of Croatia concluded the above Agreement (Sporazum o suradnji u progonu počinitelja kaznenih djela ratnih zločina, zločina protiv čovječnosti i genocida). It covers cooperation as regards evidence, information and documents.
B. Serbia
1. War Crimes Act 2003
44. The War Crimes Act 2003 (Zakon o nadležnosti državnih organa u posutpku za ratne zločine, published in Official Gazette of the Republic of Serbia no. 67/2003, amendments published in Official Gazette nos. 135/04, 61/2005, 101/2007 and 104/2009) entered into force on 9 July 2003. The War Crimes Prosecutor, the War Crimes Police Unit and the War Crimes Sections within the Belgrade Higher Court and the Belgrade Court of Appeal were set up pursuant to this Act. They have jurisdiction over serious violations of international humanitarian law committed anywhere in the former Yugoslavia, regardless of the nationality of victims or perpetrators.
2. Mutual Assistance in Criminal Matters Act 2009
45. The Mutual Assistance in Criminal Matters Act 2009 (published in Official Gazette of the Republic of Serbia no. 20/2009) entered into force on 27 March 2009. Under section 16 of this Act, Serbian citizens cannot be extradited. This Act repealed the corresponding provision of the Code of Criminal Procedure of 2001 (published in Official Gazette of the Federal Republic of Yugoslavia no. 70/2001, amendments published in Official Gazette of the Federal Republic of Yugoslavia no. 68/2002 and Official Gazette of the Republic of Serbia nos. 58/2004, 85/2005, 115/2005, 49/2007, 20/2009 and 72/2009), which was in force between 28 March 2002 and 27 March 2009.
THE LAW
ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
46. The applicants complained that the authorities had not taken appropriate and adequate steps to investigate the death of their close family members and to bring the perpetrators to justice. They relied on Article 2 of the Convention, which reads as follows:
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
A. Admissibility
1. The parties’ arguments
47. The Government argued that the applicants had failed to exhaust all available domestic remedies. They contended that the applicants could have lodged a complaint against the individual police officers or employees in the State Attorney’s Office who were in charge of the investigation into the death of their relatives. Such a complaint could have led to the institution of disciplinary proceedings. As regards protection against alleged unlawfulness of the conduct of the domestic authorities, the Government pointed out that the applicants could have sought damages from the State pursuant to the State Administration Act (Zakon o sustavu državne uprave). They argued that such a combination of remedies had been found effective by the Court in the case of D.J. v. Croatia (no. 42418/10, 24 July 2012).
48. They argued further that the application had been introduced before the Court outside the six-month time-limit because the applicants had not enquired about the progress of investigation and had not reacted to delays in the investigation.
49. The applicants argued that they had exhausted all available remedies and that it had been the second applicant herself who had handed over to the authorities the letter she had received form D.P. with the names of the alleged perpetrators. They contended, further, that they had complied with the six-month time-limit.
2. The Court’s assessment
(a) Exhaustion of domestic remedies
50. The Court has already addressed the same objections as regards the exhaustion of domestic remedies in other cases against Croatia and has rejected them (see Jelić v. Croatia, no. 57856/11, §§ 59-67, 12 June 2014). The Court sees no reason to depart from that approach in the present case.
51. It follows that the Government’s objection must be dismissed.
(b) Compliance with the six-month rule
52. The Court observes that in a number of cases concerning ongoing investigations into the deaths of applicants’ relatives it has examined the period of time from which the applicant could or should start doubting the effectiveness of a remedy and its bearing on the six-month time-limit provided for in Article 35 § 1 of the Convention (see Şükran Aydın and Others v. Turkey (dec.), no. 46231/99, 26 May 2005; Elsanova v. Russia (dec.) no. 57952/00, 15 November 2005; and Narin v. Turkey, no. 18907/02, § 50, 15 December 2009). The determination of whether the applicant in a given case has complied with the admissibility criteria will depend on the circumstances of the case and other factors such as the diligence and interest displayed by the applicants, as well as the adequacy of the investigation in question (see Narin, cited above, § 43). The Court has found that in cases concerning instances of violent death, the ineffectiveness of the investigation will generally be more readily apparent; the requirement of expedition may require an applicant to bring such a case to Strasbourg within a matter of months or at most, depending on the circumstances, just a few years after the events (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 158, ECHR 2009).
53. As can be seen from the case-law referred to above, the Court has refrained from indicating a specific period for establishing when an investigation has become ineffective for the purposes of assessing the date from which the six-month period starts to run. The determination of such a period by the Court depends on the circumstances of each case and other factors such as the diligence, interest displayed by the applicants as well as the adequacy of the investigation in question.
54. As to the case in issue, the Court notes that the investigation into the death of the applicants’ relatives commenced in 1991 and is still pending. In 2013 the police were still hearing evidence from witnesses and enquiring about the whereabouts of possible suspects and further witnesses. It cannot therefore be said that the six-month time-limit expired at any time in the period between 5 November 1997 and the date when the present application was lodged with the Court, on 11 April 2013. It follows that the applicants have complied with the six-month time-limit.
(c) Conclusion as to the admissibility
55. The Court notes that the complaint under the procedural aspect of Article 2 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
56. The applicants argued that the investigation into the killing of their close relatives had not been effective. They stressed in particular that no on-site inspection had been carried out immediately after the killings. Furthermore, even though the names of the suspects had been revealed in a letter sent by D.P. to the second applicant, which she had handed over to the authorities, no arrest warrants had been issued against those persons. Thus, the investigation had not produced any tangible results.
57. The Government contended that the national authorities had complied with their procedural obligation under Article 2 of the Convention.
58. After Croatia became independent, the State apparatus comprised many young and inexperienced officials who had not known how to address those serious problems.
59. One of the specific features of investigations into war crimes was a lack of material evidence and the prosecution was highly dependent on witness evidence. However, witnesses had often been reluctant to give evidence for fear of reprisals. In the case in issue two main witnesses had refused to give their evidence.
60. Owing to the war activities in the area in question it had not been possible to carry out an on-site inspection when the killings had occurred. The persons identified as potential suspects resided in Serbia and the Croatian authorities were cooperating with their counterparts in Serbia in that respect.
2. The Court’s assessment
(a) General principles
61. The Court reiterates that Article 2 ranks as one of the most fundamental provisions in the Convention. It enshrines one of the basic values of the democratic societies making up the Council of Europe. The object and purpose of the Convention as an instrument for the protection of individual human beings require that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see, among many other authorities, Anguelova v. Bulgaria, no. 38361/97, § 109, ECHR 2002‑IV).
62. The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others v. the United Kingdom, 27 September 1995, § 161, Series A no. 324, and Kaya v. Turkey, 19 February 1998, § 86, Reports 1998-I). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. This investigation should be thorough, independent, accessible to the victim’s family, carried out with reasonable promptness and expedition, effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances or otherwise unlawful, and afford a sufficient element of public scrutiny of the investigation or its results (see Hugh Jordan v. the United Kingdom, no. 24746/94, §§ 105-09, ECHR 2001‑III (extracts); Douglas-Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002; Esmukhambetov and Others v. Russia, no. 23445/03, §§ 115-18, 29 March 2011; and Umarova and Others v. Russia, no. 25654/08, §§ 84-88, 31 July 2012).
63. The obligation comes into play, primarily, in the aftermath of a violent or suspicious death and, in the normal course of events, a criminal trial, with an adversarial procedure before an independent and impartial judge, must be regarded as furnishing the strongest safeguards of an effective procedure for the finding of facts and the attribution of criminal responsibility. There is no right, however, to obtain a prosecution or conviction (see Szula v. the United Kingdom, (dec.) no. 18727/06, 4 January 2007, and Gürtekin and others v. Cyprus (dec.), no. 60441/13 et al., § 20, 11 March 2014) and the fact that an investigation ends without concrete, or with only limited, results is not indicative of any failings as such. The obligation is of means only, not result (Avşar v. Turkey, no. 25657/94, § 394, ECHR 2001‑VII (extracts)).
64. Even where events have taken place far in the past, it is possible that new developments occur such that a fresh obligation to investigate arises, for example newly discovered evidence comes to light (see Brecknell v. the United Kingdom, no. 32457/04, §§ 73‑75, 27 November 2007; Hackett v United Kingdom, no. 4698/04, (dec.) May 10, 2005; and Gasyak and Others v. Turkey, no. 27872/03, 13 October 2009). The scope of the fresh obligation to investigate will vary according to the nature of the purported new evidence or information. It may be restricted to verifying the reliability of the new evidence. The authorities can legitimately take into account the prospects of launching a new prosecution at such a late stage. Due to the lapse of time, the level of urgency may have diminished; the immediacy of required investigative steps in the aftermath of an incident is likely to be absent (see Brecknell, cited above, §§ 79-81). The standard of expedition in such historical cases is very different from the standard applicable in recent incidents where time is often of the essence in preserving vital evidence at a scene and questioning witnesses when their memories are fresh and detailed (see Palić v. Bosnia and Herzegovina, no. 4704/04, § 70, 15 February 2011 concerning complex post-conflict situations; Emin and Others v Cyprus, no. 59623/08 et al, (dec.) 3 April 2012; and Gürtekin and Others, cited above, § 21).
(b) Application of these principles to the present case
65. As there is no indication that the investigation into the disappearance and death of the applicants’ relatives lacked independence, the Court will turn to the question of its effectiveness.
66. The Court would note, first of all, that the police have followed numerous leads in the case in issue, making enquiries with official bodies, updating the statements by the witnesses and relatives of the deceased, looking for witnesses in the villages where the bodies were found or where events were reported to have occurred and tracking down as far as possible the names of potential suspects which have been mentioned by witnesses. Naturally, given the lapse of more than twenty years since the events, some of the potential suspects have died in the meantime. It should also be noted that, of those named as being implicated in the events who have been found and questioned by the authorities, all have denied participation in any unlawful acts (see paragraphs 18, 19, 29 and 33 above).
67. The applicants submitted that the investigation was nonetheless ineffective. They specifically complained that the on-site inspection had not been carried out immediately after their relatives had been killed. However, the killing of the applicants’ relatives occurred in October 1991 whereas the Convention entered into force in respect of Croatia on 5 November 1997. The Court is therefore not able to examine the failings in the investigation which occurred prior to that date.
68. The applicants further complained that the Croatian authorities had not issued arrest warrants in respect of the suspects identified in D.P.’s letters. The Court notes that pursuant to these letters the Croatian authorities took various investigative steps, including asking the Serbian authorities to assist them in investigation by interviewing the available suspects and checking addresses of other suspects (see paragraphs 32 and 36 above), however, they could not corroborate the information provided in the letters with any other evidence. It is questionable whether information provided in the letters could in itself serve as a basis for issuing arrest warrants. The Court notes further that the majority of the persons named as perpetrators are living in Serbia. Those who have become Serbian citizens cannot be extradited (see paragraph 44 above), but Croatia cannot be held liable for that. The Court also considers that it is not necessary to examine whether there was an obligation under the Convention for Croatia to request Serbia to take proceedings in this case, given that the applicants could have reported this case themselves to Serbia’s War Crimes Prosecutor, who has jurisdiction over serious violations of international humanitarian law committed anywhere in the former Yugoslavia (see paragraph 44 above). Moreover, it is open to the applicants to lodge an application against Serbia if they consider that they are the victim of a breach by Serbia of their Convention rights (compare to Palić, cited above, § 65).
69. The applicants’ principal complaint appears to be that the investigation has not resulted in any prosecutions. The Court can understand that it must be frustrating for the applicants that potential suspects have been named but no further steps have been taken. However, Article 2 cannot be interpreted so as to impose a requirement on the authorities to launch a prosecution irrespective of the evidence which is available. In this connection the Court notes that the only two witnesses who directly witnessed the killing of the applicants’ relatives are living in Canada and have refused to give statements, considering that the two letters they had sent to the second applicant, their close relative, and the authorities should suffice (see paragraphs 16 and 22 above). It is not apparent that there is any evidence, beyond the two letters, which can be relied upon as identifying any persons still alive as having been involved in acts leading to the deaths of the applicants’ relatives. As the Court has held on numerous occasions, the procedural obligation under Article 2 is not an obligation of result, but of means. What is relevant is that the domestic authorities have done all that could be reasonably expected of them in the circumstances of this particular case (see paragraph 68 above).
70. As to the requirement of promptness, the Court is aware that the investigation and prosecution of war crimes was a sensitive and overwhelming task for a country that was at war and also accepts that during the war and at the beginning of the county’s independence the State authorities were faced with a difficult situation which was aggravated by the fact that the perpetrators of the crimes that are the subject of the present application appear to have been members of Serbian paramilitary forces who fled Croatia in August 1997 and now mostly live in Serbia.
71. The Court notes, further, that Croatia declared its independence on 8 October 1991 and all military operations ended in August 1995. In January 1998 the UNTAES mandate ceased and the peaceful transfer of power to the Croatian authorities began (see paragraph 13 above). The Court accepts that obstacles in the investigation into the killings during the war and post-war recovery were attributable to the overall situation in Croatia, a newly independent and post-war State which needed time to organise its apparatus and for its officials to gain experience (compare Palić, cited above, § 70).
72. The Court also acknowledges that the prosecuting authorities did not remain passive and that significant efforts have been made to prosecute war crimes. Thus, by 31 December 2012 the prosecuting authorities had opened investigations in respect of 3,436 alleged perpetrators altogether and there had been 557 convictions (see paragraph 42 above).
73. The Court finds that, taking into account the special circumstances prevailing in Croatia in the post-war period and the large number of war-crimes cases pending before the local courts, the investigation has not been shown to have infringed the minimum standard required under Article 2 (compare Palić, cited above, § 71; Gürtekin and Others, cited above, § 32; Mujkanović and Others v. Bosnia and Hercegovina (dec.), nos. 47063/08 et al., § 42, 3 June 2014; Fazlić and Others v. Bosnia and Herzegovina (dec.), nos 66758/09 et al., § 40, 3 June 2014; and Šeremet v. Bosnia and Hercegovina (dec.), no. 29620/05, § 38, 8 July 2014).
74. In conclusion, the Court does not find support for the applicants’ allegations that the authorities did not properly investigate the fate of the deceased or that they are somehow shielding or protecting those responsible. The investigation has not been shown to have infringed the minimum standard required under Article 2. It follows that there has therefore been no violation of that provision.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been no violation of Article 2 of the Convention;
Done in English, and notified in writing on 9 April 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Elisabeth Steiner
Deputy Registrar President
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