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PALIC v. BOSNIA AND HERZEGOVINA - 4704/04 [2011] ECHR 304 (15 February 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/304.html
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[2011] ECHR 304
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FOURTH
SECTION
CASE OF PALIĆ v. BOSNIA AND HERZEGOVINA
(Application
no. 4704/04)
JUDGMENT
STRASBOURG
15
February 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Palić v.
Bosnia and Herzegovina,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
David Thór Björgvinsson,
Ján
Šikuta,
Päivi Hirvelä,
Mihai
Poalelungi, judges,
Faris Vehabović,
ad hoc judge,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 18 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 4704/04) against Bosnia and
Herzegovina lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a citizen of Bosnia and Herzegovina, Ms Esma
Palić (“the applicant”), on 27 January 2004.
The
applicant, who had been granted legal aid, was represented by Mr N.
Mulalić and Ms L. Sijerčić, lawyers practising in
Sarajevo, and Mr P. Troop, a lawyer practising in London. The
Government of Bosnia and Herzegovina (“the Government”)
were represented by their Deputy Agent, Ms Z. Ibrahimović.
Ljiljana
Mijović, the judge elected in respect of Bosnia and Herzegovina,
was unable to sit in the case (Rule 28). The Government accordingly
appointed Faris Vehabović to sit as an
ad hoc judge (Article 26 § 4 of the Convention and Rule
29 § 1).
The
case is about the applicant's husband's disappearance during the
1992-95 war in Bosnia and Herzegovina. It raises issues under
Articles 2, 3 and 5 of the Convention.
On
9 January 2007 a Chamber of the Fourth Section of the Court decided
to give notice of the application to the Government. It also decided
to rule on the admissibility and merits of the application at the
same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Relevant background
After its declaration of independence on 6 March 1992,
a brutal war started in Bosnia and Herzegovina. It would appear that
more than 100,000 people were killed and more than two million people
were displaced. It is estimated that almost 30,000 people went
missing and that one third of them is still missing.
The major parties to the conflict were the ARBH (mostly made up of
Bosniacs
and loyal to the central authorities of Bosnia and Herzegovina), the
HVO (mostly made up of Croats) and the VRS (mostly made up of Serbs).
The conflict came to an end on 14 December 1995 when the General
Framework Agreement for Peace (“the Dayton Peace Agreement”)
entered into force. In accordance with that Agreement, Bosnia and
Herzegovina consists of two Entities: the Federation of Bosnia and
Herzegovina and the Republika Srpska. The Dayton Peace Agreement
failed to resolve the Inter-Entity Boundary Line in the Brčko
area, but the parties agreed to a binding arbitration in this regard
under UNCITRAL rules (Article V of Annex 2 to the Dayton Peace
Agreement). The Brčko
District, under the exclusive sovereignty of the State and
international supervision, was formally inaugurated on 8 March 2000.
In response to atrocities then taking place in Bosnia
and Herzegovina, on 25 May 1993 the United Nations Security Council
passed resolution 827 establishing the International Criminal
Tribunal for the former Yugoslavia (“the ICTY”)
headquartered in The Hague. Although the ICTY and national courts
have concurrent jurisdiction over serious violations of international
humanitarian law committed in the former Yugoslavia, the ICTY can
claim primacy and may take over national investigations and
proceedings at any stage if this proves to be in the interest of
international justice. It can also refer its cases to competent
national authorities in the former Yugoslavia. More than 60
individuals have been convicted and currently more than 40 people are
in different stages of proceedings before the ICTY. Two accused are
still at large (Mr Goran HadZić and Mr Ratko Mladić).
Furthermore, the International
Commission on Missing Persons (“the ICMP”) was
established at the initiative of United States President
Clinton in 1996. It is currently headquartered
in Sarajevo. In addition to its work in the former Yugoslavia,
the ICMP is now actively involved in helping governments and other
institutions in various parts of the world address social and
political issues related to missing persons and establish effective
identification systems in the wake of conflict or natural disaster.
Reportedly, the ICMP has so far identified by DNA around 13,000
missing persons in Bosnia and Herzegovina, whereas local authorities
have identified by traditional methods around 7,000 missing persons.
After the war, the ARBH, HVO and VRS forces merged into
the Armed Forces of Bosnia and Herzegovina.
B. The present case
The applicant was born in 1967 and lives in Sarajevo.
The applicant's husband, Mr Avdo Palić, was a
military commander of the ARBH forces in the United Nations “safe
area” of Zepa
during the war. On 27 July 1995, shortly after the VRS forces had
taken control of that area, Mr Palić went to negotiate the terms
of surrender with the VRS forces and disappeared.
Following
many fruitless attempts to obtain any official news about her
husband, on 18 November 1999 the applicant lodged an application
against the Republika Srpska with the Human Rights Chamber, a
domestic human-rights body set up by Annex 6 to the Dayton Peace
Agreement.
On 5 September 2000 the Human Rights Chamber held a
public hearing and heard several witnesses, including Mr Abdurahman
Malkić and Mr Sado Ramić who had been detained together
with Mr Palić in a military prison in Bijeljina in August 1995.
The Republika Srpska maintained at the hearing that it had no
knowledge of the arrest and detention of Mr Palić.
In its decision of 9 December 2000, the Human Rights
Chamber held that Mr Palić had been a victim of “enforced
disappearance” within the meaning of the Declaration on the
Protection of All Persons from Enforced Disappearance
and found a breach of Articles 2, 3 and 5 of the Convention in
respect of Mr Palić and Articles 3 and 8 of the Convention in
respect of the applicant. The Republika Srpska was ordered: (a) to
carry out immediately a full investigation capable of exploring all
the facts regarding the fate of Mr Palić with a view to bringing
the perpetrators to justice; (b) to release Mr Palić, if still
alive, or to make available his mortal remains to the applicant; and
(c) to make all information about the fate and whereabouts of Mr
Palić known to the applicant. The applicant was awarded, for
non-pecuniary damage, 15,000 convertible marks (BAM – 7,669
euros (EUR)) and, in respect of her husband (which sum was to be held
by the applicant for her husband or his heirs), BAM 50,000 (EUR
25,565). The decision was delivered on 11 January 2001 and entered
into force on 8 March 2001 when the full Chamber rejected the
Republika Srpska's request for review.
On 14 November 2001 the Republika Srpska acknowledged
that Mr Palić had been held in Vanekov mlin, a military prison
in Bijeljina administered by the VRS forces, between 4 August and 5
September 1995 and that on the latter date Mr Dragomir Pećanac,
Security Officer of the Main Staff of the VRS, had taken Mr Palić
from that prison.
Having
found that Mr Pećanac had meanwhile settled in Serbia, in
February 2002 the Republika Srpska authorities issued a domestic
arrest warrant against him. In March and April 2002 they interviewed
the entire war-time personnel of Vanekov mlin, including its
governor.
On
12 June 2003 the Bijeljina District Prosecutor (answerable to the
Prosecutor of the Republika Srpska) asked the State Prosecutor to
take over this case. On 25 December 2003 the latter decided that the
case should remain with the Bijeljina District Prosecutor and
returned the case file.
On 7 September 2005 the Human Rights Commission, which
had replaced the Human Rights Chamber, rendered another decision in
this case: while noting that the monetary award had been paid, it
held that the decision of 9 December 2000 had not yet been fully
enforced. The Republika Srpska was given an additional three-month
period in which to do so.
From October until December 2005 the authorities of
the Republika Srpska and Serbia, at the request of the Republika
Srpska, interviewed eighteen people in connection with this case,
including Mr Pećanac.
On 16 January 2006 the Human Rights Commission
repeated in another decision that the core element of the decision of
9 December 2000 had not been enforced: the Republika Srpska had not
released Mr Palić, if still alive, or otherwise had not made
available his mortal remains to the applicant and no prosecution had
been brought. This decision was submitted to the State Prosecutor
(non-enforcement of the decisions of the Human Rights Chamber
constitutes a criminal offence, see paragraph 36 below).
On 25 January 2006 the Republika Srpska, at the
request of the High Representative,
established an ad hoc commission to investigate this case. It
included Mr Milorad Bukva who had allegedly attended the meeting of
27 July 1995 mentioned in paragraph 11 above (see paragraph 61
below). The applicant appointed her representative to that
commission.
On
17 March 2006 the Sarajevo Municipal Court, at the applicant's
request, issued a declaration of presumed death with respect to Mr
Palić (see paragraph 39 below).
On
20 April 2006 the ad hoc commission adopted a report. Having
interviewed numerous people, it established that Mr Palić had
been captured by the VRS forces (that is, by Mr Radomir Furtula of
the Rogatica Brigade) and handed over to Mr Zdravko Tolimir,
Assistant Commander for Intelligence and Security of the Main Staff
of the VRS. By order of Mr Mladić, the Commander of the
VRS, he was held in a private flat in Rogatica (belonging to Mr Zoran
Čarkić, Security Officer of the Rogatica Brigade) for a
week or so and then in Vanekov mlin, the military prison mentioned
above. He was interrogated daily by security officers of the VRS. It
was also established that Mr Pećanac and his driver, Mr Zeljko
Mijatović, had taken Mr Palić from that prison on the night
of 4/5 September 1995. While questioned by the Serbian authorities,
at the request of the Republika Srpska, Mr Pećanac and Mr
Mijatović said that they had taken Mr Palić to Han Pijesak
and handed him over to the late Mr Jovo Marić. However, the
report established that Mr Marić had not been in Han Pijesak at
that time.
On 13 December 2006 the Prime Minister of the
Republika Srpska established another ad hoc commission to
investigate this case. He also met the applicant who appointed her
representative to that commission.
On 20 December 2006 the Court of Bosnia and
Herzegovina issued international arrest warrants against Mr Pećanac
and Mr Mijatović on suspicion of having committed an enforced
disappearance as a crime against humanity.
In
March 2007 the second ad hoc commission established that
Mr
Palić had been buried in a mass grave in Rasadnik near Rogatica
and, having searched the area in vain, that he could have been
transferred to a secondary mass grave in Vragolovi near Rogatica
(where nine unidentified bodies had been exhumed on 12 November 2001)
or elsewhere in that area.
On
31 May 2007 the authorities of Bosnia and Herzegovina arrested Mr
Tolimir and transferred him to the custody of the ICTY.
On
5 August 2009 the ICMP established that one of the unidentified
bodies from the mass grave in Vragolovi (which had been exhumed on
12 November 2001 and reburied in a nameless grave in Visoko on 14
March 2002) was that of Mr Palić. The Sarajevo Cantonal Court
then ordered that the body be exhumed. On 20 August 2009 the ICMP
confirmed through DNA tests that the body indeed belonged to Mr
Palić.
On
26 August 2009 Mr Palić was finally buried on the grounds of the
Ali Pasha's Mosque in Sarajevo with military honours.
On 16 December 2009 the ICTY amended the indictment
against
Mr Tolimir. He is charged with the participation in joint
criminal enterprise to forcibly transfer and deport the Muslim
populations of Srebrenica and Zepa, a natural and
foreseeable consequence of which was the killing of Mr Palić
and two other Muslim leaders from Zepa by
the VRS (the third category of joint criminal enterprise).
His trial commenced on 26 February 2010.
Mr Pećanac and Mr Mijatović live in Serbia.
They were granted Serbian citizenship on 4 January 1999 and 17
September 1998, respectively.
II. RELEVANT INTERNATIONAL AND DOMESTIC LAW
A. Relevant international law
1. Missing persons
Armed conflicts often lead to the disappearance of
hundreds or even thousands of people. Pursuant to Articles 32-34 of
Protocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of International Armed
Conflicts (Protocol I), of 8 June 1977, families have the right to be
informed of the fate of missing relatives; the parties to a conflict
must search for persons reported missing by an adverse party and
facilitate enquiries made by members of families dispersed as a
result of the conflict so as to help them restore contact with one
another and try to bring them together again; and lists showing the
exact location and markings of the graves, together with particulars
of the dead interred therein, must be exchanged. The International
Committee of the Red Cross (ICRC), with the assistance of its Central
Tracing Agency, has long experience in searching for soldiers and
combatants who go missing during military operations (“missing
in action”) and for civilians who are reported missing as a
consequence of armed conflict.
2. Enforced disappearance
This
is a much narrower concept. A recent definition of “enforced
disappearance” is set out in Article 2 of the International
Convention for the Protection of All Persons from Enforced
Disappearance of 20 December 2006:
“For the purposes of this Convention, 'enforced
disappearance' is considered to be the arrest, detention, abduction
or any other form of deprivation of liberty by agents of the State or
by persons or groups of persons acting with the authorisation,
support or acquiescence of the State, followed by a refusal to
acknowledge the deprivation of liberty or by concealment of the fate
or whereabouts of the disappeared person, which place such a person
outside the protection of the law.”
The widespread or systematic practice of enforced
disappearance is described as a crime against humanity in Article 7
of the Rome Statute of the International Criminal Court of 17 July
1998.
3. Mutual assistance between Bosnia and Herzegovina and
Serbia
The Agreement between Bosnia and Herzegovina and
Serbia on Mutual Assistance in Civil and Criminal Matters (published
in Official Gazette of Bosnia and Herzegovina, International Treaty
Series, no. 11/05 of 8 December 2005, amendments published in
Official Gazette no. 8/10 of 29 July 2010) entered into force on 9
February 2006. Under Article 39 thereof, when a citizen or resident
of one Contracting State is suspected of having committed an offence
in the territory of the other Contracting State, the latter may
request the former to take proceedings in the case. While such a
request is pending, the requesting State may not prosecute the
suspected person for the same offence. Moreover, a person in respect
of whom a final criminal judgment has been rendered in the requested
State may not be prosecuted for the same offence in the requesting
State if he or she has been acquitted or if the sanction imposed has
been enforced or the subject of a pardon or amnesty (Article 41 of
the Agreement). Lastly, when one State intends to request the
transfer of proceedings, it may also request the other State to
provisionally arrest the suspected person (Article 40a of the
Agreement).
B. Relevant domestic law
1. Bosnia and Herzegovina
(a) Criminal legislation
The 2003 Criminal Code (published in Official Gazette
of Bosnia and Herzegovina nos. 3/03 of 10 February 2003 and 37/03 of
22 November 2003, amendments published in Official Gazette nos. 32/03
of 28 October 2003, 54/04 of 8 December 2004, 61/04 of 29 December
2004, 30/05 of
17 May 2005, 53/06 of 13 July 2006, 55/06 of 18
July 2006, 32/07 of
30 April 2007 and 8/10 of 2 February 2010)
entered into force on 1 March 2003.
The
relevant part of Article 172 of the Code provides as follows:
“1. Whoever, as part of a widespread or
systematic attack directed against any civilian population, with
knowledge of such an attack perpetrates any of the following acts:
...
i) enforced disappearance of persons;
...
shall be punished by imprisonment for a term not less
than ten years or long-term imprisonment.
2. For the purpose of paragraph 1 of this
Article the following terms shall have the following meanings:
...
h) Enforced disappearance of persons means
the arrest, detention or abduction of persons by, or with the
authorisation, support or acquiescence of, a State or a political
organisation, followed by a refusal to acknowledge that deprivation
of freedom or to give information on the fate or whereabouts of those
persons, with an aim of removing them from the protection of the law
for a prolonged period of time.
...”
Furthermore, in accordance with Article 239 of the Code,
non-enforcement of a decision of the Human Rights Chamber is an
offence:
“An official of the State, the Entities or the
Brčko District who refuses to enforce a final and enforceable
decision of the Constitutional Court of Bosnia and Herzegovina, the
Court of Bosnia and Herzegovina, the Human Rights Chamber or the
European Court of Human Rights, or who prevents the enforcement of
any such decision, or who frustrates the enforcement of any such
decision in some other way, shall be punished by imprisonment for a
term between six months and five years.”
The
2003 Code of Criminal Procedure (published in Official Gazette of
Bosnia and Herzegovina nos. 3/03 of 10 February 2003 and 36/03 of
21
November 2003, amendments published in Official Gazette nos. 32/03 of
28 October 2003, 26/04 of 7 June 2004, 63/04 of 31 December 2004,
13/05 of 9 March 2005, 48/05 of 19 July 2005, 46/06 of 19 June 2006,
76/06 of
25 September 2006, 29/07 of 17 April 2007, 32/07 of 30
April 2007, 53/07 of 16 July 2007, 76/07 of 15 October 2007, 15/08 of
25 February 2008, 58/08 of 21 July 2008, 12/09 of 10 February 2009,
16/09 of 24 February 2009 and 93/09 of 1 December 2009) entered into
force on 1 March 2003.
Article
247 of the Code reads as follows:
“An accused may never be tried in absentia.”
(b) War Crimes Sections within the Court
of Bosnia and Herzegovina
War
Crimes Sections of the Criminal and Appellate Divisions of the Court
of Bosnia and Herzegovina have been set up pursuant to the Court of
Bosnia and Herzegovina Act 2000 (a consolidated version thereof
published in Official Gazette of Bosnia and Herzegovina no. 49/09 of
22 June 2009, amendments published in Official Gazette nos. 74/09 of
21 September 2009 and 97/09 of 15 December 2009).
(c) Declaration of presumed death
Any person or body demonstrating a legitimate interest
may lodge a request for a declaration of presumed death with respect
to those who went missing during the 1992-95 war as from the expiry
of the waiting period, which is one year from the cessation of the
hostilities (the Non-Contentious Procedure Act 1989, published in
Official Gazette of the Socialist Republic of Bosnia and Herzegovina
no. 10/89 of 23 March 1989, which was in force in the Federation of
Bosnia and Herzegovina until 28 January 1998 and in the Republika
Srpska until 15 May 2009; the Non-Contentious Procedure Act 1998,
published in Official Gazette of the Federation of Bosnia and
Herzegovina no. 2/98 of 20 January 1998, amendments published in
Official Gazette nos. 39/04 of 24 July 2004 and 73/05 of 28 December
2005; and the Non-Contentious Procedure Act 2009, published in
Official Gazette of the Republika Srpska no. 36/09 of 7 May 2009).
Pursuant
to section 27(1) of the Missing Persons Act 2004, a declaration of
presumed death will automatically be issued with respect to all those
recorded as missing in the Central Records (see paragraph 40 below).
(d) Missing Persons Act 2004
The Missing Persons Act 2004 (published in Official
Gazette of Bosnia and Herzegovina no. 50/04 of 9 November 2004)
entered into force on 17 November 2004. It provides, in so far as
relevant, as follows:
Article 3 (The right to know)
“Families of missing persons have the right to
know the fate of their missing family members and relatives, their
place of (temporary) residence, or if dead, the circumstances and
cause of death and location of burial, if such location is known, and
to receive the mortal remains.”
Article 9 (Termination of status)
“The status of missing person is terminated on the
date of identification, and the process of tracing the missing person
is concluded.
In the event that a missing person is proclaimed dead,
but the mortal remains have not been found, the process of tracing
shall not be terminated.”
The
Missing Persons Institute and, within that Institute, the Central
Records have been set up as domestic institutions pursuant to that
Act. The Missing Persons Fund, although envisaged, has not yet been
set up.
2. Serbia
(a) War Crimes Act 2003
The War Crimes Act 2003 (published in Official Gazette
of the Republic of Serbia no. 67/03, amendments published in Official
Gazette nos. 135/04, 61/05, 101/07 and 104/09) 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 have been set up pursuant to this Act. They
have jurisdiction over serious violations of international
humanitarian law committed anywhere in the former Yugoslavia (see
section 3 of this Act). A number of persons have been convicted in
Serbia for war crimes committed during the 1992-95 war in Bosnia and
Herzegovina. As an example, at the request of Bosnia and Herzegovina,
the Serbian authorities have taken proceedings and convicted Mr Nenad
Malić of war crimes committed against Bosniacs in Stari Majdan
in 1992 and sentenced him to 13 years' imprisonment. As another
example, they have recently convicted Mr Slobodan Medić,
Mr Branislav Medić, Mr Pero Petrašević and Mr
Aleksandar Medić of war crimes committed against Bosniacs
in Trnovo in 1995 and sentenced them to 20, 15, 13 and 5 years'
imprisonment respectively.
(b) Mutual Assistance in Criminal Matters
Act 2009
The Mutual Assistance in Criminal Matters Act 2009
(published in Official Gazette of the Republic of Serbia no. 20/09)
entered into force on 27 March 2009. Under section 16 of this Act,
Serbian citizens may not be extradited. This Act repealed the
corresponding provision of the Code of Criminal Procedure 2001
(published in Official Gazette of the Federal Republic of Yugoslavia
no. 70/01, amendments published in Official Gazette of the Federal
Republic of Yugoslavia no. 68/02 and Official Gazette of the Republic
of Serbia nos. 58/04, 85/05, 115/05, 49/07, 20/09 and 72/09) which
was in force between 28 March 2002 and 27 March 2009.
THE LAW
The applicant complained, on behalf of her husband,
that Bosnia and Herzegovina had failed to fulfil its procedural
obligation to investigate the disappearance and death of her husband.
This complaint falls to be examined under Articles 2 and 5 of the
Convention.
Article
2 of the Convention provides:
“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.”
Article
5 of the Convention provides:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(a) the lawful detention of a person after
conviction by a competent court;
(b) the lawful arrest or detention of a
person for non- compliance with the lawful order of a court or in
order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order
for the purpose of educational supervision or his lawful detention
for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the
prevention of the spreading of infectious diseases, of persons of
unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a
person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view
to deportation or extradition.
2. Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his
arrest and of any charge against him.
3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest
or detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
She
further complained, under various Articles of the Convention, about
the authorities' reactions to her quest for information. This
complaint falls to be examined under Article 3 of the Convention,
which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
I. ADMISSIBILITY
A. Compatibility ratione temporis
The
Government claimed that the Court lacked temporal jurisdiction to
deal with this case, given that Mr Palić had disappeared and
died before the ratification of the Convention by Bosnia and
Herzegovina on 12 July 2002.
The
applicant disagreed, relying on the concept of a “continuing
situation” (she referred, among other authorities, to Cyprus
v. Turkey [GC], no. 25781/94, §§ 136, 150 and 158, ECHR
2001 IV).
It is beyond dispute that in accordance with the
general rules of international law (see, in particular, Article 28 of
the Vienna Convention on the Law of Treaties of 23 May 1969) the
provisions of the Convention do not bind a Contracting Party in
relation to any act or fact which took place or any situation which
ceased to exist before the date of the entry into force of the
Convention with respect to that Party (see Blečić v.
Croatia [GC], no. 59532/00, § 70, ECHR 2006 III). That
being said, the Court has held that the procedural obligation arising
from a disappearance will generally remain as long as the whereabouts
and fate of the person are unaccounted for and it is thus of a
continuing nature (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, §§ 147-49, ECHR 2009 ...).
Furthermore, that obligation does not come to an end even on
discovery of the body or the presumption of death. This only casts
light on one aspect of the fate of the missing person and the
obligation to account for the disappearance and death, as well as to
identify and prosecute any perpetrator of unlawful acts in that
connection, will generally remain (ibid., § 145).
The
Court thus rejects the Government's objection under this head.
B. Six-month rule
Although
the respondent Government did not raise any objection under this
head, this issue calls for the Court's consideration proprio motu.
While
it is true that the six-month time-limit does not apply as such to
continuing situations, the Court has held that, where disappearances
are concerned, applicants cannot wait indefinitely before coming to
Strasbourg (see Varnava and Others, cited above, § 161).
Indeed, with the lapse of time, memories of witnesses fade, witnesses
may die or become untraceable, evidence deteriorates or ceases to
exist, and the prospects that any effective investigation can be
undertaken will increasingly diminish; and the Court's own
examination and judgment may be deprived of meaningfulness and
effectiveness. Applicants must therefore make proof of a certain
amount of diligence and initiative and introduce their complaints
without undue delay. The following passage from the Varnava and
Others judgment (§ 165) indicates what this involves:
“Nonetheless, the Court considers that
applications can be rejected as out of time in disappearance cases
where there has been excessive or unexplained delay on the part of
applicants once they have, or should have, become aware that no
investigation has been instigated or that the investigation has
lapsed into inaction or become ineffective and, in any of those
eventualities, there is no immediate, realistic prospect of an
effective investigation being provided in the future. Where there are
initiatives being pursued in regard to a disappearance situation,
applicants may reasonably await developments which could resolve
crucial factual or legal issues. Indeed, as long as there is some
meaningful contact between families and authorities concerning
complaints and requests for information, or some indication, or
realistic possibility, of progress in investigative measures,
considerations of undue delay will not generally arise. However,
where there has been a considerable lapse of time, and there have
been significant delays and lulls in investigative activity, there
will come a moment when the relatives must realise that no effective
investigation has been, or will be provided. When this stage is
reached will depend, unavoidably, on the circumstances of the
particular case.”
The
Court went on to conclude that by the end of 1990 it must have become
apparent that the mechanisms set up to deal with disappearances in
Cyprus no longer offered any realistic hope of progress in either
finding bodies or accounting for the fate of the missing persons in
the near future (see Varnava and Others, cited above, §
170). It has since rejected as out of time a number of cases because
there was no evidence of any activity post-1990 which could have
provided to the applicants some indication, or realistic possibility,
of progress in investigative measures in relation to the
disappearance of their relatives (see Orphanou and Others v.
Turkey (dec.), nos. 43422/04 et al., 1 December 2009;
Karefyllides and Others v. Turkey (dec.), no. 45503/99, 1
December 2009; and Charalambous and Others v. Turkey (dec.),
nos. 46744/07 et al., 1 June 2010).
The situation in Bosnia and Herzegovina is different.
While it is true that the domestic authorities
made slow progress in the years immediately after the war, they have
since made significant efforts to locate and identify persons missing
as a consequence of the war and combat the impunity. To start
with, Bosnia and Herzegovina has carried out comprehensive vetting of
the appointment of police and judiciary: the United Nations Mission
vetted approximately 24,000 police officers between 1999 and 2002 and
the High Judicial and Prosecutorial Councils screened the
appointments of approximately 1,000 judges and prosecutors between
2002 and 2004. Secondly, the domestic Missing Persons Institute was
set up pursuant to the Missing Persons Act 2004 (see paragraph 40
above). It has so far carried out many exhumations and
identifications; for example, in seven months of 2009 the Missing
Persons Institute identified 883 persons.
Thirdly, the creation of the Court of Bosnia and Herzegovina in 2002
and its War Crimes Sections in 2005 gave new impetus to domestic
prosecutions of war crimes. That court has so far sentenced more than
40 people. Moreover, the number of convictions by the Entity and
District courts, which retain jurisdiction over less sensitive cases,
has considerably increased. Fourthly, in December 2008 the domestic
authorities adopted the National War Crimes Strategy which provides a
systematic approach to solving the problem of the large number of war
crimes cases. It defines the time-frames, capacities, criteria and
mechanisms for managing those cases, standardisation of court
practices, issues of regional cooperation, protection and support to
victims and witnesses, as well as financial aspects, and supervision
over the implementation of the Strategy. One of its objectives is to
process the most complex and top priority cases within seven years
(that is, by the end of 2015) and other war crimes cases within
fifteen years (that is, by the end of 2023), a not unreasonable
period of time considering the numbers involved. Lastly, domestic
authorities contribute to the successful work of the international
bodies set up to deal with
disappearances and other serious
violations of international humanitarian law committed in
Bosnia and Herzegovina (see paragraphs 7-8 above).
In
view of the above and having regard to the initiatives pursued in
this particular case at the relevant time, the applicant could still
realistically expect that an effective investigation would be carried
out when she lodged her application in 2004. Accordingly, she acted
with reasonable expedition for the purposes of the six-month rule.
C. Exhaustion of domestic remedies
The
Government objected that the applicant had failed to exhaust domestic
remedies by failing to seize the Constitutional Court of Bosnia and
Herzegovina.
The
applicant did not respond to this objection.
The Court has held that when an appeal before the
Human Rights Chamber has been pursued, the applicant is not required
to pursue an appeal before the Constitutional Court of Bosnia and
Herzegovina concerning the same matter (see Jeličić
v. Bosnia and Herzegovina (dec.), no.
41183/02, ECHR 2005 XII). There is
no reason to depart from that jurisprudence.
Accordingly,
this objection of the Government is also rejected.
D. Victim status
The Government maintained that the decision of the
Human Rights Chamber in this case had been implemented, namely the
mortal remains of Mr Palić had been identified, a full
investigation had been carried out and all information had been
communicated to the applicant. Since the applicant had obtained an
acknowledgment of a breach of her human rights from the domestic
authorities and appropriate and sufficient redress (see paragraph 14
above), the Government contended that she had lost victim status.
The
applicant disagreed.
The Court considers that this objection goes to the
very heart of the questions whether the authorities discharged their
procedural obligation to investigate the disappearance and death of
Mr Palić, as required by Articles 2 and 5 of the Convention, and
whether their reactions to the applicant's quest for information
amounted to a breach of Article 3 of the Convention (see paragraph 43
above). It would thus be more appropriately examined at the merits
stage.
E. Conclusion
Since
the application is neither manifestly ill-founded within the meaning
of Article 35 § 3 of the Convention nor inadmissible on any
other grounds, the Court declares the application admissible and, in
accordance with its decision to apply Article 29 § 1
of the Convention (see paragraph 5 above), it will immediately
consider its merits.
II. MERITS
A. Article 2 of the Convention
The applicant criticised the investigation into the
disappearance and death of her husband. First of all, she complained
of the ineffectiveness of the investigation and about its pace,
relying on the findings of the Human Rights Commission (see paragraph
18 above). Secondly, she argued that the ad hoc commissions
were not independent. In particular, she alleged that one of their
members, Mr Bukva, had attended the notorious meeting of
27 July
1995 (see paragraphs 11 and 21 above). Thirdly, she claimed that one
of the main suspects, Mr Pećanac, had received some information
concerning this case from the State Prosecutor's Office. Fourthly,
she submitted that the ICTY proceedings against Mr Tolimir could not
absolve the respondent State of its procedural obligation under
Article 2, in particular because Mr Tolimir had not been charged as a
direct perpetrator (see paragraph 30 above). Lastly, she argued that
Serbia should extradite Mr Pećanac and Mr Mijatović to
Bosnia and Herzegovina and she referred in this connection to the
case of Mr Veselin Vlahović who had been extradited from Spain
to Bosnia and Herzegovina to stand trial on war crimes charges.
The
Government denied the applicant's claims and maintained that the
investigation had complied with all the requirements of Article 2.
The
Court reiterates that Article 2 requires the authorities to conduct
an official investigation into an arguable claim that a person, who
was last seen in their custody, subsequently disappeared in a
life-threatening context. The investigation must be independent and
effective in the sense that it is capable of leading to the
identification and punishment of those responsible, afford a
sufficient element of public scrutiny, including being accessible to
the victim's family, and carried out with reasonable promptness and
expedition (see Varnava and Others, cited above, § 191).
In the present case, the Court first needs to examine
whether the investigation could be regarded as effective. It notes
that notwithstanding initial delays (see paragraph 70 below) the
investigation finally led to the identification of the mortal remains
of Mr Palić. Given that almost 30,000 people went missing as a
result of the war in Bosnia and Herzegovina (see paragraph 6 above),
this is in itself a significant achievement. The procedural
obligation under Article 2 nevertheless did not come to an end with
the discovery of the body (see paragraph 46 above) and the Court will
next examine whether the investigation made it possible to establish
the identity of the persons responsible for the disappearance and
death of Mr Palić and whether those persons were eventually
brought to justice.
The
Court notes that between October 2005 and
December 2006 the domestic authorities took various investigative
steps which led to international arrest warrants being issued
against Mr Pećanac and Mr Mijatović on suspicion of having
committed an enforced disappearance as a crime against humanity (see
paragraph 25 above). The investigation, it is true, has been at a
standstill ever since because the main suspects live in Serbia and,
as Serbian citizens, cannot be extradited (see paragraph 42 above),
but Bosnia and Herzegovina cannot be held liable for that. Bosnia and
Herzegovina could have requested Serbia to take proceedings in this
case (see paragraph 35 above). However, the Court considers that it
is not necessary to examine whether there was an obligation under the
Convention to do so (see, in that connection, Ilaşcu and
Others v. Moldova and Russia [GC], no. 48787/99, §§
330-31, ECHR 2004 VII) given that the applicant could have
reported this case herself to the Serbia's War Crimes Prosecutor who
has jurisdiction over serious violations of international
humanitarian law committed anywhere in the former Yugoslavia (see
paragraph 41 above). Moreover, it is open to the applicant to lodge
an application against Serbia if she considers that she is the victim
of a breach by Serbia of her Convention rights. The applicant also
referred to the case of Mr Vlahović (see paragraph 61 above).
However, Mr Vlahović is not a Spanish citizen and there were
accordingly no obstacles to his extradition. In these circumstances,
the Court finds that the domestic criminal investigation was
effective in the sense that it was capable of leading to the
identification and punishment of those responsible for the
disappearance and death of Mr Palić, notwithstanding the fact
that there have not yet been any convictions in this connection. The
procedural obligation under Article 2 is indeed not an obligation of
result, but of means (see, among many authorities, Hugh Jordan v.
the United Kingdom, no. 24746/94, § 107, ECHR 2001 III).
The
Court further notes that the respondent State arrested Mr Tolimir at
the request of the ICTY and that it cooperates with the ICTY in this
regard. The trial against Mr Tolimir is, however, still pending and,
more importantly, he was not charged as a direct perpetrator (see
paragraph 30 above). It is therefore uncertain to what extent the
trial against Mr Tolimir will contribute to the identification and
punishment of those directly responsible for the killing of Mr Palić.
As
regards the requirement of independence, the Court sees no reason to
doubt that the State Prosecutor's Office acted independently. The
applicant alleged that information had leaked from the domestic
criminal investigation to Mr Pećanac, but there is no proof that
Mr Pećanac obtained the impugned information from the State
Prosecutor's Office. It is equally possible that he could have
obtained this information from anyone on the ad hoc
commissions or from any other source. In any event, since it
transpires from the material in the case file that the relevant
authorities were instantly warned of the possibility of a leak and
that necessary measures were taken, the Court does not consider this
factor sufficient in itself to conclude that the domestic criminal
investigation is not independent.
Turning
to the ad hoc commissions, the Court acknowledges their
important contribution to the establishment of the facts of this
difficult and troubling case. That being said, it is of great concern
that one of the members of the ad hoc commissions allegedly
played a role, no matter how minor, in the actual disappearance of
the applicant's husband (see paragraph 61 above). While there is no
proof that Mr Bukva had indeed attended the impugned meeting, it is
regrettable that the respondent Government did not respond to these
allegations. Nevertheless, given that in the circumstances of this
case an effective and independent criminal investigation was the key
requirement to ensure the respondent State's compliance with the
procedural obligation under Article 2 (see Öneryıldız
v. Turkey [GC], no. 48939/99, § 93, ECHR 2004 XII, and
contrast Branko Tomašić and Others v. Croatia, no.
46598/06, § 64, ECHR 2009 ...) and the commissions had no
influence on the conduct of the ongoing criminal investigation, it is
not necessary to examine the question of their independence (see
McKerr v. the United Kingdom, no. 28883/95, § 156, ECHR
2001 III).
There
is no indication that the criminal investigation is not open to
public scrutiny and/or that it is insufficiently accessible to the
applicant.
As to the requirement of promptness, the Court has not
overlooked that the Republika Srpska authorities acknowledged that Mr
Palić had been held in a military prison administered by the VRS
forces, one of the predecessors of the present Armed Forces of Bosnia
and Herzegovina, and identified the officer who had taken Mr Palić
from that prison only in November 2001. Some steps were then taken in
early 2002, but the criminal investigation effectively started only
in late 2005. It is nevertheless the case that the Court is only
competent ratione temporis to look at the period after the
ratification of the Convention by Bosnia and Herzegovina (that is,
after 12 July 2002), while taking into consideration the state of the
case at that date. It should also be reiterated that the
obligations under Article 2 must be interpreted in a way which
does not impose an impossible or disproportionate burden on the
authorities (see, although in a different context, Osman v. the
United Kingdom, 28 October 1998, § 116, Reports of
Judgments and Decisions 1998 VIII). The Court takes into
account the complex situation in Bosnia and Herzegovina, notably in
the first ten years following the war. In such a post-conflict
situation, what amounts to an impossible and/or disproportionate
burden must be measured by the very particular facts and context. In
this connection, the Court notes that more than 100,000 people were
killed, almost 30,000 people went missing and more than two million
people were displaced during the war in Bosnia and Herzegovina.
Inevitably choices had to be made in terms of post-war priorities and
resources. Furthermore, after a long and brutal war, Bosnia and
Herzegovina underwent fundamental overhaul of its internal structure
and political system: Entities and Cantons were set up pursuant to
the Dayton Peace Agreement, power-sharing arrangements were
introduced in order to ensure effective equality between the
“constituent peoples” in the post-conflict society (see
Sejdić and Finci v. Bosnia and Herzegovina [GC], nos.
27996/06 and 34836/06, ECHR 2009 ...), new institutions had to
be created and the existing ones had to be restructured. Some
reluctance on the part of the former warring parties to work with
those new institutions could be expected in the post-war period, as
evidenced in the present case. While it is difficult to pinpoint when
exactly this process ended, the Court considers that the domestic
legal system should have become capable of dealing effectively with
disappearances and other serious violations of international
humanitarian law by 2005, following comprehensive vetting of the
appointment of police and judiciary and the establishment of the War
Crimes Sections within the Court of Bosnia and Herzegovina (see
paragraph 51 above). All this considered and since there has been no
substantial period of inactivity post-2005 on the part of the
domestic authorities in the present case, the Court concludes that,
in the circumstances obtaining at the material time, the domestic
criminal investigation can be considered to have been conducted with
reasonable promptness and expedition.
In brief, the domestic authorities eventually
identified the mortal remains of Mr Palić and carried out an
independent and effective criminal investigation into his
disappearance and death. There has been no substantial period of
inactivity after 2005 on the part of the domestic authorities.
Furthermore, the applicant received substantial compensation in
connection with her husband's disappearance (although for the period
1995-2000, see paragraph 14 above). The Court concludes that, taking
into account the special circumstances prevailing in Bosnia and
Herzegovina up until 2005 and indeed the particular circumstances of
the present case, there has been no violation of Article 2 of the
Convention.
B. Article 3 of the Convention
The
applicant further argued that the authorities had, for many years,
refused to engage, acknowledge or assist in her efforts to find out
what had happened to her husband. She relied on Article 3 of the
Convention.
The
Government contested that argument.
The
phenomenon of disappearances imposes a particular burden on the
relatives of missing persons who are kept in ignorance of the fate of
their loved ones and suffer the anguish of uncertainty. The Court's
case-law therefore recognised from very early on that the situation
of the relatives may disclose inhuman and degrading treatment
contrary to Article 3. The essence of the violation is not that there
has been a serious human rights violation concerning the missing
person; it lies in the authorities' reactions and attitudes to the
situation when it has been brought to their attention. Other relevant
factors include the proximity of the family tie, the particular
circumstances of the relationship, the extent to which the family
member witnessed the events in question, and the involvement of the
family member in the attempts to obtain information about the
disappeared person. The finding of such a violation is not limited to
cases where the respondent State has been held responsible for the
disappearance, but can arise where the failure of the authorities to
respond to the quest for information by the relatives or the
obstacles placed in their way, leaving them to bear the brunt of the
efforts to uncover any facts, may be regarded as disclosing a
flagrant, continuous and callous disregard of an obligation to
account for the whereabouts and fate of a missing person (see Varnava
and Others, cited above, § 200, and the authorities cited
therein).
In
the present case, the Court notes that the applicant obtained first
official information about the fate of her husband more than five
years after his disappearance. The domestic Human Rights Chamber held
that Mr Palić had indeed been a victim of an enforced
disappearance and found numerous violations of the Convention in this
connection. Furthermore, the applicant received compensation for
non-pecuniary damage (see paragraph 14 above). Some weight must also
be attached to the fact that the mortal remains of Mr Palić were
eventually identified and that an independent and effective criminal
investigation was eventually carried out, although with some delays.
Therefore, while there is no doubt that the applicant suffered and
continues to suffer because of this case, the Court finds that the
authorities' reactions cannot be categorised as inhuman and degrading
treatment.
Accordingly,
there has been no violation of Article 3 of the Convention.
C. Article 5 of the Convention
Lastly,
the applicant invited the Court to find a violation of Article 5 of
the Convention for the reasons outlined in paragraph 61 above.
The
Government maintained that the investigation had complied also with
the requirements of Article 5 of the Convention.
The
Court reiterates that Article 5 requires the authorities to conduct a
prompt and effective investigation into an arguable claim that a
person has been taken into custody and has not been seen since (see
Kurt v. Turkey,
25 May 1998, § 124, Reports of
Judgments and Decisions 1998 III; Cyprus v. Turkey,
cited above, § 147; and Varnava and Others, cited above,
§ 208).
For
the detailed reasons outlined in paragraphs 64-71 above in the
context of Article 2, the Court finds that there has been no
violation of Article 5 of the Convention.
D. Conclusion on the Government's preliminary objection
The
Court finds that in the light of its conclusion under Articles 2, 3
and 5 it is not necessary to decide on the Government's challenge to
the applicant's victim status (see paragraphs 57-59 above).
FOR THESE REASONS, THE COURT
Joins to the merits the Government's preliminary
objection concerning the applicant's victim status and declares
the application admissible unanimously;
Holds by five votes to two that there has been
no violation of Article 2 of the Convention;
Holds unanimously that there has been no
violation of Article 3 of the Convention;
Holds by five votes to two that there has been
no violation of Article 5 of the Convention;
Holds by five votes to two that in the light of
its conclusions under points 2-4 it is not necessary to decide on the
Government's preliminary objection mentioned in point 1.
Done in English, and notified in writing on 15 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judges Bratza
and Vehabović is annexed to this judgment.
N.B.
T.L.E.
JOINT PARTLY DISSENTING OPINION OF JUDGES BRATZA AND
VEHABOVIĆ
We
are unable to share the view of the majority of the Chamber that the
applicant's rights under Article 2 of the Convention were not
violated in the present case. In our view, the procedural
requirements of that Article were not complied with by the national
authorities, who failed to carry out a prompt and effective
investigation into the disappearance of the applicant's husband.
The
relevant procedural requirements of Article 2 are well-established in
the Court's case-law and are set out in the leading judgment of the
Grand Chamber in the case of Varnava and Others v. Turkey,
which is cited in the present judgment. National authorities are
obliged to conduct an official investigation into an arguable claim
that a person last seen in their custody subsequently disappeared in
a life-threatening context. The investigation must be independent and
effective, in the sense that it is capable of leading to the
discovery of the whereabouts and fate of the person concerned and to
the identification and punishment of those responsible; it must
afford a sufficient element of public scrutiny, including being
accessible to the victim's family; and it must be carried out with
reasonable promptness and expedition.
We
accept that certain of these requirements were eventually fulfilled
in the present case. In August 2009, the International Commission on
Missing Persons established that one of the unidentified bodies from
the mass grave in Vragolovi, which had been exhumed in November 2001
and re-interred in a nameless grave in Visoko in March 2002, was that
of Mr Palić and, later in the same month, DNA tests confirmed
the body to be his. In addition, the investigation ultimately led to
the identification of persons suspected of having been responsible
for the enforced disappearance of Mr Palić: a domestic arrest
warrant was issued by the authorities of the Republika Srpska in
February 2002 against Mr Pećanac, a security officer of the main
staff of the VRS who had taken Mr Palić from Vanekov mlin
prison; in April 2006, the report of the second ad hoc
commission established that on capture Mr Palić had been handed
over to Mr Tolimir, Assistant Commander for Intelligence and Security
of the Main Staff of the VRS and that Mr Pećanac and his driver,
Mr Mijatović, had taken Mr Palić from the prison on the
night of 4-5 September 1995; in December 2006, international arrest
warrants were issued against Mr Pećanac and Mr Mijatović by
the Court of Bosnia and Herzegovina; and in December 2009 Mr Tolomir
was charged before the ICTY with the murder of Mr Palić as part
of a joint criminal enterprise.
These
achievements, significant as they are, must however be seen against
their factual and historical background. The identification of the
body of Mr Palić occurred over fourteen years after his
disappearance and some three years after the applicant had requested
the respondent Government to examine the mortal remains discovered at
the same site to determine if they were those of her husband. The
international arrest warrants against two of those suspected of
direct involvement in the disappearance were issued eleven and a half
years after the disappearance and neither of the suspects has, as
yet, been brought to justice, both having moved to Serbia where they
currently live. These very substantial periods of delay would of
themselves call into question whether the investigation satisfied the
requirements of promptness in Article 2. These doubts are, in our
view, strongly reinforced when seen in the context of the assessments
made of the effectiveness of the investigation by the national
tribunals and other official bodies of the respondent State.
It
was in December 2000 that the Human Rights Chamber held that Mr Palić
had been a victim of an enforced disappearance in breach of Articles
2, 3 and 5 of the Convention and ordered the Republika Srpska, inter
alia, to carry out immediately a full investigation capable of
exploring all the facts regarding the fate of Mr Palić, with a
view to bringing the perpetrators to justice. Nearly a year elapsed
before the authorities of the Entity, which had in the proceedings
before the Chamber continued to deny any knowledge of the arrest of
Mr Palić, eventually acknowledged in November 2001 that he had
been held in Vanekov mlin, a military prison administered by the VRS
forces and that he had been taken from that prison by Mr Pećanac.
It took a further three months for a domestic arrest warrant to be
issued against Mr Pećanac, who had by then settled in Serbia. In
the subsequent months, the entire war-time personnel of Vanekov mlin,
including the governor were interviewed. However, the questions put
to the personnel of the prison were subsequently found by the Human
Rights Commission to have been inappropriate and irrelevant in the
context of the investigation, being questions of a general nature and
not directed to the events of the relevant days when Mr Palić
had been detained there.
These
measures apart, it would appear that no other steps were taken to
implement the decision of the Human Rights Chamber or to move the
investigation forward for a further 3 years. In July 2005, the High
Representative wrote to the Prime Minister of the Republika Srpska to
complain that the applicant had never received any results of a
satisfactory investigation, let alone her husband's mortal remains.
In September of that year, the Human Rights Commission, which had
replaced the Human Rights Chamber, rendered a further decision in the
case, holding that the judgment of 9 December 2000 had not yet been
fully enforced and granting the Republika Srpska an additional
three-months period in which to do so. This led to the interviewing
of 18 people in connection with the case, including Mr Pećanac,
by the authorities of the Republika Srpska and by those of Serbia, at
the request of the Entity. However, on 16 January 2006 the Commission
repeated that the core element of the decision of December 2000 had
still not been complied with: Mr Palić had not been released if
he was still alive and, if he had been killed, his mortal remains had
not been made available and no prosecution had been brought. In a
letter written three days later, the High Representative once again
complained of the failure of the Republika Srpska to comply with the
Chamber's decision and required the establishment of a Government
commission to implement the decision and assemble the facts necessary
to provide the applicant with the information she had been denied.
An ad
hoc commission was duly established on 25 January 2006. However,
the independence of the commission is open to serious doubt, not
least because it included among its members Mr Milorad Bukva, who had
allegedly attended the meeting of 27 July 1995 at which Mr Palić
sought to negotiate the terms of surrender with the VRS forces and,
following which, he had disappeared. The first ad hoc
commission adopted its report on 20 April 2006, in which it
established that Mr Palić had been captured by the VRS forces
and handed over to Mr Tolimir, that he had been held in Vanekov mlin
and interrogated daily by security officers of the VRS and that he
had been removed by Mr Pećanac from the prison on the night of
4-5 September 1995. Doubts were cast on the veracity of the account
given by Mr Pećanac that Mr Palić had been taken to Han
Pijesak and there handed over to Mr Jovo Marić, since the report
established that Mr Marić had not been in Han Pijesak at that
time.
The
investigation carried out by the commission was not accepted as
having sufficiently implemented the Chamber's decision by the new
High Representative, who, in a letter of 22 June 2006 to the Prime
Minister of the Republika Srpska, deplored that to date the
investigation had not yielded any tangible results and stated that he
remained unconvinced that the Government of the Entity had exhausted
its capacity or its cooperation with the international institutions
to implement the Chamber's decision. A second ad hoc
commission was created in December 2006, six years after the
Chamber's decision, which in March 2007 established for the first
time that Mr Palić had been buried in a mass grave in Rasadnik
and that, since a search of that area had proved fruitless, his body
might have been transferred to a secondary mass grave in Vragolovi,
where nine unidentified bodies had been exhumed in November 2001. A
further 18 months elapsed before one of the bodies from that mass
grave was identified as that of Mr Palić.
In
assessing the respondent State's compliance with the procedural
requirements of Article 2, the principal focus of the judgment has
been on the question of the independence and promptness of the
investigation. As to the requirement of independence, despite the
doubts which are raised in paragraph 66 of the judgment, we are
willing to accept that the State Prosecutor's Office acted
independently. However, the independence of the ad hoc
commissions is open to serious doubt and we share the concern of the
majority that the respondent Government have failed to respond to the
allegation that one of the members of the commission played a role in
the actual disappearance of the applicant's husband. Where we cannot
agree with the majority is in their view that it is not necessary to
examine the question of the independence of the commissions since
they had no influence on the conduct of the ongoing criminal
investigation which was in their view the “key requirement”
to ensure compliance with the procedural obligations under Article 2.
This, in our view, is to place too narrow an interpretation on the
requirements of that Article in the case of enforced disappearances,
which are not confined to the conduct of criminal investigations but
include other forms of investigation designed to establish the
circumstances of the disappearance and the fate of the person
concerned. The independence of the ad hoc commissions, which
the judgment accepts played an important role in the establishment of
the facts of the case, is, we consider, of evident importance in
assessing the effectiveness of the investigation.
But
it is on the requirement of promptness that we principally part
company with the majority of the Chamber. The judgment acknowledges
that there were “initial delays” in the investigation,
the admission that Mr Palić had been held in a military prison
and removed from there having only been made in November 2001 and the
criminal investigation having only effectively started in late 2005.
It is also acknowledged that, although the Court is only competent
ratione temporis to examine the period after the ratification
of the Convention by the respondent State on 12 July 2002, it is
entitled to take into consideration the state of the case at that
date. However, in concluding that the domestic criminal investigation
could be considered to have been conducted with reasonable promptness
and expedition, reliance is placed in the judgment on the fact that
Article 2 must be interpreted in a way which does not impose an
impossible or disproportionate burden on the national authorities. It
is said that the situation in Bosnia and Herzegovina, notably in the
10 years following the war, was a complex one and that in a
post-conflict situation in which many thousands had been killed or
had disappeared and two million had been displaced, choices had
inevitably to be made in terms of post-war priorities and resources.
It is the view of the majority that it was only in 2005 that the
domestic legal system should have become capable of dealing
effectively with disappearances and that there had been no
substantial period of inactivity post-2005 on the part of the
national authorities in the present case.
We do
not underestimate the immense problems which confronted the national
authorities in the aftermath of a long and brutal war or the grave
difficulties faced by the Entities in carrying out investigations
into the disappearance of many thousands of persons. We accept, too,
that what would amount to an impossible or disproportionate burden
must be measured in the light of the particular facts and context,
which in the present case differ in their nature and complexity from
those examined by the Court in other cases, including that of Varnava
and Others. However, as pointed out in that case (paragraph 191),
even where there may be obstacles which prevent progress in an
investigation in a particular situation, a prompt response by the
authorities is vital in maintaining public confidence in their
adherence to the rule of law and in preventing any appearance of
collusion in or tolerance of unlawful acts .In the present case, we
are unable to ignore not only the serious delays which had occurred
in the investigation in the years prior to 2006, which may well have
prejudiced the possibility of bringing those responsible to justice,
but the fact that the authorities remained virtually supine despite
the clear findings and orders of the national tribunals which had
been set up with the specific purpose of ensuring the effective
protection of human rights. The case of Mr Palić was no ordinary
case. His disappearance in the circumstances in which it had occurred
was an incident of particular notoriety and the urgency and
importance of its investigation (whether criminal or otherwise) was
underlined by the repeated decisions of the Human Rights Chamber and
Commission, as well as by the letters of the successive High
Representatives. It may well be, as suggested in the judgment, that
part of the explanation for the lack of activity was the reluctance
of the former warring parties to work with the new institutions. But,
while this may explain, it cannot justify, non-compliance with the
orders of such institutions. Nor, in our view, can such
non-compliance be justified by the need to make choices in terms of
priorities or resources. We would, in any event, find it difficult to
accept that the carrying out of a prompt and effective investigation
into Mr. Palic's disappearance could be said to have imposed an
impossible or disproportionate burden on the national authorities,
when the national tribunals of the respondent State itself considered
this to be not only possible but essential.
In
these circumstances, we would, unlike the majority, reject the
Government's preliminary objection that the applicant has lost her
victim status. While the mortal remains of Mr Palić have
eventually been identified and while the applicant has obtained a
finding of a violation of Article 2 and received compensation in
respect of the disappearance of her husband in the Human Rights
Chamber, this does not affect the question whether the authorities
effectively and promptly discharged their procedural obligations
under that Article, reinforced by the decision of the Chamber itself,
to investigate the disappearance and death of Mr Palić. In our
view, they did not do so for the reasons given and consequently there
has been a violation of that Article. This being so, we have not
found it necessary to go on to consider additionally whether there
has been a violation of Article 5 of the Convention.
As to
the complaint under Article 3 of the Convention, while we have no
doubt as to the suffering which was caused to the applicant by the
lack of effectiveness of the investigation and the delay in providing
her with official information as to the fate of her husband, we do
not find that in all the circumstances Article 3 has been violated.
In this regard we accept the conclusion and reasoning of the majority
of the Chamber.
