European Court of Human Rights

Information Note on the Court’s case-law No. 175

June 2014

Jelić v. Croatia - 57856/11

Judgment 12.6.2014 [Section I] See: [2014] ECHR 601

Article 2

Article 2-1

Effective investigation

Prosecution of officer with command responsibility, but not of direct perpetrators of killing: violation

Facts - In November 1991 the applicant’s husband, who was of Serbian ethnic origin, was kidnapped from his home. He was later found dead. No effective measures were taken to investigate the killing for seven years. In September 1999 the Sisak Police started conducting interviews in connection with the killing of Serbs in Sisak from 1991 to 1995, including the applicant’s husband. Some time later a witness named several persons allegedly implicated in the killing of Serbs, including the applicant’s husband. In 2013 a former senior official of the Sisak Police was found guilty of war crimes against the civilian population for the killings.

Law - Article 2 (procedural aspect): The applicant complained that the investigation into her husband’s death was inadequate because none of the direct perpetrators, whom witnesses had identified by name, had been indicted, even though the senior official responsible had been convicted. The Court accepted that certain delays in the investigation into the killing of Serbian civilians 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. However, such difficulties could not of themselves relieve the authorities of their procedural obligations under Article 2 of the Convention.

By 2003 at the latest the authorities had some information which could possibly have led to the identification of direct perpetrators and of those who had ordered the killing of the applicant’s husband and which thus triggered their obligation to take further investigative measures. While it was uncertain whether any of the information given to the authorities would have resulted in convictions, they were nevertheless expected to pursue all possible leads to establish the circumstances in which a person had been killed, in order to comply with their procedural obligations under Article 2. In the present case the deficiency which undermined the effectiveness of the investigation could not be remedied by convicting only those in command. In the context of war crimes the punishment of superiors could not exonerate their subordinates from their own criminal responsibility. Consequently, even though the senior official had been convicted, Croatia’s procedural obligations under Article 2 still required the authorities to pursue the prosecution of the most probable direct perpetrators with promptness and reasonable expedition. The Court concluded that the delays in the investigation, in the light of the fact that witnesses had identified the direct perpetrators by name, had constituted a failure to conduct an adequate and effective investigation in breach of Article 2 of the Convention.

Conclusion: violation (unanimously).

Article 41: EUR 20,000 in respect of non-pecuniary damage.

 

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