European Court of Human Rights

 

 

 

FIRST SECTION

 

 

 

 

 

 

CASE OF ZDJELAR AND OTHERS v. CROATIA

 

(Application no. 80960/12)

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

6 July 2017

 

 

 

 

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 Zdjelar and Others v. Croatia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          Linos-Alexandre Sicilianos, President,
          Aleš Pejchal,
          Krzysztof Wojtyczek,
          Ksenija Turković,
          Pauliine Koskelo,
          Tim Eicke,
          Jovan Ilievski, judges,
and Abel Campos, Section Registrar,

Having deliberated in private on 13 June 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 80960/12) 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 nine Croatian nationals on 11 December 2012. A list of the applicants is set out in the appendix. All applicants are the children of Mr Milan Zdjelar, who died on 8 August 1995.

2.  The applicants were represented by Mr L. Šušak, 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 the procedural obligations incumbent on the respondent Government under Articles 2 and 14 of the Convention had not been met and that they had no effective remedy in that respect, as required under Article 13 of the Convention.

4.  On 10 April 2014 the above-mentioned complaints were communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

A.  Background to the case

5.  During 1991 and 1992 Serbian paramilitary forces gained control of about one third of the territory of Croatia and proclaimed the so-called “Serbian Autonomous region of Krajina” (Srpska autonomna oblast Krajina, hereinafter the “Krajina”). Part of the Zdjelar family - father Milan, mother Anđelija, daughter Dragica (the third applicant) and sons Janko (the first applicant), Slavko (the eighth applicant) and Čedo (the ninth applicant) - lived in Crni Potok, a village situated in the Krajina. At the beginning of August 1995 the Croatian authorities announced a campaign of military operation with the aim of regaining control over the Krajina. The operation was codenamed Storm and lasted from 4 to 7 August 1995. Before that action, the vast majority of the population of the Krajina had fled Croatia, initially for Bosnia and Herzegovina, but later many of them went to live in Serbia. Some returned to Croatia after the war. The number of people who fled is estimated at between 100,000 and 150,000.

B.  Investigation into the killing of Milan Zdjelar

6.  On 11 October 2001, one S.K. submitted to the State Attorney’s Office (Državno odvjetništvo Republike Hrvatske, hereinafter the “SAO”) a list of persons killed during and after Operation Storm. Milan Zdjelar, the applicants’ father, was on the list and next to his name was a note that he had been shot in the head and a leg on 8 August 1995 by members of the Croatian Army’s “Tigers” brigade. On 16 October the SAO forwarded that list to the Ministry of the Interior.

7.  On 25 October 2001 the Gvozd police photographed the site of Milan Zdjelar’s grave.

8.  On 29 October 2001 the Gvozd police interviewed Dragica Zdjelar, the third applicant, who said that her father had been killed on 8 August 1995 in Crni Potok.

9.  On an unspecified date in 2002 the body of Milan Zdjelar was exhumed and a post mortem was carried out in the Zagreb Šalata Hospital on 20 September 2002. The cause of death was not established and the only injury noted was a broken collar bone.

10.  On 23 March 2004 the Gvozd police again interviewed Dragica Zdjelar. She said that of her family members, only she and her father had remained in Crni Potok after the beginning of Operation Storm. On 8 August 1995 at about 12.50 p.m. she had been sitting with her father Milan in front of their house, situated on a hill in Crni Potok, about a hundred metres away from the unpaved main road. A military transport vehicle had appeared on that road, coming from the direction of the village of Gojkovac. When it drew level with their house the vehicle had stopped and three soldiers, dressed in camouflage uniforms, had got out and started to walk towards her and her father. Her father had then said that he did not wish to wait for the soldiers but would run into the woods. When he started to run, she had followed him and then heard three gunshots. She had hidden in the grass and had seen her father shot twice, in the chest and the leg. He had died soon afterwards. The soldiers had returned to the vehicle and continued in the direction of Topusko. The soldiers who had killed her father had been from the “Tigers” brigade. She had hidden in the woods for two days while her father lay dead in the grass. When she returned from the woods she had reported the matter to the Croatian Army and had been given food by some soldiers, who had also buried her father.

11.  On 24 March 2004 the Gvozd police interviewed Anđelija Zdjelar, who had no relevant information to give them about the circumstances in which her husband had been killed.

12.  On 9 April 2004 the Sisačko-moslavačka Police Department (Policijska uprava sisačko-moslavačka) sent a report to the Sisak County State Attorney (Županijski državni odvjetnik Sisak) stating that Dragica Zdjelar had alleged that on 8 August 1995 her father Milan Zdjelar had been killed by Croatian soldiers, members of the “Tigers” brigade.

13.  On 29 July 2005 the State Attorney’s Office issued a document concerning enquiries into the killings of civilians between 1991 and 1995. The document was addressed to the County State Attorney’s Offices, which were instructed to examine all the information collected to date on the killings of civilians during that period and to concentrate their activities on identifying the perpetrators and gathering the relevant evidence in order to instigate criminal proceedings.

14.  On 26 September 2005 the applicants and their mother lodged a criminal complaint with the SAO in connection with the killing of Milan Zdjelar, classifying the offence as a war crime against a civilian and alleging that the victim had been of Serbian ethnic origin, unarmed and never involved in any military activity during the war in Croatia.

15.  On 29 September 2005 the SAO referred the case to the Sisak County State Attorney’s Office, requesting an investigation into the killing of Milan Zdjelar.

16.  Between October 2005 and February 2007 the State Attorney’s Office asked the police about the progress of the investigation on several occasions. Each time the police replied that there had been no progress.

17.  On an unspecified date the police asked the Military Police Administration (Uprava Vojne Policije, hereinafter the “MOP”) for information about the killing of Milan Zdjelar. On 7 February 2007 the MOP answered that they had no relevant information. This was forwarded to the Sisak State Attorney’s Office on 13 February 2007.

18.  On several occasions between September 2007 and July 2008 the State Attorney’s Office asked the police about the progress of the investigation. Each time the police replied that there had been no progress.

19.  On 9 October 2008 the State Attorney’s Office issued an instruction for implementation of the Criminal Code and the Code of Criminal Procedure to the County State Attorney’s Offices, in which they indicated that an inspection of the work of these Offices had highlighted two main problems: the possible partiality of persons involved in the pending proceedings as a result of the ethnicity of the victims or the perpetrators; and the problem of trials in absentia. The instruction advocated the impartial investigation of all war crimes, irrespective of the ethnicity of those involved, whether victims or perpetrators, and stressed the duties of those working for the State Attorney in that respect.

20.  On 30 December 2008 the Sisak State Attorney’s Office asked the Investigation Department of the Sisak County Court to hear evidence from Dragica Zdjelar. This request was complied with on 25 March 2009, when an investigating judge of that court heard evidence from her. Dragica Zdjelar repeated her earlier statement.

21.  On 11 May 2009 the police interviewed F.O. and F.K., both of whom were neighbours of the Zdjelar family in Crni Potok. F.K. confirmed that it had been soldiers from the Croatian Army who had come to the village when Milan Zdjelar had been killed. They had no other relevant information about possible perpetrators.

22.  On 12 May 2009 the police informed the Sisak State Attorney’s Office that they had asked the Ministry of Defence for information regarding the members of brigade 153 of the Croatian Army who had arrived in Crni Potok after Operation Storm and the killing of Milan Zdjelar. On 20 July 2009 the Ministry of Defence informed the police that Milan Zdjelar had been buried by members of brigade 153 of the Croatian Army which had been under the command of a person named M., and provided a list of all members of that brigade with that name. One of them, M.Š., had already died.

23.  Between 26 January and 3 February 2010 the police interviewed five former Croatian soldiers, A.A., B.J., N.S., G.G. and M.T., all members of the First Brigade of the Croatian army, also called the “Tigers”.  None of them had any knowledge about the killing of M.Z. or any other civilians during Operation Storm.

24.  On 15 February 2010, in answer to an inquiry from the SAO, the Sisak State Attorney’s Office drew up a short report on the case. There had been no significant progress.

25.  On 9 and 16 March 2010 the police interviewed M.J., M.L. and M.M., members of smaller army units belonging to brigade 153 of the Croatian Army. M.J., a former member of the engineering unit, said that his unit had comprised between three and five soldiers and that he had never witnessed the killing of any civilians by any of them. M.L., a former commander of logistics in the artillery unit, stated that his unit had never encountered any civilians at any time during Operation Storm, with the exception of a few in Topusko, to whom they had given food and drink. Most of the villages they had passed through had had no name signs. He had no information to give them about the killing of Milan Zdjelar. M.M. had been a soldier in the unit under the command of I.P., and the smaller unit to which he had belonged had been under the command of K. M.M. had no information to give them about the killing of Milan Zdjelar and denied any involvement of his unit in the killing of civilians during Operation Storm.

26.  On several occasions between May and December 2011 the State Attorney’s Office asked the police about the progress of the investigation. Each time the police replied that there had been no progress.

27.  In a separate development, on 8 October 2012, Ž.L., who had been a member of the “Tigers” brigade for about a month in 1994, after which he had been transferred to the Third Battalion, lodged a criminal complaint with the SAO against P.M. - the Minister for war veterans - and others for alleged abuse of authority. In that complaint Ž.L. mentioned the killing of a civilian or civilians in Crni Potok, a few days after Operation Storm. He alleged that the crime had been “tolerated by the command of the Third Battalion (bojna) of the First Brigade of the Croatian Army (“gbr.” which stands for “gardijska brigada”) whose commander had been M.A. On 2 November 2012 the SAO forwarded that information to the State Attorney’s Office in Sisak, which forwarded it to the police on 14 November 2012.

28.  On 22 November 2012 the police interviewed Ž.L. He said that during Operation Storm, the battalion had been in the village of Krznarić and had then gone on to Crni Potok. A person in charge of logistics, named M., had brought in a civilian, saying that he was a “četnik” (derogatory term for a Serbian nationalist or a member of Serbian paramilitary forces). Ž.L. described the man in question in detail. Soon the vice-commander P.Z. and the commander of the Third Company (satnija) J.M. had arrived and had taken the man away somewhere. P.Z. and J.M. had returned after about twenty minutes, and when questioned about the whereabouts of the man they had taken away, P.Z. had answered that he had “drifted in the river”. After some time they had heard firing on a hilltop above them. Ž.L. and another soldier, M.T., had started walking towards the top of that hill and had come to a house where an old woman was standing wailing. There had been no one in the house, but in a field about twenty metres away they had found an elderly man lying on his belly with gunshot wounds to his back and head. A gun had been lying next to him. The man from logistics had said that he had shot him in the head to “shorten his pain”. Ž.L. had expressed his disapproval of the behaviour of the Croatian soldiers to his commander Ž.M. Later on he had learned that the old woman they had encountered in front of her house had also been killed.

29.  On 13 December 2012 the police again interviewed Dragica Zdjelar. She repeated her earlier statement, in essence, and also gave a description of the two soldiers who had killed her father.

30.  During 2013 several short reports on the actions allegedly taken were compiled by the police and the Sisak County State Attorney’s Office.

31.  On 10 July 2013 the SAO sent to the Sisak County State Attorney’s Office a submission by Ž.L. in which he alleged that he had witnessed the killing of civilians in Crni Potok, which had been both encouraged and perpetrated by the officers in command of the Third Battalion (bojna) of the First Brigade of the Croatian Army.

32.  On 16 October 2013 the Zagreb County State Attorney’s Office sent summonses to Dragica Zdjelar, F.O. and Ž.L. for 19 and 20 November 2013.

33.  On 11 November 2013 Ž.L. informed the Sisak County State Attorney’s Office that, owing to his health problems, he would not be able to come to Sisak on his own. He asked that transport to Sisak be organised for him or that he be heard in Karlovac, where he lived. In a further letter written on the same day he stated that some police officers had interviewed him on 22 November 2012 and had concluded that “the information he provided did not lead to the conclusion that a criminal offence had been committed”. He further referred to a letter from the Zagreb State Attorney’s Office of 28 May 2013 stating that “the allegations from his objections and criminal complaints were unfounded”.

34.  On 19 November 2013 Zagreb County State Attorney’s Office heard evidence from Dragica Zdjelar and on 26 February 2014 from F.O. They both repeated their earlier statements.

35.  It appears that on 1 December 2014 the Sisak State Attorney’s Office emailed a summons to Ž.L. requiring him to give a statement regarding the killings in Crni Potok in 1995. On 6 December 2014 Ž.L. sent a note back to the State Attorney’s Office referring to the summons and stating that he refused to give any statements because of his health problems, the passage of time, and the fact that he had not actually witnessed any crimes and that his prior allegations in that respect had been unfounded. He also alleged that he had been denied his rights in connection with his medical treatment. On 31 December 2014 the State Attorney’s Office forwarded Ž.L.’s note to the Sisak County State Attorney’s Office.

36.  On 5 June 2015 the investigation in respect of a number of victims killed on the broader territory of the Sisak County by unknown perpetrators during Operation Storm was assigned to the Osijek County State Attorney’s Office (hereinafter the “OCSAO”).

37.  On 13 July 2016 the OCSAO, relying on Ž.L.’s statement to the police, asked the Ministry of Defence to provide information about the whereabouts of the people Ž.L. had named, in particular P.J., J.M., a person nicknamed M. and the person who had been in charge of logistics in the “Tigers” brigade.

38.  On 23 November 2016 the OCSAO requested that the police in Sisak carry out interviews with one F.K., who possibly had information about the men who had killed Milan Zdjelar; to interview B.J., A.A., N.S., G.G. and M.T., members of the “Tigers” brigade who had been in Crni Potok during Operation Storm, about their whereabouts during the operation; to locate three commanders of the Croatian Army unit whose members had allegedly buried Milan Zdjelar on 10 August 1995 and whose first names all began with M, namely M.J., M.L. and M.M.; and to again interview D.Z., M.V., N.M., D.V, J.V. and M.B., all inhabitants of Crni Potok.

39.  On 20 December 2016 the police informed the OCSAO that F.K., N.M., M.B. and J.V. had died. There were also several people in Crni Potok called M.V. and D.V.

40.  On 29 December 2016 the police interviewed G.G. and N.S., former members of the “Tigers” brigade. G.G. said it was possible that the brigade had passed through Crni Potok during Operation Storm but that they had not seen any civilians. He also said that B.J., N.S. and M.T. had been part of a patrol group (izviđačka desetina).

N.S. said that the “Tigers” brigade had not killed or arrested any civilians or soldiers during Operation Storm.

41.  On 11 January 2017 the Ministry of Defence informed the police about the whereabouts of M.J., M.L. and M.M.

42.  On 16 January 2017 the police interviewed A.A., who had been a member of a “Tigers” brigade patrol group. He said his group had not been in Crni Potok during Operation Storm and he did not know whether the “Tigers” brigade had been there either.

C.  Civil proceedings

43.  On 24 April 2004 the applicants and their mother brought a civil action against the State in the Gvozd Municipal Court, seeking compensation in connection with the death of their father. They based their claim on the 2003 Liability Act.

44.  The claim was dismissed on 14 July 2005. This judgment was upheld on appeal by the Sisak County Court on 18 June 2009 and by the Supreme Court on 5 October 2011. The national courts found that the claim for compensation had been submitted after the expiry of the statutory limitation period prescribed by the law governing damages awards in civil proceedings.

45.  A subsequent constitutional complaint lodged by the applicants was dismissed on 5 June 2012.

II.  RELEVANT DOMESTIC LAW AND REPORTS

46.  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:

“Every human being has the right to life.

...”

47.  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 for at least five years for murder. Aggravated murder is punishable by up to twenty years’ imprisonment.

48.  Paragraph 1 of 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) reads as follows:

War crime against the civilian population

“(1) An individual who, by violating the rules of international law during war, armed conflict or occupation, orders that: an attack be carried out on the civilian population, a settlement, individual civilians or a person incapacitated for combat, with the consequence of death, serious bodily harm or serious detriment to the health of individuals; an attack be carried out, without a choice of target, which is directed against the civilian population; that the civilian population be killed, tortured or treated inhumanely or be subjected to biological, medical or other scientific tests, or that [from individuals of such population] tissue or organs be taken for transplant, or that serious suffering or injuries to the body or health be inflicted; or that [civilian population] be displaced, resettled, or forcefully lose their ethnic identity or be converted to another religion; or [that members of the civilian population] be raped or forced into prostitution; or that the measures of intimidation and terror be used, hostages taken, collective punishment or unlawful deportation in concentration camps or other unlawful detention be applied; or that [such a population] be deprived of their right to fair and impartial judicial proceedings; or that they be forced to serve in enemy armed forces or its intelligence services or administration; or that they be subjected to forced labour or famine; or that their property be confiscated, plundered, unlawfully and wilfully destroyed or appropriated at large scale when it is not justified by military needs; or that unlawful and disproportionate contributions and requisitions be imposed; or that the value of the domestic currency be decreased or unlawfully issued, or an individual who commits any of the above acts shall be punished by imprisonment of at least five years or twenty years.

...”

49.  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 or not 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 in respect of a particular individual where there is a suspicion that he or she has committed a criminal offence.

(2)  During the investigation, the evidence and information necessary for deciding whether an indictment is to be brought or the proceedings are to be discontinued shall be gathered ...”

50.  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.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

51.  The applicants complained about the killing of their father and deficiencies in the investigation in that respect. They also claimed that their father had been killed because of his Serbian ethnic origin and that the national authorities had failed to investigate that factor. The applicants further complained that they had no effective remedy at their disposal in respect of the alleged violation of Article 2 of the Convention. They relied on Articles 2, 13 and 14 of the Convention. The Court, being master of the characterisation to be given in law to the facts of the case, will examine this complaint under Article 2 of the Convention alone which, in so far as relevant, reads as follows:

 “1.  Everyone’s right to life shall be protected by law. ...”

A.  Admissibility

1.  The parties’ arguments

52.  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 of the State Attorney’s Office who had been in charge of the investigation into the death of their father. Such a complaint could have led to the institution of disciplinary proceedings. As regards protection against alleged unlawfulness in 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).

53.  The Government argued further that the applicants had not complied with the six-month time-limit. In this connection they contended firstly that the applicants had not reported the killing of Milan Zdjelar to the relevant authorities for almost six years. Moreover, the applicants should have become aware of the deficiencies in the investigation no later than 2004, when they lodged their civil action for damages, in which it was alleged that the Republic of Croatia was responsible for the war crimes committed by members of the Croatian Army. Further to this, the criminal complaint lodged on 29 May 2005 had been the result of their frustration at the lack of results in the investigation, in connection with which one of the applicants, Dragica Zdjelar, had been interviewed by the police on several occasions. Also, the applicants’ application to the Court was linked to their civil action for damages, but these proceedings could not be taken into account in connection with their complaint under Article 2 of the Convention.

54.  The applicants contested the Government’s objections.

2.  The Court’s assessment

55.  Before turning to the points raised by the parties in respect of the exhaustion of domestic remedies, the Court will first address the issue of its temporal jurisdiction.

(a)  Compatibility ratione temporis

56.  The Court has previously addressed the issue of its temporal jurisdiction as regards both the substantive and the procedural aspect of Article 2 in similar circumstances and found that it had no temporal jurisdiction in respect of the alleged substantive violation of that Article, but did have such jurisdiction in respect of the alleged procedural violation concerning circumstances arising after 5 November 1997, the date of the ratification of the Convention by Croatia (see of Jelić v. Croatia, no. 57856/11, §§ 47-56, 12 June 2014). The Courts sees no reason to depart from such conclusions in the present case.

57.  It follows that the complaint under the substantive aspect of Article 2 of the Convention is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3(a) and must be rejected in accordance with Article 35 § 4.

(b)  Exhaustion of domestic remedies

58.  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, cited above, §§ 59-67). The Court sees no reason to depart from that approach in the present case.

59.  It follows that the Government’s objection must be dismissed.

(c)  Compliance with the six-month rule

60.  The Court reiterates that the purpose of the six-month rule is to promote legal certainty and to ensure that cases raising issues under the Convention are dealt with within a reasonable period of time. Furthermore, it is also meant to protect the authorities and other parties concerned from being left in a state of uncertainty for a prolonged period of time (see Bayram and Yıldırım v. Turkey (dec.), no. 38587/97, ECHR 2002-III, and Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002).

61.  Where no remedies are available or existing remedies are judged to be ineffective, the six-month time-limit in principle runs from the date of the act complained of (see Hazar and Others v. Turkey (dec.), no. 62566/00, 10 January 2002). However, special considerations may apply in exceptional cases in which an applicant avails himself of, or relies on, an apparently existing remedy and only subsequently becomes aware of circumstances which render such a remedy ineffective; in such a case it is appropriate to take the start of the six-month period as the date on which he or she first became aware or ought to have become aware of those circumstances rendering the remedy ineffective (see Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001).

62.  In a number of cases concerning ongoing investigations into the deaths of applicants’ relatives, the Court has examined the period of time from which the applicant could or should have started doubting the effectiveness of a remedy (see Şükran Aydın and Others v. Turkey (dec.), no. 46231/99, 26 May 2005; Bulut and Yavuz, cited above; Bayram and Yıldırım, cited above; Kıniş v. Turkey (dec.), no. 13635/04, 28 June 2005; Elsanova v. Russia (dec.) no. 57952/00, 15 November 2005; Frandeş v. Romania (dec.), no. 35802/05, 17 May 2011; Finozhenok v. Russia (dec.), no. 3025/06, 31 May 2011; Attalah v. France (dec.), no. 51987/07, 30 August 2011; Deari and Others v. the Former Yugoslav Republic of Macedonia (dec.), no. 54415/09, 6 March 2012; Gusar v. Moldova and Romania (dec.), no. 37204/02, 30 April 2013; Bogdanović v. Croatia (dec.), no. 722541/11, 18 March 2014; Orić v. Croatia, no. 50203/12, 13 May 2014; Gojević-Zrnić and Mančić v. Croatia (dec)., no. 5676/13, 17 March 2015; Radičanin and Others v. Croatia (dec.), no. 75504/12; and Grubić v. Croatia (dec.), no. 56094/12, 9 June 2015).

 63.  Consequently, where a death has occurred, the victim’s relatives are expected to take steps to keep track of the investigation’s progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any effective criminal investigation (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, 18 September 2009). On the same basis, where time is of the essence in resolving the issues in a case, there is a burden on applicants to ensure that their claims are raised before the Court with the necessary expedition to ensure that they may be properly, and fairly, resolved (ibid. § 160).

64.  The Court has refrained from indicating any specific period for establishing the point at which an investigation has become ineffective for the purposes of assessing when the six-month period should start to run; the determination of such a period by the Court has depended on the circumstances of each case and other factors, such as the diligence and interest displayed by the applicants, as well as the adequacy of the investigation in question. In this connection, in the above-cited Varnava and Others judgment the Court noted that where the lack of progress or ineffectiveness of an investigation was readily apparent, the requirements of expedition might require an applicant to bring such a case before the Court within a matter of months, or at most, depending on the circumstances, a very few years after the events in question. This is particularly pertinent in cases of unlawful death, where there is generally a precise point in time at which the death is known to have occurred and some basic facts are in the public domain; thus, the lack of progress or ineffectiveness of an investigation will generally be more readily apparent (see Varnava and Others, cited above, § 162).

65.  In the present case, the Court notes that the applicants’ father was killed on 8 August 1995. The investigation commenced in October 2001 (see paragraph j above). The applicants lodged their application with the Court on 11 December 2012, more than seventeen years after the date of their father’s death. The investigation was formally ongoing at the time the application was lodged, as it is now (contrast with Utsmiyeva and Others v. Russia (dec.), no. 31179/11, § 34, 26 August 2014, and Kukavica v. Croatia (dec.), no. 79768/12, § 27, 2 June 2015).

66.  The Court notes the Government’s submission that the Croatian authorities had been confronted by a high death toll (both civilian and military) and that it was not possible to immediately open investigations in respect of each of the deceased (see paragraph 72 below). The large number of victims certainly affected the progress of each individual investigation.

67.  The Court further observes that there were no significant delays in the investigation. In 2009 and 2010 various measures were taken to make progress with the investigation, including the interviewing of witnesses, on the basis of which the applicants could reasonably have believed that an effective investigation was still being conducted. In 2012 witness Ž.L. appeared and stated that the members of his unit had killed civilians in Crni Potok with the acquiescence and even participation of its commanders, some of whom he named. That certainly amounted to important evidence which could have led to new discoveries. After that the police questioned some of the members of the Croatian army units allegedly present at the critical time in Crni Potok. Interviews with possible witnesses were carried out as recently as 2014. In 2015 the investigation was assigned to the Osijek County State Attorney’s Office.

68.  In those circumstances, where the State authorities were occupied with a large number of individual investigations into the deaths of the many people who had been killed during the war in Croatia and where the progress of some of those individual investigations was rather slow, and where new evidence - the statements of possible witnesses - could have arguably led to the discovery of further leads, and where the investigation is still active, it cannot be said that the six-month time-limit expired at any time before the applicants lodged their application with the Court.

69.  It follows that the applicants complied with the six-month time-limit.

(d)  Conclusion as to the admissibility

70.  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

71.  The applicants argued that a number of Serbian civilians had been killed by members of the Croatian Army and the police during Operation Storm. The body of Milan Zdjelar had been buried by Croatian soldiers without a post mortem first being carried out. Dragica Zdjelar, one of the applicants, had been afraid of the police because members of the Croatian police had participated in the killings of Serbian civilians. She had been invited to give her evidence to an investigating judge as late as March 2009. The authorities had not made any effort to identify and prosecute the members of the Croatian Army who had killed the applicants’ father, Milan Zdjelar.

72.  The Government argued that there had been no violation of the procedural aspect of Article 2 of the Convention and that in the circumstances the Croatian authorities had done all they could to investigate the killing of the applicant’s father. They maintained that after the Croatian authorities had regained control over the territories previously under the control of Serbian paramilitary forces in August 1995, they had been faced with a devastated territory and a chaotic post-war situation.

73.  The military actions had not ended with Operation Storm, and Croatian territory continued to be shelled from the territory of Bosnia and Herzegovina. The Croatian authorities had also been fighting the remaining members of the Serbian paramilitary forces and, as a result of this, criminal activity on the territory in question had increased drastically in the wake of Operation Storm owing to the absence of law-enforcement mechanisms at that time.

74.  The authorities had also been preoccupied with the compilation of lists of corpses, as well as their identification and removal. On 4 August 1995 the Ministry of the Interior had ordered all police forces, in co-operation with military structures, to start removing the corpses and to ensure that the appropriate lists had been compiled and, wherever possible, identification carried out. The territory in question had been sparsely populated and abounded with wild animals. Operation Storm had taken place in August, when air temperatures had been over thirty degrees. All these factors had made the removal of corpses even more urgent on health grounds. Large parts of that territory had been mined and were not easily accessible, hampering the actions of the authorities.

75.  The Croatian authorities had had to provide means for establishing a civil administration and the functioning of the usual State bodies including the police, the State Attorney’s offices and the courts, all of which had taken time. Even after the police structures had been established, problems had persisted due to the shortage of police officers and their lack of experience, together with inadequate financial means.

76.  As early as in 1991 Croatian authorities had established bodies which were charged with compiling lists of persons who had disappeared during the war. The Administration for the Imprisoned and Disappeared (Uprava za zatočene i nestale) collected data on those who had disappeared. In 1996 and 1998 that Administration had obtained documents listing bodies whose identity had not been established after Operation Storm. There had been 903 such bodies.

77.  In 2000 an agreement between the Croatian and Serbian authorities had been reached regarding co-operation in respect of the missing persons’ data. In 2001 Croatian authorities had commenced exhumations of bodies which had been buried after Operation Storm. Between 2001 and 2004, DNA samples had been collected from family members of victims for identification purposes.

78.  As regards the killing of Milan Zdjelar, the Croatian authorities had learned about it only in 2001. They had immediately launched an enquiry. The body of Milan Zdjelar had been exhumed and identified, and a post mortem had been carried out. All witnesses had given their evidence. The State Attorney’s Offices had exhorted the police to undertake all the necessary steps, but the information gathered had not provided a sufficient basis for identifying a perpetrator.

2.  The Court’s assessment

(a)  General principles

79.  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).

80.  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, Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 230, 30 March 2016).

81.  The State must therefore ensure, by all means at its disposal, an adequate response - judicial or otherwise - so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished (see Armani Da Silva, cited above, § 230).

82.  In order to be “effective” as this expression is to be understood in the context of Article 2 of the Convention, an investigation must firstly be adequate. This means that it must be capable of leading to the establishment of the facts, a determination of whether the force used was or was not justified in the circumstances and of identifying and - if appropriate - punishing those responsible. This is not an obligation of result, but of means. The authorities must take whatever reasonable steps they can to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of the clinical findings, including the cause of death. Moreover, where there has been a use of force by State agents, the investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (see Armani Da Silva, cited above, § 233).

83.  In particular, the investigation’s conclusions must be based on thorough, objective and impartial analysis of all relevant elements. Failing to follow an obvious line of inquiry undermines to a decisive extent the investigation’s ability to establish the circumstances of the case and the identity of those responsible. Nevertheless, the nature and degree of scrutiny which satisfy the minimum threshold of the investigation’s effectiveness depend on the circumstances of the particular case. The nature and degree of scrutiny must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work. Where a suspicious death has been inflicted at the hands of a State agent, particularly stringent scrutiny must be applied by the relevant domestic authorities to the ensuing investigation (see Armani Da Silva, cited above, § 234).

84.  A requirement of promptness and reasonable expedition is implicit in this context (see Yaşa v. Turkey, 2 September 1998, §§ 102-104, Reports 1998-VI; and Mahmut Kaya v. Turkey, no. 22535/93, §§ 106-107, ECHR 2003-III). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation (see Armani Da Silva, cited above, § 237). However, where events took place far in the past, 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 v. the United Kingdom, no. 32457/04, §§ 79-81, 27 November 2007). The standard of expedition in such historical cases is much 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 Emin and Others v Cyprus, no. 59623/08et al, (dec.) 3 April 2012; and Gürtekin and Others v. Cyprus (dec), nos. 60441/13 et all, § 21, 11 March 2014; see also Palić v. Bosnia and Herzegovina, no. 4704/04, § 70, 15 February 2011 concerning complex post-conflict situations).

(b)  Application of these principles to the present case

85.  As regards the killing of the applicants’ father, Milan Zdjelar, the Court notes that it occurred during the war, on 8 August 1995 in Crni Potok. The national authorities learned of his killing only on 11 October 2001 and immediately opened a police enquiry. The Court will therefore examine the effectiveness of the investigation since that date.

86.  The Court notes that one of the applicants - and the daughter of the victim - Ms Dragica Zdjelar, witnessed the killing of her father. Dragica Zdjelar stated during her interview with the police on 23 March 2004 (see paragraph 10 above) that her father had been killed by members of the “Tigers” brigade. She repeated that statement on several occasions, namely on 25 March 2009, 13 December 2012 and 19 November 2013. The police interviewed eight members of the “Tigers” brigade (see paragraphs 23, 40 and 42 above), and attempted to obtain the relevant information about its whereabouts on 8 August 1995, the date on which Milan Zdjelar was killed.

87.   After Ž.L., a witness who appeared in October 2012, stated that the members of his unit had killed civilians in Crni Potok with the acquiescence and even participation of its commanders, some of whom he named, the investigating authorities pursued the leads he had given (see paragraphs 37-40 and 42 above).

88.  At this juncture the Court reiterates that it has qualified the scope of the above-mentioned obligation to conduct an effective investigation as an obligation as to means, not as to results (see, for example, Shanaghan v. the United Kingdom, no. 37715/97, § 90, 4 May 2001 and the judgments referred to therein).  The Court notes that the police and prosecutors took statements from the applicants and other possible witnesses. None of them had any reliable information about the possible perpetrators of the killing of Milan Zdjelar.

89.  As regards the adequacy of the steps taken by the Croatian authorities in connection with the death of Milan Zdjelar, the Court is not persuaded by the applicants’ submission that there have been significant oversights or omissions. The facts of the case show that all traceable witnesses were interviewed and the available evidence was collected and reviewed. The Court notes that the police pursued every line of enquiry (contrast to Charalambous and Others v. Turkey (dec.), no. 46744/07, § 65, 3 April 2012). The applicants have not pointed to any other concrete avenues of enquiry that the police could have pursued. The fact that the investigation did not succeed in identifying the perpetrators does not necessarily mean that the investigation was ineffective. In the circumstances, the Court cannot impugn the authorities for any culpable disregard, discernible bad faith or lack of will (compare to Gürtekin and others, cited above, § 27).

90.  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. A prosecution, particularly on such a serious charge as involvement in unlawful killings, should never be embarked upon lightly, as the impact on a defendant who comes under the weight of the criminal justice system is considerable, being held up to public obloquy, with all the attendant repercussions on reputation and private, family and professional life. Given the presumption of innocence enshrined in Article 6 § 2 of the Convention, it can never be assumed that a particular person is so tainted with suspicion that the standard of evidence to be applied is an irrelevance. Rumour and gossip are a dangerous basis on which to base any steps that can potentially devastate a person’s life (compare to Palić, cited above, § 65, where the Court held that the investigation was effective, despite the fact that there had not been any convictions; Gürtekin and Others, cited above, § 27; Mujkanović and Others v. Bosnia and Herzegovina (dec.), nos. 47063/08 et al., § 39, 3 June 2014; Fazlić and Others v. Bosnia and Herzegovina (dec.), nos 66758/09 et al., § 37, 3 June 2014; Šeremet v. Bosnia and Herzegovina (dec.), no. 29620/05, § 35, 8 July 2014; and Zuban and Hmidović v. Bosnia and Herzegovina (dec.), nos. 7175/06 and 8710/06, §32, 2 September 2014; and Nježić and Štimac v. Croatia, no. 29823/13, § 69, 9 April 2015).

91.  As to the requirement of promptness, the Court notes first of all the Government’s argument that the Croatian State apparatus at the beginning of the country’s independence had mainly comprised inexperienced and young officials who had not known how to deal with such a difficult situation. The Court is aware that the investigation and prosecution of war crimes was a sensitive and overwhelming task for a country that was at armed conflict and also accepts that during the armed conflict and at the beginning of the county’s independence the State authorities were faced with a difficult situation.

92.  The Court also notes that Croatia declared its independence on 8 October 1991 and all military operations ended in August 1995. The Court accepts that obstacles in the investigation into the killings during the arm conflict and post-conflict 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 to Palić, cited above, § 70, 15 February 2011; and Nježić and Štimac, cited above, § 71).

93.  The Court also acknowledges that the prosecuting authorities did not remain passive and that significant efforts have been made to prosecute war crimes. In this connection the Court acknowledges the efforts of the State Attorney’s Office which, in July 2005, required the County State Attorney’s Offices to concentrate their activities on identifying the perpetrators and gathering the relevant information (see paragraph 13 above). A further global measure by the State Attorney’s Office occurred in October 2008 when it instructed the County State Attorney’s Offices to favour impartial investigation of all war crimes, irrespective of the ethnicity of those involved (see paragraph 19 above). The Court also acknowledges that the prosecuting authorities by 31 December 2012 had opened investigations in respect of altogether 3,436 alleged perpetrators and that there had been 557 convictions (see paragraph 50 above).

94.  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, cited above, § 42; Fazlić and Others, cited above, § 40; Šeremet, cited above, § 38; and Nježić and Štimac, cited above, § 73).

95.  The Court reiterates that it is not its role to micro-manage the functioning of, and procedures applied in, the criminal investigation and justice system in Contracting States which may well vary in their approach and policies (see Armani da Silva, cited above, § 278). As to the case at issue, the Court notes that the investigation in the present case has not been closed.

96.  In conclusion, the Court is unable to adhere to the applicants’ allegations that the authorities had not made sufficient efforts to identify and prosecute those responsible for the fate of the deceased. 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.

II.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

97.  The applicants also complained that the death of their father had caused them suffering. They relied on Article 3 of the Convention, which reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Admissibility

98.  In so far as this complaint falls within its competence ratione temporis, the Court reiterates that while a family member of a “disappeared person” can claim to be a victim of treatment contrary to Article 3 (see Kurt v. Turkey, 25 May 1998, §§ 130-34, Reports 1998-III), the same principle would not usually apply to situations where the person taken into custody has later been found dead (see, for example, Tanlı v. Turkey, no. 26129/95, § 159, ECHR 2001-III (extracts)). In such cases the Court would normally limit its findings to Article 2.

99.  The Court observes that the applicants’ father was killed on 8 August 1995, a fact which was witnessed by Dragica Zdjelar. This case thus concerns a “confirmed death”. Given these circumstances, the Court is not persuaded that in the present case, despite its gruesome circumstances, the applicants sustained the uncertainty, anguish and distress characteristic of the specific phenomenon of disappearances (see, by contrast, Luluyev and Others v. Russia, no. 69480/01, § 115, ECHR 2006-XIII (extracts)).

100.  In such circumstances, the Court considers that it cannot be held that the applicants’ suffering reached a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation (see Jelić, cited above, § 113).

101.  It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

III.  OTHER ALLEGED VIOLATIONS

102.  The applicants complained under Article 6 § 1 of the Convention that by wrongly finding that their claim for damages had been lodged after the statutory limitation period had expired, the national courts had deprived them of the right of access to court. They also invoked Article 5 of the Convention in relation to the killing of their father in August 1995.

103.  As regards the complaint under Article 6 § 1 of the Convention, the Court notes that the same issue was resolved in the Bogdanović case, where the same complaint was held to be manifestly ill-founded (see Bogdanović v. Croatia (dec.), no. 72254/11, 18 March 2014, and Orić v. Croatia (dec.), no. 50203/12, 13 May 2014). The Court sees no reason to depart from that approach in the present case. It follows that this complaint is inadmissible under Article 35 § 3(a) and must be rejected pursuant to Article 35 § 4 of the Convention.

104.  As regards the complaint under Article 5 of the Convention, the Court notes that it relates to events that took place in 1995, whereas the Convention entered into force in respect of Croatia on 5 November 1997. It follows that this complaint is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4 (compare to Jelić, cited above, § 117).

FOR THESE REASONS, THE COURT

1.  Declares, by a majority, the complaints concerning the procedural aspect of Article 2 admissible;

 

1.  Declares, unanimously, the remainder of the application inadmissible;

 

2.  Holds, unanimously, that there has been no violation of Article 2 of the Convention under its procedural aspect.

Done in English, and notified in writing on 6 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel Campos                                                             Linos-Alexandre Sicilianos
Registrar                                                                             President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Wojtyczek is annexed to this judgment.

L.A.S.
A.C.




PARTLY DISSENTING AND PARTLY CONCURRING OPINION OF JUDGE WOJTYCZEK

 

The present application pertains to offences which were committed before the entry into force of the Convention in respect of Croatia. I have voted against the admissibility of the application because, in my view, the Convention does not impose on a High Contracting Party the obligation to investigate events which predate the entry into force of this instrument in respect of the given State. In other words, the case remains outside the temporal scope of application of the Convention. I have explained in detail my position on this issue in my separate opinions to the judgments in the cases of Janowiec and Others v. Russia ([GC], nos. 55508/07 and 29520/09, ECHR 2013) and Mocanu and Others v. Romania ([GC], nos. 10865/09 and 2 others, ECHR 2014 (extracts)).

 

 




APPENDIX

 

1.        Janko ZDJELAR, born in 1968, lives in Topusko, Croatia

2.        Branko ZDJELAR, born in 1964, lives in Topusko, Croatia

3.        Dragica ZDJELAR, born in 1958, lives in Topusko, Croatia

4.        Bosiljka MATERKIĆ, born in 1949, lives in Trebovec, Croatia

5.        Mara REBIĆ ZDJELAR, born in 1961, lives in Osmanci, Bosnia and Herzegovina

6.        Mile ZDJELAR, born in 1950, lives in Jagodina, Serbia

7.        Miloš ZDJELAR, born in 1952, lives in Kula, Serbia

8.        Slavko ZDJELAR, born in 1953, lives in Kula, Serbia

9.        Čedo ZDJELAR, born in 1956, lives in Kansas City, United States