European Court of Human Rights

 

 

 

SECOND SECTION

 

 

 

 

 

 

CASE OF TRIVKANOVIĆ v. CROATIA

 

(Application no. 12986/13)

 

 

 

 

 

 

 

 

 

 

 

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 Trivkanović v. Croatia,

The European Court of Human Rights (Second 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 Renata Degener, Deputy Section Registrar,

Having deliberated in private on 6 June 2017,

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

PROCEDURE

1.  The case originated in an application (no. 12986/13) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Ms Stoja Trivkanović (“the applicant”), on 21 January 2013.

2.  The applicant was 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 applicant alleged that the procedural obligations incumbent on the respondent Government under Article 2 of the Convention had not been met.

4.  On 18 September 2013 the complaints concerning the procedural aspect of Articles 2 and 14 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1950 and lives in Sisak.

6.  The applicant was married to N.T. and they had two sons, Z.T. and B.T. In 1985 the applicant and N.T. divorced.

A.  Killing of N.T. and disappearance of the applicant’s sons and subsequent police enquiries

7.  On 25 August 1991 a number of members of the “Wolves” (Vukovi) unit of the Sisak police entered the house of the applicant’s son Z.T., They abducted Z.T., the applicant’s second son B.T. and her former husband N.T. On 26 August 1991 the body of N.T. was found in the River Sava and the autopsy showed that he had been shot and killed. Z.T. and B.T. disappeared. On 2 September 1991 the Sisak police lodged a criminal complaint with the Sisak County State Attorney’s Office in connection with the killing of N.T. Police enquiries were started by the Sisak police, under the command of Ɖ.B. and his deputy V.M. (see paragraph 31 below).

8.  On 9 September 1991 the applicant contacted the Ministry of the Interior and informed them that her former husband and two sons had disappeared.

9.  The commander of the Wolves unit was J.G., who died in a road accident in 1992.

10.  On 14 June 1993 the applicant lodged a criminal complaint with the State Attorney’s Office

11.  On an unspecified date broader police enquiries were opened into the killing of individuals of Serb ethnicity in the Sisak area during the war. The enquiries into the killing of N.T. and disappearance of the applicant’s sons were part of these overall enquiries.

12.  Before 5 November 1997, when Croatia ratified the Convention, the police interviewed the applicant as well as potential witnesses D.F.T., M.T., Ž.B., D.M. and J.J. None of them had any concrete knowledge about the potential perpetrators.

13.  On 15 October 2002 an investigating judge of the Sisak County Court heard evidence from Z.G., a former Croatian soldier who firstly denied knowing anything about the fate of the applicant’s sons and former husband but later on, through tears and saying that he was scared, said that he had seen all three of them in ORA, a military base near Sisak. Z.T. and B.T. had been visibly beaten.

14.  In October and November 2002, January and February 2003 the police interviewed a number of former Croatian soldiers as witnesses, some of whom (Z.K., M.D., S.Š., S.K., Ž.R., M.B., I.A., M.P., A.D., S.G., D.M.S.K.I.Š., I.K., M.G., M.R., D.V. as well as two anonymous individuals) had given statements about the arrest of individuals during the war in the Sisak area and their detention in ORA. None of them had any knowledge about the fate of the applicant’s former husband and sons.

15.  On 4 November 2002 the police interviewed D.M., a friend of the applicant’s sons, who had witnessed their and their father’s arrest by four people dressed in camouflage uniforms and had heard that they had been taken to ORA.

16.  On 9 January 2003 an investigating judge of the Sisak County Court heard evidence from the applicant. She said that she had not witnessed the arrest of her former husband and sons but had heard from D.F.T., wife of her son Z.T., about it. D.M. had also witnessed the arrest of her former husband and sons. Also, M.F. had told her that he had seen her sons in ORA and his girlfriend had also told her that her sons had been beaten in ORA. Another person, C., had also told her that he had seen her son B.T. in ORA.

17.  A report drawn up by the Sisak police in 2004 for the Sisak County State Attorney’s Office on disappeared individuals lists the applicant’s sons as missing.

18.  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 Office, which were required 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 initiate criminal proceedings.

19.  On 21 November 2005 the applicant’s sons were declared dead by the Sisak Municipal Court as of 25 August 1991.

20.  On 5 October 2006 the Sisak County State Attorney’s Office classified the killing of N.T. and the disappearance of the applicant’s sons as war crimes against the civilian population.

21.  On 13 December 2006 the applicant again lodged a criminal complaint. She alleged that her sons had been arrested by the members of the Croatian army and taken to ORA, under the command of B.B.

22.  On 25 January 2007 an investigating judge of the Sisak County Court heard evidence from witnesses D.M. and D.F.T. D.M. repeated his previous statements (see paragraph 15 above). D.F.T., the wife of the late Z.T., had witnessed the arrest of the victims but had no information on possible direct perpetrators.

23.  On 9 October 2008 the State Attorney’s Office issued an instruction to the County State Attorney’s Offices concerning implementation of the Criminal Code and the Code of Criminal Procedure, in which it indicated that an inspection of their work had indicated two main problems: possible partiality on the part of the individuals involved in the pending proceedings as regards 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 reiterated the duty of those working for the State Attorney in that connection.

24.  On 14 October 2008 the Sisak police compiled an analysis of the criminal complaints concerning the crimes committed in 1991 and 1992 in the broader Sisak area and adopted a plan for further actions to be taken, including in the Trivkanović case.

25.  On 17 December 2008 the police again interviewed the applicant. She said that she had heard that Z.R. was one of the people who had taken her former husband and sons and that her daughter-in-law D.F.T. also knew one of the individuals implicated but was afraid to talk about it.

26.  On the same day the Sisak County State Attorney’s Office compiled a report on the cases concerning war crimes, including the killing of the applicant’s sons.

27.  On 18 December 2008 the police interviewed D.F.T. and M.F. D.F.T. said that she did not know any of the individuals who had arrested the victims. M.F. said that he had no knowledge of the events at issue.

28.  On 26 January 2009 the Sisak police sent a report on the interviews to the Sisak County State Attorney’s Office.

29.  In January and March 2009 the police interviewed D.K., M.R., I.V., J.J., and K.J., none of whom had any relevant knowledge of the critical events. The police also again interviewed D.M. and Z.G., who both repeated their respective prior statements.

30.  On 25 March and 18 August 2009 the Sisak police sent a report to the Sisak County State Attorney’s Office.

31.  The enquiries into the killing of the applicant’s former husband and sons were a part of broader police enquiries which concerned officials of the Sisak police as suspects and altogether thirty-four victims (see paragraph 61 below). As a result of these enquiries an investigation was opened in the Sisak County Court (see below, paragraphs 32 and 33).

B.  Proceedings on indictment

32.  On 20 June 2011 the Sisak county police lodged a criminal complaint against Đ.B., V.M and D.B. on charges of war crimes against the civilian population. This included the killing of the applicant’s sons and former husband. On the same day Đ.B., head of the Sisak police in 1991 and 1992, V.M., police commander at the border territory of Sisak and Banovina in 1991 and 1992 and deputy head of the Sisak police, and D.B., a member of the Wolves, a reserve unit of the Sisak police, were arrested.

33.  On an unspecified date an investigation was opened. On 13 July 2011 Đ.B. died.

34.  During the trial D.F., D.M., D.F.T., S.R., Z.G., P.M. and S.L. as well as the applicant all testified as witnesses that they had either seen or heard that the applicant’s former husband and two sons had been abducted from their home by the members of the Wolves unit and taken to ORA.

35.  On 16 December 2011 the Osijek County State Attorney’s Office lodged an indictment against V.M. and D.B. with the Osijek County Court, alleging that they had been in command of the unit whose unnamed members had committed a number of crimes against the civilian population between July 1991 and June 1992, including the killing of the applicant’s relatives. They were charged with war crimes against the civilian population.

36.  On 9 December 2013 a first-instance judgment was delivered. V.M. was found guilty of war crimes against the civilian population in that, in his capacity as “commander of police forces in the broader area of Sisak and Banovina” and “deputy head of the Sisak police”, he had allowed the killings of individuals of Serb ethnicity and had failed to take adequate measures to prevent such killings. The relevant part of the judgment concerning the applicant’s sons and former husband reads:

“On the afternoon of 25 August 1991 a number of members of the ‘Wolves’ unit of the Sisak police forcibly abducted N.T. and his sons Z. and B.T. from their family home at 38 Slavonska Street in Sisak and took them in a white van to the improvised prison at ‘ORA’, where they were beaten during an unlawful interrogation after which N.T. was taken to an unknown place on the same day and shot and killed and his body was found on 26 August 1991 at the left bank of the River Sava at a place called Gušće, whereas the fate of Z. and B.T. after they had been taken to ‘ORA’ remains unknown.”

V.M. was sentenced to eight years’ imprisonment. D.B. was acquitted of all charges.

37.  On 10 June 2014 the Supreme Court upheld the conviction of V.M. and increased his sentence to ten years’ imprisonment.

II. RELEVANT DOMESTIC LAW AND REPORTS

38.  Article 21 of the Constitution (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000 and 28/2001) reads as follows:

“Every human being has the right to life.

...”

39.  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.

...”

40.  The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002) provide:

Article 174(2)

“In order to ... decide whether to request an investigation ... a State Attorney shall order the police to collect the necessary evidence 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 collect all evidence of possible relevance for the conduct of the criminal proceedings ...”

Article 185
Urgent Investigative Steps

“When the perpetrator of a criminal offence is unknown, a State Attorney may ask the police to carry out certain investigative steps where, given the circumstances of the case, it would be useful to carry out such steps before instituting an investigation. If the State Attorney considers that certain investigative steps should be carried out by an investigating judge ... he or she will invite an investigating judge to carry out these steps ...”

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 evidence and information necessary for deciding whether an indictment is to be brought or the proceedings are to be discontinued shall be collected ...”

41.  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 war crimes in Croatia, of whom 5,979 had been killed. At that point, the Croatian authorities had opened investigations in respect of 3,436 alleged perpetrators. There had been 557 convictions for war-related crimes.

III.  RELEVANT INTERNATIONAL LAW

42.  The Statute of the International Criminal Court (Article 25), the Statute of the International Criminal Tribunal for Rwanda (Article 6) and the Statute of the International Criminal Tribunal for the Former Yugoslavia refer to individual criminal responsibility. Article 7 of the last of these reads:

Individual criminal responsibility

“1.  Anyone planning, instigating, ordering, committing or otherwise aiding and abetting the planning, preparation or execution of a crime referred to in Articles 2 to 5 of the present Statute shall be individually responsible for the crime.

2.  The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.

3.  The fact that any of the acts referred to in Articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

4.  The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.”

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

43.  The applicant complained of insufficiencies in the investigation into the killing of her former husband and disappearance of her two sons. She also claimed that he had been killed because of his Serb ethnicity and that the national authorities had failed to investigate that factor. She relied on Articles 2 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

44.  The Government contended that the applicant and N.T. had divorced in 1985 and had not maintained a close relationship and that therefore the applicant could not claim to have been the victim of any violations concerning N.T.

45.  The Government argued that the applicant 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 with the State Attorney’s Office which was in charge of the investigation into the death of their relative. 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 under 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).

46.  The Government also argued that the applicant had not lodged her application within the six-month time-limit because in 2006 she had already formed the opinion that the investigation had been ineffective, which the Government based on the fact that in that year the applicant had lodged her second criminal complaint and also brought a civil action for damages against the State.

47.  In reply, the applicants submitted that the relevant authorities had been made aware of the killing of their relative as early as 1991 and that they had had a duty to conduct an official State-assisted investigation. The remedies relied on by the Government were not relevant.

2.  The Court’s assessment

(a)  The applicant’s victim status in connection with the killing of N.T.

48.  The Court has summarised the principles governing the assessment of an applicant’s victim status with respect to claims under Article 2 of the Convention, in its judgment in the case of Nikolova and Velichkova v. Bulgaria (no. 7888/03, §§ 51-57, 20 December 2007).

49.  The Court reiterates that in cases where Article 2 of the Convention has been invoked in relation to the death or disappearance of close relatives in circumstances allegedly engaging the responsibility of the State, it has recognised the standing of the victim’s next-of-kin, such as the deceased’s wife, to submit an application (see, for example, Aytekin v. Turkey, 23 September 1998, Reports of Judgments and Decisions 1998-VII). The Court reiterates that the individuals bringing applications before the Court must be able to show that they were “directly affected” by the measure complained of (see İlhan v. Turkey [GC], no. 22277/93, §§ 52-55, ECHR 2000-VII, and Benzer and Others v. Turkey, no. 23502/06, § 98, 12 November 2013).

50.  As to the present case, the Court notes that the applicant and N.T. divorced in 1985, six years before his death. There is no indication that they remained close after that. The Court, therefore, finds that the link between the applicant and N.T. at the time of his death was not sufficient for the applicant to be the victim of Article 2 of the Convention.

51.  Accordingly, the applicant’s complaint, in so far as it concerns the killing of N.T., is incompatible ratione personae 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

52.  The Court has already addressed the same objections as regards the exhaustion of domestic remedies in other cases against Croatia and rejected them (see Jelić v. Croatia, no. 57856/11, § 59-67, 12 June 2014). The Court sees no reason to depart from that view in the present case.

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

(c)  Compliance with the six-month time-limit

(i)  General principles

54.  General principles concerning the six-month time-limit in cases of disappearances of individuals are set out in the case of Varnava as follows (see Varnava and Others v. Turkey [GC], nos. 16064/90 et al., §§ 156-57 and 162-66, ECHR 2009):

“156. The object of the six-month time-limit under Article 35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see, among other authorities, Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I).

157. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset however that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002). Nor can Article 35 § 1 be interpreted in a manner which would require an applicant to [apprise] the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level. Where, therefore, an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period from the date when the applicant first became or ought to have become aware of those circumstances (see Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001).

...

162. The Court would comment, firstly, that a distinction must be drawn with cases of unlawful or violent death. In those cases, there is generally a precise point in time at which death is known to have occurred and some basic facts are in the public domain. The lack of progress or ineffectiveness of an investigation will generally be more readily apparent. Accordingly, the requirements of expedition may require an applicant to bring such a case before Strasbourg within a matter of months, or at most, depending on the circumstances, a very few years after events. In disappearance cases, where there is a state of ignorance and uncertainty and, by definition, a failure to account for what has happened, if not an appearance of deliberate concealment and obstruction on the part of some authorities, the situation is less clear cut. It is more difficult for the relatives of the missing to assess what is happening, or what can be expected to happen. Allowances must be made for the uncertainty and confusion which frequently mark the aftermath of a disappearance.

163. Secondly, the Court would take cognisance of the international materials on enforced disappearances. The International Convention for the Protection of All Persons from Enforced Disappearance stipulates that any time-limit on the prosecution of disappearance offences should be of long duration proportionate to the seriousness of the offence, while the Rome Statute of the International Criminal Court excludes any statute of limitations as regards the prosecution of international crimes against humanity, which includes enforced disappearances. Bearing in mind therefore the consensus that it should be possible to prosecute the perpetrators of such crimes even many years after the events, the Court considers that the serious nature of disappearances is such that the standard of expedition expected of the relatives cannot be rendered too rigorous in the context of Convention protection.

164. Thirdly, in line with the principle of subsidiarity, it is best for the facts of cases to be investigated and issues to be resolved in so far as possible at the domestic level. It is in the interests of the applicant, and the efficacy of the Convention system, that the domestic authorities, who are best placed to do so, act to put right any alleged breaches of the Convention.

165. 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.

166. In a complex disappearance situation such as the present, arising in a situation of international conflict, where it is alleged that there is a complete absence of any investigation or meaningful contact with the authorities, it may be expected that the relatives bring the case within, at most, several years of the incident. If there is an investigation of sorts, even if sporadic and plagued by problems, the relatives may reasonably wait some years longer until hope of progress being made has effectively evaporated. Where more than ten years have elapsed, the applicants would generally have to show convincingly that there was some ongoing, and concrete, advance being achieved to justify further delay in coming to Strasbourg. Stricter expectations would apply in cases where the applicants have direct domestic access to the investigative authorities.”

(ii)  Application of these principles to the present case

55.  As to the present case, the Court notes that the applicant’s sons disappeared in 1991. A police investigation was opened in 1991, an official investigation was opened in June 2011, and the criminal proceedings ended in June 2014. The applicants lodged their application with the Court on 21 January 2013. The Court also notes that the investigation into the killing of the applicant’s sons was part of a broader police investigation which concerned at least thirty-four victims and which resulted in the conviction of V.M. (see paragraphs 31-37 above).

56.  The Court observes that the present case concerns the investigation into the disappearance of Z.T. and B.T., the applicant’s sons, which was classified as a war crime against the civilian population (see paragraphs 19 and 20 above). The Government argued that the case concerned a large number of victims and that after the war the Croatian State was not in a position to immediately process individual cases concerning the deceased. The Court accepts that the large number of victims certainly affected the progress of the individual investigation.

57.  In such circumstances, where the State authorities were occupied with a large number of individual investigations into the deaths of numerous individuals who had been killed during the war in Croatia, and where the progress of some of those individual investigations was rather slow, and where there was such a significant new development as the indictment of the person allegedly responsible occurred, it cannot be said that the period of some two years and three months with no apparent progress in the investigation constituted an excessive delay in respect of the lodging of the present application with the Court (compare to Treskavica v. Croatia, no. 32036/13, § 48, 12 January 2016).

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

(d)  Conclusion as to the admissibility

59.  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

60.  The applicant argued that the investigation into the disappearance and death of her sons had so far yielded few results. None of the direct perpetrators had been identified. The criminal conviction concerned only one of those who had given orders. The war had ended some eighteen years previously, and the Government’s justification that the officials had been young and inexperienced could not be accepted.

61.  The Government argued that there had been no violation of the procedural aspect of Article 2 in the present case. They maintained that the case at issue had been very complex and sensitive and that the indictment brought against V.M. and D.B. had concerned thirty-four victims. The main suspects in the case, Đ.B. and V.M., had held senior official positions until 1999, and this had impeded the investigation. Furthermore, one of the specific features of investigations into war crimes was a lack of material evidence and the prosecution had been highly dependent on witness accounts. However, witnesses had often been reluctant to give evidence for fear of reprisals.

62.  After Croatia had become independent, the State apparatus had comprised many young and inexperienced officials, who had not known how to address those serious problems. In these difficult circumstances the authorities had done everything they could to identify the perpetrators and bring them to justice. Those who had given orders for the killings had been indicted, and one of the accused had been found guilty of war crimes against the civilian population and sentenced to eight years’ imprisonment.

63.  The investigation had followed up all the leads and interviewed a number of witnesses. However, none of the leads had produced any tangible results which could have served as a basis for a prosecution.

2.  The Court’s assessment

(a)  General principles

64.  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 that make 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).

65.  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).

66.  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 (ibid., § 230).

67.  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 (ibid., § 233 and Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005-VII).

68.  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 (ibid., § 234).

69.  A requirement of promptness and reasonable expedition is implicit in this context (see Yaşa v. Turkey, 2 September 1998, §§ 102-04, Reports 1998-VI, and Mahmut Kaya v. Turkey, no. 22535/93, §§ 106-07, 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, owing 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, § 72, 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. 59623/08 et al., (dec.) 3 April 2012, and Gürtekin and Others v. Cyprus, nos. 60441/13, 68206/13 and 68667/13, § 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

70.  As regards the disappearance of the applicant’s two sons, the Court notes that they were abducted from their home in Sisak during the war, on 25 August 1991. On 2 September 1991 the police lodged a criminal complaint with the Sisak County State Attorney’s Office against a person or persons unknown. An investigation was therefore instigated. In this connection, the Court notes at the outset that it has no temporal jurisdiction to examine the facts that occurred before 5 November 1997, the date on which Croatia ratified the Convention. Therefore, it will examine only the part of the investigation which has taken place since that date (compare Jelić, cited above, § 81). Further to this, the Court notes that after the date of ratification of the Convention by Croatia, the first investigative steps were taken on or around 15 October 2002 when new evidence was discovered (see paragraph 13 above). The Court will therefore examine the effectiveness of the investigation since that date.

71.  The Court notes that this case concerns the killing of a person of Serb ethnicity in the Sisak area in 1991, as in the Jelić case (cited above). V.M. was convicted by the first-instance court of war crimes against the civilian population in his capacity as the commander of the police forces in the broader area of Sisak and Banovina and the deputy head of Sisak police in that he had allowed the killing of individuals of Serb ethnicity and had failed to take adequate measures to prevent such killings. The crimes for which V.M. was convicted included the killing of Mr Jelić and the applicant’s former husband as well as the disappearance of the applicant’s sons (see paragraph 36 above). In the Jelić case the Court went further than being satisfied with the conviction of V.M. in his capacity as commander and in paragraphs 88-90 of its judgment stated that:

“... apart from the responsibility of the superior officers, in the case at issue there is a deficiency which undermines the effectiveness of the investigation and which could not be remedied by convicting only those in command. In the context of war crimes the superior (command) responsibility is to be distinguished from the responsibility of their subordinates. The punishment of superiors for the failure to take necessary and reasonable measures to prevent or punish war crimes committed by their subordinates cannot exonerate the latter from their own criminal responsibility (see paragraph 42 above).

89.  During the investigation three witnesses stated that A.H. had personally shot and killed Vaso Jelić. While a ballistic report was carried out in that connection (see paragraph 29 above), that could not excuse the State authorities from taking further relevant steps to verify statements given by three witnesses. In the situation where the names of potential perpetrators have been revealed to the authorities by witnesses whose reliability has not been called into question and where some of them were direct eyewitnesses, it should be expected of the prosecuting authorities that they take appropriate steps in order to bring those responsible to justice. It does not appear, however, that such steps were taken.

90.  In this connection the Court notes that among the main purposes of imposing criminal sanctions are retribution as a form of justice for victims and general deterrence aimed at prevention of new violations and upholding the rule of law. However, neither of these aims can be obtained without alleged perpetrators being brought to justice. Failure by the authorities to pursue the prosecution of the most probable direct perpetrators undermines the effectiveness of the criminal-law mechanism aimed at prevention, suppression and punishment of unlawful killings. Compliance with the State’s procedural obligations under Article 2 requires the domestic legal system to demonstrate its capacity and willingness to enforce criminal law against those who have unlawfully taken the life of another (see Nachova and Others, cited above, § 160; and Ghimp and Others v. the Republic of Moldova, no. 32520/09, § 43, 30 October 2012).”

72.  The Court then found a violation of the procedural aspect of Article 2 of the Convention on the grounds that the domestic authorities had failed to meet their obligation to conduct an effective investigation that would have covered not only those in command, but direct perpetrators as well.

73.  However, the circumstances of the present case are somewhat different from those in the Jelić case when it comes to the prosecution of possible direct perpetrators.

74.  The Court notes, first of all, that the police have followed up all the leads in the case in issue, updating the witness statements, looking for witnesses and identifying as far as possible those potential suspects who have been named by witnesses. Naturally, given the lapse of more than twenty years since the events, some of the potential suspects and indeed witnesses have died in the meantime (compare Gürtekin and Others, cited above, § 25).

75.  The national courts established that the applicant’s former husband and sons had been abducted by members of the Wolves unit. However, their commander, J.G. died in 1992 (see paragraph 9 above).

76.  The Court notes that on 9 January 2003 the applicant gave names of D.F.T. and M.D. who had allegedly witnessed the arrest of her sons, as well as of M.F. and C., who allegedly saw her sons in ORA, to the Sisak County Court. However, all these persons had already been interviewed by the police save for C. whose full identity appears to be unknown (see paragraphs 12 and 16 above).

77.  During the trial of V.M. several witnesses gave evidence (see paragraph 34 above). However, none of them had any relevant knowledge about possible direct perpetrators.

78.  The Court notes that none of the potential witnesses was able to identify any potential perpetrators and that the police did not have any clear evidence about those responsible for the deaths of the applicant’s sons. As the Court has held on numerous occasions, the procedural obligation under Article 2 is not an obligation as to result, but of means. What is relevant is that the domestic authorities have done all that could reasonably be expected of them in the circumstances of this particular case.

79.  As regards the adequacy of the steps taken by the Croatian authorities, the Court is not persuaded by the applicant’s 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 there was an investigation which pursued every line of enquiry (contrast Charalambous and Others v. Turkey (dec.), no. 46744/07, § 65, 3 April 2012). The applicant has 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 direct 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 Gürtekin and Others, cited above, § 27).

80.  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 been comprised of 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 war and also accepts that during the war and at the beginning of the county’s independence the State authorities were faced with a difficult situation.

81.  The Court also notes that Croatia declared independence on 8 October 1991 and all military operations ended in August 1995. In January 1998 the United Nations Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium mandate ended and the peaceful transfer of power to the Croatian authorities began (see paragraph 7 above). The Court accepts that obstacles in the investigation into the killings during the war and post-war recovery were attributable to the overall situation in Croatia, a newly independent and post-war State which needed time to organise its apparatus and for its officials to gain experience (compare Palić, cited above, § 70, 15 February 2011, and Nježić and Štimac v. Croatia, no. 29823/13, § 71, 9 April 2015.

82.  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 evidence (see paragraph 18 above). A further wide-reaching measure by the State Attorney’s Office was introduced 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 23 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 40 above).

83.  The Court finds that, taking into account the special circumstances prevailing in Croatia in the post-war period, the large number of war crimes cases pending before the local courts and the practical realities of investigation work such as the passage of time and the scope of the overall investigation into the crimes committed in the broader Sisak area, the investigation into the killing of the applicant’s relatives has not been shown to have infringed the minimum standard required under Article 2 (compare Palić, cited above, § 71; Gürtekin and Others, cited above, § 32; Mujkanović and Others v. Bosnia and Herzegovina (dec.), nos. 47063/08 et al., § 42; Fazlić and Others v. Bosnia and Herzegovina (dec.), nos 66758/09 et al., § 40; and Nježić and Štimac, cited above, § 73).

84.  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). Having regard to the overall investigation into the crimes committed during the war in Croatia in the broader Sisak area and the conviction of V.M., it cannot be said that the domestic authorities have failed to discharge their procedural obligation under Article 2 of the Convention.

85.  In conclusion, the Court does not find support for the applicants’ allegations that the authorities did not properly investigate the fate of the deceased or that they are somehow shielding or protecting those responsible. The investigation has not been shown to have infringed the minimum standard required under Article 2. It follows that there has therefore been no violation of that provision.

FOR THESE REASONS, THE COURT

1.  Declares, by six votes to one, the application admissible;

 

2.  Holds, unanimously, that there has been no violation of Article 2 of the Convention in 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.

  Renata Degener                                                       Linos-Alexandre Sicilianos
Deputy 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.
R.D.




PARTLY DISSENTING AND PARTLY CONCURRING OPINION OF JUDGE WOJTYCZEK

I fully agree with my colleagues that offences committed in time of war should be prosecuted efficiently and punished. In particular, as stated by the International Committee of the Red Cross, there is a rule of customary international law according to which States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects (see Customary International Humanitarian Law, Rule 158, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule158). War crimes cannot remain unpunished.

On the other hand, I do not share the majority’s view on the temporal scope of application of the Convention. I have expressed my opinion concerning this legal issue in my separate opinions annexed to the judgments in the cases of Janowiec 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)). In these two separate opinions I explained in detail why, in my view, the Convention does not impose on a High Contracting Party the obligation to investigate events that predate the entry into force of that instrument in respect of the State concerned.

The present application pertains to offences which were committed before the entry into force of the Convention in respect of Croatia. Therefore, in my assessment, the conditions for holding Croatia responsible for a violation of the Convention were not met in the instant case. Furthermore, in my view, the Court does not have jurisdiction to adjudicate on violations of other rules of international law.