CASE OF BOROJEVIĆ AND OTHERS v. CROATIA

SECOND SECTION

CASE OF BOROJEVIĆ AND OTHERS v. CROATIA

(Application no. 70273/11)

JUDGMENT

STRASBOURG

4 April 2017

FINAL

18/09/2017

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Borojević and Others v. Croatia,

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

Işıl Karakaş, President,
Julia Laffranque,
Nebojša Vučinić,
Valeriu Griţco,
Ksenija Turković,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 14 March 2017,

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

PROCEDURE

1. The case originated in in an application (no. 70273/11) 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 three Croatian nationals, Ms Jasenka Borojević (“the first applicant”), Ms Lahorka Marić (“the second applicant”) and Ms Edita Mihić (“the third applicant”), on 7 November 2011.

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. Stažik.

3. The applicants alleged, in particular, that the procedural obligations incumbent on the respondent Government under Article 2 of the Convention had not been met.

4. On 30 October 2012 the applications were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1946, 1966 and 1973, respectively, and live in Sisak.

A. Killing of the applicants’ close relative and investigations

6. On 17 October 1991 the body of Stevo Borojević, the applicants’ respective husband and father, was found on the right bank of the river Kupa in Sisak. An on-site inspection was carried out immediately as well as an autopsy the following day which showed that the victim had been stabbed to death.

7. On 24 October 1991 the Sisak Police lodged a criminal complaint with the Sisak County State Attorney’s Office.

8. The police interviewed Ms Jasenka Borojević, the victim’s wife, on 5 December 1991. She told them that her husband had left her workplace at about 10.30 a.m. on 6 October 1991 to return home because a general emergency had been announced and their daughter, who was a minor, was there alone. However, after he left she had not seen him again.

9. In 1996 the United Nations Security Council established the United Nations Transitional Administration in Eastern Slavonia, Baranja and Western Sirmium (the “UNTAES”). On 15 January 1998 the UNTAES mandate ceased and the transfer of power to the Croatian authorities began.

10. On 27 February 2002 the police interviewed Jasenka Borojević and Edita Mihić, respectively the wife and daughter of the late Stevo Borojević. They said that prior to Stevo Borojević’s disappearance on 6 October 1991, Croatian soldiers had carried out searches in their flat in July 1991 and on 3 October 1991. One of the soldiers, T.P., had been known to them. They had subsequently learned that an individual named G. had also been implicated. A certain M.T. had also told them that he had asked Đ.B. about the killing of Stevo Borojević and that Đ.B. had shown M.T. a list of persons to be followed and a list of persons to be liquidated, and that Stevo Borojević had been on neither of those lists.

11. 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 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.

12. On 9 October 2008 the State Attorney’s Office issued an instruction to the County State Attorney’s Offices for 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 of the persons 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 duties of those working for the State Attorney in that respect.

13. On 11 December 2008 an investigating judge at the Sisak County Court heard evidence from Jasenka Borojević and Edita Mihić, who repeated what they had said to the police.

14. The police interviewed J.B., a relative of Stevo Borojević, on 30 December 2008 but he had no knowledge of the latter’s disappearance and killing.

15. On 5 January 2009 the police interviewed V.P. and on 8 January 2009 they questioned T.P.

16. On 27 January 2009 an investigating judge at the Sisak County Court heard evidence from T.P., a neighbour of the Borojević family. He said that one day in 1991 when Sisak was being shelled, he and other tenants from the building had been in the basement when three armed men dressed in military uniforms had entered. He had exited the basement with them and they had told him that someone had been shooting from the building. T.P. had shown them the flats where Serbs lived. The three men had entered the flat of the Borojević family while T.P. waited outside. They had not taken anyone from the flat. T.P. remembered that the men had been young.

17. On the same day the judge heard evidence from V.P., who said that a certain T.Š., who had died in the meantime, had told him that he had learned that Stevo Borojević had been taken to Žabno by the men who controlled the roads. He had been tortured and then taken to Vurot. V.P. had the impression that T.Š. knew who had taken Stevo Borojević but he had not identified that person. Later he had seen a vehicle belonging to Stevo Borojević on the Topolovac agricultural estate. However, when he had attempted to find out who was driving the vehicle, a man wearing a camouflage uniform and a balaclava and armed with a Kalashnikov had threatened to kill him.

B. Proceedings on indictment

18. 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 applicants’ relative. On the same day Đ.B., Head of the Sisak Police Department in 1991 and 1992, V.M., police commander at the border territory of Sisak and Banovina in 1991 and 1992 and Deputy of Sisak Police Department, and D.B., a member of the “Wolves” Unit of the Croatian Army, were arrested.

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

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

21. 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 “the 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 persons of Serbian origin and had failed to undertake adequate measures to prevent such killings. The relevant part of the judgment concerning the applicants’ relative reads:

“in the morning of 6 October 1991 at a checkpoint in Odra Sisačka, some unknown members of the reserve police stopped a white vehicle, a Fiat 127, which was being driven by Stevo Borojević, took the vehicle from him and kept it for themselves, and arrested Stevo Borojević and took him to an unknown location where they killed him, after which his body was found on 17 October 1991 on the right bank of the river Kupa at the location called “Rušetina” in Sisak, with several open wounds and contusions on his head and a wound caused by stabs and cuts in his chest.”

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

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

C. Civil proceedings

23. On various dates the applicants brought separate civil actions against the State, seeking compensation in connection with the death of their close relative. The claims were dismissed on the grounds that they had been lodged after the statutory limitation period had expired.

24. Following the criminal conviction of V.M., the applicants sought the reopening of these proceedings in the Petrinja Municipal Court. Their request is now pending.

II. RELEVANT DOMESTIC LAW AND REPORTS

25. 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.

...”

26. Article 120 of the Basic Criminal Code of the Republic of Croatia (Osnovni krivični zakon Republike Hrvatske, Official Gazette nos. 53/1991, 39/1992 and 91/1992) prescribes imprisonment of at least five years or of twenty years for war crime against the civilian population.

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

Article 174(2)

“In order to ... decide whether to request an investigation ... the State Attorney shall order the police to collect 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 collect all information 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 ...”

28. 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 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.

29. The relevant provision of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 57/2011, 148/2011 and 25/2013) reads as follows:

5. Reopening of proceedings

Section 421(1)

“10) if the party learned about new facts or has found or created a possibility to use new evidence on the basis of which a more favourable decision for that party could have been adopted for that party if the facts and evidence been used in the previous proceedings.”

30. The domestic courts of appeal, on the subject of the possibility for a civil court to apply a longer statutory limitation period under section 377 of the Civil Obligations Act, held that this could be applied only if it had been established by a final judgment of the criminal court that the damage had been caused as the result of a criminal offence. This view was confirmed by the practice of the Supreme Court. For example, in its decision no. Rev- 217/05-2 of 20 October 2005 it held as follows:

“The lower court correctly established that section 377 of the Civil Obligations Act was not applicable in this case. ... The longer statutory limitation period [under section 377 of the Civil Obligations Act] applies only when it has been established by a judgment in the criminal proceedings that the damage was caused by a criminal offence ...”

III. RELEVANT INTERNATIONAL LAW

31. 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

32. The applicants complained about the killing of their respective husband and father, Mr Stevo Borojević, and insufficiencies in the investigation in that respect. They also claimed that he 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

33. The Government argued that the applicants had failed to exhaust all available domestic remedies. They contended that the applicants could have lodged a complaint against the individual police officers or employees in the State Attorney’s Office who were in charge of the investigation into the death of their 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 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).

34. 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 a duty to conduct an official State-assisted investigation. The remedies relied on by the Government were not relevant.

2. The Court’s assessment

35. 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

36. The Court has already addressed its temporal jurisdiction as regards both the substantive and the procedural aspects 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 had such jurisdiction in respect of the alleged procedural violation in respect of facts that occurred 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 Court sees no reason to depart from such conclusions in the present case.

37. 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

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

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

(c) Conclusion as to the admissibility

40. 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

41. 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 was very complex and sensitive and that the indictment brought against V.M. and D.B. 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 was highly dependent on witness evidence. However, witnesses had often been reluctant to give evidence for fear of reprisals.

42. After Croatia became 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.

43. The police 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.

44. The applicants argued that the investigation into the death of their respective husband and father had so far yielded few results. None of the direct perpetrators had been indicted, although some of the witnesses had identified them. The indictment relied on by the Government concerned only those who had given orders. The war had ended some eighteen years previously, and the Government’s justification that the officials were young and inexperienced could not be accepted.

2. The Court’s assessment

(a) General principles

45. 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).

46. 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).

47. 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).

48. 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).

49. 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).

50. 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, 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

51. As regards the killing of the applicants’ respective husband and father, the Court notes that it occurred during the war, on an unspecified date between 6 and 17 October 1991, in the Sisak area. On 24 October 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 inquiry 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 10 September 1999. The Court will therefore examine the effectiveness of the investigation since that date.

52. The Court notes that this case concerns the killing of a person of Serbian ethnic origin 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 persons of Serbian origin and had failed to undertake adequate measures to prevent such killings. The crimes for which V.M. was convicted included the killing of both Stevo Borojević and Mr Jelić (see paragraph 21 above). In the Jelić case the Court went further than being satisfied with the conviction of V.M. in his commanding capacity 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).”

53. 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 cover not only those having the command responsibility but direct perpetrators as well.

54. 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.

55. 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 to Gürtekin and Others, cited above, § 25).

56. As regards the statements given to the police which could identify the possible direct perpetrators, the Court notes that Jasenka Borojević and Edita Mihić, the wife and daughter of Stevo Borojević, when interviewed by the police on 27 February 2002, named two individuals, T.P. and G., who had carried out searches in their flat in July 1991 and on 3 October 1991 (see paragraph 10 above). Witness V.P., who was questioned in January 2009 (see paragraph 17 above), said that he had the impression that a certain T.Š., who had died in the meantime, had known who had killed Stevo Borojević.

57. The Court notes that none of the potential witnesses mentioned could identify any potential perpetrators and that the police did not have any clear evidence about those responsible for killing Stevo Borojević. As the Court has held on numerous occasions, the procedural obligation under Article 2 is not an obligation as to result, but as to 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.

58. 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).

59. 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 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.

60. The Court also notes that Croatia declared its independence on 8 October 1991 and all military operations ended in August 1995. In January 1998 the UNTAES mandate ceased and the peaceful transfer of power to the Croatian authorities began (see paragraph 9 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 to Palić, cited above, § 70, 15 February 2011; and Nježić and Štimac, cited above, § 71).

61. 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 11 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 12 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 28 above).

62. 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).

63. The Court reiterates that it is not its role to micro-manage the functioning of, and procedures applied in, 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 finds it acceptable that the priority was given to establishing the command responsibility. Further to this, the investigation in the present case has not been closed and were any new leads to be discovered, the investigation could at any time be resumed. 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 filed to discharge the procedural obligation under Article 2 of the Convention.

64. 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.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

65. The applicants also complained that the death of their respective husband and father 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.”

66. The Court has already examined the same complaint in the Jelić case in circumstances comparable to those in the present case and concluded that:

“112. ... despite its gruesome circumstances, the applicant sustained 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)).

113. In such circumstances, the Court considers that it cannot be held that the applicant’s 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.”

67. The Court does not see any reason to depart from that view in the present case. Accordingly, this complaint of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

III. OTHER ALLEGED VIOLATIONS

68. The applicants complained under Article 6 § 1 of the Convention that the national courts by wrongly finding that their claim for damages had been lodged after the statutory limitation period had expired, had deprived them of the right of access to court because they had not examined their claim on the merits. They also invoked Article 5 of the Convention in relation to the taking of their respective husband and father by uniformed persons in August 1991. They further complained that by dismissing their claim for damages the national court had violated their property rights under Article 1 of Protocol No. 1.

69. As regards the complaint under Article 5 of the Convention, the Court notes that it relates to the events that took place in 1991 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.

70. As regards the complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, the Court notes that, following the conviction of V.M., the applicants are able to seek the re-opening of the civil proceedings (see paragraphs 29 and 30 above). Accordingly, these complaints are premature and must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning the procedural limb of Article 2 admissible and the remainder of the application inadmissible;

2. Holds that there has been no violation of the procedural limb of Article 2 of the Convention.

Done in English, and notified in writing on 4 April 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stanley NaismithIşıl Karakaş
RegistrarPresident

 

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