CASE OF MUČIBABIĆ v. SERBIA

THIRD SECTION

CASE OF MUČIBABIĆ v. SERBIA

(Application no. 34661/07)

JUDGMENT

STRASBOURG

12 July 2016

FINAL

12/10/2016

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

In the case of Mučibabić v. Serbia,

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

Luis López Guerra, President,
Helena Jäderblom,
Johannes Silvis,
Branko Lubarda,
Pere Pastor Vilanova,
Alena Poláčková,
Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 21 June 2016,

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

PROCEDURE

1. The case originated in an application (no. 34661/07) against the Republic of Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Serbian national, Mr Mihailo Mučibabić (“the applicant”), on 3 August 2007.

2. The applicant was represented by Mr D. Ukropina, a lawyer practising in Novi Sad. The Serbian Government (“the Government”) were initially represented by their former Agents, Mr S. Carić and Ms V. Rodić, respectively, the latter being more recently substituted by their current Agent, Ms. N. Plavšić.

3. The applicant alleged that the respondent State had failed to carry out a prompt and effective investigation into his son’s death.

4. On 30 November 2010 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1926 and lives in Novi Sad. His son, Mr Vojislav Mučibabić, was born in 1951 and died on 23 June 1995. The present case concerns the investigation into the death of the applicant’s son.

A. Events surrounding the death of Mr Vojislav Mučibabić

6. On 23 June 1995 a powerful explosion occurred at the facilities of Grmeč, a company with headquarters in Belgrade.

7. It transpires from the judicial decisions and the case file that the explosion was caused by the covert production of composite solid rocket fuel under the auspices of the State Intelligence Service.

8. The general information the Court has been able to procure as to the production of rocket fuel and the risk of an explosion at production sites may be summarised as follows.

9. Composite fuel, also known as composite propellant, is a broad class of solid chemical fuels that are used as propellants in rockets. The rocket-fuel sheets resemble PVC folia but are less stable and require a specialised location with a high level of preventive measures and safety precautions. They are composed of fuel and oxidiser. An example of a fuel is phenol formaldehyde and of an oxidiser, ammonium perchlorate (“AP”). AP is a powerful oxidiser, which explains why it is used mainly in solid propellant rocket boosters, including space shuttles and military missiles.

10. AP is a white, granular, crystalline solid or powder. Its explosive characteristics depend on particle size and granulometric composition. It is a class 4 oxidiser (it can cause an explosive reaction) when particles measure over 15 micrometres. It is classified as an explosive when particles measure less than 15 micrometres. It has been apparently involved in a number of accidents. AP is stable when properly stored, transported and handled at temperatures below 150 degrees Celsius (oC). The amount put in any pile must be limited and storage sites must be designed with blast walls. The risks of explosion and fire associated with AP arise mainly when there is a large proportion of AP in a premix or when it is exposed to intensive heat or an organic compound. When heated to 300oC, AP degrades organic adhesive, breaking cemented joints. Complete reactions leave no residue.

11. At a series of meetings, an Intelligence Service executive had apparently agreed to the production of rocket fuel with a private company, JPL Systems (hereinafter “JPL”). The latter’s experts were supposed to provide the formula and certain components, including oxidisers. Certain Grmeč managers had allegedly been requested to make available a mill with two counter-rotating rollers in its facilities for the production of polyvinyl chloride sheets, as well as other substances and its experts.

12. On 23 June 1995, most of the components were blended together in a batch mixer in another company, transported in aluminium bins to Grmeč in a private car by JPL experts and stored next to the mill. When the mixture was put on the mill and extraction of the sheets of rocket fuel started, an explosion occurred in the presence of more than twenty workers from the two commissioned companies. As a consequence, the applicant’s son and ten other people died, while ten others were seriously injured.

13. It appears from the Serbian Business Register and the expert reports that neither Grmeč nor JPL was licensed and adequately equipped for the production of rocket fuel at the material time.

B. Inspection of the scene of the incident

14. At about 9 p.m. on 23 June 1995 the investigating judge on duty, M.A., arrived at Grmeč to inspect the scene of the incident. V.V., the Deputy District Public Prosecutor Office (hereinafter “the prosecutor”), Z.L., a crime inspector, and V.M., a crime-scene technician, were also present.

15. According to the investigating judge’s two-page report of his inspection of the incident scene (zapisnik o uviđaju), at about 6.30 p.m. on 23 June 1995 a massive explosion occurred during the production of a new product – polyvinyl chloride sheets. The explosion greatly damaged the production room and killed a number of people who had been involved in the production process.

When the investigating judge arrived at the scene, unspecified members of the factory’s security staff and the Belgrade police prevented him and the prosecutor from entering the production room. They were requested to examine the scene two to three steps away from the entrance door for security reasons, given that the damaged roof could have collapsed. The judge noticed that it had been a powerful explosion, and that the production room had been covered in dust and pieces of the roof, which also prevented a good overview of the room.

As the judge could not inspect the incident scene, in order to gather evidence he talked to the director, R.U. He had to wait thirty minutes for the director to be found and to finish his telephone call with the Belgrade mayor, N.Č. The director stated that the explosion had occurred when the factory’s experts with a team of additional experts (part of the statement is illegible) had apparently tested a new product-manufacturing process with which he was not familiar. However, he clarified that the manufacturing process required special security measures and teams, and named all of the factory’s experts involved, including the applicant’s son as a chief engineer. The technical director, S.K., stated that his team of between seventeen and twenty employees had been testing a new product and that experts from other companies and faculties “might have been involved” in the manufacturing process that afternoon. Presuming that ten people had died, he anticipated that the cause of the explosion may have been “an unwanted, unexpected and unknown chemical reaction which had ‘broken out’ during the process”.

The investigating judge instructed (a) the Belgrade police’s expert team and the factory experts to continue looking for those involved who had died or survived; (b) the crime-scene technician to collect and register all traces, objects and details which might help to elucidate the account of the events and to make an appropriate file in that respect; (c) the removal of all the corpses to the Institute for Forensic Medicine for post-mortem examinations to determine the cause of death; and (d) the transfer of all the survivors to the appropriate medical centres. All those activities and the relevant documentation were to form an integral part of the incident report.

16. In his two-page report on the forensic inspection of the incident scene (izveštaj o kriminalističko-tehničkom pregledu lica mesta), the crime inspector, Z.L., noted that there had been traces of the destruction caused by a massive explosion which had occurred at about 6 p.m. on 23 June 1995 at the Vinfleks factory (production room) where bituminous materials were produced. He reported that nine corpses had been found and gave the names of several injured people who had been transported to hospital (one of them had died there) as well as a short statement by one of the workers who had been nearby. The inspector reported that the police firemen had already started extinguishing the fire, that the crime-scene technicians, M.P. and M.Š, had taken photographs, and that the criminal police (Kriminalistička služba (UZSK)) had taken on the case. The identification of the casualties and the cause of the explosion should have been determined the following day by specialised teams of criminal police. No other documents, photographs, scheme of the scene or results of any chemical or toxicological analysis, if any, have been submitted to the Court with the case file; nor apparently were they made available to the applicant.

17. On 24 June 1995 an additional forensic report was drawn up after the fingerprinting and photographing of the bodies. The bodies were transferred for post-mortem examination, together with additional body parts which had been found in the meantime, while the clothing was sent to the prosecutor’s office.

18. The post-mortem examination of victims’ bodies was carried out between 24 and 26 June 1995 by the Institute for Forensic Medicine of the Faculty of Medicine in Belgrade. The autopsy reports stated that the victims’ deaths had been violent and caused by the destruction of or damage to some vital organs and/or third and fourth-degree burns from the explosion, or complications thereafter.

C. Preliminary investigative measures

19. On 24 June 1995 the Belgrade police ex officio set up a commission to examine the cause of the explosion. The commission was comprised of several officers from the Security Institute (Institut bezbednosti MUP-a Srbije)[1], as well as two professors from the Mechanical Engineering Faculty in Belgrade, B.J. and Ð.B., who were also the co-owners of JPL (see paragraph 11 above).

20. Following site inspections between 23 and 26 June 1995 and computer simulations of the explosions, two experts from the Security Institute, B.G. and P.P., submitted their report to the DDPO on 9 August 1995. As regards the cause and origin of the accident, the experts stated (a) that the explosion appeared to have been initially caused by the heat generated by the mill’s rollers during the production of composite fuel; (b) that static electricity could not have ignited the composite fuel, premix or fuel sheet; (c) that the primary blast of the premix or the composite fuel sheet on the mill’s two counter-rotating rollers had most probably been caused by the presence of a mechanical object in the premix, which had ended up between the rollers; and (d) that the initial blast had led to two secondary explosions of the premix, which was stored in two aluminum bins next to the mill.

21. On 30 August 1995 the Labour Ministry inspectorate lodged a criminal complaint against the Director of Grmeč, R.U., for breaching health-and-safety regulations (see paragraphs 76-77 below). Previously, on 3 July 1995 the Ministry had informed the prosecutor that on 24 and 26 June 1995 they had been refused access to the factory and to documentation for inspection, and that Grmeč had not informed them to that date about the fatal incident, as required by the relevant law.

22. It would appear that the prosecutor lodged a request for a formal preliminary judicial investigation against unknown persons from Grmeč in respect of the explosion (zahtev za sprovođenje pojedinih istražnih radnji). On 13 September 1995 the applicant sought to be granted victim status.

23. On 8 March 1996 the applicant and two other victims’ relatives lodged a criminal complaint against a number of senior executives of Grmeč and JPL (R.U., D.M., S.K., D.Z., Lj.R., Z.O., B.I. and V.B.), on the grounds that there was a reasonable suspicion that they had committed grave breaches of public safety regulations (see paragraph 76 below, Article 194 § 2 in conjunction with Article 187 § 4 of the Criminal Code).

24. The experts’ report of 9 August 1995 was served on the applicant on 15 April 1996. Two weeks later, the applicant submitted numerous objections and posed questions. He questioned, inter alia, the expert commission’s authorisation to investigate the case, the fact that it had focussed on the cause of the explosion without establishing whether the appropriate safety precautions had been taken, and the experts’ conclusions, which were pure presumption.

25. On 5 June 1996 the prosecutor lodged a request with the Belgrade District Court that the police experts be heard.

26. At a hearing scheduled for 4 December 1996, however, the investigating judge did not take statements from the experts. The applicant again objected to the experts’ report. The investigating judge endorsed the experts’ request to be provided with all questions in writing and to be given another month to answer. In their reply of 15 April 1997, the experts clarified that (a) on 23 June 1995 at the scene of the incident, where they had gone ex officio, the investigating judge had instructed them orally to establish the cause of the explosion; (b) they had not made any plan or programme for the expert report; (c) they had not had sufficient information (for example, on the original premix or the final product) to examine and determine the cause of the blast, but they had found traces of AP at the accident scene and had been provided with the formulae of the premix by JPL; (d) they could not say whether the fire had started on the rollers, the fuel or the rocket-fuel sheet; (e) they had not found any documentation about the planning or technology programme of the production of rocket fuel which had led to the blast; and that (f) their task had been to establish the cause of, and not the responsibility for, the explosion.

27. On 14 May 1997 the applicant amended his criminal complaint, relying on Article 194 § 2 in conjunction with Article 187 § 4 of the Criminal Code (see paragraph 76 below).

28. Following the prosecutor’s proposal of 10 June 1997, a month later the court appointed the Military Institute to determine and submit a report on whether the cause of the explosion had been of a technical nature or a human mistake. On 18 July 1997 the Institute informed the investigating judge that it did not have the capacity to do so.

29. On 28 November 1997 the Belgrade Chemistry Faculty was appointed to determine the cause of the explosion, whether it could have been avoided and the possible liability in that respect.

30. Following two unsuccessful attempts to receive additional relevant data, on 12 May 1998 the Professor of the Belgrade Chemistry Faculty, I.J., submitted his report. He claimed that it was based on reliable data collected by the Security Institute, given that, owing to the lapse of time, it was impossible to analyse any samples found on the site. He clarified further that he had not used most of the Institute’s documentation, as it concerned computer-generated and simulated experiments of assumed events which could only indirectly hint at the possible answers. The expert stated that the collected data were incomplete and did not contain quantitative figures of the samples examined to allow any deeper analysis of the collected evidence or its compliance with the account of the events that had allegedly led to the explosion. While not excluding the possibility that the cause of the explosion might have been the one suggested by the police experts, the expert observed that the possible exposure of AP to humidity could have made it sensitive to an organic compound and the explosion could have been caused by a piece of paper, wood or engine oil, especially in the presence of unwanted metal or soot particles.

31. The expert also noted the following issues as relevant: (a) although explosive, carcinogenic and other dangerous substances were used during the production process, no technical-technological documentation and certificates for them had been found; (b) the purity of the components, especially of AP, was questionable (it was described as light pink powder, whereas it was a white, crystalline substance); (c) the samples revealed, unusually, included the presence of phosphates, which were not components of composite fuel, or equipment for the maintenance of the mill or the building itself; (d) the production process and technology did not seem to have been accurately specified and followed, as certain components had been added and mixed on the mill in the course of the production process; and (e) an unacceptably high number of individuals present had indicated that they did not know what had been produced and that other safety measures had probably not been taken.

32. Following the prosecutor’s proposal of 13 June 1998, the investigating judge heard evidence from a number of witnesses to and surviving victims of the accident (eighteen out of the nineteen were from Belgrade) on ten occasions between 10 November 1998 and 15 October 1999[2]. They were asked who had allowed V.B. to bring the premix to Grmeč, and whether they had known what it contained and what safety measures had been taken. On 27 July 1999 and 18 February 2000 respectively the investigating judge also interviewed Mr Radosav Lukić and Mr Jovica Stanišić, Deputy Head and Head of the State Intelligence Service.

33. On 1 March 2000 the investigating judge returned the case file with the collected evidence to the prosecutor.

34. On 9 June 2000 the investigating judge, on the prosecutor’s initiative, withdrew the case file and sealed the statements of the State Intelligence Service executives, classifying them as State secret.

35. On 12 June 2000 the public prosecutor decided not to prosecute, relying on secret evidence and information. He stated that a detailed analysis of the facts had been provided in an official note of 15 March 2000, which had been classified as confidential. He summarily dismissed the applicant’s criminal complaint on the grounds that there were no elements of crimes prosecuted ex officio (da se prijavljeno delo ne goni ex officio), invoking Articles 184 to 187 of the Criminal Code. By a letter of the same date, the applicant was informed about the prosecutor’s decision and notified that he could pursue a subsidiary criminal prosecution within eight days of the date the letter had been served on him by lodging a request for an investigation (zahtev za sprovođenje istrage).

D. The applicant’s pursuit of a criminal subsidiary prosecution

1. Investigatory measures

36. The applicant alleged that despite his request, he had not had access to the case file until 10 June 2000. In the meantime, he commissioned an expert report by the court’s permanent specialist on explosives and blasts, M.A.L. In her report of 11 May 2000, the specialist stated that most of the police experts’ work had been incomplete or irrelevant, and gave the reasons for her assertions. She found that neither Grmeč nor JLP had been registered and properly equipped for working with explosive materials, and that their employees had lacked the necessary skills and competences. She confirmed in principle, and further elaborated on, the findings of the Chemistry Faculty’s expert and itemised the numerous failures of the two companies to comply with the relevant provisions of the Explosive Substances, Flammable Liquids and Gases Act concerning transporting and working with explosive materials (see paragraphs 84-86 below).

37. On 20 June 2000 the applicant instituted subsidiary prosecution against R.U., S.K., R.Č., V.B., J.T. and R.L. by lodging a request with the Belgrade District Court that a criminal investigation be opened into breaches of safety regulations, referring to Articles 194 § 2 and 187 §§ 1 and 3 of the Criminal Code (see paragraph 76 below).

38. On 27 September 2000 the investigating judge of the Belgrade District Court refused to open the investigation sought by the applicant (izrazio neslaganje sa zahtevom), and referred the case to a three-judge criminal panel (see paragraph 81 below).

39. On 3 October 2000 the three-judge panel of the District Court upheld the investigating judge’s decision, having established that rocket fuel had been produced on the orders of the then Serbian President, Mr Milošević, and Mr Stanišić (see paragraphs 7 and 32 above). The applicant appealed on 21 October 2000.

40. On 28 December 2000 the Supreme Court of Serbia quashed that decision. On 25 January 2001 it referred the case back to the Belgrade District Court for additional investigation, holding that the prosecuting authorities had failed to assess the evidence properly.

41. A month after the prosecutor’s request of 19 March 2001, the investigating judge commissioned the Military Technical Academy (Vojno-tehnička akademija-Katedra za raketna goriva) to draw up a fresh expert report in respect of the explosion. The Academy refused, claiming that it did not have the power to do so.

42. On 10 May 2001 the investigating judge appointed the Security Institute to draw up the report, but that institute also refused, referring to its report of 9 August 1995 (see paragraph 28 above).

43. On 12 June 2001 the investigating judge informed the applicant that there was no other available institution to carry out a fresh expert report and that, instead, he could file an indictment directly if he so wished.

44. In June and August 2001 the applicant filed an indictment and requested further investigative measures.

45. On 25 March 2002 the criminal chamber of the District Court sent the case file back to the investigating judge, referring to the Supreme Court’s decision of 28 December 2000 (see paragraph 40 above). The chamber instructed the investigating judge to open an investigation and interview the suspects. It stated that the three-judge panel of the District Court would again decide on his refusal to open an investigation once the suspects had been heard. It explained that it would be inappropriate to proceed with a subsidiary indictment without first carrying out an investigation, even with the investigating judge’s permission to file a direct indictment, if the suspects had never been questioned.

46. On the same date, the investigating judge opened an investigation. Between 16 September and 10 October 2002 he questioned all five suspects and gave individual decisions on investigation in respect of each of them.

47. On 29 October 2002 the investigating judge again appointed the Military Technical Academy to draw up a report establishing in a clear and conclusive manner the cause of the explosion and which irregularities in the production process had led to the blast. In a short report drawn up in December 2002, the Academy stated this time that their task was apparently to examine the cause of the explosion, not the possible failure of any of the suspects to protect those involved from the risk of explosion.

48. On 8 April 2003 the investigating judge closed the investigation. The applicant was informed and instructed that he could file an indictment as a subsidiary prosecutor within fifteen days if he so wished.

2. Criminal trial

49. On 22 April 2003 the applicant and two others filed an indictment, laying blame on four former senior executives of Grmeč and JPL, R.U., S.K., R.Č. and V.B., as well as on Mr R.L., former Deputy Head of the Intelligence Service, for failing to take measures that had been required of them to prevent the lives of the applicant’s son and others from being avoidably put at risk or to mitigate casualties. By 3 July 2003, the District Court rejected all of the objections raised by the defence that the indictment was defective, and upheld the indictment.

50. The beginning of the trial was scheduled for 12 December 2003 and then for 22 March 2004, but was adjourned on both occasions by the court because it had been unable to secure the proper composition of its bench and/or some of the defendants had not been properly summoned.

51. The trial before the Belgrade District Court eventually started on 14 May 2004, when the court heard two defendants and adjourned the hearing because the scheduled time had lapsed. The three scheduled hearings (14 June 2004, 16-17 September 2004 and 18 January 2005) were adjourned because of the presiding judge’s other commitments and/or because one or more of the defendants had failed to appear in court.

52. At a hearing held on 15-16 March 2005, the court heard four defendants (S.K., R.U., V.B. and R.Č.) and adjourned to decide on further objections to the indictment. Between 23 March 2005 and 7 December 2005, the competent courts dismissed the indictment in respect of R.L. and R.Č., because the applicant had failed to name them as suspects in his earlier criminal complaint for the crimes at issue (see paragraph 23 above), which were, in principle, supposed to be prosecuted firstly ex officio. The hearing scheduled for 24 October 2005 was adjourned to allow the court to decide on R.Č.’s objection, and the next hearing scheduled for eleven months later, on 13 September 2006, was cancelled as the case file had been at the Supreme Court to decide on appeals on points of law lodged by other suspects (R.U, S.K. and V.B.) against the courts’ decisions on their objections.

53. On 25 September 2006 the indictment was slightly amended with regard to the facts.

54. On 20 November 2006, the trial recommenced before a new chamber, and also owing to the lapse of time since the previous hearing. The court heard the defendants and two witnesses.

55. On 6 February 2007 the applicant requested the District Court to re-examine whether the classification of the testimonies of two Intelligence Service executives as State secret had been in accordance with the law, and to add them to the case file if appropriate. No decision in respect of his request has been submitted to the Court.

56. The trial recommenced once again before a new trial chamber on 12 February 2007, when the court heard two defendants and three witnesses. On 14 and 15 May 2007, the court heard four new witnesses, as well as R.L. and R.Č. The three hearings set for 13 February, 5 September and 12 November 2007 were adjourned or cancelled owing to a strike by court clerks (zapisničara) and/or as the witnesses had not been summoned properly or had failed to appear. The court imposed fines on four witnesses for failure to appear in court.

57. The trial recommenced before yet another trial chamber on 11 February 2008, as well as again because of the lapse of time. The court heard one witness and adjourned the hearing because it had been unable to maintain the proper composition of its bench. Two further scheduled hearings (15 April and 8 September 2008) were cancelled at the request of the defendants or their lawyers for private or professional reasons and/or because of the inadequate summoning of witnesses.

58. On 17 July 2008 the applicant lodged a new bill of indictment against R.L. and R.Č.

59. The trial started anew because of the lapse of time on 24 November 2008, when the court again heard defendants and four witnesses. On 28 November 2008 the present proceedings were joined with the criminal proceedings against R.L. and R.Č. The two hearings scheduled for 25‑26 February and 23 April 2009 were cancelled due to the failure of the defendants’ lawyers to appear in court and/or the difficulties of successfully tracing certain experts after so many years.

60. On 24 June 2009 the trial re-started again because of the lapse of time, but could not proceed as the competent experts failed to appear in court. The judge fined one of the experts. On 16 September 2009 the court heard one police expert (B.G.). The hearing scheduled for 15 December 2009 was adjourned because of the absence of two forensic experts (P.P. and I.J.) and the defendants’ attorneys.

61. Following judicial reforms, on 1 January 2010 the case was assigned to another judge of the newly competent Belgrade High Court and the proceedings had to begin anew. The hearing fixed for 21 May 2010 was cancelled because the court had been informed that R.L. had been found dead on 19 February 2010, as well as because one of the defendants’ lawyers had not been properly summoned.

62. On 6 July 2010, the court discontinued the proceedings against R.L. In order to speed up the trial, the applicant amended the indictment, accusing the defendants of being co-accomplices in serious breaches of safety regulations (see paragraph 77 below, Article 288.2 in conjunction with Article 278.3 of the Criminal Code). The hearing was adjourned until 19 October 2010 to allow the defendants to readjust their defence to the slightly amended indictment. The latter hearing was also not held due to a judiciary strike.

63. By September 2011, the District Court had held one hearing and adjourned another four hearings. Specifically, during a very short hearing on 11 February 2011 one defendant and a number of witnesses had been re-heard, whilst the hearings of 8 December 2010 and 24 March 2011 had been adjourned because the defendants’ lawyers had not appeared. The hearing scheduled for September 2011 was cancelled by the court itself because it had, apparently, been unable to secure the proper composition of its bench. When one of the parties to the proceedings complained about the delay, the Belgrade High Court informed him that the case had been classified as “backlog” and would be dealt with shortly.

64. On 24 April 2013 the court rendered the first-instance decision. It acquitted the defendants, finding that there was insufficient evidence to declare them guilty of the offences with which they had been charged. The judgment was served on the applicant on 8 September 2013.

65. According to the information made available by the parties, the case is still pending before the Belgrade Court of Appeal.

E. Constitutional remedies and the related civil proceedings thereafter

66. On 10 September 2010 the applicant lodged an appeal with the Constitutional Court (Ustavni sud), complaining about the length of the criminal proceedings described above. He complained, in particular, of obstacles and obstructions within the criminal proceedings, of not being involved in the investigative activities and of having had no access to the case file.

67. On 14 July 2011 the Constitutional Court held that the applicant had suffered a breach of his “right to a trial within a reasonable time” in respect of the ineffective, inadequate and lengthy criminal proceedings before the first-instance court, and ordered the latter to bring the impugned proceedings to a conclusion as soon as possible. In order to establish its jurisdiction ratione materiae, the court held that the criminal proceedings concerned the right to life, which was a civil right. The Constitutional Court also declared that the applicant was entitled to non-pecuniary damages, in accordance with Article 90 of the Constitutional Court Act. The applicant does not seem to have been served with that decision until October 2011.

68. On 31 October 2011 the applicant’s lawyer lodged a request with the Commission for Compensation. In so doing, he relied on the Constitutional Court’s decision, and sought 10,000,000 dinars (RSD) in compensation on account of the pecuniary and non-pecuniary damage suffered.

69. On 27 December 2011 the Commission for Compensation offered to pay the applicant the sum of RSD 100,000 (at the time approximately 840 euros (EUR)) for the non-pecuniary damage referred to in the Constitutional Court’s decision. According to the information contained in the case file, the applicant refused to accept that amount, deeming it insufficient.

70. Instead, on 17 July 2012 the applicant lodged a claim with the Belgrade Court of First Instance (Osnovni sud), noting that he had not received an appropriate offer from the Commission for Compensation, which was why he was entitled to bring a separate civil suit in this respect (Article 90 of the Constitutional Court Act, see paragraph 63 above). The applicant sought RSD 10,000,000 (at the time approximately EUR 85,000) for the non-pecuniary damage sustained.

71. On 12 December 2013 the Belgrade Court of First Instance accepted the applicant’s claim in part and awarded him RSD 500,000 (approximately EUR 4,330). The applicant was exempted from paying court stamp duty on account of his age and indigence.

72. On 14 May 2014 the Belgrade Court of Appeal (Apelacioni sud), decreased the award to RSD 300,000 (approximately EUR 2,580). The court stated that the payment of the original award would be contrary to the purpose of compensation and that the State could not be responsible for the omissions of third parties. According to information made available by the parties, the awarded amount has not yet been paid.

73. It would appear that on an unspecified date the applicant lodged another constitutional appeal with the Constitutional Court in respect of the compensation. The Court has not been informed by the parties about the outcome of the proceedings before the Constitutional Court.

F. Status of Grmeč and JPL Systems

74. Despite the Court’s request to the Government to provide it with the information indicating the ownership structure of Grmeč and JPL as of June 1995, the documents provided by the Government concerned only the legal status of Grmeč as of 1997, when it was incorporated as a limited liability company (društvo sa ograničenom odgovornošću). Nevertheless, documents in the Court’s possession show that in 1995 it was a well-established “socially-owned” holding company (društveno preduzeće/poslovni sistem)[3] licenced for the production of homogeneous flooring and other products made of PVC masses. Its Vinfleks factory was apparently registered for the production of bituminous materials.

75. JPL was registered as a privately-owned company in 1995 for other services than the production of rocket fuel. It would appear that soon after the explosion the company was re-registered as Brunner, and that some of its co-founders, including R.Č. and B.J., further re-registered the company or established new companies called Infinity and/or EdePRO. According to media reports, a new explosion occurred on the EdePRO premises in November 2008. One person died and three were injured.

II. RELEVANT DOMESTIC LAW

A. The Criminal Codes

76. The Criminal Code 1977 (published in the Official Gazette of the Socialist Republic of Serbia – “OG SRS” – no. 26/77, amendments published in OG SRS nos. 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89, 42/89, and Official Gazette of the Republic of Serbia – “OG RS” – nos. 16/90, 21/90, 26/91, 75/91, 9/92, 49/92, 51/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02, 80/02, 39/03 and 67/03) was in force from 1 July 1977 until 1 January 2006. The relevant provisions read as follows:

Article 187 (Public safety)

“(1) Whosoever by fire, flood, explosive, poison or poisonous gas, ionising or radioactive radiation, engine power or other generally dangerous act or generally dangerous means causes danger to life or body of people or to property of larger scale, shall be punished with imprisonment of between six months and five years.

(2) The penalty specified in paragraph 1 of this Article shall also be imposed on an official or responsible person who fails to install prescribed equipment for protection against fire, explosion, flood, poison, poisonous gas, ionising or radioactive radiation, or fails to maintain these in proper order, or fails to use the equipment in time of need, or generally fails to observe regulations or technical protection standards and thereby causes danger to life or body or to property of large scale.

(3) If a number of people are gathered at the location of the offences specified in paragraphs 1 and 2 of this Article, the offender shall be punished with imprisonment of between one and eight years.

(4) If the offence specified in paragraphs 1 and 3 of this Article is committed by negligence, the offender shall be punished with imprisonment of up to three years.”

Article 194 § 2 (Serious breaches of safety regulations)

“If the offence specified in Article 187 §§ 1-3, Article 188 § 1, Article 189 §§ 1-2 and Article 190 § 1 hereof resulted in the death of one or more persons, the offender shall be punished with imprisonment of not less than three years.”

77. The Criminal Code 2005 (published in OG RS no. 85/05 of 6 October 2005, amendments published in OG RS nos. 88/05 of 14 October 2005, 107/05 of 2 December 2005, 72/09 of 3 September 2009 and 111/09 of 29 December 2009) entered into force on 1 January 2006. It contains similar provisions (Articles 278 and 288 § 2 thereof), but the prescribed penalties are now imprisonment of between one and six years (instead of imprisonment of between one and eight years) for breaching general safety regulations at a location where a number of people are gathered, and imprisonment of between two and twelve years (instead of imprisonment of not less than three years) for the breach of general safety regulations which resulted in the death of one or more persons.

B. Code of Criminal Procedure

78. The Code of Criminal Procedure 2001 (published in the Official Gazette of the Federal Republic of Yugoslavia – “OG FRY” – no. 70/01 of 28 December 2001, amendments published in OG FRY no. 68/02 of 19 December 2002 and OG RS nos. 58/04 of 28 May 2004, 85/05 of 6 October 2005, 115/05 of 27 December 2005, 49/07 of 29 May 2007, 20/09 of 19 March 2009 and 72/09 of 3 September 2009) entered into force on 28 March 2002. The relevant domestic provisions are contained in Articles 19, 20, 46, 61, 64, 235, 242, 243, 379, 406 and 425 of the Code.

79. Most criminal offences (including those mentioned above) are subject to public prosecution, but some minor offences are only subject to private prosecution. The public prosecutor’s discretion to decide whether to press charges, however, is bound by the principle of legality, which requires that he must act whenever there is a reasonable suspicion that a crime subject to public prosecution has been committed. The public prosecutor must undertake measures necessary for the preliminary investigation of crimes subject to public prosecution and the identification of the alleged perpetrators. To that end, he is vested with the power to co-ordinate the work of various law-enforcement agencies and other governmental bodies.

80. If the public prosecutor finds, based on the evidence before him, that there is a reasonable suspicion that a certain person has committed a crime subject to public prosecution, he will request the competent court to open an official investigation or file a bill of indictment. If, however, the public prosecutor decides that there is no basis for the institution of such proceedings, he must issue a reasoned decision and also inform the victim of that decision; the victim then has the right to take over the prosecution of the case on his or her own behalf, in the capacity of “subsidiary prosecutor”, within eight days of the notification of the public prosecutor’s decision.

81. A subsidiary prosecutor may submit a request for the opening of an investigation or file an indictment. If an investigating judge refuses to open the investigation sought, the case will be referred to a three-judge criminal panel to issue a decision in that respect within forty-eight hours. A further appeal is allowed. If the prosecution has already been taken over by a subsidiary prosecutor, the public prosecutor nevertheless has the power to resume the prosecution of the matter ex officio.

C. Summary of legal framework for handling of explosive and flammable substances

82. At the relevant time the acquisition, production, trade and/or storage of armaments and explosive and flammable substances should have been carried out in compliance with numerous health-and-safety requirements and in the manner set out by the relevant laws and bylaws, as appropriate.

83. The Manufacturing of Armaments and Military Equipment Act of the Socialist Federal Republic of Yugoslavia[4] prescribed the conditions for and manner of, inter alia, the production of armaments and military equipment needed to supply the Yugoslav army and for national defence in general, as well as the legal status of enterprises empowered to do so. Only enterprises which were empowered or contracted by the national defence authorities or by an extraordinary federal law were licensed to produce armaments and military equipment. The licensed enterprises were required to observe preventive measures and safety precautions, organise special units and adopt technical and physical firefighting-related plans and programmes in that respect. Under the law, the national defence authorities were responsible for supervision of the implementation of the law, while the data on capacity, development programmes and production of weaponry were confidential.

84. The Explosive Substances Trade Act of the Socialist Federal Republic of Yugoslavia[5] and the Explosive Substances, Flammable Liquids and Gases Act of the Republic of Serbia[6] regulate the terms and procedures for issuing authorisation, competence and control of the authorities, and their supervision over implementation of the legislation. The legislation also provides for other matters of importance for the production and trade of explosive and/or flammable substances that are not used in the military and mining sectors. Weaponry may be produced by registered enterprises, which have been licensed by the competent interior affairs authorities (at the level of the Republic of Serbia or of the autonomous provinces) following a positive opinion provided by the competent authorities in charge of national defence. No manufacturing permits may be used until the competent authorities have verified that the enterprise has met all the necessary requirements in respect of location, technical equipment, safety and preventive measures, storage and staff training, as required by the law.

85. The licensed enterprises are required to ensure that all preventive measures are carried out and that people and neighbouring buildings are protected. They must hold records of the materials produced and technologies used (to be verified by the competent State authorities). They must also make sure employees are properly informed about the production technology and the risks, and trained to control or deal with them, and obtain authorisation for the transportation of explosive and flammable substances. Furthermore, the enterprises are required to put in place adequate checks and regularly review their implementation of the prescribed requirements and measures.

86. Lastly, the interior affairs authorities of the Republic of Serbia or its provinces are responsible for supervision of the implementation of the regulations in respect of the production of explosive substances, while the municipal interior affairs authorities have a supervisory role in respect of all other activities and measures.

87. The relevant legislation sets out the liability for disciplinary, criminal or misdemeanour offences, as appropriate, for failures to adhere to the regulations.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

88. The applicant complained under Articles 6 and 13 of the Convention that the respondent State had failed to carry out a prompt and effective investigation into his son’s death, with the alleged intention of concealing the respondent State’s abuse.

89. In the light of its case-law (see, for example, Öneryıldız v. Turkey [GC], no. 48939/99, ECHR 2004‑XII, and Pereira Henriques v. Luxembourg, no. 60255/00, 9 May 2006) and being the “master of the characterisation” to be given in law to the facts of any case before it (see Akdeniz v. Turkey, no. 25165/94, § 88, 31 May 2005 and Mladenović v. Serbia, no. 1099/08, § 35, 22 May 2012), the Court considers that this complaint falls to be examined under Article 2 of the Convention (see Gina Ionescu v. Romania, no. 15318/09, § 28, 11 December 2012), which reads as follows:

Article 2

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

90. The Government did not contest the Court’s characterisation given on communication of the present case.

A. Admissibility

1. Compatibility ratione temporis

(a) The parties’ submissions

91. Referring extensively to the principle of non-retroactivity and the Court’s pre- and post-Šilih jurisprudence (see Blečić v. Croatia [GC], no. 59532/00, §§ 63-69, ECHR 2006‑III; Šilih v. Slovenia [GC], no. 71463/01, 9 April 2009; Agache and Others v. Romania, no. 2712/02, 20 October 2009; Velcea and Mazăre v. Romania, no. 64301/01, 1 December 2009; Şandru and Others v. Romania, no. 22465/03, 8 December 2009; and Tuna v. Turkey, no. 22339/03, 19 January 2010), the Government argued that the Court lacked temporal jurisdiction to deal with this case.

92. The Government pointed out that the fatal explosion had taken place in 1995, that the official investigation into the incident had ended by 8 April 2003 and that the applicant had instituted the criminal proceedings in April 2003. While acknowledging that the obligation to investigate had evolved into a separate and autonomous duty, capable of binding a State even when an alleged death had taken place before the entry into force of the Convention with respect to that State, the Government contended that the Court, nonetheless, had temporal jurisdiction to examine only those events which had occurred following the ratification date. However, according to the Government, the facts of this case showed that the alleged violation of the applicant’s right had originated in events which had taken place before 3 March 2004, namely the date on which the Convention had entered into force in respect of Serbia (“the ratification date”).

93. The Government maintained that none of the elements of a “genuine connection” between the impugned death and the entry into force of the Convention in respect of Serbia had been established in order for the procedural obligation imposed by Article 2 of the Convention to come into effect. Firstly, whereas in the Šilih case the short lapse of time (one year) between the death of the applicant’s son and the acceptance by Slovenia of the right of individual petition was a crucial element, the fatal accident that had triggered the investigation in the present case took place nine years before the ratification date. Furthermore, and contrary to the Court’s position in numerous post-Šilih cases in which a significant proportion of the procedural steps required by this provision were, or should have been, carried out after ratification, the public investigation at issue was carried out and terminated before the critical date. The Government stressed that although the criminal prosecution pursued by the applicant had continued beyond the ratification date, the applicant had not requested the reopening of the investigation. The competent authorities could not have initiated another ex officio investigation or resumed the prosecution after the initial investigation had been terminated and the applicant had already taken over the prosecution in the capacity of a “subsidiary prosecutor”. The Government therefore opined that the applicant’s complaint should be rejected by the Court as incompatible with the Convention ratione temporis.

94. The applicant maintained that his complaints could not be dismissed on those grounds, since the impugned criminal proceedings had been ongoing after the ratification date.

(b) The Court’s assessment

95. The Court observes that Serbia ratified the Convention on 3 March 2004 and that investigation by the Serbian authorities in the present case indeed took place before that date.

96. Pursuant to the general rules of international law (see Article 28 of the Vienna Convention on the Law of Treaties), the Convention does not bind a Contracting Party in relation to any act or fact which took place or any situation which ceased to exist before its entry into force with respect to that Party (“the critical date” – see Blečić, cited above, § 70; Šilih, cited above, § 140; and Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90 and 16068-16073/90, § 130, ECHR‑2009). Since the fatal explosion at issue dates back to 1995, the Court would thus have lacked temporal jurisdiction to scrutinise the respondent State’s responsibility, if any, with regard to its substantive obligation under Article 2, if the applicant had raised such an issue.

97. On the other hand, the principles concerning the temporal limitations of the Court’s jurisdiction with regard to the procedural obligation to investigate deaths or ill-treatment which occurred prior to the entry into force of the Convention in respect of the respondent State are the following:

(a) The State’s procedural obligation to carry out an effective investigation has evolved into a separate and autonomous duty, capable of binding a State regardless of whether the death, as a triggering event, took place before or after the entry into force of the Convention with respect to that State (see Šilih, cited above, §§ 159 and 162, and Velcea and Mazăre v. Romania, no. 64301/01, § 81, 1 December 2009).

(b) However, bearing in mind the principle of legal certainty, the Court’s temporal jurisdiction as regards compliance with the procedural obligation of Article 2 in respect of deaths that occur before the critical date is not open-ended.

(i) Firstly, only procedural acts and/or omissions occurring after that date can fall within the Court’s temporal jurisdiction. The reference to “procedural acts” must be understood in the sense inherent in the procedural obligation under Article 2, namely, acts undertaken in the framework of criminal, civil, administrative or disciplinary proceedings which are capable of leading to the identification and punishment of those responsible or to an award of compensation to the injured party. The word “omissions” refers to a situation where there has been no investigation or where only insignificant procedural steps have been carried out, but where it is alleged that an effective investigation ought to have taken place (see Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, §§ 142-44, ECHR 2013).

(ii) Furthermore, there must be a “genuine connection” between the death and the entry into force of the Convention in respect of the respondent State for the procedural obligation imposed by Article 2 of the Convention to come into effect. That means, in practice, that in order for a “genuine connection” to be established, the period of time between the death as the triggering event and the entry into force of the Convention in respect of that State must have been reasonably short (in principle, not exceeding ten years) and most of the investigative steps required by this provision must have been carried out, or ought to have been carried out, after the Convention’s entry into force (see Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 206, ECHR 2014 (extracts), and Janowiec, cited above, §§ 146-48).

(c) Lastly, even where the “genuine connection” test is not satisfied, the Court can, in extraordinary situations, exercise its jurisdiction (for more details, see Janowiec, §§ 149-51).

98. The Court also considers it indispensable, in the present case, to reiterate that the State’s responsibility in respect of Article 2 goes beyond the stage of the preliminary and/or the official investigation and may also be engaged in any subsequent criminal or other proceedings. Explicitly, where a preliminary investigation has led to the institution of proceedings in the national courts, the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law (see, as an original authority, Öneryıldız, cited above, § 96; see also Mladenović, cited above, §§ 39 and 53-54).

99. In addition, the Court has already held that while victims are not required to pursue the prosecution on their own – this being the duty of the public prosecutor, who is better equipped in that respect – if an applicant nonetheless takes over the prosecution in the capacity of a subsidiary prosecutor, those proceedings become an inherent part of the case and must be taken into account, including for temporal jurisdiction, exhaustion and six-month time-limit purposes (see, as a recent authority, Petrović v. Serbia, no. 40485/08, § 58, 15 July 2014 with further references in the context of Articles 2 and 3 therein).

100. In line with its case-law set out above, the Court considers that a procedural obligation arose in the present case requiring the authorities of the respondent State to investigate Mr Mučibabić’s death in 1995. While the death and the preliminary investigative measures indeed took place before 3 March 2004, the period of time between the death as the triggering event and the entry into force of the Convention in respect of Serbia is not excessively long. Various procedural acts were undertaken in the framework of the impugned criminal proceedings over a period of over twelve years after the critical date, notably a criminal trial. The case appears to be pending before the domestic judicial authorities. Lastly, the applicant’s complaint before the Court relates primarily to the length of those criminal proceedings.

101. Consequently, the Court finds that it has jurisdiction ratione temporis to examine the applicant’s complaint only in so far as it relates to the criminal investigation conducted subsequent to the entry into force of the Convention in respect of Serbia. However, for reasons of context and whilst examining the situation complained of as a whole, the Court may also take note of all relevant events prior to that date (see, in the context of Article 2, Mladenović, cited above, § 52, and, in the context of Article 3, Milanović v. Serbia, no. 44614/07, § 78, 14 December 2010).

2. Six-month time-limit

102. The Government also argued that the applicant had failed to comply with the six-month rule laid down in Article 35 § 1 of the Convention. As already noted above, Serbia ratified the Convention on 3 March 2004 and the official investigation into the incident had ended by 2003. In view of the absence of a pending investigation after the ratification date, the alleged events could not be of a continuing nature. According to the Government, the six-month time-limit had started to run as soon as the right to individual application to the Court had become available in Serbia. Nevertheless, the applicant waited another four years before lodging his application, which must, therefore, be dismissed as out of time.

103. The applicant disagreed. He argued that he had pursued an avenue open to him, which had led to the institution of a trial in May 2004. When the trial commenced, he could reasonably expect that a more effective investigation and a more logical analysis would eventually be carried out by the judicial authorities, in view of the controversial death of his son and the prior investigative conclusions, which had been highly questionable. However, the applicant decided not to await the outcome of the criminal proceedings, but rather to lodge an application with the Court after this complex case restarted before the new chamber in 2007. He did so as he had begun to suspect that the trial was being obstructed and with the intention of accelerating it.

104. The Court reiterates that the purpose of the six-month time-limit under Article 35 § 1 is, inter alia, 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 (see P.M. v. the United Kingdom (dec.), no. 6638/03, 24 August 2004). That rule marks out the temporal limit of the supervision exercised by the Court and signals, both to individuals and State authorities, the period beyond which such supervision is no longer possible. 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). Article 35 § 1 cannot be interpreted in a manner which would require an applicant to seize the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level, otherwise the principle of subsidiarity would be breached. 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).

105. In the case of a continuing situation, the time-limit in effect starts afresh each day and it is only once the situation ceases that the final period of six months will run to its end (see Sabri Güneş v. Turkey [GC], no. 27396/06, § 54, 29 June 2012, and Varnava and Others, cited above, § 159).

106. However, not all continuing situations are the same. Where time is of the essence in resolving the issues in a case, there is a burden on the applicant to ensure that his or her claims are raised before the Court with the necessary expedition to ensure that they may be properly, and fairly, resolved (see Varnava and Others, cited above, § 160). This is particularly true with respect to complaints relating to any obligation under the Convention to investigate certain events. As the passage of time leads to the deterioration of evidence, time has an effect not only on the fulfilment of the State’s obligation to investigate but also on the meaningfulness and effectiveness of the Court’s own examination of the case. An applicant has to become active once it is clear that no effective investigation will be provided, in other words once it becomes apparent that the respondent State will not fulfil its obligation under the Convention (see Mocanu, cited above, § 262, with further references).

107. The Court has held in cases concerning the obligation to investigate under Article 2 of the Convention that where a death has occurred, applicant relatives are expected 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 appropriate redress, including effective criminal investigation (see Varnava and Others, cited above, § 158, with further reference therein).

108. That being said, the Court does not consider it appropriate to indicate general time-frames, as the issue of identifying the exact point in time that this stage occurs is difficult to determine with precision and depends, unavoidably, on the circumstances of each case and on other factors, such as the diligence shown by the applicants, the adequacy of the remedy and the global nature of the lapse of time (see, for the aspects of diligence, the decision in Nasirkhayeva v. Russia (dec.), no. 1721/07, 31 May 2011; see also Eren v. Turkey (dec.), no. 42428/98, 4 July 2002). In principle, the Court has qualified its previous case-law in cases of unlawful or violent death by requiring the applicant to bring such a case to the Court within a matter of months, or at most, depending on the circumstances, a few years after the events in question (see Varnava and Others, § 162). Stricter expectations would apply in cases where there was a complete absence of any investigation or progress in an investigation, or meaningful contact with the authorities. Where there is an investigation of sorts, even if plagued by problems, or where a criminal prosecution is being pursued, even by the relatives themselves, the Court accepts that applicants may reasonably wait longer for developments which could potentially resolve crucial factual or legal issues (ibid., §166). It is in the interests of not only the applicant but also 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.

109. To sum up, the Court has imposed a duty of diligence and initiative on the families of victims wishing to complain about a delayed or ineffective investigation and they cannot wait indefinitely before bringing such complaints to the Court. The Court has held, however, that so long as there is some meaningful contact between relatives and authorities concerning complaints and requests for information, or some indication, or realistic possibility, of progress in the investigative measures, considerations of undue delay by the applicants will not generally arise (see Mocanu, cited above, § 269). Failure to comply with the duty of diligence may, however, result in the applicant losing his or her right to have the merits of the application examined.

110. Applying those principles to the facts of the present case, the Court notes firstly that on 12 June 2000, after preliminary investigative measures had been undertaken, the public prosecutor decided not to prosecute anyone on the grounds that no elements of any offence had been established which would be prosecuted ex officio. The Court accepts that in certain cases the six-month period may start running on the date when the applicants are informed that the national authorities are unable or unwilling to institute criminal proceedings in relation to their complaints (see Aydın v. Turkey (dec.), nos. 28293/95, 29494/95 and 30219/96, ECHR 2000‑III (extracts)). However, shortly after receiving such information, the applicant notified the competent criminal court that he intended to take over the prosecution by lodging a request for further investigative steps to be undertaken. On 8 April 2003, the applicant was informed that following his request the investigation had been terminated and that the public prosecutor was not interested in resuming the prosecution of the matter; however, he was informed that he could file an indictment if he so wished. Indeed, on 22 April 2003 the applicant continued to pursue a subsidiary prosecution by filing a bill of indictment against certain individuals. Where a national system allows the possibility for the victim’s family to take over the prosecution of the case on their own behalf, such post-ratification proceedings must also be taken into account for the purposes of the six-month time-limit (see paragraph 99 above).

111. It is further noted that the earliest date on which the applicant could have brought his application before the Court was 3 March 2004, when the Republic of Serbia ratified the Convention. Despite the fact that certain documents from the preliminary investigation were not available to the applicant, the beginning of the criminal trial in May 2004, which is a potentially adequate remedy, must have raised his expectations of yet obtaining redress (see Mladenović, cited above) and he acted reasonably in awaiting developments in the criminal proceedings.

112. The applicant ultimately lodged his application on 3 August 2007, about three and a half years after the ratification date and the beginning of the criminal trial. Although there were adjournments and lulls in the judicial activity in this case, there were no periods of total inactivity allowing the Court to establish the date on which the applicant was or could have been aware that the remedies had become ineffective, given that he had consistently displayed the requisite interest in obtaining a concrete result and had continued his efforts by pursuing a subsidiary prosecution (see, by contrast, Gasyak and Others v. Turkey, no. 27872/03, § 58, 13 October 2009, and Narin v. Turkey, no. 18907/02, § 50, 15 December 2009). The Court therefore accepts that the applicant, as he himself argued, must have started to doubt that the criminal prosecution was not progressing in February 2007 when the trial again recommenced before a new chamber. This relatively short period involved is not sufficient for the Court to conclude that the applicant could or should already have been aware, more than six months before he lodged the application on 3 August 2007, that the criminal proceedings which were under way would not elucidate the situation, also having in mind that the court heard some of the crucial figures in this case and, moreover, rendered a first-instance judgment after February 2007.

113. In such circumstances, no undue delay by the applicant arose and the Government’s objection concerning the timeliness of the applicant’s complaint must also be dismissed (see, mutatis mutandis, Acar and Others and Akay and Others v. Turkey (decs.), nos. 36088/97 and 38417/97, 27 November 2001, and Eren and Others v. Turkey (dec.), no. 57778/00, 31 March 2005).

3. Victim status

114. The Government submitted that the applicant could no longer claim to be the victim of a violation of the right relied on in respect of the length of the investigation into death of his son, since the Constitutional Court had “acknowledged the delay in the criminal proceedings” and that the Commission for Compensation had, in that connection, offered to pay the applicant the sum of RSD 100,000 in compensation. The State could not be blamed for the fact that no compensation payment had been made, as the applicant had failed to respond to the Commission’s offer.

115. The applicant disagreed that the compensation awarded domestically constituted appropriate and sufficient redress. He emphasised that the proceedings were still pending.

116. The Court firstly reiterates that, under the subsidiarity principle, it falls first to the national authorities to redress any violation of the Convention. That being said, a constitutional appeal remains, in principle, a remedy to be exhausted, within the meaning of Article 35 § 1 of the Convention, only in respect of applications introduced as of 7 August 2008 (see Vinčić and Others v. Serbia, nos. 44698/06 et seq., § 51, 1 December 2009), whilst in respect of all applications lodged earlier, such as the application at hand, any redress provided by the Constitutional Court must be assessed through the prism of whether the applicant can still be considered to be a victim within the meaning of Article 34 (see Vidaković v. Serbia (dec.), no. 16231/07, 24 May 2011).

117. In accordance with the Court’s settled case-law, a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and subsequently afforded appropriate and sufficient redress for the breach of the Convention (see, for the main principles, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178‑213, ECHR 2006‑V, and Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 49, 20 December 2007, as well as the cases cited therein; see also Kin-Stib and Majkić v. Serbia, no. 12312/05, § 77, 20 April 2010). The Court has generally considered this to be dependent on all the circumstances of the case, with particular regard to the nature of the right alleged to have been breached (see Gäfgen v. Germany [GC], no. 22978/05, § 116, ECHR 2010), the reasons given for the decision (see M.A. v. the United Kingdom (dec.), no. 35242/04, ECHR 2005, and contrast with Jensen v. Denmark (dec.), no. 48470/99, ECHR 2001‑X) and the persistence of the unfavourable consequences for the person concerned after that decision (see Freimanis and Līdums v. Latvia, nos. 73443/01 and 74860/01, § 68, 9 February 2006). Only when those conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Cocchiarella v. Italy [GC], no. 64886/01, § 71, ECHR 2006‑V, and Cataldo v. Italy (dec.), no. 45656/99, 3 June 2004). It is therefore for the Court to verify, ex post facto, whether the redress afforded domestically by the Constitutional Court was appropriate and sufficient, having regard to the just satisfaction as provided for under Article 41 of the Convention (see, among other authorities, Normann v. Denmark (dec.), no. 44704/98, 14 June 2001; Jensen and Rasmussen v. Denmark (dec.), no. 52620/99, 20 March 2003; and Nardone v. Italy (dec.), no. 34368/02, 25 November 2004; see also Sarisska v. Slovakia, no. 36768/09, 30 August 2011; Nic Gibb v. Ireland (dec.), no. 17707/10, 25 March 2014; and Žarkovic and Others v. Croatia (dec.), no. 75187/12, 9 June 2015).

118. The Court observes that in its decision of 14 July 2011, the Constitutional Court found that the applicant had suffered a breach of his “right to a trial within a reasonable time” on account of the ineffective, inadequate and lengthy criminal proceedings before the first-instance court. In addition to the said finding of a violation, it ordered the competent courts to bring the impugned criminal proceedings to a conclusion as soon as possible and declared that the applicant was entitled to non-pecuniary damages (see paragraph 67 above). In December 2011, the Commission for Compensation offered to pay the equivalent of EUR 840, which the applicant refused to accept, deeming it insufficient (see paragraph 69 above). Three years after the Constitutional Court’s decision and on the applicant’s initiative, the civil courts increased the compensation to approximately EUR 2,580, stating that a higher award would be contrary to the purpose of compensation and that the State could not be responsible for the omission of third parties (see paragraphs 71-72 above).

119. In the light of the material in the file and in view of the particular circumstances of the case, the Court considers that the redress provided domestically has not effectively and sufficiently remedied the impugned state of affairs. As regards the first condition for the loss of victim status, the Court notes that while the requirement of diligence and promptness is inherent in both Articles 6 and the procedural aspect of Article 2, the scope and motives of the examination given for the decision of the Constitutional Court appears to be narrower that the ones before this Court. Secondly, the Court may, in principle, accept a lower award of compensation by the domestic authorities than it would award itself, judged in the light of the standard of living in the State concerned. However, in the present case, the Court considers, that the just satisfaction awarded by the competent Commission and the civil courts is not in reasonable proportion to an award the Court may have made under Article 41 of the Convention in respect of comparable violations of Article 2 (see, for example, Petrović v. Serbia, cited above). Lastly and fundamentally, even assuming that the acknowledgment that the proceedings had lasted too long, albeit under a different Article, could have been fulfilled, the proceedings to determine the ultimate amount of the compensation are still pending, as are, apparently, the underlying criminal proceedings.

120. In these circumstances, the Court considers that the domestic authorities have not afforded effective or sufficient redress for the alleged breach. Accordingly, the applicant can still claim to be a “victim” of a violation under the Convention within the meaning of Article 34 of the Convention, and the Government’s objection in this respect must be dismissed.

4. Conclusion

121. The Court considers that the complaint under Article 2 about investigative delay of itself is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other ground. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

122. The applicant reaffirmed his complaint. He further stated that the Serbian judicial authorities had not been effective. He had been hoping that the liability for his son’s death would be established, but the criminal proceedings at issue had lasted for more than eleven years, during which time the domestic courts had failed to elucidate the circumstances surrounding the accident. Most of the delays throughout the proceedings had occurred as a result of changes to the trial bench or the competent courts’ inability or unwillingness to use available procedural means to secure the presence of the parties or witnesses and to speed up the proceedings.

123. The Government listed a number of investigative steps that had been taken before the closure of the investigation in 2003 and noted that, at that time, the state of the affairs in the case was such as to allow the applicant to file an indictment. He did so without requesting an additional investigation. The State could not have re-initiated an ex officio investigation once the applicant had already taken over the prosecution of the case in his capacity as a subsidiary prosecutor. Referring to the arguments raised in respect of the Court’s temporal jurisdiction (see paragraphs 91-93 above), the Government reiterated their view that the investigation could not therefore fall under the Court’s jurisdiction. For the same reasons, they argued that the principles developed in Öneryıldız (see Öneryıldız v. Turkey [GC], no. 48939/99, ECHR 2004‑XII) have not been applicable to the present case, as the former case had not been examined in the light of any ratione temporis issue.

2. General principles applicable in the present case

124. The obligation on the part of the State to safeguard the lives of those within its jurisdiction has been interpreted so as to include both substantive and procedural aspects, notably a positive obligation to ensure that any occurrence of death caused by a life-threatening emergency would be followed by a judicial enquiry (see Öneryıldız, cited above, §§ 89-118).

125. The relevant principles relating to the judicial response required in the event of alleged infringements of the right to life (the procedural aspect of Article 2 of the Convention) were restated in Öneryıldız (cited above, §§ 89-95):

“89. The positive obligation to take all appropriate steps to safeguard life for the purposes of Article 2 (see paragraph 71 above) entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life (see, for example, mutatis mutandis, Osman, cited above, p. 3159, § 115; Paul and Audrey Edwards, cited above, § 54; İlhan v. Turkey [GC], no. 22277/93, § 91, ECHR 2000-VII; Kılıç v. Turkey, no. 22492/93, § 62, ECHR 2000-III; and Mahmut Kaya v. Turkey, no. 22535/93, § 85, ECHR 2000-III).

...

91. Where lives have been lost in circumstances potentially engaging the responsibility of the State, that provision entails a duty for the State to 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, mutatis mutandis, Osman, cited above, p. 3159, § 115, and Paul and Audrey Edwards, cited above, § 54).

92. In this connection, the Court has held that if the infringement of the right to life or to physical integrity is not caused intentionally, the positive obligation to set up an ‘effective judicial system’ does not necessarily require criminal proceedings to be brought in every case and may be satisfied if civil, administrative or even disciplinary remedies were available to the victims (see, for example, Vo v. France [GC], no. 53924/00, § 90, ECHR 2004-VIII; Calvelli and Ciglio, cited above, § 51; and Mastromatteo, cited above, §§ 90 and 94-95).

93. However, in areas such as that in issue in the instant case, the applicable principles are rather to be found in those the Court has already had occasion to develop in relation notably to the use of lethal force, principles which lend themselves to application in other categories of cases.

In this connection, it should be pointed out that in cases of homicide the interpretation of Article 2 as entailing an obligation to conduct an official investigation is justified not only because any allegations of such an offence normally give rise to criminal liability (see Caraher v. the United Kingdom (dec.), no. 24520/94, ECHR 2000-I), but also because often, in practice, the true circumstances of the death are, or may be, largely confined within the knowledge of State officials or authorities (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 47‑49, §§ 157-64, and İlhan, cited above, § 91).

In the Court’s view, such considerations are indisputably valid in the context of dangerous activities, when lives have been lost as a result of events occurring under the responsibility of the public authorities, which are often the only entities to have sufficient relevant knowledge to identify and establish the complex phenomena that might have caused such incidents.

Where it is established that the negligence attributable to State officials or bodies on that account goes beyond an error of judgment or carelessness, in that the authorities in question, fully realising the likely consequences and disregarding the powers vested in them, failed to take measures that were necessary and sufficient to avert the risks inherent in a dangerous activity (see, mutatis mutandis, Osman, cited above, pp. 3159-60, § 116), the fact that those responsible for endangering life have not been charged with a criminal offence or prosecuted may amount to a violation of Article 2, irrespective of any other types of remedy which individuals may exercise on their own initiative (see paragraphs 48-50 above); this is amply evidenced by developments in the relevant European standards (see paragraph 61 above).

94. To sum up, the judicial system required by Article 2 must make provision for an independent and impartial official investigation procedure that satisfies certain minimum standards as to effectiveness and is capable of ensuring that criminal penalties are applied where lives are lost as a result of a dangerous activity if and to the extent that this is justified by the findings of the investigation (see, mutatis mutandis, Hugh Jordan v. the United Kingdom, no. 24746/94, §§ 105-09, 4 May 2001, and Paul and Audrey Edwards, cited above, §§ 69-73). In such cases, the competent authorities must act with exemplary diligence and promptness and must of their own motion initiate investigations capable of, firstly, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the State officials or authorities involved in whatever capacity in the chain of events in issue.

95. That said, the requirements of Article 2 go beyond the stage of the official investigation, where this has led to the institution of proceedings in the national courts: the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law.”

3. Application of the general principles to the present case

126. The Court notes that the applicant’s son, together with ten others, died in an accident which was caused by the covert production of rocket fuel, which is, per se, a dangerous activity that creates a potentially explosive atmosphere during which a source of ignition may cause an explosion and put people’s safety at risk. Whenever a State undertakes or organises dangerous activities, or authorises them, it must ensure through a system of rules and sufficient control that the risk is reduced to a reasonable minimum (see Binişan v. Romania, no. 39438/05, §§ 72-74, 20 May 2014).

127. Rather crucially in the present case, it is noted that lives were lost as a result of the undoubtedly dangerous activities, known to and occurring under the responsibility of the public authorities (see paragraphs 7 and 39 above; see, mutatis mutandis, see Öneryıldız, cited above, and Oruk v. Turkey, no. 33647/04, 4 February 2014).

128. The Court further observes that the domestic law places numerous duties on employers – in the fields of both the production of weaponry and the handling of explosive and flammable substances – to ensure that preventive and protective measures are observed at the workplace to eliminate or reduce the risks inherent in that dangerous activity. It also places a duty on the State and/or local government authorities, as appropriate, to set up supervision mechanisms. The Court lacks temporal jurisdiction to examine the events surrounding the incident, whether the regulatory framework calls for criticism or whether the competent authorities failed to take statutory measures that were necessary and sufficient to avert the risks inherent in that dangerous activity.

129. Moreover, the relevant legislation sets out disciplinary, criminal or misdemeanour liability, as appropriate, for the failure to adhere to the regulations (see paragraphs 82-87 above). In the present case, it has not been established yet domestically whether or not there had been any negligence attributable to State officials or bodies which goes beyond an error of judgment or carelessness (see Öneryıldız, cited above, § 93, also cited in paragraph 125 above); neither is the Court’s role to determine whether there was a causal connection between any failure on the side of the individuals or the State authorities and the accident, nor to reach any findings as to guilt or innocence in that sense. However, given that the Government did not contend that the matter could have been effectively pursued outside the framework of criminal proceedings, the Court will confine itself to examining whether the measures taken in the framework of the proceedings instituted by the applicant within the Serbian criminal-law system, and within the Court’s temporal jurisdiction, were satisfactory in practice (see, in this respect, Öneryıldız and Henriques Pereira, both cited above). As mentioned above, the assessment of whether the domestic authorities discharged their procedural obligation under Article 2 of the Convention when confronted with an arguable case of negligence causing deprivation of lives extends to the criminal trial (see Öneryıldız, cited above, § 95, also cited in paragraph 125 above).

130. The State authorities carried out of their own motion some degree of investigation into the fatal accident, which was terminated by 2000. While these investigating steps, dating back prior to Serbia’s ratification of the Convention, do not fall under the Court’s jurisdiction, the Court will succinctly take note of the relevant facts for reasons of context (see Mladenović, cited above, § 52).

131. It transpires from the case-file, as it stands, that the criminal police (Kriminalistička služba (UZSK)) had the main role in the early investigation. They speedily commissioned the first expert report a day after the accident. The commission consisted of officers of the Security Institute and the two co-owners of the company JPL Systems, who, while sitting in private, published the report eight months later (see paragraphs 19-20; see also paragraphs 30, 36 and 64 above for the other experts’ comments on the report). The Court has not received other documents on the authorities’ attempt to collect evidence from the accident scene, apart from the autopsy reports and the initial on-site inspection reports.

Between 1995 and 2000, the investigation against unknown individuals was confined to establishing the immediate cause of the explosion, not to the wider aspects of safety compliance (see, for example, paragraph 47 above). An expert report was provided in May 1998 (see paragraph 30 above). The witnesses and those assigned by the applicant as suspects were heard between November 1998 and October 1999. The State Intelligence Service executives were heard in 1999-2000 and their statements were thereafter classified as State secret by the investigating judge (see paragraph 32 above). On 12 June 2000 the prosecutor decided not to further investigate or to prosecute (see paragraph 35 above). The Court has not received the prosecutor’s decision, if it was made in writing.

On 12 June 2000 the applicant requested, as a subsidiary prosecutor, that an effective investigation be opened into breaches of safety regulations in respect of the accident. The competent judicial authorities refused to open an investigation, having established that the rocket fuel had been produced at the request of the State Intelligence Service and the then Serbian President (see paragraphs 36-38 above). After the Supreme Court’s referral of the case back for further investigation and the District Court’s warning of the procedural defects in handling the case (see paragraphs 40 and 45 above), the investigating judge opened the investigation for another year to hear the five suspects and provide another report on the cause of the accident. The investigation was closed on 8 April 2003 and the applicant informed that he could file an indictment if he so wished.

132. The applicant and two others indeed filed an indictment on 22 April 2003 against certain executives of Grmeč and JPL, as well as against the former Deputy Head of the Intelligence Service, for failing to take measures that had been required of them to prevent the lives of the applicant’s son and others from being avoidably put at risk or to mitigate casualties. Given that the criminal trial is still under way, the issue to be assessed is not whether the judicial authorities, as the guardians of the laws laid down to protect lives, were determined to sanction those responsible, if appropriate (see Öneryıldız, cited above, §§ 112 and 115), but whether the judicial authorities proceed with exemplary diligence and promptness. While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating an alleged infringements of the right to life may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Hugh Jordan, cited above, §§ 108 and 136-140; McCaughey, cited above, § 130; and Hemsworth, cited above, § 69).

133. While the post-ratification proceedings have been mostly concerned with the assessment of evidence, thirteen years after the indictment had been confirmed (and more than twenty years after the accident), the criminal proceedings in question are apparently still pending at second instance, the defendants having been acquitted by the first-instance court in 2013 for lack of evidence (see paragraphs 64-65 above). During that time, one of the accused has died (see paragraph 61 above). Only nine hearings were held while a total of twenty-one hearings were cancelled or adjourned by the competent courts for various procedural reasons. The Court observes that there were several long periods of unexplained inactivity and, moreover, that the trial recommenced before new chambers on six occasions either because of changes on the bench or because such delays in proceedings call for a fresh trial (see paragraphs 54, 56-57 and 59-61 above). While the then High Court recognised the delay and qualified this case as a backlog, the documents submitted by the parties show that the proceedings are still pending (see paragraph 63 above). The Constitutional Court itself found delays and shortcomings in the investigation (see paragraph 67 above).

134. The present case was a matter of considerable political and pressing public sensitivity in which, the Court concedes, there may have been obstructiveness deployed by various sides in order to prevent progress in an investigation. However, the sensitive nature of the case and the obstacles are less an excuse for delay than a further reason for the State to have organised its judicial system to overcome the earlier defects and omissions by the prompt and diligent establishment of the facts at the criminal trial and to have brought those responsible to justice, if any, in order to avoid or disprove any appearance of a cover-up (see McKerr, cited above, and Dimitrov and Others v. Bulgaria, no. 77938/11, § 148, 1 July 2014). In addition, even if a prosecution is brought and suspects stand trial, the Court will examine whether this is a “meaningful” or serious exercise with any realistic prospects of bringing the perpetrator to account (see, mutatis mutandis, Akkum and Others v. Turkey, no. 21894/93, §§ 231, 250 and 251, ECHR 2005‑II (extracts). Violations have also been found where the trial had continued unduly (see Opuz v. Turkey, no. 33401/02, § 151, ECHR 2009, a case where the criminal proceedings at issue had lasted for more than six years and were still pending) or had ended by prescription allowing the accused perpetrators to escape accountability (see, mutatis mutandis, Teren Aksakal v. Turkey, no. 51967/99, § 88, 11 September 2007).

135. In that regard, the Court would stress that the passage of time inevitably erodes the amount and quality of evidence available and the appearance of a lack of diligence casts doubt on the good faith of the investigative efforts (see Trubnikov v. Russia, no. 49790/99, § 92, 5 July 2005). Moreover, the very passage of time is liable to compromise definitely the chances of investigation being completed (see M.B. v. Romania, no. 43982/06, § 64, 3 November 2011). It also prolongs the ordeal for the members of the family (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 86, ECHR 2002‑II). The Court considers that in Article 2 cases concerning proceedings instituted to elucidate the circumstances of an individual’s death, lengthy proceedings such as those are a strong indication that the proceedings were defective to the point of constituting a violation of the respondent State’s procedural obligations under the Convention, unless the State has provided highly convincing and plausible reasons to justify such a course of proceedings (see Šilih, cited above, § 203). Indeed, in the present case, the Government have failed to show any reason justifying such lengthy proceedings following the ratification date (compare to Mladenović, Blečić above, § 54, where the post-ratification eight-year long proceedings had been mostly concerned with the assessment of evidence, as argued by the Government, and remained unclear as to why there was still no final acquittal or conviction in the case).

136. In conclusion, whatever the individual responsibility, or lack of responsibility, of those public officials involved in the investigation process, these delays cannot be regarded as compatible with the State’s obligation under Article 2 to ensure the effectiveness of investigations, in the sense that the investigative process, including subsidiary prosecution, however it be organised under national law, must be carried out with reasonable expedition. The Court holds that the respondent State and its legal system as a whole, faced with an arguable case of negligence causing lethal injuries, failed to provide a prompt, due diligent and effective response consonant with Serbia’s obligations flowing from Article 2 of the Convention in its procedural aspect.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

137. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

138. The applicant claimed 100,000 euros (EUR) in respect of non-pecuniary damage on account of the grief he had suffered as a result of the anguish and distress caused by the authorities’ refusal to carry out an effective investigation into his son’s death. This had resulted in excessive suffering because he would never learn the exact circumstances of his death.

139. The Government considered that the amount claimed was excessive in the light of the Court’s case-law on similar matters.

140. The Court has found that the domestic authorities failed to comply with their procedural obligations arising out of Article 2 of the Convention. The Court is satisfied that the applicant has suffered anguish and distress on account of the lengthy delay in the case. Having regard to the circumstances of the present case, the Court awards the applicant EUR 12,000 in respect of non-pecuniary damage, minus any amounts which may have already been awarded and paid in that regard at the domestic level (see paragraphs 67-73 above).

B. Costs and expenses

141. The applicant also claimed EUR 10,000 for the costs and expenses incurred before the domestic courts and EUR 2,000 for those incurred before the Court.

142. The Government contested those claims.

143. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,000, covering costs under all heads.

C. Default interest

144. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible;

2. Holds that there has been a violation of the procedural requirements of Article 2 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State, at the rate applicable at the date of settlement:

(i) EUR 12,000 (twelve thousands euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, minus any amounts which may have already been awarded and paid in that regard at the domestic level;

(ii) EUR 3,000 (three thousands euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 12 July 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıLuis López Guerra
Deputy RegistrarPresident

[1] At the time, the Security Institute was under the Intelligence Service’s authority. Both the intelligence and public security sectors were under the authority of the Ministry of the Interior.

[2] On 10-12 November and 22 December 1998; 19, 22 and 25 February, 25 May, 9 September and 15 October 1999.

[3] Socially-owned companies are a relict of the former Yugoslav brand of communism and “self-management” (see R. Kačapor and Others v. Serbia, nos. 2269/06 et seq., §§ 71-76, 15 January 2008, and Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, § 12, ECHR 2014).

[4] Zakon o proizvodnji naoružanja i vojne opreme, published in the Official Gazette of the Socialistic Federal Republic of Yugoslavia – “OG SFRY” – no. 30/79. In 1996 the Republic of Serbia adopted new legislation.

[5] Zakon o prometu eksplozivnih materija, published in OG SFRY, nos. 30/85, 6/89 and 53/91, and OG FRY, no. 24/94 (further amended in 1996, 2002 and 2005).

[6] Zakon o ekslozivnim materijama, zapaljivim tečnostima i gasovima, published in OG SRS, nos. 44/77, 45/85 and 18/89, and OG RS, nos. 53/93, 67/93 and 48/94 (further amended in 2005).

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