FOURTH SECTION
DECISION
Application no. 66758/09
Lejla FAZLIĆ and others against Bosnia and Herzegovina
and 4 other applications
(see list appended)
The European Court of Human Rights (Fourth Section), sitting on 3 June 2014 as a Chamber composed of:
Ineta Ziemele, President,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Nona Tsotsoria,
Paul Mahoney,
Krzysztof Wojtyczek, judges,
and Fatoş Aracı, Deputy Section Registrar,
Faris Vehabović, the judge elected in respect of Bosnia and Herzegovina, was unable to sit in the case (Rule 28). The Government accordingly appointed Nona Tsotsoria, the judge elected in respect of Georgia, to sit in his place (Article 26 § 4 of the Convention and Rule 29).
Having regard to the above applications lodged between 27 November 2009 and 24 February 2010,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having regard to the comments submitted by the Redress Trust and the World Organisation Against Torture,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants is set out in the appendix. They are all citizens of Bosnia and Herzegovina and were represented by TRIAL (Track Impunity Always), a non-profit organisation based in Geneva.
2. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Deputy Agent, Ms Z. Ibrahimović.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Relevant background
4. After its declaration of independence on 6 March 1992, a brutal war started in Bosnia and Herzegovina. It would appear that more than 100,000 people lost their lives and more than 2,000,000 people were displaced in the course of the war. It is estimated that around 30,000 people went missing and that around one quarter of them is still missing. The conflict came to an end on 14 December 1995 when the General Framework Agreement for Peace in Bosnia and Herzegovina entered into force. In accordance with that Agreement, Bosnia and Herzegovina consists of two Entities, the Federation of Bosnia and Herzegovina and the Republika Srpska.
5. In response to atrocities then taking place in Bosnia and Herzegovina, on 25 May 1993 the United Nations Security Council passed Resolution 827 establishing the International Criminal Tribunal for the former Yugoslavia (“the ICTY”), headquartered in The Hague. More than 70 individuals have already been convicted and proceedings are ongoing for 20 accused. In the period from February 1996 until October 2004, local prosecutors in Bosnia and Herzegovina were required to submit case files to the ICTY for review; no person could be arrested on suspicion of war crimes unless the ICTY Office of the Prosecutor had received the case file beforehand and found it to contain credible charges (the “Rules of the Road” procedure). Moreover, the ICTY had primacy over national courts and could take over national investigations and proceedings at any stage in the interest of international justice. As part of the ICTY’s completion strategy, in early 2005 war crimes chambers were set up within the Court of Bosnia and Herzegovina (“the State Court”) with primacy over other courts in Bosnia and Herzegovina as regards war crimes (for information about that court and its jurisdiction over war crimes cases, see Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, §§ 34-40, ECHR 2013). More than 100 persons have been finally convicted by the State Court.
6. Furthermore, the International Commission on Missing Persons (“the ICMP”) was established at the initiative of United States President Clinton in 1996. It is currently headquartered in Sarajevo. Reportedly, the ICMP has so far identified by DNA more than 14,000 missing persons in Bosnia and Herzegovina, whereas local authorities have identified more than 8,000 missing persons by traditional methods. In 2005 the Government of Bosnia and Herzegovina and the ICMP established a Missing Persons Institute, also headquartered in Sarajevo (see paragraph 22 below). It became operational on 1 January 2008.
2. Situation in the Prijedor area in 1992
7. Before the 1992-95 war, the population of the municipality of Prijedor was ethnically mixed: according to a 1991 census, out of a total population of 112,000, 44% were Bosniacs[1], 42.5% Serbs[2], 5.5% Croats[3]; 8% others. On 30 April 1992 the Serbian Democratic Party took control of the city of Prijedor pursuant to a secret plan made in advance (notably, the Instructions for Organisation and Activities of the Organs of the Serb People in Bosnia and Herzegovina in a State of Emergency, adopted by the Main Board of the Serbian Democratic Party on 19 December 1991[4]). Shortly thereafter, ethnic cleansing began. By the end of 1992, there were practically no Bosniacs and Croats left in the municipality of Prijedor (about the situation in the Prijedor area at that time, see the ICTY judgment in the Stanišić and Župljanin case, IT-08-91-T, §§ 500-684, 27 March 2013, not yet final).
8. In 1992 seven applicants lived with their families in Kozarac (all but Ms Refika Ališković and Mr Edin Ramulić) and the remaining applicants in Rakovčani, in the Prijedor area. Following the takeover of Prijedor, tension developed between the new Serb authorities and Kozarac, which contained a large concentration of Bosniacs: of the 4,000 inhabitants of Kozarac town, 90% were Bosniacs. Kozarac was attacked by Serb forces on 24 May 1992. The attack began with heavy shelling, followed by the advance of tanks and infantry. The purported reason for the attack was the death of a Serb soldier. As a result of the shelling, over 800 inhabitants were killed. After the local Bosniac population had attempted to put up a resistance, a large number of people surrendered on 26 May 1992. The military-aged men were taken to Omarska and Keraterm camps and the rest of the population to Trnopolje camp. People who initially fled into the nearby mountains were sought out there or surrendered either to be killed or to be taken to camps. Eventually, the few Serb inhabitants of Kozarac returned and Serbs displaced from other areas moved into Kozarac (see the ICTY judgment in the Stakić case, IT-97-24-T, §§ 139-52, 31 July 2003; the ICTY judgment in the Brđanin case, IT-99-36-T, §§ 402-404, 1 September 2004; the ICTY judgment in the Stanišić and Župljanin case, cited above, §§ 529-41). Mr Nedžad Fazlić (Ms Fatima Selimović’s ex-husband and the father of Ms Lejla Fazlić and Ms Dženana Fazlić), Mr Edin Mahmuljin (Ms Ismeta Mahmuljin’s and Mr Muharem Mahmuljin’s son) and Mr Emir Hodžić (Ms Mersija Hodžić’s son and Ms Emira Biščević’s brother) were most likely killed either during the takeover of Kozarac or shortly thereafter in the nearby mountains.
9. Around 20–21 July 1992 Room 3 at Keraterm camp, which had up to that time held people from Kozarac, was emptied. Approximately 200 new detainees from different villages, including Rakovčani, were crammed into that room. For the first few days, the detainees were denied food and were subjected to beatings and abuse. Around 24-26 July 1992 virtually all of the detainees in the room were killed (see the ICTY judgment in the Stakić case, §§ 203-207, and the ICTY judgment in the Stanišić and Župljanin case, §§ 588-89, both cited above). Mr Esad Ališković (the husband of Ms Refika Ališković) was among them (as stated in the ICTY judgment in the Stanišić and Župljanin case, cited above, §§ 1579-80). It would appear that Mr Enes Ramulić (Mr Edin Ramulić’s brother) survived that incident (ibid, §§ 1831-32). According to some accounts, on 4 August 1992 he was transferred to Omarska camp from where he was taken together with more than 120 other people to Hrastova glavica and killed the next day (that incident was noted in, for example, the ICTY judgment in the Stakić case, cited above, §§ 211-12).
3. Criminal proceedings
(a) ICTY proceedings
10. The ICTY has so far convicted 16 persons in connection with crimes committed in the Prijedor area in 1992, including killings committed during or immediately after the takeover of Kozarac, killing of almost 200 persons in Room 3 at Trnopolje camp around 24-26 July 1992 and killing of at least 120 persons at Hrastova glavica on 5 August 1992. Among those 16 people, there were 11 direct perpetrators (Messrs Duško Tadić, Miroslav Kvočka, Dragoljub Prcać, Milojica Kos, Mlađo Radić, Zoran Žigić, Duško Sikirica, Damir Došen, Dragan Kolundžija, Predrag Banović, and Darko Mrđa) and five organisers (Ms Biljana Plavšić and Messrs Milomir Stakić, Radoslav Brđanin, Mićo Stanišić and Stojan Župljanin). The ICTY imposed prison sentences of different length (between 3 and 40 years; 256 years in total).
11. Cases against Mr Radovan Karadžić and Mr Ratko Mladić, the war-time civilian and military leaders, respectively, of the Republika Srpska, are also pending before the ICTY. They are charged with the participation in a joint criminal enterprise to permanently remove Bosniacs and Croats from the Prijedor area and other parts of the Republika Srpska.
(b) Domestic proceedings
12. As indicated in paragraph 5 above, war crimes chambers were set up within the State Court in 2005. Shortly thereafter, the ICTY referred the case against Željko Mejakić, Momčilo Gruban, Duško Knežević and Dušan Fuštar to the State Court. At the arraignment of 28 July 2006, the accused pleaded not guilty. However, on 27 March 2008, Mr Fuštar changed his plea to guilty. He was then sentenced to 9 years’ imprisonment for persecution as a crime against humanity committed in Keraterm camp in 1992.
13. As regards the three other accused, on 30 May 2008 a Trial Chamber of the State Court found them guilty of participation in the commission of killings, beatings, rapes and various other crimes in Omarska and Keraterm camps as a part of a widespread and systematic attack against the non-Serb civilian population of the municipality of Prijedor, and sentenced them to 11 (Mr Gruban), 21 (Mr Mejakić) and 31 (Mr Knežević) years’ imprisonment. On 16 February 2009 an Appeals Chamber of the State Court reduced the sentence of Mr Gruban to 7 years and upheld the remainder of the first-instance judgment.
14. In 2012 the State Prosecutor assigned a special prosecutor in charge of crimes committed as a part of a widespread and systematic attack against the non-Serb civilian population of the municipality of Prijedor in 1992 with the aim of stepping up the prosecution of such crimes. Shortly thereafter, in early 2013, indictments were issued against Dragomir Soldat, Zoran Babić and Velemir Đurić for one such crime. On 27 March 2014 a Trial Chamber of the State Court sentenced each of them to 21 years’ imprisonment. This judgment is not final yet. Investigation into several other crimes committed in the Prijedor area in 1992 is currently ongoing (cases nos. KT-RZ 125/05; KT RZ 126/05 against Dragan Kondić, Goran Lajić, Dragomir Šaponja and Nedeljko Timarac; KT-RZ 143/07; KT-RZ 170/07; and KT-RZ 164/05)[5].
4. Declarations of presumed death
15. On different dates between 1996 and 2002, the applicants sought and obtained declarations of presumed death with respect to their missing relatives.
5. Identification of mortal remains
16. While many exhumations have been conducted in the Prijedor area, the applicants’ missing relatives have not yet been identified. It should be noted, however, that the biggest mass grave in Bosnia and Herzegovina has recently been discovered in Tomašica. Reportedly, it contains the remains of hundreds of victims from the Prijedor area. Identification is now ongoing.
6. Proceedings before the Constitutional Court of Bosnia and Herzegovina
17. In 2006 all the applicants lodged constitutional appeals alleging that the authorities’ reaction to the disappearance of their relatives amounted to a breach of Articles 2, 3, 5, 8 and/or 13 of the Convention.
18. On 16 July 2007 the Constitutional Court decided to join 227 similar cases and rendered a group decision finding a breach of Articles 3 and 8 of the Convention. It ordered the authorities to release any and all information in their custody pertaining to the fate or whereabouts of the missing persons in issue and to ensure that the State agencies envisaged by the Missing Persons Act 2004 (the Missing Persons Institute, Central Records and the Missing Persons Fund) become operational within six months. No compensation was awarded.
19. Under its mandate to examine complaints about non-enforcement of its decisions, on 27 March 2009 the Constitutional Court concluded that the decision of 16 July 2007, mentioned above, was to be considered enforced notwithstanding the fact that some of the State agencies envisaged by the Missing Persons Act 2004 (precisely, the Central Records and the Missing Persons Fund) had not yet become operational. It held that no further action was required from the Constitutional Court as the failure to enforce a similar decision had already been reported to the State Prosecutor (non-enforcement of a final and enforceable decision of the Constitutional Court amounts to a criminal offence; for the relevant law in that regard, see Bobić v. Bosnia and Herzegovina, no. 26529/10, §§ 14-15, 3 May 2012).
7. Applicants’ attempts to obtain damages from the Republika Srpska
20. On different dates in 2009 and 2010 all of the applicants requested damages from the Republika Srpska for the death of their relatives under the Republika Srpska’s general compensation scheme for war damage (for more information about that scheme, see Čolić and Others v. Bosnia and Herzegovina, nos. 1218/07 et al., § 10, 10 November 2009). Their requests were either rejected as out of time or are still pending. One of the applicants, Ms Refika Ališković, has lodged an appeal with the Constitutional Court of Bosnia and Herzegovina in this connection which is still pending.
B. Relevant domestic law
1. Missing Persons Act 2004
21. The Missing Persons Act 2004 entered into force on 17 November 2004 (Official Gazette of Bosnia and Herzegovina no. 50/04). In accordance with section 3 of the Act, families have the right to know the fate of missing persons (that is, their whereabouts if they are still alive, or the circumstances of death and their place of burial, if they are dead) and to obtain their mortal remains. Under section 4 of the Act, the relevant domestic authorities have the obligation to provide any and all such information in their keeping.
22. Section 7 of that Act provides for the setting up of a Missing Persons Institute. In 2005 the ICMP and the Government of Bosnia and Herzegovina founded the Institute, headquartered in Sarajevo, pursuant to that provision and the Agreement on Assuming the Role of Co-founders of the Missing Persons Institute of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina, International Treaty Series, no. 13/05). It became operational on 1 January 2008. One of the organs of that Institute is an Advisory Board, comprised of six representatives of families of missing persons (see Article 10 of the Agreement mentioned above).
23. In accordance with section 9 of the Act, the status of missing person comes to an end on the date of identification. Therefore, if a missing person is declared dead but the mortal remains have not been found and identified, the process of tracing continues.
24. Pursuant to section 11 of the Act, the families of missing persons are entitled to monthly financial support under some conditions, notably if they were supported by the missing family member until his or her disappearance and if they are still in need of support (in other words, if they are not in paid employment and do not receive welfare benefits beyond 25% of the average salary paid in Bosnia and Herzegovina[6]). Section 15 of the Act provides for the setting up of a Missing Persons Fund for that purpose. However, as the Fund has not yet been established, no payment has been made so far.
25. Families of missing persons are also entitled to, inter alia, temporary administration of the property of missing persons, burial of mortal remains at public expense and priority in access to education and employment for the children of missing persons (section 18 of the Act).
26. Section 21 of the Act provides for the setting up of Central Records with the aim of verifying information about missing persons from different sources (government agencies, associations of families of missing persons, the ICMP and the International Committee of the Red Cross) and creating a single database. While Central Records were founded on 3 February 2011, it would appear that the verification process is still ongoing. Once that process is completed, all those recorded as missing will be declared dead (section 27 of the Act), but the tracing process will nevertheless continue (see paragraph 23 above).
2. Declarations of presumed death
27. Despite the fact that the verification process outlined in paragraph 26 above is pending, any person may request that a declaration of presumed death be issued with respect to a missing person (see the Non-Contentious Procedure Act 1998, Official Gazette of the Federation of Bosnia and Herzegovina – “OG FBH”, nos. 2/98, 39/04, 73/05; the Non-Contentious Procedure Act 2009, Official Gazette of the Republika Srpska, no. 36/09).
28. Pursuant to section 21(4) of the War Veterans and their Families Act 2004 (OG FBH no. 33/04), which entered into force in June 2004, relatives of missing combatants were required to seek such declarations by June 2006 if they wished to keep the social benefits provided by that Act. By the same token, pursuant to the 2006 amendment to section 69 of the Social Care Act 1999 (OG FBH no. 39/06), which entered into force in September 2006, relatives of missing civilians were required to do so by September 2008. It should be noted that there is no such an obligation in the legislation of the Republika Srpska where most of the present applicants live.
COMPLAINTS
29. The applicants alleged that there had been no effective investigation into the disappearance and death of their relatives and that the authorities’ reactions to their suffering had been lackadaisical. They relied on Articles 2, 3, 5, 8 and 13 of the Convention.
THE LAW
A. Joinder of the applications
30. Given their common factual and legal background, the Court decides that these five applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.
B. Article 2 of the Convention
31. The Government claimed that the Court lacked temporal jurisdiction or that the applications had been lodged out of time because the applicants’ relatives had disappeared long before the ratification of the Convention by Bosnia and Herzegovina in 2002 and long before the applications had been lodged with the Court in 2009 and 2010. Alternatively, they contended that the case was manifestly ill-founded. In their view, the investigation had complied with all the requirements of Article 2.
32. The applicants submitted that the respondent State had failed to fulfil its procedural obligation stemming from Article 2 of the Convention to investigate the disappearance and death of their relatives. They criticised, in particular, the fact that their relatives had not been identified. They further submitted that those responsible for their relatives’ disappearance and death had not been brought to justice. Lastly, they complained of the lack of transparency and promptness of the investigation. Article 2 on which they relied provides, in so far as relevant, as follows:
“1. Everyone’s right to life shall be protected by law. ...”
33. In view of its conclusion below, the Court considers that it can leave open the question, raised by the Government, as to whether the Court has temporal jurisdiction to deal with this case and whether the applications had been lodged within the six-month time-limit (see, in this connection, Palić v. Bosnia and Herzegovina, no. 4704/04, §§ 44-52, 15 February 2011).
34. As to the Government’s alternative argument, the Court reiterates that Article 2 of the Convention requires the authorities to conduct an official investigation into an arguable claim that a person who was last seen in their custody subsequently disappeared in a life-threatening context. Where disappearances in life-threatening circumstances are concerned, the procedural obligation to investigate can hardly come to an end on discovery of the body or the presumption of death; this merely casts light on one aspect of the fate of the missing person. An obligation to account for the disappearance and death, and to identify and prosecute any perpetrator of unlawful acts in that connection, will generally remain. According to the Court’s settled case-law, the investigation must be independent from all those implicated in the events, must be effective in the sense of being capable of ascertaining the facts and of leading to the identification and punishment of those responsible, must be accessible to the victim’s family to the extent necessary to safeguard their legitimate interests and must be carried out with reasonable promptness and expedition (see, among many other authorities, Kurt v. Turkey, 25 May 1998, § 124, Reports of Judgments and Decisions 1998‑III; Varnava and Others v. Turkey [GC], nos. 16064/90 et al., § 145, ECHR 2009; Palić, cited above, § 63; Association “21 December 1989” and Others v. Romania, nos. 33810/07 and 18817/08, § 97, 24 May 2011; and Aslakhanova and Others v. Russia, nos. 2944/06 et al., § 121, 18 December 2012).
35. Since the present applicants did not claim, let alone substantiate, that the investigation into the disappearance and death of their missing relatives lacked independence, the Court will turn to the question of its effectiveness. In this regard, it notes that the remains of the applicants’ missing relatives have not yet been identified. While unfortunate, this is not sufficient in itself to find a procedural violation of Article 2 of the Convention. The Court has indeed held on many occasions (see, for instance, Hugh Jordan v. the United Kingdom, no. 24746/94, § 107, ECHR 2001-III, and Palić, cited above, § 65), that the procedural obligation under that Article is not an obligation of result, but of means. The key question is whether the domestic authorities have done all that could be reasonably expected of them in the circumstances of this particular case (see, by analogy, Osman v. the United Kingdom, 28 October 1998, § 116, Reports 1998-VIII). The Court finds that they have done so for the following reasons. First, the Missing Persons Institute, set up pursuant to the Missing Persons Act 2004, enjoys unrestricted access to all relevant information; works on the basis of partnership with the relatives of missing persons; and compiles a unified database of all missing persons (see paragraphs 21, 22 and 26 above, and the measures, specified under Article 46 of the Convention, in Aslakhanova and Others, cited above, § 225). Moreover, significant resources have been allocated to carry out large-scale forensic and scientific work on the ground, including the exhumation of presumed burial sites; the collection, storage and identification of remains; and systematic matching through up-to-date genetic databanks (compare Aslakhanova and Others, cited above, § 226). This has allowed the discovery of many mass graves throughout Bosnia and Herzegovina, such as the recently discovered one containing the remains of hundreds of victims from the Prijedor area, as well as the identification of thousands of missing persons (see paragraphs 6 and 16 above).
36. The Court also notes that the ICTY has thus far convicted 16 persons in connection with crimes committed in the Prijedor area in 1992, including the incidents in which the applicants’ missing relatives most likely lost their lives (see paragraphs 8-10 above). In this connection, the Court finds that the respondent State’s procedural obligation under Article 2 could be discharged through its contribution to the work of the ICTY, given that the ICTY had primacy over national courts and could take over national investigations and proceedings at any stage in the interest of international justice (as concerns the relationship between the ICTY and the authorities of Bosnia and Herzegovina, see paragraph 5 above; see, in contrast, Cyprus v. Turkey [GC], no. 25781/94, § 135, ECHR 2001-IV, where the Court held that the respondent State’s procedural obligation under Article 2 could not be discharged through its contribution to the investigatory work of the UN Committee on Missing Persons on the grounds that its procedures were not of themselves sufficient to meet the standard of an effective investigation required by Article 2). In addition, the State Court has so far punished seven persons for crimes committed within the context of the ethnic cleansing of the Prijedor area and investigation into some other crimes committed in that area is ongoing (see paragraphs 12-14 above).
37. It is evident that not all of the direct perpetrators of the many crimes committed within the context of the ethnic cleansing of the Prijedor area have been punished. The Court can understand that it must be frustrating for the applicants that potential suspects have been named, but that further steps have not been taken yet. However, Article 2 cannot be interpreted so as to impose a requirement on the authorities to launch a prosecution irrespective of the evidence available. A prosecution, particularly on such a serious charge as involvement in mass unlawful killings, should never be embarked upon lightly as the impact on a defendant who comes under the weight of the criminal justice system is considerable, being held up to public obloquy, with all the attendant repercussions on reputation, private, family and professional life. Given the presumption of innocence enshrined in Article 6 § 2 of the Convention, it can never be assumed that a particular person is so tainted with suspicion that the standard of evidence to be applied is an irrelevance. Rumour and gossip are a dangerous basis on which to base any steps that can potentially devastate a person’s life (see, in this regard, Gürtekin and Others v. Cyprus (dec.), nos. 60441/13 et al., § 27, 11 March 2014). In light of the above, the Court finds that the investigation was effective in the sense of being capable of leading to the identification and punishment of those responsible for the disappearance and death of the applicants’ relatives (see Palić, cited above, § 65, where the Court held that the investigation was effective, notwithstanding the fact that there had not been any convictions).
38. As concerns the applicants’ criticisms about the accessibility of the investigation and the existence of sufficient public scrutiny, the Court has already emphasised the importance of the right of victims and their families and heirs to know the truth about the circumstances surrounding events involving a massive violation of rights as fundamental as that of the right to life. However, this aspect of the procedural obligation does not require applicants to have access to police files, or copies of all documents during an ongoing inquiry, or for them to be consulted or informed about every step (Association “21 December 1989” and Others, cited above, § 106, and Gürtekin and Others, cited above, § 29). It cannot be automatically required that the families be provided with the names of the potential suspects against whom insufficient evidence has been gathered for prosecution. This would lead to the risk that the families and others would assume that the individuals were in fact guilty and to potentially unpleasant repercussions. The Court notes that, in any event, the hearings held before domestic courts are, in principle, open to the public and that the hearing schedules are easily available. Moreover, the applicants have not shown that any of their requests for information has remained unanswered (contrast Association “21 December 1989” and Others, cited above, § 102). It is true that the authorities have sometimes resorted to press releases or group meetings with victims and/or their associations, rather than individual meetings, but the Court considers this approach to be reasonable in view of the large number of war crimes cases pending before domestic courts and the large number of victims (see paragraph 4 above). In this regard, the Court would emphasise that the procedural obligation under Article 2 must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities (Osman, cited above, § 116, and Palić, cited above, § 70).
39. Insofar as the applicants make reference to a lack of expedition and to the lapse of time since their relatives disappeared, the Court will take into consideration merely the period since 2005 when the domestic legal system became capable of dealing with disappearance cases (see Palić, cited above, § 70, about the situation in post-war Bosnia and Herzegovina, notably in the first ten years following the war; see also paragraph 5 above concerning the relationship between domestic authorities and the ICTY during that period). It should be noted, in this connection, that the standard of expedition in such historical cases is much different from the standard applicable in recent incidents where time is often of the essence in preserving vital evidence at a scene and questioning witnesses while their memories are fresh and detailed (see Varnava and Others, cited above, §§ 191-92, and Gürtekin and Others, cited above, §§ 21-22). In this connection, the Court notes that there has been no substantial period of inactivity post-2005 on the part of local authorities regarding the crimes committed within the context of the ethnic cleansing of the Prijedor area. The ICTY decided to refer one such case, against four accused, to the State Court in April 2006. The trial at the State Court started on 20 December 2006. By February 2009, all of them were finally convicted (see paragraphs 12-13). The national authorities have also taken steps to process the other cases concerning the ethnic cleansing of the Prijedor area within the time-frame set out in the National War Crimes Strategy (see paragraph 14 above; as regards that Strategy, see Palić, cited above, § 51). The Court found that time-frame (that is, the most complex and top priority cases to be processed by the end of 2015 and all other war crimes cases by the end of 2023) to be reasonable in Palić, cited above. Accordingly, the criminal investigation can be considered to have been conducted with reasonable promptness and expedition.
40. The Court finds that, taking into account the special circumstances prevailing in Bosnia and Herzegovina up until 2005 and the large number of war crimes cases pending before local courts, the investigation has not been shown to have infringed the minimum standard required under Article 2 (see Palić, cited above, § 71, and Gürtekin and Others, cited above, § 32).
41. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
C. Article 3 of the Convention
42. The applicants raised two separate complaints under Article 3. First, they complained on their own behalf about the authorities’ reactions to their suffering. Further, they complained on behalf of their missing relatives that disappearance amounted, as such, to a treatment contrary to Article 3 of the Convention and that the respondent State had breached the procedural limb of that Article for the reasons set out in paragraph 32 above. Article 3 reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. Complaint on behalf of the applicants themselves
43. The Government maintained that the authorities were making efforts to locate, exhume and identify the mortal remains of all missing persons and to bring to justice all those responsible for serious violations of international humanitarian law committed during the 1992-95 war.
44. The applicants responded that they were suffering from, among other conditions, insomnia, depression and post-traumatic stress disorder because of the authorities’ indifference towards their concerns and anguish. Notably, they disapproved the fact that relatives of missing persons had been required since June 2004 (with regard to missing combatants) and since September 2006 (with regard to missing civilians) to obtain declarations of presumed death with respect to their missing relatives in order to maintain some social benefits (see paragraph 28 above), as well as the fact that the Missing Persons Fund had not yet been set up (see paragraph 24 above).
45. The Redress Trust and the World Organisation Against Torture, in their third-party submissions, set out the current state of international law on the nature of the link between enforced disappearance and the prohibition of torture and other ill-treatment. In this connection, they relied on, inter alia, a number of the Court’s judgments, such as Varnava and Others, cited above; Palić, cited above; and Aslakhanova and Others, cited above.
46. The main principles in this connection were restated in Varnava and Others, cited above, § 200; Palić, cited above, § 74; and Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, §§ 178-79, ECHR 2013.
47. In the present case, the Court has found in paragraphs 35-39 above that the authorities have not failed in any duty of reasonable expedition or of notification of the families in accordance with Article 2 of the Convention. As to the applicants’ criticism of the War Veterans and their Families Act 2004, the 2006 amendment to the Social Care Act 1999 and of the failure to set up the Missing Persons Fund, the Court notes that the applicants have failed to demonstrate that any of those factors might disclose a basis for finding a violation of Article 3 of the Convention in this specific case. All of the applicants obtained declarations of presumed death with respect to their next-of-kin prior to the entry into force of the impugned legislation (see paragraph 15 above). In view of that, even assuming that it could raise an issue under Article 3 of the Convention, their argument that relatives of missing persons might have felt pressured by that legislation to declare their missing relatives dead does not concern the present applicants. Similarly, while it is true that the payment of financial support to relatives of missing persons has not begun because the Missing Persons Fund has not been set up, the applicants have not demonstrated that they would be eligible for such support (the eligibility criteria are set out in paragraph 24 above).
48. Accordingly, while acknowledging the gravity of the phenomenon of disappearances and the suffering of the applicants, the Court finds that, in the circumstances of this case, the authorities’ reactions cannot be regarded as inhuman or degrading treatment. This complaint is thus manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
2. Complaint on behalf of the applicants’ missing relatives
49. The Court observes that this complaint was not included in the initial applications, but was raised for the first time in the applicants’ observations of March 2013. It was thus not raised early enough to allow an exchange of observations between the parties (see Al Hanchi v. Bosnia and Herzegovina, no. 48205/09, § 55, 15 November 2011, and the authorities cited therein). In any event, the Court does not have to decide whether it is appropriate to take this matter up separately at this stage as the complaint is in any event manifestly ill-founded for the reasons given in paragraphs 35-39 above and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
D. Articles 5, 8 and 13 of the Convention
50. Lastly, the applicants alleged a breach of Articles 5, 8 and 13 relying in essence on the considerations underlying their other complaints under the Convention.
Article 5, in so far as relevant, provides as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
...
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
Article 8, in so far as relevant, provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. …”
Article 13 reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
51. Having examined the parties’ submissions and having regard to its findings regarding Articles 2 and 3 above, the Court considers that the facts complained of do not disclose any appearance of a violation of Articles 5, 8 and/or 13 of the Convention. It follows that this part of the applications is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Fatoş AracıIneta Ziemele
Deputy RegistrarPresident
Appendix
No
Application No
Applicant
Date of birth
Place of residence
66758/09
Lejla FAZLIĆ
27/01/1992
Sanski Most
Dženana FAZLIĆ
30/08/1984
Kozarac
Fatima SELIMOVIĆ
01/04/1963
Rorschach (Switzerland)
66762/09
Ismeta MAHMULJIN
01/04/1942
Kozarac
Muharem MAHMULJIN
15/02/1941
Kozarac
7965/10
Refika ALIŠKOVIĆ
11/12/1967
Prijedor
9149/10
Mersija HODŽIĆ
01/12/1937
Kozarac
Emira BIŠČEVIĆ
29/10/1956
Bihać
12451/10
Edin RAMULIĆ
28/09/1970
Sanski Most
[1] Bosniacs were known as Muslims until the 1992-95 war. The term “Bosniacs” should not be confused with the term “Bosnians” which is commonly used to denote citizens of Bosnia and Herzegovina irrespective of their ethnic origin.
[2] Serbs are an ethnic group whose members may be natives of Serbia or of other States including Bosnia and Herzegovina. The term “Serb” is normally used to refer to members of the ethnic group, regardless of their nationality; it is not to be confused with the term “Serbian”, which normally refers to nationals of Serbia.
[3] Croats are an ethnic group whose members may be natives of Croatia or of other States including Bosnia and Herzegovina. The term “Croat” is normally used to refer to members of the ethnic group, regardless of their nationality; it is not to be confused with the term “Croatian”, which normally refers to nationals of Croatia.
[4] Uputstvo o organizovanju i djelovanju organa srpskog naroda u Bosni i Hercegovini u vanrednim okolnostima; this document was submitted by the respondent Government.
[5] As stated in the State Prosecutor’s letter A-1-74/13 of 6 March 2013, submitted by the applicants.
[6] The average salary paid in Bosnia and Herzegovina in 2013 was 423 euros.
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