FIRST SECTION
DECISION
Application no. 79065/13
Sejda KRDŽALIJA and Others
against Montenegro
The European Court of Human Rights (First Section), sitting on 14 March 2023 as a Chamber composed of:
Marko Bošnjak, President,
Krzysztof Wojtyczek,
Alena Poláčková,
Lətif Hüseynov,
Ivana Jelić,
Erik Wennerström,
Raffaele Sabato, judges,
and Renata Degener, Section Registrar,
Having regard to the above application lodged on 8 December 2013,
Having regard to the decision of 19 January 2018 to give notice to the Montenegrin Government (“the Government”) of the complaints under Articles 2 and 3 concerning the investigation by the domestic authorities, and to declare inadmissible the remainder of the application,
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 Government of Bosnia and Herzegovina, as a third-party, pursuant to Article 36 § 1 of the Convention,
Having deliberated, decides as follows:
INTRODUCTION
1. The present case mainly concerns the alleged lack of an effective investigation, for the purposes of Article 2 of the Convention, into the removal of the applicants’ next-of-kin and their handing over to the authorities of the self-proclaimed Srpska Republika Bosna i Hercegovina[1] in May 1992, in the midst of an armed conflict. Later, the applicants’ next-of‑kin were either found dead in Bosnia and Herzegovina or have been missing and were declared dead.
THE FACTS
2. A list of the applicants is set out in the appendix. They were all represented before the Court by Ms Tea Gorjanc Prelević, the executive director of the non-governmental organisation Human Rights Action.
3. The Montenegrin Government were represented by their Agent, Ms V. Pavličić.
The circumstances of the case4. The facts of the case, as submitted by the parties, may be summarised as follows.
Background information5. After a declaration of independence of Bosnia and Herzegovina in March 1992, following the dissolution of the former Socialist Federal Republic of Yugoslavia (SFRY), armed conflict broke out in Bosnia and Herzegovina in April 1992. The major parties to the conflict were the Army of the Republic of Bosnia and Herzegovina (Armija Republike Bosne i Hercegovine, which was mostly made up of Bosniacs[2] and was loyal to the central authorities of Bosnia and Herzegovina), the Croatian Defence Force (Hrvatsko vijeće obrane, which was mostly made up of Croats) and the Army of Republika Srpska (Vojska Republike Srpske, or “VRS”, which was mostly made up of Serbs).
6. On 27 April 1992 the Republic of Montenegro and the Republic of Serbia proclaimed the Federal Republic of Yugoslavia (FRY).
7. On 15 May 1992 the United Nations Security Council, acting in accordance with Chapter VII of the United Nations Charter, demanded that all units of the SFRY Army (“the JNA”) and all elements of the Croatian Army either be withdrawn from Bosnia and Herzegovina, be subject to the authority of the Government of Bosnia and Herzegovina, or be disbanded and disarmed, with their weapons placed under effective international monitoring (see United Nations Security Council Resolution 757). While the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, the United Nations Secretary General and the International Criminal Tribunal for the former Yugoslavia (“the ICTY”) – a United Nations court of law dealing with war crimes that took place during the conflicts in the Balkans in the 1990s – later established that JNA members born in Bosnia and Herzegovina had actually remained there with their equipment and joined the VRS forces, and that only those born in Serbia and Montenegro had left and joined the Yugoslav Army forces (see Đokić v. Bosnia and Herzegovina, no. 6518/04, § 15, 27 May 2010, and the authorities cited therein).
8. By 22 May 1992 Bosnia and Herzegovina had been internationally recognised, and on that date it became a UN member State.
9. The conflict came to an end on 14 December 1995, when the General Framework Agreement for Peace (commonly known as “the Dayton Peace Agreement”) entered into force (for more background information, see Palić v. Bosnia and Herzegovina, no. 4704/04, § 6, 15 February 2011).
10. On 4 February 2003 the FRY became the State Union of Serbia and Montenegro.
11. On 3 June 2006 Montenegro declared its independence, after holding a referendum on the subject on 21 May 2006. The Republic of Serbia became the successor State to the State Union of Serbia and Montenegro.
The removal of the applicants’ next of kin12. In April and May 1992 many Serbs and Bosniacs, including the applicants’ next-of-kin (as specified in the annex), left Bosnia and Herzegovina and relocated to Montenegro.
13. Between 24 and 27 May 1992 a group of between seventy-three and eighty-three people (various documents enclosed in the case-file indicate different figures – see paragraphs 18 in fine, 30, 40 and 51 below), including the applicants’ next-of-kin, were apprehended in various towns in Montenegro by employees of the Ministry of the Interior of the Republic of Montenegro, at that time part of the FRY, and handed over to the forces of the self-proclaimed Srpska Republika Bosna i Hercegovina (hereinafter “Republika Srpska”).
14. The mortal remains of two of the applicants’ next-of-kin were subsequently found in a mass grave in Bosnia and Herzegovina and identified by DNA analysis. Between 18 August 1998 and 9 May 2005 the other applicants’ relatives were declared dead by decisions of Bosnia and Herzegovina courts. Their remains have not been found to date.
The ensuing proceedings in Montenegro(a) Civil proceedings
15. Between December 2004 and March 2005 the applicants lodged civil claims for compensation against the Republic of Montenegro (specifically, the Ministry of the Interior) with the Court of First Instance (Osnovni sud) in Podgorica. They submitted that their next-of-kin had been unlawfully deprived of their liberty and deported to Republika Srpska, where they had been killed. They maintained that the respondent party had thus committed a war crime against civilians by unlawfully depriving them of their liberty, which had led to their deaths (sa smrtnom posljedicom), and had thereby violated the prohibition on discrimination, the right to liberty and security, and the right to life. The applicants alleged, inter alia, that the respondent party had failed for more than twelve years to carry out an adequate and serious investigation and to bring a criminal prosecution (nesprovođenje odgovarajuće istrage i krivičnog gonjenja protiv odgovornih lica; ne sprovodi ozbiljnu istragu) against those responsible for the crimes in question – in particular against those who had put the lives of their next-of-kin in danger, that is to say those responsible for ordering and committing a criminal offence that had resulted in their death. In total, forty-two civil claims were lodged by 193 members of the families of those who had been handed over to the forces of Republika Srpska in May 1992. In accordance with the legislation in force at the material time, the State was represented in the civil proceedings by the Supreme State Prosecutor (see paragraphs 55 and 57 below), who was represented in the cases in question by G.R. and M.M., Deputy State Prosecutors from Podgorica.
16. Between 29 June 2006 and 1 February 2008 the Podgorica Court of First Instance ruled partly in favour of the first, second, third, fifth and sixth applicants, and awarded them certain amounts. The court found, in substance, that the applicants’ next-of-kin had been unlawfully deprived of their liberty and of the right to lodge an appeal. The court also found that they could have been handed over only in accordance with the procedure governing extradition proceedings initiated at the request of a foreign State, which had not been the case. In addition, the court deemed that the United Nations Convention Relating to the Status of Refugees (“the Refugee Convention”) was applicable and that Article 33 thereof had been breached (see paragraph 78 below). The same court dismissed the fourth applicant’s claim as unfounded and the seventh applicant’s claim as time-barred. There is no information in the case file as to whether the parties to the proceedings appealed against all these judgments.
17. On 25 December 2008 the Government of Montenegro decided to settle all forty-two cases. By 27 December 2008 settlements in respect of all of the forty-two cases had been reached (including with the applicants). By 29 December 2008 the Ministry of Finance had paid 4,135,000 euros (EUR) in total to the victims’ spouses, children, parents and siblings. The applicants received EUR 165,000 in total. In particular, the first and second applicants received EUR 25,000 each; the third applicant received EUR 35,000 (EUR 25,000 as the mother of one victim and EUR 10,000 as the sister of another victim); the fourth applicant received EUR 10,000; the fifth applicant received EUR 10,000; the sixth applicant received EUR 35,000 (EUR 25,000 as the spouse of one victim and EUR 10,000 as the sister of another victim); and the seventh applicant received EUR 25,000. The settlement declarations provided that “by the payment of the quoted amounts of compensation the claimants are considered to have been completely compensated for all ... damage caused by the death [of their next-of-kin] and waive all other possible future claims for compensation on this ground”. At the same time the Podgorica Court of First Instance, having apparently reopened the proceedings, accepted the settlements and quashed its own first-instance judgments issued in favour of the applicants.
(b) Criminal proceedings
(i) Investigation and trial
18. On 18 October 2005 the High State Prosecutor (Viši državni tužilac), N.R., requested that an investigation (zahtjev za sprovođenje istrage) be opened in respect of six persons who held the following positions in the State apparatus of the Republic of Montenegro, which was part of the FRY at the relevant time in 1992: an assistant to the Minister of the Interior (pomoćnik ministra), heads of two separate Security Centres of the Police Directorate (načelnici Centara bezbjednosti – hereinafter “Security Centres”), a deputy head of a Security Centre, a local police commander (komandir stanice milicije), and an intelligence officer of the State Security Department (operativni radnik DB-a). They were suspected of having committed a war crime against eighty-three refugees from Bosnia and Herzegovina by depriving them of their liberty and handing them over to police officers from four Bosnia and Herzegovina municipalities.
19. The prosecutor proposed that the suspects be interviewed, along with ninety-two witnesses and/or injured parties, including: the first, second, sixth and seventh applicants; the next-of-kin of the third, fourth, fifth and sixth applicants; the disappeared son of the third applicant; twenty-two family members of other victims; N.P., the Minister of the Interior after 14 July 1992; and M.B., the President of the Republic of Montenegro, part of the FRY, at the time of the events in question.
20. In November 2005 an investigating judge interviewed the six suspects.
21. On 18 February 2006 the Podgorica High Court (Viši sud) decided to conduct an investigation into the six persons on suspicion of their committing a war crime against civilians.
22. Between November 2006 and April 2008 seven witnesses were heard by the Podgorica High Court: two witnesses were heard in November 2006, two in May 2007, and three in April 2008.
23. In March 2008 the High Court requested police assistance in its attempts to find four other witnesses. At the same time it requested international legal assistance from the Prosecutor’s Office of Bosnia and Herzegovina, the Ministry of Justice of Republika Srpska (an entity of Bosnia and Herzegovina), and the Belgrade District Court in Serbia. It asked that twenty-eight injured parties be interviewed as witnesses, together with a further twenty-nine witnesses.
24. In April and May 2008 twenty witnesses were interviewed by the Prosecutor’s Office of Bosnia and Herzegovina, including the first, second, third, sixth and seventh applicants. The other witnesses had either refused to testify, or had moved away, or had not been summoned owing the fact that the details of their respective addresses were incomplete or missing. The Podgorica High Court requested that certain additional persons be interviewed.
25. In May 2008 three witnesses were interviewed in Serbia.
26. The investigating judge from the Podgorica High Court and a deputy Special State Prosecutor, L.V., attended the interviews held in Bosnia and Herzegovina and in Serbia. The interviews in Serbia were also attended by three defendants and the representative of another defendant.
27. Between May and September 2008 four witnesses were interviewed in Republika Srpska.
28. Between May and December 2008 forty-nine witnesses were interviewed by the Podgorica High Court.
29. In October 2008 the investigation was extended to three more persons.
30. On 19 January 2009 the above-mentioned deputy Special State Prosecutor, L.V., issued an indictment against nine people who had been employees of the Ministry of the Interior of the Republic of Montenegro, part of the FRY at the time of the events in question, for committing a war crime against civilians: two assistants to the Minister of the Interior, three heads of Security Centres, one head (rukovodilac sektora) of the State Security Department in Herceg Novi, the head of the State Security Department in Ulcinj, the chief commander of the Herceg Novi police, and an intelligence officer of the State Security Department in Herceg Novi. They were indicted for breaching international law, during and in relation to the armed conflict in Bosnia and Herzegovina, by unlawfully deporting (nezakonito preseljavanje) seventy-nine civilians – citizens of Bosnia and Herzegovina, who had had the status of “refugees” (including the applicants’ next-of-kin). The indictment specified that they had executed an order of the Minister of the Interior – namely, to act on the requests of the Ministry of the Interior of Republika Srpska to deprive of their liberty persons who had come from the territory of Bosnia and Herzegovina and to return them to Bosnia and Herzegovina. In particular, the first defendant had requested the employees of the State Security Department to collect information about certain persons being sought and to forward that information to the State Security Department (Upravi Službe državne bezbjednosti), and thereafter to Public Security departments within their centres, with a request for further instructions; the second defendant had forwarded to all Security Centres a telegram dated 23 May 1992 that had requested compliance with the request of the Ministry of the Interior of Republika Srpska to bring in all Serbs from the territory of Bosnia and Herzegovina who were aged between 18 and 60 so that they could be returned to Bosnia and Herzegovina. Acting on those requests the third, fourth and fifth defendants had collected and obtained information from Republika Srpska and had forwarded that information to the State Security Department (from which they had been receiving instructions regarding further action to be undertaken) and to the Public Security departments in Herceg Novi, Bar and Ulcinj. The sixth, seventh, eighth and ninth defendants, on the basis of that information, had requested the authorised persons in the said Security Centres to identify people from the territory of Bosnia and Herzegovina, to deprive them of their liberty, and to bring them in and return them to the territory of Bosnia and Herzegovina. Subsequently, authorised persons from those Security Centres had unlawfully deprived of their liberty seventy-nine citizens of Bosnia and Herzegovina and had forcefully deported them in several batches (u više navrata), handing some of them (including the first and second applicants’ sons) over to a prison officer in Foča, some others (including the other applicants’ next-of-kin) to police staff (Sekretarijat za unutrašnje poslove) in Srebrenica, and some others to police staff in Sokolac. The indictment referred to: Article 3 § 1(c) (in conjunction with Article 147) of the Fourth Geneva Convention (see paragraphs 71 and 72 below); Article 4 § 2 (e) and Article 17 of Additional Protocol II to the Geneva Conventions; Article 5 of the European Convention on Human Rights; Article 1A (2) and Article 33 § 1 of the 1951 Refugee Convention; Article 1(2) of the 1967 Protocol relating to the Status of Refugees; and Article 142 § 1 of FRY Criminal Code.
31. The indictment proposed that the defendants be heard, along with more than a hundred witnesses and representatives of injured parties (oštećene porodice), and that more than seventy pieces of written evidence be read.
32. In 2009 the Podgorica High Court issued an information leaflet for injured parties and witnesses. It provided information, inter alia, on: testifying; the procedure to be followed in the event that a witness’s earlier statement differed from a more recent one or from statements made by the others involved; the security of witnesses; and various practical arrangements. It was distributed to all those involved in the proceedings, and published on the noticeboard of the High Court and on the High Court’s website.
33. The first, second, third, and sixth applicants had their costs of travel to the court and their daily expenses reimbursed in May 2010 and September 2012, and the seventh applicant was reimbursed in September 2012.
34. It can be seen from the case file that the deputy Special State Prosecutor altered the “factual description” (činjenični opis) contained in the indictment on 15 February 2011 and on 14 September 2012.
35. In the course of the trial fifty-two hearings were held: two hearings were held in 2009, forty-one in 2010, four in 2011, and five in 2012. Five hearings were adjourned: three in 2010, one in 2011 and one in 2012. The court heard all the defendants and five witnesses. Pursuant to a joint proposal (saglasni predlog) made by the parties to the proceedings, the statements of another ninety-two witnesses were read, together with more than 120 pieces of written evidence.
36. In the course of the proceedings: (a) one of the defendants stated that he had warned his neighbours to hide their son, as he had not known on what grounds people from Bosnia and Herzegovina were being arrested; (b) another of the defendants submitted that they had been cheated by the “Bosnian structures” and that if they had known what would happen to the arrested people they would not have returned them. He also submitted that at the time in question (28 May 1992) one more bus had been “ready to go”, but that they had allowed those people to walk away free, upon which the operation had effectively ended. He further maintained that he and his colleagues had had information that terrorist actions were being prepared in one of the towns of Montenegro and that their task had been to prevent the war from spilling over to Montenegro. Arrest warrants (potjernice) had been issued in respect of some of the persons sought by Bosnia and Herzegovina; (c) the chief of the Security Centre in Kotor testified that his staff had released five captured Bosniacs, as they had feared what could happen to them if they were handed over to the VRS forces; and (d) the Secretary-General of the Montenegrin Red Cross stated that all those who had fled to Montenegro from other republics of the former Yugoslavia had had refugee status.
37. It would appear from some of the testimony given that one of the buses carrying some of those who had been handed over to forces of the self-proclaimed Republika Srpska was hit by grenades launched by Bosniacs as it was passing through Bosnia and Herzegovina.
38. A report prepared by the State Security Office in Herceg Novi on 1 July 1992 stated that after the armed conflict had broken out in Bosnia and Herzegovina, several thousand Serbs and Bosniacs had sought refuge in Herceg Novi. The same report also stated that the State Security Office had learned that twenty-two Bosniacs who had been handed over on 25 May 1992 had been murdered in Bosnia and Herzegovina, even though it had been said that they would be exchanged for other prisoners.
39. It appears from the case-file material that at least seven people of those handed over survived. At least one of them was a Bosniac.
(ii) The High Court judgment
40. On 22 November 2012, after a remittal, the High Court, sitting as a three-judge panel, acquitted all the defendants in a judgment which ran to 107 pages. The court examined the facts of the case and established that on 25 and 27 May 1992 a total of seventy-three civilians (some of them Serbs and some of them Bosniacs – including the applicants’ next-of-kin) had been unlawfully deprived of their liberty by the police in Montenegro.
41. The most crucial extracts of the judgment appear to be the following:
“... [it] is indisputably established that an order [was issued] by the Minister of the Interior of the Republic of Montenegro, the late P.B., which was in the form of a telegram that was withdrawn ... [requiring] compliance with requests [made by] the Ministry of the Interior of [Republika Srpska] that ... Muslims who had come from ... Bosnia and Herzegovina to Montenegro be deprived of liberty and be returned to Bosnia and Herzegovina ...
...
... [It] is indisputably established ... that, [i] by way of executing the order of the Minister of the Interior of the Republic of Montenegro, the late P.B., to act on the requests of the Ministry of the Interior of [Republika Srpska] ..., [one of the defendants] ... sent to all Security Centres ... in the Republic of Montenegro a telegram ... dated 23 May 1992 requesting [them] to comply with the request of the Ministry of the Interior of [Republika Srpska] that all [Serbs] from Bosnia and Herzegovina aged between eighteen and sixty be brought in, in order that they might be taken in hand and returned to Bosnia and Herzegovina, and [ii] by executing the order of the Minister of the Interior of the Republic of Montenegro, the late P.B. – which was in the form of a telegram and which referred to ... [Muslims] – and by acting on a telegram ... of 23 May 1992 [another defendant and one more person] requested authorised employees [ovlašćeni službenici] ... to deprive of their liberty [people coming from Bosnia and Herzegovina], bring them in, and return them to ... Bosnia and Herzegovina, after which the authorised employees of the Security Centre ... deprived them of their liberty and in several batches handed them over to [police and prison staff – Kazneno-popravni dom] in Foča and [police staff] in Srebrenica ...
...
It is therefore indisputably established that the injured parties were civilians, and that they were unlawfully deprived of their liberty and then returned to Bosnia and Herzegovina; in particular, [Serbs] were returned because they had avoided their military-service obligations, and [Muslims] [were returned] so that they could be exchanged for captured [Serbs].
...
... a report [informacija] produced by the Minister of the Interior ... dated 24 November 1992 stated, inter alia, ... that, in principle, it had ‘accepted’ an opinion [važio stav] [given by] the relevant prosecution office ... [to the effect] that it was more expedient [cjelishodnije] – owing to ... difficulties in securing material evidence and securing witnesses – to hand over persons who were suspected of having committed a criminal offence and who were being sought by official police bodies to the relevant body of the internationally-recognised Bosnia and Herzegovina. Such factual allegations [as are made in] the report are, however, irrelevant for the purposes of any assessment of the defendants’ criminal responsibility, given that neither the Criminal Procedure Code [of SFRY and FRY] nor the Internal Affairs Act [of the Socialist Republic of Montenegro] provides that the police, when apprehending people pursuant to requests made by telegram ..., have to obtain an opinion from the relevant prosecutor before complying with such a request.
The 1992 FRY Constitution provided in its Article 23 that everybody had the right to liberty and that no one could be deprived of their liberty save in cases and under a procedure prescribed by federal law. ...
After Bosnia and Herzegovina had been internationally recognised, the Ministry of the Interior of the Republic of Montenegro had no authority to process [servisira] the requests of the Bosnia and Herzegovina Security Centres the way that it did. ... The legal regulation relating to international legal assistance in criminal/legal matters was prescribed in Articles 517-40 of the SFRY Criminal Procedure Code, as in force at the time in question, and the people from Bosnia and Herzegovina could have been handed over only if the criteria [pretpostavke] for extradition ... had been met, and [only] after the extradition procedure had been initiated by [the lodging of a] request by a foreign State ... and following a decision affirming that the criteria for extradition had been met. ... In the instant case, people were unconstitutionally deprived of their liberty ... and of their constitutionally-guaranteed right to appeal or to avail themselves of another legal remedy ..., and were returned to Bosnia and Herzegovina against their will. ...
...
None of the evidence examined ... has established the [truth of the] allegations [contained in] the indictment that [one of the defendants] acted on the [late] Minister’s order ... to comply with the requests of ... [Republika Srpska] ...
None of the evidence examined ... has established the [truth of the] allegations [contained in] the indictment that [three other defendants] acted on the [late] Minister’s order ... to comply with the requests of ... [Republika Srpska] ...
...
A war crime against civilians under Article 142 of the SFRY Criminal Code can be committed only during war or an armed conflict ..., and the armed conflict [does not have to be] international [in nature]; ... [it may be] non-international [unutrašnji], provided that the conditions set out in the 1977 Additional Protocol II to the 1949 Geneva Convention have been met. [For a person] to be deemed to have committed this criminal offence it is sufficient to have committed any one of numerous stipulated acts, provided that the ... victim ... was a civilian. A war crime can be committed [either] by ordering the undertaking of a prohibited act or by committing such an act. ...
In order for a criminal offence to be categorised as a war crime and not as some other criminal offence, it is decisive that:
- the injured party belongs to a category of persons protected by international law, and
- at the time (and place of the execution of the offence) there is a state of war or armed conflict, there is a link between the criminal offence and that armed conflict, and the rules of international law have been breached.
...
This was an armed conflict between people living in [Bosnia and Herzegovina], Serbs, Croats and Muslims; [in the light of that fact], this conflict was not ... international ....
...
... active participants in an [armed] conflict are bound by the rules of international law – that is to say the Geneva Conventions and additional protocols. ...
...
Under the indictment ... the defendants were charged with breaching the rules of international law by unlawfully removing [preseljavanje] civilians – citizens of Bosnia and Herzegovina of Muslim and Serb [ethnicity], who had the status of ‘refugees’...
...
... even though [the prosecutor] charged [the defendants] with having removed persons holding the status of ‘refugees’ under the [Refugee Convention] and the Protocol on Status of Refugees, the prosecutor failed to indicate any legal terms or to describe acts from which it would be apparent [proizilazilo] that ... [they] ... had such a status. Therefore, the prosecutor ... [referred] to provisions that were not incorporated into the factual description [nijesu ugrađene u činjenični opis].
...
... [E]ven though [the prosecutor] charged [the defendants] with acting in a manner contravening Article 3 § 1 (c) of the Fourth Geneva Convention [he] failed to indicate any legal terms [in respect thereof] or to describe any acts relating to a violation of human dignity – in particular humiliating and degrading treatment.
Accordingly, the prosecutor [was alleged to have] acted in a manner contravening the rules of international law by referring to provisions of international law that were not incorporated in the factual description [contained in the indictment].
...
... [T]he prosecutor ... charged the defendants with the act of unlawful ‘deportation’ [preseljavanje] of civilians, as one of the forms of criminal offence listed under Article 142 § 1 of the FRY Criminal Code, but referred to Article 17 of Additional Protocol II as a violation of ... international law, which relates only to ‘displacement’ [premještanje]. On 14 September 2012 the Deputy Special Prosecutor changed the indictment, leaving out [izostavljajući] from its factual description [the allegation] that the defendants had also acted in a manner contrary to Article 147 of the Fourth Geneva Convention - a provision that relates to deportation (and is applicable only to international armed conflicts).
Both deportation [preseljavanje] and displacement [premještanje] constitute forms of involuntary and unlawful evacuation [evakuaciju] of people from the territory in which they are staying [na kojoj borave]. However, under customary international law, these two terms do not have the same meaning. ‘Deportation’ means the removal of persons from a State, whereas ‘forceful displacement’ within the meaning of Article 17 of Additional Protocol II means displacement ... within one State. The same view was taken in various judgments delivered by international courts, such as the Milutinović ..., Krstić ..., Krnjojelac ..., Simić and others ..., Brđanin ..., and Blagojević ... judgments.
...
Even under the Rome Statute of the International Criminal Court (ICC), both displacement and deportation are viewed as constituting expulsion [se vrše u smislu protjerivanja] from territory where persons are lawfully staying [legalno nastanjena].
In the present case, returning the above-mentioned persons to Bosnia and Herzegovina was not undertaken with the purpose of their expulsion [nije bilo u svrhu da se protjeraju]. The perpetrator has to have the intention of permanently removing [trajno udalji] a person from a territory, which implies an intention to impede that person’s return, and it has to be done on a discriminatory basis.
...
The court established that the deportation (that is to say the displacement, which was the act that ... the defendants [had actually been charged] with) had not been [carried out] on a discriminatory basis, as Muslims ... and Serbs had been returned to ... Bosnia and Herzegovina at the same time. Indeed, some of the Serbs who had been returned to Bosnia and Herzegovina had later returned to Montenegro ..., where some of them still lived. ...
...
The proposition [teza] of the prosecutor that the deportation had been carried out on discriminatory basis because [the deported] Muslims ... had been returned in order to be exchanged, whereas the Serbs ... [had been returned] in order that they could participate in the armed conflict, thereby distinguishing between them on the basis of their ethnicity, cannot in any way whatsoever be considered [podvesti pod pojmom] to constitute discrimination on the basis of national affiliation (racial discrimination). Notably, the International Convention on the Elimination of All Forms of Racial Discrimination ... [defines] racial discrimination as ‘any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life’, which is not so in the instant case [a što u konkretnom slučaju ne stoji], as racial discrimination consists of measures and acts restricting the rights of one ethnic group or an entire nation and treating [such a group or nation in a manner that is] visibly different in comparison to others who are treated normally.
It can be seen [proizilazi] from the indictment itself that the present case is not about ‘deportation’ [u konkretnom slucaju ne radi [se] o ‘preseljavanju’], ... as the prosecutor specified in the indictment ... that the civilians in question had had the right to have their persons, honour and resolve ‘not to participate in an armed conflict’ respected; from this it follows that the prosecutor described the act of ‘deportation’, with which he charged the defendants, as an altogether different act – from the latter [act] it follows that the civilians were returned to Bosnia and Herzegovina precisely in order that they could participate in the armed conflict, and not in order that they be removed [iz čega proizilazi da tužilac radnju izvršenja ‘preseljavanje’ koju optuženim stavlja na teret opisuje kao sasvim drugu radnju iz koje proizilazi da su civilna lica vraćena u BiH upravo da bi učestvovala u oružanom sukobu, a ne da bi bila preseljena].
“Deportation” is one of the criminal offences listed under Article 142 § 1 of the FRY Criminal Code; ‘displacement’ – which is specified in Article 17 of Additional Protocol II ..., and which the defendants had been charged with – is not [one of those offences].
On the other hand, and contrary to the prosecutor’s position, it should be borne in mind that for a crime to be considered to constitute a war crime against a civilian population it is necessary that it be committed by violating the rules of international law, which are binding on active participants in war, armed conflict or occupation. Therefore, its perpetrator had to have been a member of a military, political or administrative organisation that was a party to the conflict in question, or any person who had acted in support of a party to the conflict, regardless of whether he had been a member of armed forces or any other unarmed organisations, and who would, by virtue of his activity, have taken a side in the conflict. A person who committed one of the acts listed in the Article outside of an organisational structure as understood in the aforementioned way would not be deemed responsible for a war crime, but rather for a corresponding criminal offence, even if the offence was committed during a war, armed conflict or occupation. The prosecutor did not indicate in the indictment the parties to the conflict. ... Nor did he charge the defendants with having acted as members of any of the parties to the conflict; on the contrary, he asserted that they had acted pursuant to the order of the Minister of the Interior of the Republic of Montenegro, the late P.B.
...
Even according to the theory of international law, armed forces perform armed operations on behalf of parties to the conflict ... Their organisation and ... functioning are strictly within the internal jurisdiction of [the respective] State.
Armed forces are all organised combat units that are under the command of one of the parties to the conflict in question, be they State or non-State actors. ...
...
On 27 April 1992 the FRY Constitution was proclaimed, by which the SFRY legally ceased to exist and the FRY came into existence.
...
[Under the law, police may – in war, [or] when there is an immediate danger of war [or] during a state of emergency – be used to execute combat tasks [usually assigned to] armed forces. ...
Under Article 78 of the FRY Constitution, the Federal Parliament was entitled to ... declare war, an imminent danger of war, [or] a state of emergency. Under Article 99, in the event that the Federal Parliament is unable to convene ... the Federal Government may make [such] a declaration instead.
Neither the Federal Parliament nor the Federal Government declared war, an imminent danger of war, or a state of emergency.
In the present case the defendants were neither members of the armed forces nor in the service of any of the parties to the conflict in Bosnia and Herzegovina. The prosecutor did not even charge them with acting as members of any of the parties to the conflict. The defendants, as members of the Ministry of the Interior of the Republic of Montenegro, were carrying out routine duties [pristupili svakodnevnim djelatnostima]; in respect of the case in question they acted on the orders of the Minister of the Interior, the late P.B., which [were delivered] in the form of a telegram – they identified and brought in persons who had come from the territory of Bosnia and Herzegovina and were in the territory of Montenegro, and handed them over, pursuant to [P.B.’s] order, to the authorities in Bosnia and Herzegovina ... The actions of the defendants, as well as the order itself, were unlawful under international law. However, as it had not been proved that the defendants, as members of the Ministry of the Interior, had belonged to the armed forces of the FRY, or that they had been in the service of any of the parties to the conflict and thereby active participants [in it], in which case the rules of international law would be binding on them, their actions could not be examined and assessed as falling within the meaning of executing the acts listed under Article 142 of the SFRY Criminal Code ...., as they lacked a certain quality – [namely,] membership in armed forces or membership in the services of one of the parties to the conflict.
As it was not proved that the defendants had committed the criminal offence in question, the court acquitted them. ...”
42. In establishing the facts the court explained which pieces of evidence it had accepted and which it had not, and for what reasons.
(iii) The Court of Appeal’s judgment
43. Following an appeal by the Supreme State Prosecutor and several injured parties, on 17 May 2013 the Court of Appeal (Apelacioni sud) in Podgorica upheld the above judgment, in substance endorsing its reasoning.
44. The relevant part of the judgment reads as follows:
“...[the first-instance] judgment extensively and in detail presented the established facts, and set out ... the evidence on [the basis of] which [those facts] had been established, ... [and] rightly indicated shortcomings and [the fact] that the legal terminology and actions indicating the violations of the international-law provisions to which the State prosecutor referred had not been incorporated in the factual description contained in the amended indictment ...
The first-instance court ... correctly established and completely clarified all the ... facts relevant for the delivering of a correct judgment and lawful decision, and then correctly ... concluded that it had not been proved that the defendants had committed the criminal offence for which they had been indicted ...
Bearing in mind the content of Article 3 § 1 (c) of the Fourth Geneva Convention ..., Article 4 §§ 1 and 2 (e) of the Additional Protocol to that Convention ..., and Article 17 of the same Protocol... (provisions that, according to the amended indictment, were violated by the defendants), it is clear that they have not been incorporated in the factual description of the altered indictment. In order to correctly assess [za pravilnu ocjenu] a [possible] violation of those provisions it was not sufficient to indicate that [that alleged violation] had concerned a violation of the human dignity of civilians who had not been directly participating in the hostilities and who had had the right for their [personal integrity], honour and conviction that they should not participate in the armed conflict to be respected, and who should have been treated in every situation humanely and without any unfavourable discrimination based on religion or conviction; but it was necessary to specify ... which violations of human dignity and humiliating acts had been committed, given that ... the Serb and Muslim [civilians] had been returned to Bosnia and Herzegovina for different reasons. It ... was also necessary to indicate ... in what way the defendants had breached Article 17 of the Protocol in question, which relates to a prohibition on the forceful ‘displacement’ [premještanje] of civilians, where paragraph 2 of this Article imperatively provides that civilians cannot be forced to leave their territory for reasons related to the conflict, and given that the factual description contained in the indictment indicated that the defendants had carried out an unlawful ‘deportation’ [preseljavanje] of civilians – an action which, according to the written indictment, was the only of numerous alternative variations of this criminal offence with which the defendants had been charged.
It was necessary to indicate [in what way the defendants had breached Article 17 of the Protocol because the terms ‘deportation’ and ‘displacement’ of civilians have not been sufficiently clarified in domestic law [either] in theory or in practice, and under customary international law and the findings [stavovima] of several judgments of the international court (indicated in the reasons of the [first-instance] judgment), [these terms] do not have the same meaning. Even though both terms relate to the unlawful evacuation of individuals from the territory on which they are staying [na kojoj borave], ‘deportation’ means taking across the border of one’s State [odvođenje van granica svoje države], whereas ‘displacement’, to which Article 17 of the Additional Protocol refers, alludes to the transfer of civilians within existing borders and to the forced abandonment of the territory in which they live. It follows from this that the ‘deportation’ of civilians (... a war crime against civilians) and the ‘displacement’ of civilians (within the meaning of Article 17 of the said Protocol) does not include [ne podrazumijevaju] the returning of civilians to their own State, which was the case in the present case – both Serb and Muslim [civilians] were returned from Montenegro to Bosnia and Herzegovina ...; therefore, the State Prosecutor’s argument, [which he made during] the appeal process, that ... returning civilians to their own State was provided for by the law as an act of ‘deportation’ of civilians thereby amounted to the execution of a war crime against civilians under Article 142 of the FRY Criminal Code and at the same time a violation of Article 17 of the Additional Protocol to the Fourth Geneva Convention (which prohibits the ‘displacement’ of civilians), and a violation of a prohibition [on forcing civilians] to leave the territory where they live for reasons related to the conflict. In the present case, the returning of civilians to the State where they live does not constitute [ne predstavlja] a violation of any ... provision of the international law either - the Fourth Geneva Convention and its Additional Protocol ... [or] the Refugee Convention ... and the Protocol thereto – both of which are referenced in the altered indictment.
Also, bearing in mind [the relevant provisions of the Refugee Convention and the Protocol thereto], ... it was not sufficient to indicate that [they] had the status of refugees within the meaning of the Convention and the Protocol thereto, but it was necessary to specify what category of [refugees] and which ‘prohibited expulsions’ ... were at stake [o kojim zabranama protjerivanja je riječ]...; therefore, the first-instance court rightly concluded that these provisions of international law, which according to the indictment had been violated by the defendants, had not been [referenced] in the factual description of the amended indictment either.
... As the first-instance court rightly concluded, ... given the fact that both Serbs and Muslims ... were returned to ... Bosnia and Herzegovina and that immediately thereafter a certain number of Serbs returned from Bosnia and Herzegovina to Montenegro, where they still live, it cannot be considered that in respect of those people [the removal] was carried out on a discriminatory basis and in order to prevent [their] return [to Montenegro], while the fact that the Serb [civilians] were returned in order that they could participate in the armed conflicts and the Muslim [civilians were returned] in order that they could be exchanged cannot be considered to constitute racial discrimination within the meaning of the International Convention on the Elimination of All Forms of Racial Discrimination, as no discrimination existed in the present case, given the fact that no measures and actions were undertaken to limit the rights of one ethnic group or entire nation, [and there was no] visible difference in the treatment of one group or nation in comparison to others that were treated normally.
The injured parties ... submitted in their appeal that the first-instance court had found that the defendants had acted unlawfully, but that it had failed to specify which criminal offence [they had committed], bearing in mind that under Article 369 § 2 of the Criminal Procedure Code [the court] had not been bound by the prosecutor’s proposal as to the legal characterisation of the offence [u pogledu pravne ocjene djela]. ... [T]he appeals indicated that it had been established in the [relevant] proceedings that there had been unlawful confinement, hostage taking, the forcing of [people] to serve in the armed forces of an enemy power and the deprivation of [certain persons’] right to a fair trial – actions which, according to the appeals, had constituted ... a war crime against civilians. However, these allegations are totally unacceptable. Article 369 § 1 of the Criminal Procedure Code provides that a judgment can refer only to the person who was indicted and the offence that was the object of the indictment...; ... [T]he first-instance court could not have changed by means of a judgment the act of ‘deportation’ ... to some other act constituting a war crime against civilians without ... ruling outside the scope of the indictment, and thereby violating the procedural rules ...
The injured parties also disputed the character of the armed conflict in Bosnia and Herzegovina ... [In their appeals they] argued, by referring to several judgments of the international courts, that it was an international armed conflict ... Contrary to these allegations, the disputed judgment gave clear reasons for stating that it had been an armed conflict between Serbs, Muslims and Croats living in ... Bosnia and Herzegovina and that it was therefore an armed conflict which did not have an international character; such a position had also been taken in the judgment referred to by [one of] the injured parties, [which had been] delivered by the Supreme Court in the Klapuh case ...
... [It] was not proved that the defendants, as employees of the Ministry of the Interior, had belonged to any of the armed forces in conflict in Bosnia and Herzegovina, [and] nor had it been proved that by executing the order of the Minister of the Interior ... to return ... Serb and Muslim [civilians] to ... Bosnia and Herzegovina they had breached the international-law provisions referred to in the amended indictment by putting themselves in the service of one party to the conflict – namely [Republika Srpska].
... [T]he perpetrator of [a war crime against civilians] can only be a member of a military, political and administrative organisation that was a party to the conflict [in question], or any other person in the service of such an organisation, regardless of whether he or she was a member of any armed forces or unarmed units, who by virtue of their actions took one of the sides in the conflict [koje bi se svojom aktivnošću svrstalo uz neku stranu u sukobu]. A person who committed one of the acts listed under Article 142 of the Criminal Code outside of an organisational structure understood in this way could [only] be held responsible not for a war crime but for a corresponding criminal offence, regardless of whether it was committed during a war, armed conflict or occupation. ... . [T]he prosecutor did not charge the defendants with acting as one of the parties to the conflict or with having taken one of the [parties’] sides; ... on the contrary, [he charged them with] executing the order of the Montenegrin Minister of the Interior, the late P.B., to act pursuant to the requests of the Ministry of the Interior of [Republika Srpska] ... . [It] could not be considered that by executing the [Minister’s] order they took anybody’s side in the conflict. As the employees of the Ministry of the Interior of the Republic of Montenegro, which was within the FRY, they acted within the duties and powers conferred on them, ... and identified, brought in, detained and then returned persons who had come from Bosnia and Herzegovina to Montenegro owing to the armed conflict and handed them over ..., considering themselves obliged to act pursuant to the [Minister’s] order, and [considering] that they were acting in accordance with the provisions regulating [their] jobs, duties and powers. Such actions on the part of the defendants could also be considered to have been in compliance with Article 33 § 1 (a) of the Rome Statute of the ICC, which provided that a person who had committed an act could be relieved of criminal responsibility if that person had been under a legal obligation to obey orders given by [his or her] superior. Therefore, [the fact that the defendants] had returned Serb and Muslim civilians to their own State ... did not mean that the defendants had taken anybody’s side in the conflict, but rather ... had simply been carrying out their regular tasks, ... pursuant to their superior’s orders.
During the proceedings it was not established that [one of the defendants] had acted pursuant to the [Minister’s] order; ... nor was it proved that [three other defendants] ... had acted pursuant to the [Minister’s] order ... or pursuant to the order of [another defendant], as was indicated in the indictment. ...
Because [i] it was not proved in the proceedings that the defendants ... had breached the international-law provisions indicated in the amended indictment by taking one of the sides in the armed conflict in Bosnia and Herzegovina and by ... returning civilians to Bosnia and Herzegovina (actions that are not deemed by the [relevant] legislation to constitute ... the deportation of civilians – [that is to say] ... the criminal offence of a war crime against civilians under Article 142 § 1 of the FRY Criminal Code) and [ii] in respect of [some of the defendants] it was not proved that they had acted pursuant to the Minister’s order ..., the first-instance court correctly acquitted the defendants, ... as it had not been proved that they had committed the criminal offence for which they had been indicted. ...
(c) Appeals to the Constitutional Court
45. The Government submitted two delivery slips (dostavnice), apparently relating to the first and third applicants, confirming their receipt of the Court of Appeal’s judgment. One of the slips bears no signature, and the signature on the other one, which is almost illegible, does not resemble the signature of either the first or third applicants contained in the case file.
46. On 5 August 2013 the first, second, third, fourth, sixth, and seventh applicants lodged a constitutional appeal alleging a violation of the procedural aspect of Article 2 of the Convention. They submitted, in particular, that by acquitting the defendants the courts had violated Article 2 of the Convention in its procedural aspect, and their right to life and to an effective investigation and processing of war crimes against civilians. They also maintained, inter alia, that the courts had wrongly applied both domestic and international criminal, humanitarian and refugee law, and had reached erroneous conclusions.
47. On 20 November 2013 they asked the Supreme State Prosecutor to lodge an application for the protection of legality (zahtjev za zaštitu zakonitosti). On 25 March 2015 the Supreme State Prosecutor lodged the application, which was rejected (odbija se) by the Supreme Court on 23 June 2015. The court referred to the analysis and conclusions of the lower courts. It found that the first-instance court had given clear and specific reasons for its conclusion that there had been no evidence that the defendants had committed the criminal offence that they had been indicted for. The second-instance court had also given clear and valid reasons for dismissing the prosecutor’s appeal. The Supreme Court further considered that, in substance, the application also indicated that the decisions of the lower courts had been based on wrongly and incompletely established facts. The court found in this regard that it could entertain the argument only if the application had been lodged in favour of the defendant, which was not so in the case at hand. Lastly, it found that acquitting the defendants had not amounted to a violation of the Criminal Code by the lower-instance courts.
48. On 30 June 2016 the Constitutional Court rejected a constitutional appeal lodged by the applicants. It considered that the complaint concerned the right to prosecute another person in order that that person might be punished for a criminal offence. The court held that protection in criminal proceedings was afforded only to the person or persons in respect of whom the criminal indictment was examined – that is to say only such a person could be considered to be a victim within the meaning of Article 6 of the Convention. The Criminal Procedure Code set out rules aimed at ensuring a fair trial and ensuring that nobody who was innocent of a certain crime would be found guilty, and that the perpetrator of a criminal offence would be convicted under the conditions provided in the Criminal Code and on the basis of lawfully conducted proceedings. However, the court held that that did not mean that injured parties were guaranteed that there would be criminal proceedings against persons in respect of whom an indictment had been issued, and that those persons would be convicted.
(d) Other relevant facts
49. Between 15 February and 14 July 1992 the Minister of the Interior of the Republic of Montenegro, part of the SFRY and then of the FRY, was P.B. He was assassinated in February 2000.
50. In August 1992 and April 1993 the Ministry of the Interior informed some of the injured parties, including the father of the third, fourth, fifth, and sixth applicants, that their next-of-kin had been deprived of liberty and handed over to the police in Srebrenica. The Ministry had no information regarding their further treatment and fate owing to an interruption to police cooperation (prekid komunikacije u policijskoj saradnji). One of the injured parties was advised to address any enquiries in that regard to the Ministry of the Interior of Republika Srpska.
51. In April 1993 the Ministry of the Interior sent to the Parliament of Montenegro a reply to a question submitted by four members of Parliament in March 1993. According to the reply, eighty-three people in total had been handed over between 24 and 27 May 1992 – some of them Bosniacs and some of them Serbs – following a request lodged by the Bosnia and Herzegovina police and received by 19 May 1992. The detention had only taken place after 19 May 1992 (by which time Bosnia and Herzegovina had been internationally recognised) owing to difficulties related to the time needed to take the necessary measures. The Ministry had had information to the effect that among the several thousand people who had sought refuge in Montenegro were a certain number who were suspected of having committed criminal offences against humanity in the areas where inter-ethnic (međunacionalni) hostilities had already broken out. The reply stated that after consultations with the relevant prosecution authorities, it had been decided to comply with the request, provided that (i) the criminal offence which that person was suspected of committing was prosecuted ex proprio motu and (ii) the request had been made by the police. This was because of the impossibility of prosecuting such persons in Montenegro, given the number of suspects, problems in securing evidence and witnesses, and a range of other procedural and substantive problems. The Ministry was not aware of what had happened to those persons after they had been handed over, as a civil war had broken out, causing a complete interruption of inter-police cooperation and rendering it impossible to find out about their fate.
52. In September 1996, January and May 1998, and March 2006 the third applicant and/or her family members and the seventh applicant’s daughters lodged enquiries about their next-of-kin with the International Committee of the Red Cross, the President and the Prime Minister of the Republic of Montenegro.
53. On 10 February 1993 a High Prosecutor in Podgorica issued an indictment against five persons for a war crime against civilians. It referred to Article 142 of the Criminal Code, as in force at the time in question (see paragraph 60 below). The description of the facts contained in the indictment was amended during the main hearing held on 29 April 1993. On 16 December 1996 the Podgorica High Court found four persons guilty of committing a war crime against civilians. They had executed three Bosniac civilians from Bosnia and Herzegovina (namely, the Klapuh family) on 6 July 1992 on the territory of Montenegro. It was established during the proceedings that the perpetrators had been members of a Special Republika Srpska territorial defence unit during the conflict in Bosnia and Herzegovina, and that they had transported the victims to Montenegro and then murdered them there. The fifth person was found guilty of assisting the perpetrator of a criminal offence after the commission of that offence, under Article 193 of the Criminal Code of the Republic of Montenegro.
54. On 3 May 2012 three people (a professor at Montenegro University’s Law School, the editor-in-chief of a weekly newspaper, and a member of parliament) lodged a criminal complaint against (i) M.Ɖ., who had been the Prime Minister of Montenegro in 1992, as well as at the time of most of the investigation and the ensuing proceedings, and (ii) all others who had been or still were in power in Montenegro, for committing in 1992 the war crime of deportation. The criminal complaint was also lodged against R.Č., the former Supreme State Prosecutor, “and her associates in the Supreme State Prosecution Office for complicity in helping the perpetrators of this crime to escape justice”. On 31 January 2019 the Special State Prosecution Office decided not to prosecute.
RELEVANT LEGAL FRAMEWORK
Relevant domestic lawConstitution of the Republic of Montenegro 1992 (Ustav Republike Crne Gore – published in the Official Gazette of the Republic of Montenegro (“OG RM”) no. 048/92)55. Article 105 of the 1992 Constitution provided that the State Prosecutor, inter alia, represented the Republic in property-related proceedings (u imovinsko-pravnim odnosima).
Constitution of Montenegro 2007 (Ustav Crne Gore – published in the Official Gazette of Montenegro (“OGM”) nos. 001/07 and 038/13)56. Article 134 provides that the State Prosecution is in charge of prosecuting perpetrators of criminal offences and other punishable acts that are prosecuted ex proprio motu.
The State Prosecution Act 2003 (Zakon o državnom tužilaštvu – published in OG RM no. 069/03, and in OGM nos. 040/08, 073/10, 039/11, 046/13, and 010/15)57. Sections 17 and 20 provided that the Supreme State Prosecutor represented the Republic of Montenegro and its bodies in property-related proceedings. In doing so the Supreme State Prosecutor could authorise the State Prosecutor to undertake certain actions on his or her behalf before the court.
58. The amendments of 27 June 2008 repealed the Supreme State Prosecutor’s authority in this respect.
State Property Act 2009 (Zakon o državnoj imovini – published in OGM nos. 021/09 and 040/11)59. Section 53 of the State Property Act provides that the State and its bodies are legally represented before the courts by the Property Advocate (Zaštitnik imovinsko – pravnih interesa Crne Gore). This Act entered into force on 28 March 2009.
Criminal Code (Krivični zakon – published in the Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 044/76, 036/77, 034/84, 037/84, 074/87, 057/89, 003/90, 038/90, 045/90, and 054/90, and the Official Gazette of the Federal Republic of Yugoslavia nos. 035/92, 037/93, 024/94 and 061/01)60. Article 142 § 1 provided, in respect of war crimes committed against the civilian population, as follows:
“Whoever by violating the rules of international law during war, armed conflict or occupation, orders an attack against the civilian population [or] ... individual civilians ... resulting in death ...; the killing, torture or inhuman treatment of the civilian population ...; deportation or transfer [raseljavanje ili preseljavanje] ...; ... the taking of hostages; ... unlawful confinement ...; [or] the deprivation of the right to fair and regular trial ... – or an individual who commits any of the above acts – shall be punished by imprisonment of at least five years [up to] forty years.”
Criminal Procedure Code of the Republic of Montenegro 2003 (Zakonik o krivičnom postupku – published in OG RM nos. 71/03 and 47/06)61. Articles 249-272 set out details regarding investigations. In particular, investigations were to be conducted by an investigating judge of the relevant court, at the request of the State Prosecutor (istraga se sprovodi na zahtjev državnog tužioca). It was to be conducted only in respect of the criminal offence in question and in respect of the accused specified in the decision (issued by the relevant investigating judge) ordering an investigation (rješenje o sprovođenju istrage). If, during an investigation, it were to become clear that it was necessary for that investigation to be extended to cover some other persons or some other offence, the investigating judge was to duly inform the State Prosecutor of such a necessity.
62. Once the investigation was completed the investigating judge was to transmit the case file to the State Prosecutor, who would then decide whether to issue an indictment, ask for further investigative measures or discontinue the proceedings.
63. During an investigation injured parties could propose that the investigating judge undertake certain actions. If the investigating judge did not agree with such a proposal, he or she would ask a panel of judges (vijeće) to decide on it. Also, the parties or the injured parties could always lodge an objection (obratiti pritužbom) with the president of the court concerning any stalling measures or other irregularities that had allegedly arisen during the investigation.
Criminal Procedure Code 2009 (Zakonik o krivičnom postupku – published in OGM nos. 057/09, 049/10, 047/14, and 002/15)64. This Code entered into force on 26 August 2010.
65. Articles 192-203b set out details regarding the serving of writs (dostavljanje pismena). In particular, Articles 193, 194, and 201, taken together, provide that writs that need to be “delivered in person” (lično dostavljanje) shall be served on the person concerned. If that is not possible, or if the writ does not need to be “delivered in person”, it may be served on an adult member of that person’s household, who shall accept the writ. If there is no one at home, the writ shall be served on the building manager, or a neighbour, if they agree to it. If a writ is served at the workplace of the person concerned and he or she is not there, the writ may be served on a person authorised to receive mail or on a colleague, if they agree to take it. In all situations not covered by this Code, the delivery shall be performed in accordance with the relevant provisions of the Civil Procedure Act.
66. Article 271 provides that the State Prosecutor must reject (odbaciti) a criminal complaint by means of a reasoned decision. Amendments that entered into force on 14 August 2015 specify the right of a person who has lodged a criminal complaint to be informed of his or her right to lodge an objection (podnošenje pritužbe), within eight days, with the immediately superior State Prosecution against a decision rejecting that criminal complaint.
67. Article 360 § 1 provides that if evidence introduced and examined (izvedeni) at the main hearing indicates that the factual situation, as described in the indictment, has changed, then the prosecutor may orally amend the indictment at the main hearing.
68. Article 369 §1 provides that a judgment may refer only to the indicted person and only to the criminal offence that is the subject of the charges contained in the indictment (which may be amended at the main hearing – see paragraph 67 above). Paragraph 2 of the same Article provides that the relevant court is not bound by any proposal of the prosecutor regarding the characterisation of the offence (sud nije vezan za predloge tužioca u pogledu pravne ocjene djela).
69. Article 378 sets out details regarding the serving of judgments on injured parties. In particular, a final judgement shall be served on an injured party if he or she so requests.
Rules Governing the Organisation and Systematisation of Jobs within the Ministry of the Interior of the Republic of Montenegro of 18 October 1990 (Pravilnik o organizaciji i sistematizaciji radnih mjesta u MUP-u RCG br. 9942 od 18.10.1990.)70. Section 51 provided that Security Centres were to be run by their heads, who were directly responsible to the Minister of the Interior and his or her assistant. An assistant to the Minister was in charge of executive (rukovodeći) tasks related to the internal functioning of organisational units of the Ministry of the Interior and the coordination of their work. The deputy to the head of each Security Centre (i) ran the section, (ii) coordinated, directed and organised the work of its department for crime suppression and (iii) coordinated, directed and organized the police units (stanicama milicije). The commander of a police unit (komandir stanice milicije) ran each unit, gave orders and instructions to his or her police officers, and followed, examined and assessed the security situation (stanje bezbjednosti) in the area covered by his or her unit (na staničnom području).
Relevant international law and practiceThe Geneva Convention relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949 (“The Fourth Geneva Convention”)71. Article 3 § 1 (c) of The Fourth Geneva Convention provides that in the event of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:
“(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
...
(c) outrages upon personal dignity, in particular humiliating and degrading treatment.”
72. Article 147 provides that the following acts will constitute grave breaches, if committed against persons or property protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments; willfully causing great suffering or serious injury to body or health; unlawful deportation or the transfer or unlawful confinement of a protected person; compelling a protected person to serve in the forces of a hostile power; willfully depriving a protected person of the right to a fair and regular trial, as prescribed by the Convention; and the taking of hostages and the extensive destruction and appropriation of property that is not justified by military necessity and is carried out unlawfully and wantonly.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 197773. Article 4 § 1 provides that all persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there shall be no survivors.
74. Article 4 § 2 (e) provides that, without prejudice to the generality of the foregoing, the outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault, against the persons referred to in paragraph 1 are and shall remain prohibited at any time and in any place whatsoever.
75. Article 17 provides that the displacement of the civilian population may not be ordered for reasons related to a conflict unless the security of the civilians involved or imperative military reasons so demand. Should such a displacement have to be carried out, all possible measures must be taken in order that the civilian population may be received under satisfactory conditions in respect of shelter, hygiene, health, safety and nutrition. Moreover, civilians may not be compelled to leave their own territory for reasons connected with such a conflict.
1951 Convention Relating to the Status of Refugees (“the Refugee Convention”)76. Article 1 A (2) of the Refugee Convention provides that the term “refugee” applies to any person (i) who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such a fear, is unwilling to avail himself of the protection of that country, or (ii) who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such a fear, unwilling to return to it.
77. Article 12 provides that the personal status of a refugee shall be governed by the law of the country of his domicile or, if he has no domicile, by the law of the country of his residence.
78. Article 33 § 1 of the same Convention provides that no Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
Protocol Relating to the Status of Refugees79. Article 1 § 2 of the Protocol relating to the Status of Refugees provides that for the purpose of the present Protocol, the term “refugee” shall, except as regards the application of paragraph 3 of this Article, mean any person within the definition of article 1 of the Convention as if the words “As a result of events occurring before 1 January 1951 and ...” “and the words”... “a result of such events”, in article 1 A (2) were omitted.
The International Military Tribunal at Nuremberg80. The definition of a war crime, as provided in Article 6 (b) of the Charter of the International Military Tribunal at Nuremberg, includes the wording “deportation to slave labour or for any other purpose of civilian population of or in occupied territory”.
81. In the Tribunal’s Julius Streicher case the Tribunal held that the defendant’s actions in connection with war crimes, as defined by the Charter, constituted a crime against humanity (see page 304 of the judgment of 1 October 1946). The defendant was neither a military serviceman nor a State official, but a publisher.
International Court of Justice (ICJ)82. In a case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro, judgment of 26 February 2007) the ICJ found it established that the respondent in that case had been giving considerable military and financial support to Republika Srpska, and that had it withdrawn that support, it would have greatly constrained the options available to the Republika Srpska authorities (see paragraph 241 of the judgment).
83. The ICJ also held that there had been “much evidence of direct or indirect participation by the official army of the FRY, along with the Bosnian Serb armed forces, in military operations in Bosnia and Herzegovina in the years prior to the events at Srebrenica. That participation [had been] repeatedly condemned by the political organs of the United Nations, which [had] demanded that the FRY put an end to it ... It [had], however, not been shown that there [had been] any such participation in relation to the massacres committed at Srebrenica ... [Furthermore], neither Republika Srpska nor [its army] [were] de jure organs of the FRY, since none of them [had] the status of organ of that State under its internal law” (see paragraph 386 of the judgment).
The International Tribunal for the former Yugoslavia (ICTY)84. The Statute of the ICTY does not expressly give any definition of a “war crime”. Its definition was developed through its case-law. In its Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic Appeals Chamber judgment of 12 June 2002, the ICTY held:
“What ultimately distinguishes a war crime from a purely domestic offence is that a war crime is shaped by or dependent upon the environment – the armed conflict – in which it is committed. It need not have been planned or supported by some form of policy. The armed conflict need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed. Hence, if it can be established ... that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict. ... [T]he Appellants’ proposition that the laws of war only prohibit those acts which are specific to an actual wartime situation is not right. The laws of war may frequently encompass acts which, though they are not committed in the theatre of conflict, are substantially related to it. The laws of war can apply to both types of acts.” (see paragraphs 58 and 60 of the judgment).
85. The same approach was confirmed in the Prosecutor v. Milomir Stakić Appeals Chamber judgment of 22 March 2006 (see paragraph 342 of the judgment).
86. In its Prosecutor v. Pavle Strugar Trial Chamber II judgment of 31 January 2005, the ICTY held, with reference to Article 3 of the Statute in respect of violations of the laws or customs of war, that Article 3 was applicable, regardless of the nature of the conflict in question (see paragraph 216 of the judgment). The ICTY referred in this regard also to paragraph 58 of the Kunarac judgment (see paragraph 84 above).
87. In its Prosecutor v. Radovan Karadžić judgment of 24 March 2016, which was upheld on 20 March 2019, the Chamber found beyond reasonable doubt that between October 1991 and 30 November 1995 there had existed a “common” plan (among the Bosnian Serb leadership) to permanently remove Bosnian Muslims and Bosnian Croats from territory claimed by the Bosnian Serbs (see paragraph 3447 of the 24 March 2016 judgment).
88. In its Prosecutor v. Momčilo Krajišnik judgment of 27 September 2006 the Chamber found that in its early days the Bosnian Serb Ministry of the Interior had coordinated with, and had been helped by, the forces of the Republic of Serbia. Reports that had been prepared by the Yugoslav Federal State Security Services in March 1992 confirmed that there had been formal cooperation between the Federal Ministry of the Interior in Belgrade and the Bosnian Serb police in the takeover of power and the maintenance of power in the territories claimed by the Bosnian Serbs in Bosnia and Herzegovina. The coordination plan had included the deployment of members of the Serbian Ministry of the Interior and the Federal Ministry of the Interior in Bosnia and Herzegovina (see paragraph 240 of the judgment).
89. In its Prosecutor v. Milan Milutinović, Nikola Šainović, Dragoljub Ojdanić, Nebojša Pavković, Vladimir Lazarević, Sreten Lukić judgment of 26 February 2009, the Chamber found that:
“[the] actus reus of forcible displacement is (a) the displacement of persons by expulsion or other coercive acts, (b) from an area in which they are lawfully present, (c) without grounds permitted under international law. The mens rea for the offence is the intent to displace, permanently or otherwise, the victims within the relevant national border (as in forcible transfer) or across the relevant national border (as in deportation). Several judgments rendered by the Tribunal have found that:
‘[B]oth deportation and forcible transfer relate to the involuntary and unlawful evacuation of individuals from the territory in which they reside. Yet, the two are not synonymous in customary international law. Deportation presumes transfer beyond State borders, whereas forcible transfer relates to displacements within a State.’
An essential element is the involuntary nature of the displacement.”
90. The Tribunal has consistently held that it is the absence of “genuine choice” that renders an act of displacement unlawful (see paragraphs 164-165 of the judgment and the authorities cited therein, such as the Krstić trial judgment; the Krnojelac trial judgment, the Krnojelac appeal judgement; the Simić et al. trial judgment; the Brđanin trial judgment; and the Blagojević trial judgment).
The International Criminal Tribunal for Rwanda (ICTR)91. In its Prosecutor v. Jean-Paul Akayesu appeal judgment of 1 June 2001 the ICTR held:
“443. ... the minimum protection provided for victims under common Article 3 [of the Geneva Conventions] implies necessarily effective punishment on persons who violate it. ... such punishment must be applicable to everyone without discrimination ... international humanitarian law would be lessened and called into question if it were to be admitted that certain persons be exonerated from individual criminal responsibility for a violation of common Article 3 under the pretext that they did not belong to a specific category.
444. ... common Article 3 requires a close nexus between violations and the armed conflict. This nexus between violations and the armed conflict implies that, in most cases, the perpetrator of the crime will probably have a special relationship with one party to the conflict. However, such a special relationship is not a condition precedent to the application of common Article 3 and, hence of Article 4 of the Statute. In the opinion of the Appeals Chamber, the Trial Chamber erred in requiring that a special relationship should be a separate condition for triggering criminal responsibility for a violation of Article 4 of the Statute.”
92. In its Prosecutor v. Alfred Musema judgment of 27 January 2000 the ICTR held that it was “well-established that the post-World War II Trials unequivocally support the imposition of individual criminal liability for war crimes on civilians where they have a link or connection with a Party to the conflict” (see paragraph 274 of the judgment).
93. In its Ephrem Setako v. The Prosecutor appeal judgment of 28 September 2011, the ICTR explained that the required nexus need “not be a causal link, but ... the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit the crime, its decision to commit it, the manner in which it was committed, or the purpose for which it was committed” (see paragraph 249 of the judgment).
The International Criminal Court (ICC)94. Article 8 of the Rome Statute of the ICC lists different types of acts and behaviour that can be prosecuted and punished as war crimes.
95. Article 33 § 1 provides that the fact that a crime that falls within the jurisdiction of the Court has been committed by a person pursuant to an order given by a Government or by a superior, whether military or civilian, will not relieve that person of criminal responsibility unless: (a) the person was under a legal obligation to obey orders given by the Government or the superior in question; (b) the person did not know that the order was unlawful; and (c) the order was not manifestly unlawful.
96. In the Prosecutor v. Thomas Lubanga Dyilo case, Pre-trial Chamber I held on 29 January 2007 that “armed conflict need not be considered the ultimate reason for the conduct [in question] and the conduct need not have taken place in the midst of battle. Nonetheless, ... armed conflict must play a substantial role in the perpetrator’s decision, in his or her ability to commit the crime or in the manner in which the conduct was ultimately committed.” (see paragraph 287 of that judgment). It furthermore held:
“288. Having established the existence of an armed conflict, the Chamber observes that in order for a particular crime to qualify as a war crime within the meaning of [Article 8 § 2] ... of the Statute, at this stage, the prosecution must establish that there are substantial grounds to believe that there is a sufficient and clear nexus between that crime and the conflict. In other words, it must be proved that there are substantial grounds to believe that the alleged crimes were closely related to the hostilities.”
97. In its judgment of 14 March 2012 in the same case, the ICC held that “the existence of an armed conflict, be it international or non-international, is a fundamental requirement of the charges under Article[s] 8 ...” (see paragraph 504 of the judgment).
European Commission (EC) Reports on Montenegro, 2019-202198. The EC Reports on Montenegro for 2019, 2020 and 2021, noted that judicial decisions in war-crime cases reached in the past contained legal mistakes and shortcomings in the application of international humanitarian law (see pages 19, 26, and 24 respectively of the Reports).
COMPLAINTS
99. The applicants complained, referring to the procedural aspect of Articles 2 and 3 of the Convention, of: (a) the respondent State’s failure to effectively investigate the removal of their next-of-kin from Montenegro and their handing over to the authorities of the self-proclaimed Srpska Republika Bosna i Hercegovina, and (b) the lack of any investigation in Montenegro into the circumstances of their next-of-kin’s subsequent fate in Bosnia and Herzegovina. They also submitted that nine people had been indicted only for a war crime in respect of the “unlawful deportation” of Bosniac and Serb refugees, even though evidence had suggested that other offences had been committed as well.
THE LAW
PRELIMINARY REMARKS100. On 1 June 2014 the seventh applicant died. On 22 June 2015 her three daughters informed the Court that they wished to continue the proceedings before the Court in their mother’s stead.
101. The Government submitted that the daughters had failed to submit proof that they were their mother’s heirs. In their comments on the Government’s observations the daughters submitted a court decision declaring two of them heirs, and noting the fact that the third daughter had waived her inheritance rights in favour of her two sisters.
102. Having regard to the subject matter of the application and all the elements in its possession, including the fact that the seventh applicant’s daughters were directly affected themselves by the alleged ineffective investigation into the removal of their father and his handing over to the police in Republika Srpska in 1992, the Court considers that they have a legitimate interest in pursuing the proceedings on their mother’s behalf and that they have standing before the Court in their mother’s stead.
alleged violation of ARTICLE 2 OF THE CONVENTION103. The applicants complained, primarily, referring to the procedural aspect of Articles 2 and 3 of the Convention, of the respondent State’s failure to effectively investigate the removal of their next-of-kin from Montenegro and their handing over to the authorities of the self-proclaimed Srpska Republika Bosna i Hercegovina in May 1992 in the midst of an armed conflict. They also considered that the lack of any investigation in Montenegro into the circumstances of their next-of-kin’s subsequent ill-treatment, disappearance and/or murder in Bosnia and Herzegovina constituted a further breach of Articles 2 and 3. They also submitted that in January 2009 nine people had been indicted only for a war crime in respect of the “unlawful deportation” of Bosniac and Serb refugees – even though evidence had suggested that other offences had been committed as well, such as unlawful confinement, the taking of hostages, deprivation of the right to a fair and impartial trial, and aiding and abetting torture.
104. The Court reiterates that a complaint consists of two elements: factual allegations and legal arguments. By virtue of the jura novit curia principle the Court is not bound by the legal grounds adduced by the applicant under the Convention and the Protocols thereto and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018). The Court considers that the above complaints fall to be examined under Article 2 only, 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.”
Investigation into the ill-treatment, disappearance and/or killing of the applicants’ next-of-kin105. As the Court has previously emphasised, from the standpoint of public international law, the jurisdictional competence of a State is primarily territorial. Accordingly, a State may not generally exercise jurisdiction on the territory of another State without the latter’s consent, invitation or acquiescence. Article 1 of the Convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction (see Rantsev v. Cyprus and Russia, no. 25965/04, § 206, ECHR 2010 (extracts), and Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, §§ 59-61, ECHR 2001‑XII). The Court notes that it is not in dispute between the parties that, following their handing over to the forces of Republika Srpska, the applicants’ next-of-kin died or disappeared in the territory of Bosnia and Herzegovina, which had been internationally recognised as an independent State prior to the impugned events. Accordingly, unless it can be shown that there are special features in the present case which require a departure from the general approach, the obligation to ensure an effective official investigation applies to Bosnia and Herzegovina alone (see Rantsev, cited above, § 243, and, mutatis mutandis, Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 38, ECHR 2001‑XI). The Court furthermore notes that no investigation or proceedings have ever been instituted in Montenegro in this regard and, in particular, that the perpetrators of these acts and their whereabouts are not known (compare Güzelyurtlu and Others v. Cyprus and Turkey [GC], no. 36925/07, § 194, 29 January 2019). Having found no “special features” capable of triggering the applicability of the procedural obligation imposed by Article 2 in respect of Montenegro (ibid., §§ 188-190), this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, in accordance with Article 35 § 4 (see, mutatis mutandis, Emin and Others v. Cyprus, Greece and the United Kingdom (dec.), nos. 59623/08 and 6 others, 3 June 2010).
Investigation and/or prosecution in respect of unlawful confinement, the taking of hostages, deprivation of the right to a fair and impartial trial, and the aiding and abetting of torture106. To the extent that it can be understood that the applicants also implicitly complain in this regard (see paragraph 103 above), the Court notes that the investigation conducted and the indictment issued in Montenegro in January 2009 concerned a war crime against civilians allegedly committed only by the unlawful deportation of the applicants’ relatives (see paragraphs 18 and 30 above). Therefore, it was in January 2009 at the latest that it should have become clear to the applicants that other criminal offences would not be pursued. It is reiterated in this regard that applicants must introduce their complaints “without undue delay”, once it is apparent that there is no realistic prospect of a favourable outcome or progress for their complaints domestically (see Sokolov v. Serbia (dec.), no. 30859/10 and 6 others, § 31, 14 January 2014). Given that the applicants lodged their application in December 2013, their implicit complaint was introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
Investigation into the removal of the applicants’ next-of-kinSubmissions by the parties(a) The Government
107. The Government submitted that the application was inadmissible on several grounds.
108. Firstly, it was incompatible ratione temporis, as the passage of time between the impugned event and the Convention’s entering into force in respect of Montenegro had been longer than ten years.
109. Secondly, the fourth and fifth applicants and the seventh applicant’s daughters had not been involved in the criminal proceedings in any way, and had thus failed to exhaust all domestic remedies.
110. Thirdly, the applicants had lodged the application outside the six-month time-limit. They might have been expected to lodge it much earlier than they had, given that they had long before considered the investigation to have been ineffective. Instead, they had lodged it only in December 2013 – twenty-one years after the impugned events. Given that a constitutional appeal had not constituted an effective remedy at the time in question, the applicants had had to lodge their application within six months of the delivery of the Court of Appeal judgment, as the last effective remedy available at the time, except in respect of those applicants who had not been involved in the criminal proceedings at all. In addition, the first and third applicants had exceeded this time-limit, given that the judgment had been served on them on 7 June 2013, and they had lodged the application on 8 December 2013. The Government submitted a copy of the relevant delivery slips.
111. Fourthly, the applicants no longer had victim status as they had accepted settlements and waived their right to pursue further claims in that regard. In any event, the domestic bodies had conducted an investigation and very complex and sensitive criminal proceedings, and had established all the relevant circumstances, thereby discharging its positive obligation.
112. Lastly, the applicants had abused their right of application in view of the public statements made by their representative. Notably, between 22 and 24 May 2018 the applicants’ representative had been quoted by two Montenegrin media outlets and on the website of an NGO run by her as saying that the Government of Montenegro had sought and obtained an extension of the deadline for submitting their observations in respect of the present case and that the applicants had considered this to constitute the further “scorning (nipodaštavanje) of the crime and its victims”. She had also spoken about the contents of the applications and had noted that the Government of Bosnia and Herzegovina had been invited to submit their written observations in respect of the case. Thereby they had also exerted pressure on the respondent Government and their bodies. They had also failed to inform the Court that their constitutional appeal had been rejected.
(b) The applicants
113. The applicants submitted that the application was compatible ratione temporis. The entire investigation had taken place after the Convention had entered into force in respect of Montenegro. Moreover, the lapse of time between the impugned events and the Convention’s entering into force was irrelevant, given the exceptionally grave nature of the case. In any event, the situation was of a continuing nature as the remains of four of the applicants’ next-of-kin had never been found, and the procedural obligation to investigate the ultimate fate of the applicants’ close family still pertained.
114. The applicants maintained that they had been involved throughout the criminal proceedings as injured parties, either directly or through a designated representative of their families. They had all been directly affected by the impugned event and recognised as injured parties in the civil proceedings.
115. Furthermore, the application had been submitted within the six-month time-limit. They could not have been expected to have lodged an application earlier, as it had not been clear from the outset that there was no effective remedy, and nor could it have been said that there had been no investigation. There had also been no periods of prolonged complete inaction on the part of the authorities, which would have called for them to immediately address the Court. The delivery slip provided by the Government in respect of the first applicant had been signed by someone other than the first applicant – this could be easily verified by comparing the signatures on the application form and the slip; and the second delivery slip contained no signature whatsoever. In any event, the faxed application form sent by the applicants’ representative had gone through successfully on 8 December 2013 very shortly after midnight, following several unsuccessful attempts, owing to technical problems, to fax it before midnight on 7 December 2013. The delay, which was twenty-five minutes only, should not be interpreted in such a manner as to deny the applicants the right to have their complaints considered by the Court. (In their application forms the first and second applicants submitted that they had received the Court of Appeal judgment by post on “7 and 8 June 2013”.)
116. The applicants argued that, regardless of the compensation they had received, they retained their victim status, as the obligation under the procedural aspect of Article 2 was to conduct an investigation capable of leading to the identification and punishment of those responsible for the crime or crimes in question. They submitted in their application to the Court that the investigation had been initiated only in 2005 and that it had lasted for almost three years, with some periods during which, inexplicably, there had been no action. During the trial the judge had refused to hear a number of important witnesses, including a person who had been an assistant to the Minister of the Interior at the relevant time, the Prime Minister of Montenegro, and several members of the Montenegro presidential staff. The judgment had been based on an invented legal standard that had had no basis in either domestic or international humanitarian law. In their observations, the applicants submitted that although it had had its limitations, an investigation had been conducted, and nine State officials had been indicted and tried for a war crime committed against civilians. Moreover, despite the fact that, in their words, the indictment had been “limited as regards possible indictees and the offences attributed to them”, it had taken into account the majority of the evidence submitted by the applicants in the civil proceedings. They agreed that “during the investigation and the criminal trial valuable and sufficient evidence [had been] provided for justice to be served in this case to a reasonable degree”. The applicants acknowledged that the trial itself had been organised quite efficiently, given the circumstances, and that the courts had had at their disposal sufficient sound material, and that on the basis of that they had correctly established the facts. They stated that their complaint ultimately related to the outcome of the criminal proceedings. As a result of the courts’ arbitrary and erroneous interpretation of the facts and the relevant international humanitarian law – which in their view had amounted to an “institutional deficiency” – all the defendants had been acquitted, even though the factual findings had clearly indicated that they had committed a war crime against civilians.
117. In their submission, the Government’s objection regarding the applicants’ alleged abuse of the right of application was contrary to Article 34 of the Convention and might have a chilling effect on them and their representative. They had not informed the Court of the outcome of their constitutional appeal immediately as they had been asked by the Court not to send any submissions until they were asked to do so. In any event, their constitutional appeal had been rejected owing to the erroneous perception of the Constitutional Court that they had alleged a violation of the right to a fair trial, which had not been the case.
(c) The third party
118. The Government of Bosnia and Herzegovina submitted that the application was admissible and contested all the respondent State’s objections in this regard. They submitted that the investigation had been ineffective and insufficient, the highest-ranking officials had never been prosecuted, and the courts had disregarded ICTY judgments, the key shortcoming being the acquittal of all the defendants.
The Court’s assessment(a) Applicability of Article 2 of the Convention
119. Even though the Government did not raise any objection in this regard, the Court has to satisfy itself that it has jurisdiction in any case brought before it (see, mutatis mutandis, Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006-III, and Kavaja and Miljanić v. Montenegro (dec.), nos. 43562/02 and 37454/08, § 30, 23 November 2010).
120. In most Article 2 cases where the effectiveness of an investigation is at issue, the investigation centres on the circumstances in which deadly injury was inflicted and on the responsibility of the direct perpetrators. That is not so in the present case, the complaints regarding the alleged lack of any investigation into the killings and/or disappearances having been declared inadmissible ratione personae (see paragraph 105 above).
121. It is reiterated, however, that the first sentence of Article 2, which ranks as one of the most fundamental provisions in the Convention and also enshrines one of the basic values of the democratic societies making up the Council of Europe, enjoins the State not only to refrain from the “intentional” taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 48, ECHR 2002-I, and Ribcheva and Others v. Bulgaria, nos. 37801/16 and 2 others, § 156, 30 March 2021).
122. Since it is alleged that the death and disappearance of the applicants’ relatives was to a large extent the result of a chain of events triggered by their removal from the respondent State, and since this allegation seems to have been accepted by the domestic authorities (given the wording of the friendly settlements – see paragraph 17 in fine above), it can be accepted that the complaint about ineffective investigation of the removal of the applicants’ next-of-kin by the Montenegrin authorities concerns the latter’s Article 2 obligations. The Court finds, therefore, that Article 2 is applicable to the instant case.
(b) Compatibility ratione temporis
123. The relevant principles in this regard are set out in Janowiec and Others v. Russia ([GC], nos. 55508/07 and 29520/09, § 140-51, ECHR 2013).
124. In particular, the Court’s temporal jurisdiction regarding procedural obligations to investigate under Article 2 of the Convention is strictly limited to procedural acts that were or ought to have been implemented after the entry into force of the Convention in respect of a respondent State (“the critical date”), and it is subject to the existence of a genuine connection between the event giving rise to the above-mentioned procedural obligation under Article 2 and the critical date (ibid. §§ 142 and 145). Such a connection is primarily defined by the temporal proximity between the triggering event and the critical date, which must be separated only by a reasonably short lapse of time that should not normally exceed ten years (ibid., § 146) and it will only be established if much of the investigation took place or ought to have taken place in the period following the entry into force of the Convention (ibid., § 147).
125. The Court has accepted, however, that there may be extraordinary situations that do not satisfy the “genuine connection” standard, as outlined above, but where the need to ensure the real and effective protection of the guarantees and the underlying values of the Convention would constitute a sufficient basis for recognising the existence of a connection (ibid., § 149 in limine). The Court considers the reference to the underlying values of the Convention to mean that the required connection may be found to exist if the triggering event was of a larger dimension than an ordinary criminal offence and amounted to the negation of the very foundations of the Convention. This would be the case with serious crimes under international law, such as war crimes, genocide or crimes against humanity, in accordance with the definitions given to them in the relevant international instruments (ibid., § 150).
126. Turning to the present case, the Court notes that the complaint in respect of the procedural aspect of Article 2 of the Convention concerns the investigation of an event that took place in May 1992. It should thus be noted that more than eleven years and nine months passed between the triggering event and the Convention’s entry into force in respect of Montenegro on 3 March 2004 (see Bijelić v. Montenegro and Serbia, no. 11890/05, § 69, 28 April 2009 concerning that date).
127. Prior to the date of the entry into force of the Convention in respect of the respondent State, no procedural acts were carried out within the context of the investigation. It was only after that date – specifically, from 18 October 2005 onwards – that an investigation was requested and took place, the indictment was issued, and criminal proceedings against nine defendants were initiated on suspicion of their having committed a war crime against civilians. In other words, the entire investigation and all procedural measures were carried out after the critical date. Furthermore, even though the time lapse between the triggering event and the critical date was longer than ten years, the triggering event was domestically investigated and tried as a war crime against civilians; it was thereby indicated that the triggering event constituted an offence whose “dimension” was larger than that of an ordinary criminal offence. That being so, the Court considers that it satisfies “the Convention values” test.
128. Consequently, the Court finds that it has jurisdiction ratione temporis to examine the complaint under Article 2 of the Convention, in its procedural aspect, regarding the investigation of the removal of the applicants’ relatives from the respondent State, and dismisses the Government’s objection in this regard.
(c) Compatibility ratione personae
(i) Compatibility ratione personae as regards the respondent State
129. Regarding the period between 3 March 2004, when the Convention entered into force in respect of the State Union of Serbia and Montenegro, and 3 June 2006, when Montenegro declared independence, having regard to the fact that the impugned proceedings have been solely within the competence of the Montenegrin authorities even before the independence, the Court finds that the application against Montenegro is compatible ratione personae with the Convention (ibid., § 70; see, also, Šabanović v. Montenegro and Serbia, no. 5995/06, § 28, 31 May 2011, and Lakićević and Others v. Montenegro and Serbia, nos. 27458/06 and 3 others, § 41, 13 December 2011).
(ii) Compatibility ratione personae as regards the applicants (victim status)
130. The Court reiterates that an individual can no longer claim to be a victim of a violation of the Convention when the national authorities have acknowledged, either expressly or in substance, a breach of the Convention and have provided redress (see Eckle v. Germany, 15 July 1982, § 66, Series A no. 51; see also, among many other authorities, Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010; Kurić and Others v. Slovenia [GC], no. 26828/06, § 259, ECHR 2012 (extracts); and Cristea v. the Republic of Moldova, no. 35098/12, § 25, 12 February 2019).
131. It is a matter of established case-law that, in cases where it is alleged that death was intentionally inflicted or occurred following an assault or ill-treatment, an award of compensation cannot absolve the Contracting States from their obligation to conduct an investigation capable of leading to the identification and punishment of those responsible (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 130, 14 April 2015, and the case-law cited therein). The particular nature of the present case, however, as noted above, lies in the fact that death was not inflicted intentionally by the authorities of the respondent State, and nor did it occur following an assault or ill-treatment inflicted by them.
132. The Court has often held that if the infringement of the right to life or to personal integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. In the specific sphere of negligence the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of those concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. However, even if the Convention does not as such guarantee the right to have criminal proceedings instituted against third parties, the Court has also held on a number of occasions that the effective judicial system required by Article 2 may, and under certain circumstances must, include recourse to the criminal law (see, among other authorities, Calvelli and Ciglio, cited above, § 51, and the authorities cited therein).
133. The applicants alleged that the death and disappearance of their relatives was to a large extent the result of a chain of events triggered by their removal, and complained of a failure to comply with the above-mentioned procedural obligation in respect of the removal. They argued that the State had therefore been under an obligation to conduct an investigation.
134. The Court notes that the applicants’ next-of-kin were under the responsibility of the State and that their removal was the result of a decision made solely by the authorities and was organised exclusively by them.
135. The Court observes that the relevant authorities conducted an investigation in this regard and subsequently tried nine persons for a war crime against civilians. However, in order to be considered effective, an investigation must meet certain criteria. The relevant principles in this regard are set out in, for example, Armani Da Silva v. the United Kingdom ([GC], no. 5878/08, §§ 233-239, 30 March 2016). In particular, the investigation must be adequate – that is, it must be capable of leading to the establishment of the facts and of identifying and – if appropriate – punishing those responsible (ibid., § 233, and the authorities cited therein). Its conclusions must be based on thorough, objective and impartial analysis of all relevant elements. It may also generally be regarded as necessary for the persons responsible for the investigation and carrying it out to be independent of those implicated or likely to be implicated in the events, which means not only a lack of hierarchical or institutional connection but also a practical independence (ibid., § 232). It must be accessible to the victim’s family to the extent necessary to safeguard their legitimate interests, and there must be a sufficient element of public scrutiny of the investigation, the degree of which may vary from case to case (ibid., § 235). Where an official investigation leads 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 the right to life through the law (ibid., § 239 in limine).
136. In the present case the authorities, when requesting an investigation into the apprehension and handing over of the applicants’ next-of-kin, acted on their own motion, without leaving it to the initiative of the applicants to lodge a formal complaint, request an investigation or propose the conduct of any specific investigative procedures (see paragraphs 18-19 above). The Minister of the Interior who, as the courts established, had ordered the impugned action, was not among the six persons in respect of whom the investigation was requested, as he had been assassinated long before, in 2000 (see paragraph 49 above). The investigation, which lasted less than three years, was conducted by an investigating judge of the High Court, who had neither hierarchical nor institutional connections to those who were being investigated (see paragraphs 20-24 and 28 above). There is no indication of bias or any specific conduct on his part that would indicate his lack of practical independence in the handling of the investigation. In the course of the investigation a total of eighty-three witnesses and/or injured parties were questioned either by the Podgorica High Court or by means of the international legal assistance requested by the High Court (see paragraph 23 above). Moreover, in October 2008, the investigation was extended to include three more persons not covered by the initial request for an investigation (see paragraph 29 above).
137. After the investigation was completed an indictment was issued by the Special Supreme State Prosecution Office in respect of nine persons who had been employees of the Ministry of the Interior at the material time (see paragraph 30 above). The defendants included two assistants to the Minister of the Interior, four heads of Security Centres (who had been directly responsible to the Minister and his assistants – see paragraph 70 above), the head of the State Security Department in Ulcinj, and the chief commander of the Herceg Novi police – that is to say the highest-ranking officers in the Interior Ministry hierarchy, after the late Minister of the Interior. The indictment took into account most of the evidence submitted by the applicants in the course of the civil proceedings (see paragraph 116 above). It furthermore proposed that the accused and more than one hundred witnesses be questioned, and that more than seventy pieces of material evidence be examined (see paragraph 31 above). The prosecutors involved in the civil proceedings did not participate in the criminal proceedings (see paragraphs 15 in fine, 18, 26 and 30 above).
138. The trial, which resulted in the final acquittal of all the defendants, was conducted before the Podgorica High Court’s Special Department for Organised Crime, Corruption, Terrorism and War Crimes, which acted as a first-instance court and had full jurisdiction to examine the facts as it saw fit. Its judgment was subject to review by the Court of Appeal. In the course of the first-instance proceedings fifty-two hearings were held, and only five were adjourned; the trial court heard all the defendants and five witnesses, read statements given by a further ninety-two witnesses, and reviewed more than 120 pieces of written evidence (see paragraph 35 above). There is nothing in the material in the Court’s possession to suggest that in the present case the domestic authorities failed to secure the relevant physical or forensic evidence, or to seek out relevant witnesses or relevant information (see Finogenov and Others v. Russia, nos. 18299/03 and 27311/03, § 271, ECHR 2011 (extracts), and Armani Da Silva, cited above, § 233). The applicants acknowledged that during the investigation and the trial substantial evidence had been collected, and that the courts had correctly established the facts (see paragraph 116 above). They also acknowledged that they had been involved in all stages of the criminal proceedings either themselves or through family members (see paragraph 114 above). In addition, the respondent State facilitated the injured parties’ participation in the proceedings by providing the necessary information, as well as by reimbursing their travel expenses and paying daily allowances (see paragraphs 32 and 33 above).
139. The courts examined in detail all the evidence collected and acknowledged that the defendants’ conduct had been unlawful. They also gave detailed reasoning for their decision to acquit the defendants of a war crime, for which they had been indicted. The Court finds no element in the domestic courts’ reasoning that would lead it to conclude that there was, in practice, any arbitrariness or condoning of unlawful conduct. While the proceedings did not result in convictions, the Court has found no indication in this case of any disregard for the law or lack of effective examination of the case on the part of the court.
140. Although in their initial application the applicants complained that the investigation had been ineffective, in their subsequent observations they submitted that their complaint actually related to the outcome of the criminal proceedings – namely, the fact that the defendants had essentially been acquitted (see paragraph 116 above). The Court reiterates that there is no obligation to prosecute a third party in order for the State’s obligation under Article 2 of the Convention to be satisfied, and nor does Article 2 guarantee an absolute obligation for all prosecutions to result in conviction, or indeed in a particular sentence (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 306, ECHR 2011 (extracts), and Armani da Silva, cited above, § 238). Rather, the Court’s task, having regard to the proceedings as a whole, is to review whether and to what extent the domestic authorities submitted the case to the careful scrutiny required by Article 2 of the Convention (ibid., § 257). Although the authorities should not, under any circumstances, be prepared to allow life-endangering offences to go unpunished, the Court has repeatedly stated that the investigative obligation under Article 2 of the Convention is one of means and not result (see Jaloud v. the Netherlands [GC], no. 47708/08, § 186, ECHR 2014; see also the above-cited cases of Nachova and Others, § 160, and Mustafa Tunç and Fecire Tunç, § 173).
141. It is true that the Court must be especially vigilant in cases where violations of Articles 2 and 3 of the Convention are alleged. However, where there have been criminal proceedings in the domestic courts concerning such allegations, it must be borne in mind that criminal-law liability is distinct from the State’s responsibility under the Convention (see Giuliani and Gaggio, cited above, § 182 in limine). The Court’s authority is confined to the latter. Responsibility under the Convention is based on its own provisions, which are to be interpreted in the light of the object and purpose of the Convention, taking into account any relevant rules or principles of international law. Any responsibility under the Convention on the part of a State for the acts of its organs, agents and servants is not to be confused with domestic legal issues concerning individual criminal responsibility under examination in the national criminal courts. The Court is not concerned with reaching any findings as to guilt or innocence in that sense, as it is not within its authority to decide on anyone’s individual criminal accountability, either on a domestic or international level, which is what the applicants in the present case explicitly complain about (ibid., § 182, and the authorities cited therein).
142. The facts of the present case that were the object of the impugned investigation are undoubtedly tragic, and it is understandable that the outcome of the criminal proceedings was disturbing for the applicants; also understandable is their frustration directed towards the absence of any individual punishment. The Court notes, however, that the individual responsibility of the police officers involved was carefully considered by the courts in the course of criminal proceedings. The decision not to convict any individual officer was not due to any failings in the investigation or to the State’s tolerance of or collusion in unlawful acts; rather, it was due to the fact that, following a thorough investigation and trial, the courts gave full consideration to all the facts of the case and concluded that it had not been proved that the defendants had committed a war crime.
143. The Court notes certain inconsistencies between some domestic courts’ findings and the findings of some international criminal courts and tribunals. However, as noted above, the Court’s authority is confined to the Convention, and it is not its function to decide on the criminal responsibility of individuals (see paragraph 141 above).
144. In so far as the obligations of the respondent State under Article 2 of the Convention are of means and not of result, the fact that the defendants were acquitted does not in itself mean that the respondent State has not discharged its positive obligations inherent in this provision, provided that, as in the present case, the investigation was sufficiently thorough, independent and the applicants were involved in it to a degree sufficient to protect their interests and to enable them to exercise their procedural rights (see, for example, Palić, cited above, § 65, where the Court held that the investigation had been effective, notwithstanding the fact that there had not been any convictions). Similarly, from the point of view of the applicants’ victim status under Article 34 of the Convention, the fact that the defendants were eventually not convicted is not decisive, the relevant elements being, as stated above, acknowledgment of a violation, at least in substance, by the domestic authorities and the provision of redress (see paragraph 130 above).
145. In this regard, the Court notes that in the criminal proceedings the courts confirmed in clear terms that the decision ordering the applicants’ next-of-kin’s removal and the defendants’ actions were “unlawful under international law” (see paragraph 41 above).
Furthermore, in parallel civil proceedings in which the applicants sought compensation for the same actions carried out by the respondent State, namely unlawful deprivation of liberty and removal resulting in the death of their next-of-kin in Republika Srpska, the domestic courts explicitly acknowledged a number of serious breaches of the latter’s rights, finding that they had been unlawfully deprived of their liberty and their right to appeal, and that their removal had been in violation of the rules governing extradition, as applicable at the relevant time, and the Refugee Convention. They also awarded compensation to the applicants (see paragraph 16 above). Even though the above-noted judgments were subsequently quashed following the reaching of friendly settlements, the terms of the agreement – voluntarily entered into by the applicants – demonstrate that the respondent State (i) acknowledged in substance that the death and/or disappearance of the applicants’ relatives was ultimately the result of their removal and (ii) provided compensation in that respect; for their part, the applicants confirmed that that they “ha[d] been completely compensated for all ... damage caused by the death [of their next-of-kin]” and waived all other possible future claims for compensation on that ground (see paragraph 17 in fine above). Notwithstanding the fact that the friendly-settlement agreement was concluded at the end of 2008 and redress provided, the domestic authorities did not abandon their efforts to establish criminal responsibility of individual persons for the events and actions that had led to the applicants’ relatives removal and death; rather, as already stated above, they continued – in a thorough and efficient manner – to pursue criminal proceedings for the next four years, until 17 May 2013 (see paragraphs 17, 30-43 and 136-144 above).
146. Having regard to all these considerations – in particular, the fact that: (a) the domestic authorities acknowledged in substance a breach of the Convention in both criminal and civil proceedings, (b) the domestic authorities provided the applicants with redress in the form of compensation amounting to a total of EUR 165,000 (which largely corresponds to amounts awarded by the Court in similar cases), following which the applicants confirmed that they had thereby been completely compensated for all damage caused by the death of their next-of-kin and had waived all other possible future claims for compensation on those grounds; and (c) in both criminal and civil proceedings, before the latter were ultimately concluded by friendly settlements, the courts elucidated the circumstances surrounding the removal and handing over of the applicants’ relatives, and thereby satisfied the procedural obligation under Article 2 to investigate the matter – the Court concludes that the applicants can no longer be considered to have victim status (contrast, mutatis mutandis, Jeronovičs v. Latvia [GC], no. 44898/10, § 124, 5 July 2016, in which the Court dismissed the Government’s objection that the applicant lacked victim status in view of the respondent State’s continuing obligation to carry out an effective investigation; see also, mutatis mutandis, Göktepe and Others v. Turkey (dec.), no. 64731/01, 26 April 2005, and Martinović v. Montenegro (dec.) [Committee], no. 44993/18, 11 March 2021, albeit in Article 3 context).
Accordingly, the remainder of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, in accordance with Article 35 § 4. That being so, it is not necessary to examine the remaining Government’s objections concerning non-exhaustion of domestic remedies, non-compliance with the six-month time-limit and the alleged abuse of the right of application.
OTHER COMPLAINTS147. The Court notes that, after the respondent Government had been given notice of the application, the applicants repeated the complaint initially made to the Court – namely that not knowing the fate of their next-of-kin after their disappearance and the circumstances of their death had caused them suffering amounting to a violation of Article 3 of the Convention. The Court notes that on 19 January 2018 the Government were given notice of some of the applicants’ complaints, whereas the remainder of the application, which included the above complaint under Article 3, was declared inadmissible by the President of the Section, sitting in a single-judge formation. That being so, the Court no longer has jurisdiction to examine that complaint (see KIPS DOO and Drekalović v. Montenegro, no. 28766/06, § 139, 26 June 2018).
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 6 April 2023.
Renata Degener Marko Bošnjak
Registrar President
Appendix
Applicant’s Name, Nationality
Birth date,
Place of residence
Next-of-kin
Compensation awarded
Sejda KRDŽALIJA
BIH
(the first applicant)
28/08/1949
Goražde, BIH
Sanin KRDŽALIJA, son
EUR 25,000
Ramiza BIČO
BIH
(the second applicant)
16/01/1933
Goražde, BIH
Enes BIČO, son
EUR 25,000
Hikmeta PRELO
BIH
(the third applicant)
24/02/1953
Goražde, BIH
Amir PRELO, son
Himzo ČENGIĆ, brother
EUR 35,000
Mirzeta HOŠO
BIH
(the fourth applicant)
20/03/1951
Goražde, BIH
Himzo ČENGIĆ, brother
EUR 10,000
Fikreta HADŽIĆ
BIH
(the fifth applicant)
29/03/1955
Goražde, BIH
Himzo ČENGIĆ, brother
EUR 10,000
Hizreta HASANBEGOVIĆ
BIH
(the sixth applicant)
30/06/1956
Goražde, BIH
Smail HASANBEGOVIĆ, husband, and
Himzo ČENGIĆ, brother
EUR 35,000
Ševala BULJUBAŠIĆ
BIH
(the seventh applicant)
28/1/1950
Goražde, BIH
Safet BULJUBAŠIĆ, husband
EUR 25,000
[1] In August 1992 the self-proclaimed Srpska Republika Bosna i Hercegovina changed its name to Republika Srpska. In December 1995, when “the Dayton Agreement” entered into force (see paragraph 9 below), it was recognised as an entity of Bosnia and Herzegovina.
[2] Bosniacs were known as Muslims until the 1992-95 war. As explained in Palić v. Bosnia and Herzegovina (no. 4704/04, § 6, 15 February 2011, and the footnotes), the term “Bosniacs” (Bošnjaci) should not be confused with the term “Bosnians” (Bosanci), which is commonly used to denote citizens of Bosnia and Herzegovina irrespective of their ethnic origin.