FOURTH SECTION
DECISION
Application no. 36732/08
Ljubinko MITRANIĆ
against Bosnia and Herzegovina
The European Court of Human Rights (Fourth Section), sitting on 28 January 2014 as a Chamber composed of:
Ineta Ziemele, President,
Päivi Hirvelä,
Ledi Bianku,
Vincent A. De Gaetano,
Paul Mahoney,
Faris Vehabović,
Robert Spano, judges,
and Françoise Elens-Passos, Section Registrar,
Having regard to the above application lodged on 27 July 2008,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Ljubinko Mitranić, is a citizen of Bosnia and Herzegovina, who was born in 1936 and lives in Banja Luka. He was represented before the Court by Mr S. Ivetić, a lawyer practising in Banja Luka.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 13 April 1992 the applicant’s brother, Vladimir Mitranić, was killed in his house in Livno together with his friend K.P.
4. On 14 April 1992 the investigating judge of the then Livno First Instance Court conducted an on-site investigation in the presence of criminal and medical experts and two police officers. Some members of the family were also present.
5. It would appear that no other procedural steps were taken thereafter.
6. On 17 June 1995 the applicant wrote to the Livno Cantonal Prosecutor, to the Livno Cantonal Court, to the Cantonal Ministry of Interior and to the International Police Task Forces (IPTF) in Bosnia and Herzegovina, enquiring whether the perpetrators had been identified or arrested. It would appear that he received no answer.
7. On 5 December 2005 the applicant lodged a constitutional appeal complaining about the lack of an effective investigation into the killing of his brother. On 14 March 2006 the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) joined the applicant’s case to 35 other similar cases (some of which concerned missing persons and others, like the applicant’s, war time killings) and found a violation of Articles 3 and 8 of the Convention. It ordered the competent authorities to conduct effective investigations into the relevant disappearances and murders without delay and to inform the relatives of the results (decision no. AP-1248/05).
8. On 5 February and 22 October 2007 the applicant informed the Constitutional Court that, following its decision of 14 March 2006, no procedural steps had been taken with a view to investigate his brother’s murder.
9. On 23 May 2007 the Constitutional Court adopted a procedural decision (a decision which merely acknowledges the fact of non-enforcement and which is transferred to the State Prosecutor for further, if any, action), to the effect that its decision of 14 March 2006 had not been fully enforced as regards, in particular, the applicant’s and several other cases.
10. On 19 February 2008, following the applicant’s enquiry, the Livno Cantonal Prosecutor informed him that the case file (the photographs taken at the crime scene, the record of the on-site investigation and other material gathered during the on-site investigation) had been transferred to the State Prosecutor because the case concerned a war crime. It is not clear when the transfer took place.
11. On 11 June 2008 the applicant was invited to provide information concerning war crimes committed in the territory of the Livno municipality to the State Prosecutor on 23 June 2008.
12. On 1 July 2008, following the applicant’s enquiry, the State Prosecutor informed him that all the necessary steps were being taken with a view to discovering those involved in the murder of his brother.
B. Relevant domestic law
13. The 2003 Criminal Code (Official Gazette of Bosnia and Herzegovina nos. 3/03, 37/03, 32/03, 54/04, 61/04, 30/05, 53/06, 55/06 32/07 and 8/10) entered into force on 1 March 2003. The relevant part of Article 173 of the Code provides as follows:
“ 1. Whoever in violation of rules of international law in time of war, armed conflict or occupation, orders or perpetrates any of the following acts:
a) Attack on civilian population, settlement, individual civilians or persons unable to fight, which results in the death, grave bodily injuries or serious damaging of people’s health ;
...
b) Killings...
...
shall be punished by imprisonment for a term not less than ten years or by long-term imprisonment”.
COMPLAINT
14. The applicant complained of the lack of an effective investigation into the killing of his brother. He invoked Articles 2, 3, 5, 6, 8, 13 and 14 of the Convention.
THE LAW
15. The Court considers that it should first examine whether the applicant has complied with the six-month rule contained in Article 35 § 1 of the Convention given that he did not lodge his application until 27 July 2008 although his brother had been killed on 13 April 1992 namely, more than sixteen years previously. It should be noted that the Court does not have temporal jurisdiction to examine the substantive limb of Article 2 in this case because the murder had taken place before the date of the ratification of the Convention by Bosnia and Herzegovina (12 July 2002).
16. The applicant claimed that the domestic authorities were still investigating the killing and that there had, as yet, been no domestic decision to discontinue the investigation.
17. The Court recalls that the purpose of the six-month rule is to promote security of the law and to protect the authorities and other persons concerned from being under any uncertainty for a prolonged period of time (see P.M. v. the United Kingdom (dec.), no. 6638/03, 24 August 2004). It should also ensure that it is possible to ascertain the facts of a case before that possibility fades away, making a fair examination of the question in issue next to impossible (see Pavlenko v. Russia, no. 42371/02, § 69, 1 April 2010).
18. The six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. That being said, where it is clear from the outset that no effective remedy is available to the applicant, the period runs from the date of the act in issue, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002). Nor can Article 35 § 1 be interpreted in a manner which would require an applicant to seize the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level. Where, therefore, an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period from the date when the applicant first became, or ought to have become, aware of those circumstances (see Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001).
19. The Court has held in cases concerning the obligation to investigate under Article 2 of the Convention that where a death has occurred, applicant relatives are expected to keep track of the progress of the investigation and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any effective investigation (see Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002; Bayram and Yıldırım v. Turkey (dec.), no. 38587/97, ECHR 2002‑III and Varnava and Others v. Turkey [GC], nos. 16064/90 et al., § 158, ECHR 2009).
20. Turning to the present case, the Court observes that other than the on-site investigation on 14 April 1992, no other procedural steps have ever been taken following the killing of the applicant’s brother. The applicant’s enquiry of 17 June 1995 was futile. On 5 December 2005, almost ten years after the end of 1992-95 war in Bosnia and Herzegovina, the applicant complained about the lack of an effective investigation to the Constitutional Court. On 14 March 2006 the Constitutional Court joined the applicant’s case to 35 other similar cases and held that there had been a violation of Articles 3 and 8. It ordered the competent authorities to conduct effective investigations into the relevant disappearances and murders without delay and to inform the relatives of the results. However, even after this final and binding decision of the highest court in Bosnia and Herzegovina the applicant was not informed of any concrete measure having been taken in order to further the investigation into the killing of his brother. Finally, on 23 May 2007 the Constitutional Court concluded, in a procedural decision, that its decision of 14 March 2006 had not been fully enforced. As this decision concerned, in particular, the applicant’s and several other cases, the Court considers that at this point the applicant must have become aware, without a doubt, of the ineffectiveness of the investigation (see Brunner v. Turkey (dec.), no. 10/10, 6 December 2011). However, he waited for a further 14 months before lodging his application with the Court.
21. While it is true that just over a year after the Constitutional Court’s procedural decision the applicant was invited to give a statement to the State Prosecutor (see paragraph 11 above), it was part of a more general information-gathering exercise concerning war crimes committed in the Livno municipality. There is nothing in the case-file as it stands to show that it was particularly significant for the applicant’s situation. Moreover, the circular letters he received from the competent prosecutors, following his enquiries, did not indicate any new developments in the case.
22. In view of the above, the Court finds that the application has been lodged out of time and that it is inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Françoise Elens-PassosIneta Ziemele
RegistrarPresident
Full & Egal Universal Law Academy