FOURTH SECTION
DECISION
Application no. 31865/06
Malka MURATSPAHIĆ
against Bosnia and Herzegovina
The European Court of Human Rights (Fourth Section), sitting on 2 September 2014 as a Chamber composed of:
Ineta Ziemele, President,
George Nicolaou,
Ledi Bianku,
Nona Tsotsoria,
Zdravka Kalaydjieva,
Paul Mahoney,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,
Having regard to the above application lodged on 25 July 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Malka Muratspahić, is a Bosnian-Herzegovinian citizen, who was born in 1957 and lives in Goražde. She was represented before the Court by Mr N. Mulalić, a lawyer practising in Sarajevo.
2. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Deputy Agent, Ms Z. Ibrahimović.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Relevant background
4. After its declaration of independence on 6 March 1992, a brutal war started in Bosnia and Herzegovina. It would appear that more than 100,000 people lost their lives and more than 2,000,000 people were displaced in the course of the war. It is estimated that around 30,000 people went missing and that around one quarter of them is still missing. The conflict came to an end on 14 December 1995 when the General Framework Agreement for Peace in Bosnia and Herzegovina entered into force. In accordance with that Agreement, Bosnia and Herzegovina consists of two Entities, the Federation of Bosnia and Herzegovina and the Republika Srpska.
5. In response to atrocities then taking place in Bosnia and Herzegovina, on 25 May 1993 the United Nations Security Council passed Resolution 827 establishing the International Criminal Tribunal for the former Yugoslavia (“the ICTY”), headquartered in The Hague. More than 70 individuals have already been convicted and proceedings are ongoing for 20 accused. In the period from February 1996 until October 2004, local prosecutors in Bosnia and Herzegovina were required to submit case files to the ICTY for review; no person could be arrested on suspicion of war crimes unless the ICTY Office of the Prosecutor had received the case file beforehand and found it to contain credible charges (the “Rules of the Road” procedure). Moreover, the ICTY had primacy over national courts and could take over national investigations and proceedings at any stage in the interest of international justice. As part of the ICTY’s completion strategy, in early 2005 war crimes chambers were set up within the Court of Bosnia and Herzegovina (“the State Court”) with primacy over other courts in Bosnia and Herzegovina as regards war crimes. More than 100 persons have been finally convicted by the State Court. Many others have been convicted by the competent Entity courts (see paragraphs 21-22 below).
6. Furthermore, the International Commission on Missing Persons (“the ICMP”) was established at the initiative of United States President Clinton in 1996. It is currently headquartered in Sarajevo. Reportedly, the ICMP has so far identified by DNA more than 14,000 missing persons in Bosnia and Herzegovina, whereas local authorities have identified more than 8,000 missing persons by other methods. In 2005 the Government of Bosnia and Herzegovina and the ICMP established a Missing Persons Institute, also headquartered in Sarajevo (see paragraph 15 below). It became operational on 1 January 2008.
2. Disappearance of the applicant’s father
7. The applicant’s father, Sulejmen Odžaković, disappeared in unknown circumstances in an area controlled by the VRS forces[1] (Gornja Podkozara in the vicinity of Goražde) on an unknown date in May 1992.
3. Criminal proceedings
(a) ICTY proceedings
8. On 2 October 2002 Ms Biljana Plavšić, one of the war-time leading political figures of the Republika Srpska, pleaded guilty before the ICTY to having participated in the persecution of Bosniacs[2] and Croats[3] from certain territories of Bosnia and Herzegovina. She was sentenced to 11 years’ imprisonment.
9. Cases against Radovan Karadžić, the war-time civilian leader of the Republika Srpska, Ratko Mladić, the war-time military leader of that Entity, and Vojislav Šešelj, a leading political figure of Serbia in the 1990s, are also pending before the ICTY. They are charged with the participation in a joint criminal enterprise to permanently remove Bosniacs and Croats from “the territories of Bosnia and Herzegovina claimed as Bosnian Serb territory” (see, for example, the third amended indictment against Radovan Karadžić, § 9).
(b) Domestic proceedings
10. In the absence of any information about the disappearance and death of the applicant’s father, no formal charges have been brought yet in respect of this particular case. At the same time, domestic authorities have finalised investigations into some other killings committed as a part of a widespread and systematic attack against the non-Serb civilian population of the pre-war municipality of Goražde in May 1992; an indictment has thus far been issued against one person – D. Š. – and criminal proceedings are pending.
4. Declarations of presumed death
11. The applicant did not seek a declaration of presumed death with respect to her father.
5. Identification of mortal remains
12. The applicant’s father was identified by DNA on 25 May 2005.
6. Proceedings before the Human Rights Commission of Bosnia and Herzegovina
13. On 9 November 2005 the Human Rights Commission held that there had been a violation of Articles 3 and 8 of the Convention. It ordered the authorities to release any and all information in their custody pertaining to the fate or whereabouts of the applicant’s father and to conduct a full, meaningful, thorough and detailed investigation aimed at making known the fate or whereabouts of the applicant’s father and bringing the responsible to justice. No compensation was awarded.
B. Relevant domestic law
1. Missing Persons Act 2004
14. The Missing Persons Act 2004 entered into force on 17 November 2004 (Official Gazette of Bosnia and Herzegovina no. 50/04). In accordance with section 3 of the Act, families have the right to know the fate of missing persons (that is, their whereabouts if they are still alive, or the circumstances of death and their place of burial, if they are dead) and to obtain their mortal remains. Under section 4 of the Act, the relevant domestic authorities have the obligation to provide any and all such information in their keeping.
15. Section 7 of that Act provides for the setting up of a Missing Persons Institute. In 2005 the ICMP and the Government of Bosnia and Herzegovina founded the Institute, headquartered in Sarajevo, pursuant to that provision and the Agreement on Assuming the Role of Co-founders of the Missing Persons Institute of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina, International Treaty Series, no. 13/05). It became operational on 1 January 2008. One of the organs of that Institute is an Advisory Board, comprised of six representatives of families of missing persons (see Article 10 of the Agreement mentioned above).
16. In accordance with section 9 of the Act, the status of missing person comes to an end on the date of identification. Therefore, if a missing person is declared dead but the mortal remains have not been found and identified, the process of tracing continues.
17. Pursuant to section 11 of the Act, the families of missing persons are entitled to monthly financial support under some conditions, notably if they were supported by the missing family member until his or her disappearance and if they are still in need of support (in other words, if they are not in paid employment and do not receive welfare benefits beyond 25% of the average salary paid in Bosnia and Herzegovina[4]). Section 15 of the Act provides for the setting up of a Missing Persons Fund for that purpose. However, as the Fund has not yet been established, no payment has been made so far.
18. Families of missing persons are also entitled to, inter alia, temporary administration of the property of missing persons, burial of mortal remains at public expense and priority in access to education and employment for the children of missing persons (section 18 of the Act).
19. Section 21 of the Act provides for the setting up of Central Records with the aim of verifying information about missing persons from different sources (government agencies, associations of families of missing persons, the ICMP and the International Committee of the Red Cross) and creating a single database. While Central Records were founded on 3 February 2011, it would appear that the verification process is still ongoing. Once that process is completed, all those recorded as missing will be declared dead (section 27 of the Act), but the tracing process will nevertheless continue (see paragraph 16 above).
2. Declarations of presumed death
20. Despite the fact that the verification process outlined in paragraph 19 above is pending, any person may request that a declaration of presumed death be issued with respect to a missing person (see the Non-Contentious Procedure Act 1998, Official Gazette of the Federation of Bosnia and Herzegovina, nos. 2/98, 39/04, 73/05; and the Non-Contentious Procedure Act 2009, Official Gazette of the Republika Srpska, no. 36/09).
3. War crimes cases
21. War crimes cases fall, as a general rule, under the jurisdiction of the State Court, but the State Court may transfer any such case to the competent Entity court in accordance with the criteria set out in paragraph 22 below (see Article 27 of the 2003 Code of Criminal Procedure). For example, only in 2012 the State Court transferred 217 cases to 15 Entity courts[5].
22. In accordance with the Book of Rules on the Review of War Crimes Cases of December 2004 the following types of cases were, as a rule, to be heard before the State Court: (a) cases concerning genocide, extermination, multiple murders, rape and other serious sexual assaults as part of a system (such as in camps), enslavement, torture, persecution on a widespread and systematic scale, mass forced detention in camps; (b) cases against past or present military commanders, past or present political leaders, past or present members of the judiciary, past or present police chiefs, camp commanders, persons with a past or present notorious reputation, multiple rapists; (c) cases with insider or suspect witnesses; (d) if there was a risk of witness intimidation; and (e) cases involving perpetrators in an area which is sympathetic to them or where the authorities have a vested interest in preventing public scrutiny of the crimes. All other war crimes cases were, as a rule, to be heard before the Entity courts.
23. In December 2008 the authorities adopted the National War Crimes Strategy, providing a new set of criteria. However, they are almost identical to those outlined in paragraph 22 above. In addition, the Strategy defines the time-frames, capacities, criteria and mechanisms for managing those cases, standardisation of court practices, issues of regional cooperation, protection and support to victims and witnesses, as well as financial aspects, and supervision over the implementation of the Strategy. One of its objectives is to process the most complex and top priority cases within seven years (that is, by the end of 2015) and other war crimes cases within fifteen years (that is, by the end of 2023). In order to comply with that time-frame, the local authorities have, inter alia, almost doubled the number of State prosecutors in charge of war crimes (from 19 to 37) in the last 12 months.
COMPLAINTS
24. The applicant alleged that there had been no effective investigation into the disappearance and death of her father and that the reactions of the authorities to her suffering had been lackadaisical. She relied on Articles 2, 3, 5, 8, 13 and 14 of the Convention.
THE LAW
A. Article 2 of the Convention
25. The Government argued that the Court lacked temporal jurisdiction or that the application had been lodged out of time. Alternatively, they contended that the case was manifestly ill-founded as, in their view, the investigation into the disappearance and death of the applicant’s father had complied with all the requirements of Article 2.
26. The applicant submitted that the respondent State had failed to fulfil its procedural obligation stemming from Article 2 of the Convention to investigate the disappearance and death of her father. She criticised, in particular, the fact that those responsible for the disappearance and death of her father had not yet been brought to justice. Article 2 on which she relied provides, in so far as relevant, as follows:
“1. Everyone’s right to life shall be protected by law. ...”
27. The questions, raised by the Government, as to whether the Court has temporal jurisdiction to deal with this case and whether the application had been lodged within the six-month time-limit were examined in similar circumstances in Palić v. Bosnia and Herzegovina (no. 4704/04, 15 February 2011).
28. As to the Government’s alternative argument, the Court reiterates that Article 2 of the Convention requires the authorities to conduct an official investigation into an arguable claim that a person who was last seen in their custody subsequently disappeared in a life-threatening context. Where disappearances in life-threatening circumstances are concerned, the procedural obligation to investigate can hardly come to an end on discovery of the body or the presumption of death; this merely casts light on one aspect of the fate of the missing person. An obligation to account for the disappearance and death, and to identify and prosecute any perpetrator of unlawful acts in that connection, will generally remain. According to the Court’s settled case-law, the investigation must be independent from all those implicated in the events, must be effective in the sense of being capable of ascertaining the facts and of leading to the identification and punishment of those responsible, must be accessible to the victim’s family to the extent necessary to safeguard their legitimate interests and must be carried out with reasonable promptness and expedition (see, among many other authorities, Kurt v. Turkey, 25 May 1998, § 124, Reports of Judgments and Decisions 1998‑III; Varnava and Others v. Turkey [GC], nos. 16064/90 et al., § 145, ECHR 2009; Palić, cited above, § 63; Association “21 December 1989” and Others v. Romania, nos. 33810/07 and 18817/08, § 97, 24 May 2011; and Aslakhanova and Others v. Russia, nos. 2944/06 et al., § 121, 18 December 2012).
29. As there is no indication that the investigation carried out in this case lacked independence, the Court will turn to the question of its effectiveness. In this regard, it notes that despite initial delays, the investigation finally led to the identification of the applicant’s father (see paragarph 12 above). In view of the large number of victims of the war in Bosnia and Herzegovina, this is in itself a major achievement.
30. The Court also notes that the ICTY has thus far convicted one of the organisers of the persecution of Bosniacs and Croats during the 1992-95 war in Bosnia and Herzegovina (see paragraph 8 above). Furthermore, cases against three other organisers are pending before the ICTY (see paragraph 9 above). The Court has already held that the respondent State’s procedural obligation under Article 2 could be discharged through its contribution to the work of the ICTY, given that the ICTY had primacy over national courts and could take over national investigations and proceedings at any stage in the interest of international justice (Fazlić and Others, cited above, § 36).
31. While it is true that those directly responsible for the disappearance and death of the applicant’s father have not been brought to justice yet, Article 2 cannot be interpreted so as to impose a requirement on the authorities to launch a prosecution irrespective of the evidence available. A prosecution, particularly on such a serious charge as involvement in war crimes, should never be embarked upon lightly as the impact on a defendant who comes under the weight of the criminal justice system is considerable, being held up to public obloquy, with all the attendant repercussions on reputation, private, family and professional life. Given the presumption of innocence enshrined in Article 6 § 2 of the Convention, it can never be assumed that a particular person is so tainted with suspicion that the standard of evidence to be applied is an irrelevance. Rumour and gossip are a dangerous basis on which to base any steps that can potentially devastate a person’s life (see Palić, cited above, § 65, where the Court held that the investigation was effective, despite the fact that there had not been any convictions; Gürtekin and Others v. Cyprus (dec.), nos. 60441/13 et al., § 27, 11 March 2014; Mujkanović and Others v. Bosnia and Hercegovina (dec.), nos. 47063/08 et al., § 39, 3 June 2014; Fazlić and Others, cited above, § 37; and Šeremet v. Bosnia and Hercegovina (dec.), no. 29620/05, § 35, 8 July 2014). Indeed, as the Court has held on numerous occasions (see Hugh Jordan v. the United Kingdom, no. 24746/94, § 107, ECHR 2001-III, and Palić, cited above, § 65), the procedural obligation under Article 2 is not an obligation of result, but of means.
32. As regards the accessibility of the investigation and the existence of sufficient public scrutiny, the Court has already emphasised the importance of the right of victims and their families and heirs to know the truth about the circumstances surrounding events involving a massive violation of rights as fundamental as that of the right to life. However, the Court notes that this aspect of the procedural obligation does not require applicants to have access to police files, or copies of all documents during an ongoing inquiry, or for them to be consulted or informed about every step (see Association “21 December 1989” and Others, cited above, § 106; Gürtekin and Others, cited above, § 29; Mujkanović and Others, cited above, § 40; Fazlić and Others, cited above, § 38; Šeremet, cited above, § 36). It cannot be automatically required that the families be provided with the names of the potential suspects against whom insufficient evidence has been gathered for prosecution. This would lead to the risk that the families and others would assume that the individuals were in fact guilty and to potentially unpleasant repercussions. In any event, the applicant has not shown that any of her requests for information has remained unanswered (see, by contrast, Association “21 December 1989” and Others, cited above, § 102). It is true that the authorities have sometimes resorted to press releases or group meetings with victims and/or their associations, rather than individual meetings, but the Court considers this approach to be reasonable in view of the large number of war crimes cases pending before domestic courts and the large number of victims (see paragraph 4 above). The Court has already held that the procedural obligation under Article 2 must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities (see Osman, cited above, § 116, and Palić, cited above, § 70).
33. Insofar as the applicant makes reference to a lack of expedition and to the lapse of time since her father disappeared, the Court will take into consideration only the period since 2005 when the domestic legal system became capable of dealing with disappearance cases (see Palić, cited above, § 70, about the situation in post-war Bosnia and Herzegovina, notably in the first ten years following the war; see also paragraph 5 above concerning the relationship between domestic authorities and the ICTY during that period). It should be noted, in this connection, that the standard of expedition in such historical cases is much different from the standard applicable in recent incidents where time is often of the essence in preserving vital evidence at a scene and questioning witnesses while their memories are fresh and detailed (see Varnava and Others, cited above, §§ 191-92; Gürtekin and Others, cited above, §§ 21-22; Mujkanović and Others, cited above, § 41; Fazlić and Others, cited above, § 39; and Šeremet, cited above, § 37). As concerns the present case, the Court observes that there has been no substantial period of inactivity post-2005 on the part of domestic authorities when it comes to the prosecution of war crimes. Indeed, many war criminals have already been brought to justice (as to war crimes committed during the 1992-95 war in general, see paragraph 5 above; as to war crimes committed in the pre-war municipality of Goražde, see paragraph 10 above). Moreover, in 2008 the domestic authorities adopted the National War Crimes Strategy which provides a systematic approach to solving the problem of the large number of pending war crimes cases (see paragraph 23 above). As indicated above, one of its objectives is to process the most complex and top priority cases within seven years (that is, by the end of 2015) and other war crimes cases within fifteen years (that is, by the end of 2023). In view of the fact that the Court has found that time-frame to be reasonable (see Palić, cited above, § 51) and that the local authorities have taken steps to comply with that time-frame (see paragraphs 21 and 23 above), the requirement of reasonable promptness and expedition has also been fulfilled.
34. The Court finds that, taking into account the special circumstances prevailing in Bosnia and Herzegovina up until 2005 and the large number of war crimes cases pending before local courts, the investigation has not been shown to have infringed the minimum standard required under Article 2 (see, by analogy, Palić, cited above, § 71; Gürtekin and Others, cited above, § 32; Mujkanović and Others, cited above, § 42; Fazlić and Others, cited above, § 40; and Šeremet, cited above, § 38).
35. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. Article 3 of the Convention
36. Article 3 reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
37. The Government maintained that the authorities were making efforts to locate, exhume and identify the mortal remains of all missing persons and to bring to justice all those responsible for serious violations of international humanitarian law committed during the 1992-95 war.
38. The applicant disagreed. Notably, she disapproved the fact that the Missing Persons Fund had not yet been set up (see paragraph 17 above).
39. The main principles in this connection were restated in Varnava and Others, cited above, § 200; Palić, cited above, § 74; and Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, §§ 178-79, ECHR 2013.
40. In the present case, the Court has found in paragraphs 29-33 above that the authorities have not failed in any duty of reasonable expedition or of notification of the applicant in keeping with the procedural aspect of Article 2 of the Convention. While it is true that the payment of financial support to relatives of missing persons has not begun because the Missing Persons Fund has not been set up, the applicant has not demonstrated that she would be eligible for such support (the eligibility criteria are set out in paragraph 17 above).
41. Accordingly, while acknowledging the gravity of the phenomenon of disappearances and the suffering of the applicant, the Court finds that, in the circumstances of this case, the authorities’ reactions cannot be regarded as causing inhuman or degrading treatment (see by analogy, Mujkanović and Others, Fazlić and Others, and Šeremet, all cited above). This complaint is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
C. Articles 5, 8, 13 and 14 of the Convention
42. Lastly, the applicant alleged a breach of Articles 5, 8, 13 and 14, relying in essence on the considerations underlying her other complaints under the Convention.
Article 5, in so far as relevant, provides as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
...
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
Article 8, in so far as relevant, provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. ...”
Article 13 reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Article 14 reads:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
43. Having examined the parties’ submissions and having regard to its findings regarding Articles 2 and 3 above, the Court considers that the facts complained of do not disclose any appearance of a violation of Articles 5, 8, 13 and/or 14 of the Convention. It follows that this part of the case is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Françoise Elens-PassosIneta Ziemele
RegistrarPresident
[1] Local armed forces mostly made up of Serbs established on 12 May 1992. Serbs are an ethnic group whose members may be natives of Serbia or of other States including Bosnia and Herzegovina. The term “Serb” is normally used to refer to members of the ethnic group, regardless of their nationality; it is not to be confused with the term “Serbian” which normally refers to nationals of Serbia.
[2] Bosniacs were known as Muslims until the 1992-95 war. The term “Bosniacs” should not be confused with the term “Bosnians” which is commonly used to denote citizens of Bosnia and Herzegovina irrespective of their ethnic origin.
[3] Croats are an ethnic group whose members may be natives of Croatia or of other States including Bosnia and Herzegovina. The term “Croat” is normally used to refer to members of the ethnic group, regardless of their nationality; it is not to be confused with the term “Croatian” which normally refers to nationals of Croatia.
[4] The average salary paid in Bosnia and Herzegovina in 2013 was 423 euros.
[5] See the 2012 Annual Report of the Registry for Section I for War Crimes and Section II for Organised Crime, Economic Crime and Corruption of the Criminal and Appellate Divisions of the Court of Bosnia and Herzegovina and the Special Department for War Crimes and the Special Department for Organized Crime, Economic Crime and Corruption of the Prosecutor’s Office of Bosnia and Herzegovina, pp. 57-59.
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