FIRST SECTION
DECISION
Application no. 57812/13
Z and Others
against Croatia
The European Court of Human Rights (First Section), sitting on 21 April 2015 as a Chamber composed of:
Isabelle Berro, President,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Paulo Pinto de Albuquerque,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 22 August 2013,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The President of the Chamber acceded to the applicants’ request not to have their names disclosed (Rule 47 § 3 of the Rules of Court), as well as to a request by the Government to grant confidentiality to the case (Rule 33 § 1 of the Rules of Court). The applicants were represented before the Court by Mr M. Cornell of Holmes and Hills Solicitors, a lawyer practising in Braintree, the United Kingdom.
2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. At 6.55 a.m. on 24 November 1991 a dead body was found on the outskirts of city X. The police carried out an on-site inspection the same day. The crime scene was photographed, and biological samples and other evidence were collected from the dead body. The body was identified as A, the applicants’ respective husband and father. A tooth was found on the body. An autopsy was carried out and it was established that A had been struck several times on the back of his head with a hard object, and this had caused his death. On the same day the police lodged a criminal complaint with the X State Attorney’s Office in respect of the killing of A by unknown perpetrators.
5. The police interviewed the person who had found A’s body on 24 November 1991, but he knew nothing about the circumstances of the killing.
6. The investigation into A’s killing was opened on 24 November 1991 in the Zagreb County Court.
7. On 25 November 1991 the first applicant, A’s wife, was called to identify A’s body. On the same day the police interviewed B, who said that at 6.05 p.m. on 23 November he had seen a van going to the area where A’s body was subsequently discovered. The van had returned after about fifteen minutes and stopped. The driver had said that they were on their way to a wedding in restaurant Y. B had seen that the driver was wearing a camouflage uniform. There were three other men in the van. B. gave a detailed description of the van.
8. On the same day the police interviewed the first applicant, who told them that A had frequented restaurant Y on a daily basis. The police also interviewed the second applicant and her husband, some of A’s neighbours and the manager of restaurant Y, who confirmed that there had been a wedding reception in the restaurant on 23 November 1991 and that a number of Croatian soldiers had been present.
9. On 27 November 1991 an expert established that the tooth found on A’s body belonged to a younger person.
10. On 6 December 1991 the police interviewed C, a Croatian soldier who had been present at the wedding reception in Y on 23 November 1991. He said that he had spotted A next to the van in which he and some of his friends had come to the wedding, and had seen that A was noting down the licence plate numbers of the van and of another vehicle parked near-by. C had called his colleagues, D, E and F, and they had forced A into the van and driven to the outskirts of X, where they stopped under a bridge. They had taken A out of the van and D had told him to climb onto a river bank; A had refused. A commotion had ensued, in the course of which A had hit C in the mouth and kicked his tooth out. D, E and F had then continued to strike A. E had taken a metal implement from the van. C took it from him and struck A, killing him. C had pushed A’s body into the river and had then thrown the metal implement into the river.
11. On the same day the police interviewed D, E and F. D and E confirmed the events as described by C, and F said that all four of them had stayed at the wedding reception in restaurant Y throughout the entire night of 23 to 24 November.
12. On 7 December 1991 the X County State Attorney’s Office asked for an investigation to be opened in the X County Court.
13. On the same day an investigating judge of the X County Court heard evidence from C, D, E and F. C, accompanied by his defence lawyer, denied any involvement in the killing of A. D and E repeated the statements they had given to the police. F, accompanied by his defence lawyer, remained silent. The investigating judge opened an investigation in respect of C, D, E and F in connection with the killing of A.
14. During the investigation an opinion was commissioned from a dental expert. He established that the tooth found on A’s body did not belong to any of the suspects. In their further statements during the investigation C, D and E denied the charges against them while F remained silent.
15. On 17 January 1992 C, D, E and F, were indicted on charges of murdering A. The proceedings were conducted before the X Military Court.
16. On 25 September 1992 the Act on Amnesty from Criminal Prosecution and Proceedings in Respect of Criminal Offences Committed during the Armed Conflicts and the War against the Republic of Croatia (Zakon o oprostu od krivičnog progona i postupka za krivična djela počinjena u oružanim sukobima i u ratu protiv Republike Hrvatske) was enacted.
17. On 24 November 1992, pursuant to the General Amnesty Act, the X Military Court terminated the proceedings.
18. On 1 July 1993 the State Attorney lodged a request for the protection of legality (zahtjev za zaštitu zakonitosti) with the Supreme Court, asking it to establish that the termination of proceedings was contrary to law. On 8 September 1993 the Supreme Court established that the request for the protection of legality was well-founded. However, this finding had no effect on the decision to grant the accused amnesty (see paragraph 28 below, Article 422 of the Code of Criminal Procedure).
19. On 5 October 1995 the X Military Court informed the applicants’ counsel about the results of the criminal proceedings, including the Supreme Court’s decision.
20. On 28 August 2003 the first applicant lodged a request with the W State Attorney’s Office for an investigation in respect of the same four individuals, alleging that they had committed a war crime against the civilian population. On 23 February 2005 the W State Attorney held a meeting with the first applicant and informed her orally about the results of the criminal proceedings that had ended in 1992 and told her that there was no possibility of instituting fresh criminal proceeding against the suspects. An official note was drafted about that meeting, but no formal decision was taken upon the first applicant’s request.
21. The first applicants’ request was forwarded to the X State Attorney’s Office, which dismissed it on 16 April 2010 on the basis that proceedings in respect of the same facts had already been terminated. The applicant was instructed that she could take over the proceedings and lodge within eight days a request for an investigation with a X County Court investigating judge.
22. The first applicant complied with the said instruction and on 27 April 2010 submitted the request for an investigation to the X County Court. It was dismissed on 15 December 2010 on the same ground as the one provided by the State Attorney’s Office, i.e. that it concerned the same facts as the indictment from 1992 in respect of which the proceedings had been terminated and that a fresh trial would be in violation of the ne bis in idem principle.
23. The first applicant lodged an appeal with the Supreme Court, which dismissed it on 4 October 2012. The Supreme Court endorsed the views of the County Court.
24. The first and second applicants then lodged a constitutional complaint, which was dismissed on 28 February 2013 on the grounds that the Constitutional Court did not have jurisdiction to examine the complaint.
25. On 4 September 2014 the State Attorney’s Office held a meeting in connection with the Court’s judgment in the Marguš case (see Marguš v. Croatia [GC], no. 4455/10, ECHR 2014 (extracts)), in which the Court held that the ne bis in idem principle did not apply to amnesties for war crimes. Inter alia on this basis the State Attorney’s Office decided to re-open the investigation into the killing of the applicants’ husband and father.
26. On 23 September 2014 the State Attorney’s Office retrieved the case-file concerning the investigation into A’s killing from its Archives. The tooth found on A’s dead body was sent for DNA tests. It was established that all other evidence and biological samples collected during the on-site inspection had been destroyed.
27. Between 23 and 29 September 2014 the State Attorney’s Office interviewed F and several witnesses. The investigation is still pending.
B. Relevant domestic law
28. The relevant part of the Croatian Constitution (Ustav Republike Hrvatske, Official Gazette nos. 41/2001 and 55/2001) reads as follows:
Article 31
“...
(2) No one shall be liable to be tried or punished again in criminal proceedings for an offence of which he has already been finally acquitted or convicted in accordance with the law.
Only the law may, in accordance with the Constitution or an international agreement, prescribe the situations in which proceedings may be reopened under paragraph (2) of this Article and the grounds for reopening.”
29. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku – Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 62/2003, 178/2004 and 115/2006) provide as follows:
Article 2
“(1) Criminal proceedings shall be instituted and conducted at the request of a qualified prosecutor only. ...
(2) In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the State Attorney and in respect of criminal offences to be prosecuted privately the qualified prosecutor shall be a private prosecutor.
(3) Unless otherwise provided by law, the State Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person.
(4) Where the State Attorney finds that there are no grounds to institute or conduct criminal proceedings, the injured party as a subsidiary prosecutor may take his place under the conditions prescribed by this Act.”
Articles 47 to 61 regulate the rights and duties of a private prosecutor and of an injured party acting as a subsidiary prosecutor. The Criminal Code distinguishes between these two roles. A private prosecutor (privatni tužitelj) is the injured party who brings a private prosecution in respect of criminal offences for which such prosecution is expressly prescribed by the Criminal Code (these are offences of a lesser degree). The injured party as a subsidiary prosecutor (oštećeni kao tužitelj) takes over criminal proceedings in respect of criminal offences subject to public prosecution where the relevant prosecuting authorities for whatever reason have decided not to prosecute.
Pursuant to Article 55(1), the State Attorney is under a duty to inform the injured party within eight days of a decision not to prosecute and of the party’s right to take over the proceedings, as well as to instruct that party on the steps to be taken.
Reopening of proceedings
Article 401
“Criminal proceedings concluded by a final ruling or a final judgment may be reopened at the request of an authorised person only in the circumstances and under the conditions set out in this Code.”
Article 406
“(1) Criminal proceedings concluded by a final judgment dismissing the charges may exceptionally be reopened to the detriment of the accused:
...
(5) Where it has been established that amnesty, pardon, statutory limitation or other circumstances excluding criminal prosecution are not applicable to the criminal offence referred to in the judgment dismissing the charges.
...”
Article 408
“(1) The court competent to decide upon a request for the reopening of the proceedings shall be the court which adjudicated the case at first instance ...
(2) The request for reopening shall contain the statutory basis for reopening and evidence in support of the request...
...”
Request for the protection of legality
Article 418
“(1) The State Attorney may lodge a request for the protection of legality against final judicial decisions, and court proceedings preceding such decisions, in which a law has been violated.
(2) The State Attorney shall lodge a request for the protection of legality against a judicial decision adopted in proceedings in which fundamental human rights and freedoms guaranteed by the Constitution, statute or international law have been violated.
...”
Article 419
“(1) The Supreme Court of the Republic of Croatia shall determine requests for the protection of legality.
...”
Article 420
“(1) When determining a request for the protection of legality the [Supreme] Court shall assess only those violations of the law relied on by the State Attorney.
...”
Article 422
“(2) Where a request for the protection of legality has been lodged to the detriment of the accused and the [Supreme] Court establishes that it is well founded, it shall merely establish that there has been a violation of the law, without altering a final decision.”
30. The relevant part of the Act on Amnesty from Criminal Prosecution and Proceedings in Respect of Criminal Offences Committed during the Armed Conflicts and the War against the Republic of Croatia of 25 September 1992 (Official Gazette no. 58/1992, Zakon o oprostu od krivičnog progona i postupka za krivična djela počinjena u oružanim sukobima i u ratu protiv Republike Hrvatske) reads as follows:
Section 1
“Criminal prosecution of perpetrators of criminal offences [committed] during the armed conflicts, the war against the Republic of Croatia or in connection with these conflicts or war, committed between 17 August 1990 and the day when this Act comes into force, shall be discontinued. In respect of these offences no criminal prosecution or criminal proceedings shall be instituted. Where criminal proceedings have been instituted, a court shall terminate them of its own motion. Where a person concerned by the amnesty ... has been detained, he or she shall be released.”
Section 2
“No amnesty under section 1 of this Act shall be granted to perpetrators of the criminal offences in respect of which the Republic of Croatia is obliged to prosecute under international law.”
Section 3
“A state attorney may lodge an appeal within twenty-four hours from the service of a decision under section 1 ... of this Act, where she or he considers that the decision contravenes section 2 of this Act.”
31. The relevant part of the amendments to the above Act of 6 June 1995 reads as follows:
“In section 1, paragraph 1 of the Act on Amnesty from Criminal Prosecution and Proceedings in Respect of Criminal Offences Committed during the Armed Conflicts and the War against the Republic of Croatia (Official Gazette no. 58/92) the words ‘the day when this Act comes into force’ are to be replaced by the words ‘10 May 1995’.”
32. The relevant part of the General Amnesty Act of 24 September 1996 (Official Gazette no. 80/1996, Zakon o općem oprostu) reads as follows:
Section 1
“This Act grants general amnesty from criminal prosecution and proceedings to the perpetrators of criminal offences committed during the aggression, armed rebellion or armed conflicts and in connection with the aggression, armed rebellion or armed conflicts in the Republic of Croatia.
No amnesty shall apply to the execution of final judgments in respect of perpetrators of the criminal offences under paragraph 1 of this section.
Amnesty from criminal prosecution and proceedings shall apply to offences committed between 17 August 1990 and 23 August 1996.”
Section 2
“No criminal prosecution or criminal proceedings shall be instituted against the perpetrators of the criminal offences under section 1 of this Act.
Where a criminal prosecution has already commenced it shall be discontinued and where criminal proceedings have been instituted a court shall issue a decision terminating the proceedings of its own motion.
Where a person granted amnesty under paragraph 1 of this section has been detained, he or she shall be released.”
Section 3
“No amnesty under section 1 of this Act shall be granted to perpetrators of the gravest breaches of humanitarian law, which have the character of war crimes, namely, the criminal offence of genocide under Article 119 of the Basic Criminal Code of the Republic of Croatia (Official Gazette no. 31/1993, consolidated text, nos. 35/1993, 108/1995, 16/1996 and 28/1996); war crimes against the civilian population under Article 120; war crimes against the wounded and sick under Article 121; war crimes against prisoners of war under Article 122; organising groups [with the purpose of committing] or aiding and abetting genocide and war crimes under Article 123; unlawful killing and wounding of the enemy under Article 124; unlawful taking of possessions from the dead or wounded on the battleground under Article 125; use of unlawful means of combat under Article 126; offences against negotiators under Article 127; cruel treatment of the wounded, sick and prisoners of war under Article 128; unjustified delay in repatriation of prisoners of war under Article 129; destruction of cultural and historical heritage under Article 130; inciting war of aggression under Article 131; abuse of international symbols under Article 132; racial and other discrimination under Article 133; establishing slavery and transferring slaves under Article 134; international terrorism under Article 135; putting at risk persons under international protection under Article 136; taking hostages under Article 137; and the criminal offence of terrorism under the provisions of international law.
No amnesty shall be granted to perpetrators of other criminal offences under the Basic Criminal Code of the Republic of Croatia (Official Gazette no. 31/1993, consolidated text, nos. 35/1993, 108/1995, 16/1996 and 28/1996) and the Criminal Code of the Republic of Croatia (Official Gazette no. 32/1993, consolidated text, nos. 38/1993, 28/1996 and 30/1996) which were not committed during the aggression, armed rebellion or armed conflicts and are not connected with the aggression, armed rebellion or armed conflicts in the Republic of Croatia.
...”
Section 4
“A state attorney may lodge an appeal against a court decision under section 2 of this Act where a court has granted amnesty in favour of the perpetrators of criminal offences in respect of which this Act grants amnesty within the legal classification of the criminal offence by a state attorney.”
COMPLAINT
33. The applicants complained under Articles 2 and 3 of the Convention that the investigation into the killing of A was not effective.
THE LAW
34. The applicants complained under the procedural aspect of Articles 2 and 3 of the Convention about the inefficiency of the criminal-law mechanisms with regard to the killing of their husband and father. The Court, being master of the characterisation to be given in law to the facts of the case, will consider this complaint under Article 2 of the Convention, the relevant part of which reads as follows:
“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.”
A. The parties’ submissions
35. The Government put forward several objections concerning the admissibility of the application. Firstly, they argued that the complaints related to the procedural aspect of Article 2 of the Convention were incompatible ratione temporis with the provisions of the Convention and asserted in that respect that the significant part of the procedural steps had been taken before 5 November 1997, when Croatia ratified the Convention.
36. They further maintained that the applicants had already become aware in 1995 that the alleged perpetrators would not be convicted and that therefore their application, lodged on 22 August 2013, had been lodged outside the six-month time limit.
37. The applicants argued that they had complied with all of the admissibility criteria. As regards the compatibility ratione temporis, they maintained that the significant proportion of the procedural steps required by Article 2 of the Convention had taken place or ought to have taken place after the entry into force of the Convention in respect of Croatia.
38. As regards the compliance with the six-month rule they contended that they had effective or potentially effective remedies at their disposal which they had pursued, such as their attempt to institute fresh criminal proceedings and a complaint to the Constitutional Court.
B. The Court’s assessment
39. The Court does not have to address all admissibility objections raised by the Government since the application is in any event inadmissible on the following grounds.
1. The first set of proceedings
40. The first set of proceedings started in 1991 and ended on 24 November 1992, when the X Military Court terminated the proceedings pursuant to the General Amnesty Act (see paragraph 17 above).
41. During the period between November 1992, when the decision was issued applying the amnesty in respect of the alleged perpetrators, and August 2003, when the first applicant lodged a fresh criminal complaint, there was no “ongoing investigation” and accordingly there was no issue of proceedings having dragged on for a number of years without ever reaching any conclusion (compare and contrast McKerr v. the United Kingdom, no. 28883/95, §§ 111 and 114, ECHR 2001‑III; and McCaughey and Others v. the United Kingdom, no. 43098/09, ECHR 2013).
42. It is true that the first applicant lodged a request for an investigation against the same four suspects, on 28 August 2003, on charges of war crimes against the civilian population. However, it would be wrong to see the revival of the procedural obligation incumbent on Croatia under Article 2 following a fresh criminal complaint by the applicants as a continuation of the original obligation to investigate, entailing the consequence that the State may be taxed with culpable delays going back many years. Attaching retroactive effect in this way is likely to discourage governments from taking any voluntary steps that might give rise to the revival of the procedural obligation under Article 2 in the first place (compare to Harrison and Others v. the United Kingdom (dec.), nos. 44301/13, 44679/13 and 44384/13, § 58, 25 March 2014).
43. Therefore, in so far as the applicants’ complaints concern the first set of proceedings, the Court notes that those proceedings ended in November 1992, whereas the application was lodged with the Court on 22 August 2013.
44. It follows that this part of the complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
2. The subsequent criminal complaint and the re-opening of the case
45. The first applicant lodged a fresh criminal complaint on 28 August 2003, a possibility allowed under Croatian law. The Court notes that the national authorities first declined to institute an investigation into the killing of A on the grounds that a fresh investigation would violate the ne bis in idem principle, given that the first set of criminal proceedings against the four accused had been terminated on the basis of the General Amnesty Act. These proceedings ended on 28 February 2013 with the Constitutional Court’s decision (see paragraph 24 above).
46. Further to this, however, and following the Court’s judgment in the Marguš case where the Court held that the ne bis in idem principle did not apply where an amnesty had been granted for acts which amounted to grave breaches of fundamental human rights (see Marguš v. Croatia [GC], no. 4455/10, ECHR 2014 (extracts)), the State Attorney’s Office re-opened the investigation into A’s killing (see paragraphs 25 and 26 above). This being so, and having regard to the measures taken so far by the authorities of the respondent State and to the fact that this investigation is still pending, the Court considers that this part of the application must be regarded as premature and inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention. If the applicants become dissatisfied with the progress being made or, upon the conclusion of the investigation, are not content with the outcome, it remains open to them to lodge a further application with the Court (see, by way of comparison, Harrison and Others, cited above, § 59).
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 21 May 2015.
Søren NielsenIsabelle Berro
RegistrarPresident
Full & Egal Universal Law Academy