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FIRST
SECTION
CASE OF SKENDZIĆ AND KRZNARIĆ v. CROATIA
(Application
no. 16212/08)
JUDGMENT
STRASBOURG
20 January
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of SkendZić and
Krznarić v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou, judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 9 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16212/08) against the Republic
of Croatia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by three Croatian nationals, Ms Josipa SkendZić,
Ms Tamara Krznarić and Mr Aleksandar SkendZić (“the
applicants”), on 22 February 2008.
- The
applicants were represented by Ms G. Peraković-Turković, a
lawyer practising in Ogulin. The Croatian Government (“the
Government”) were represented by their Agent, Ms Š.
StaZnik.
- On
16 December 2009 the President of the First Section decided to
communicate the complaint concerning the procedural aspect of Article
2 of the Convention as well as the complaints under Articles 5, 3, 13
and 14 of the Convention, to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
- The
applicants were born in 1957, 1985 and 1982 respectively and live in
Otočac.
Background to the case
- On
3 November 1991, during the Homeland War in Croatia, an arrest
warrant, signed by the then head of Otočac police station
(Policijska postaja Otočac) J.O., was issued in respect
of M.S., the first applicant’s husband and the second and third
applicants’ father, born on 23 June 1948 and of Serbian ethnic
origin, who was suspected of having committed the criminal offence of
terrorism. On the same day two police officers from the station, D.R.
and J.R., went to the applicants’ flat in Otočac and
arrested M.S., who was taken to J.O.
- On
the same day, at an unspecified time, two other police officers from
the same police station, D.V. and M.Č., took M.S. to the Police
Department of the nearby town of Gospić and handed him over to
I.O., the Head of the Gospić Operational Headquarters
(Operativni štab Gospić). They saw I.O.
handcuffing M.S. and then went back to Otočac. The whereabouts
of M.S. have remained unknown ever since.
- At
the request of his family, M.S. was presumed dead from 2 November
1996 onwards by virtue of a decision of the Otočac Municipal
Court (Općinski sud u Otočcu) of 26 March 1998.
- The
applicants allege that in the same period a number of individuals of
Serbian ethnic origin had disappeared or had been killed in the area
around the nearby town of Gospić.
Criminal investigation
- In
the days following the arrest of her husband by the police, the first
applicant telephoned the local authorities in Otočac and Gospić
on numerous occasions to enquire about his fate, but to no avail.
- On
17 December 1991, after the first applicant had made enquiries to the
Ministry of the Interior (the “Ministry”) regarding her
husband, the Ministry sent an official letter to Otočac police
station enquiring as to the whereabouts of M.S. since his arrest on 2
November 1991. On 18 December 1991 J.O. replied that M.S. had been
arrested on 3 November at 11 a.m. and taken to Gospić County
Prison (OkruZni zatvor Gospić) the same day.
- On
20 December 1991 the Ministry sent an official letter to the Gospić
Police Department enquiring as to M.S.’s whereabouts.
- On
21 December 1991 the Gospić Police Department replied that M.S.
had been arrested by officers from Otočac police station and
that the Gospić Police Department had not been informed of his
arrest. They further stated that, to their knowledge, M.S. had been
taken to Zagreb County Prison (OkruZni zatvor Zagreb). Further
to this, on 11 January 1992 the Gospić Police Department
informed the Ministry that M.S. had never been detained in Gospić
County Prison.
- On
27 October 1992 the Ministry sent a letter to both Otočac police
station and the Gospić Police Department enquiring as to the
whereabouts of M.S. and whether he had been listed as a missing
person.
- On
29 October 1992 M.Č., one of the above-mentioned police officers
from Otočac police station, drew up a report stating that after
he had been arrested on 3 November 1991 M.S. had been taken to the
Gospić Operational Headquarters and handed over to its head,
I.O. He also stated that there was no further information as to
M.S.’s whereabouts.
- On
14 July 1999 the first applicant sent a letter to the Minister of
Justice calling for an official investigation into the disappearance
of her husband. On 4 February 2000 the letter was forwarded to the
State Attorney with a request that appropriate steps be taken. The
first applicant was served with a copy of that request, but received
no further information.
- The
first applicant sent a second letter to the Ministry of Justice on
23 May 2000 seeking information about the steps taken in order
to establish the circumstances of her husband’s disappearance.
- On
7 July 2000 the Gospić County State Attorney’s Office
(Zupanijsko drZavno odvjetništvo u Gospiću)
ordered investigative measures in connection with the disappearance
of M.S. and asked the Otočac police to conduct an interview with
former police officer D.R. and former head of the police station J.O.
about the disappearance of M.S. The Otočac police interviewed
D.R. on 10 July 2000. He said that in the autumn of 1991 he and
another police officer, J.R., had arrested M.S. in his flat in Otočac
pursuant to an arrest warrant issued by J.O. They had taken M.S. to
J.O. and left.
- On
11 July 2000 the Otočac police informed the Gospić County
State Attorney’s Office that they had not been able to
interview J.O. because he had moved to Zagreb.
- In
a letter sent to the Ombudsman on 2 February 2001, the first
applicant complained that no action was being taken in respect of the
inquiry into the fate of her husband. On 13 March 2001 the
Ombudsman’s Office asked the applicant to explain what exactly
her request was.
- On
14 June 2002 police officer, D.R., since retired, was interviewed at
Otočac police station. He said that in November 1991 he had been
a police officer at that station and that during that period M.S. had
been brought to the premises of Otočac police station, where he
had been briefly detained and then transferred to Gospić by two
police officers, M.Č. and D.V.
- On
15 June 2002 J.R., the aforementioned police officer from Otočac
police station, made a written statement that on 3 November 1991 he
and another police officer, D.R., had executed an arrest warrant and
arrested M.S. in his flat in Otočac. They had handed him over to
J.O. and left.
- On
18 June 2002 former police officer D.V. was interviewed at Otočac
police station. He said that he could not remember a person named
M.S. but did remember having on one occasion, together with his
colleague M.Č., driven an official police vehicle to Gospić,
but could not say for what purpose.
- The
Otočac police informed the Gospić Police Department of the
result of the interviews on 19 June 2002 and the Gospić County
State Attorney’s Office on 26 June 2002.
- On
9 February 2004 the first applicant officially registered M.S. with
the Otočac police as a missing person. On 19 March 2004 the
Otočac police informed the Gospić police that M.S. had been
listed as a missing person and asked them to carry out an inquiry
because M.S. had disappeared on the territory under their
jurisdiction. On 30 March 2004 the Gospić police asked the
Gospić Prison authorities whether they had a record of M.S.
having been detained there in November 1991 and whether I.O. had had
any function at Gospić Prison at that time.
- On
1 April 2004 the Gospić Prison authorities informed the Gospić
police that M.S. had never been registered as having entered that
prison and that I.O. had had no function at the prison, but had been
head of the Gospić Operational Headquarters.
- On
8 April 2005 the Gospić police asked the Ličko-Senjska
Police Department (Policijska uprava ličko-senjska –
the former Gospić Police Department) to request the Zagreb
Police Department to interview I.O., who was now living in Zagreb. On
16 April 2004 the Ličko-Senjska Police Department duly made that
request.
- On
22 April 2004 the Zagreb Police Department interviewed I.O. He stated
that during the Homeland War in Croatia, as an officer in the
Croatian Army, he had arrived in Gospić on 30 August 1991 and
left sometime at the end of September 1991. He had no knowledge of
the arrest and disappearance of M.S.
- On
7 May 2004 the first applicant asked the State Attorney to take steps
in order to establish the whereabouts of her husband.
- In
May 2004 the State Attorney sent a letter to the Rijeka County State
Attorney’s Office (Zupanijsko drZavno odvjetništvo u
Rijeci) stating that in September 2000 his office had already
forwarded to the Rijeka Office a request that an investigation be
carried out into the death of M.S., in particular in connection with
the criminal proceedings opened in 1999 against a certain T.O. and
other persons. The first applicant’s submissions from 2000, in
which she stated that she had received no information in reply to her
enquiry about the circumstances of her husband’s death, were
enclosed. The State Attorney requested all information about M.S.
that had been obtained during the investigation concerning T.O. and
his accomplices. A copy of this letter was served on the first
applicant.
- On
3 June 2004 the Gospić County State Attorney’s Office
informed the Ličko-Senjska Police Department about the interview
with I.O. and also said that the records of the Military Police
Administration showed that I.O. had not been on their payroll.
- On
18 June 2004 the Zagreb Police Department interviewed J.O. He stated
that from September 1991 to 15 February 1992 he had been head of
Otočac police station and that sometime in October or November
1991 an order had been given for M.S. to be arrested and taken to the
Gospić Police Department for questioning on suspicion of having
participated in the criminal offence of kidnapping a driver in the
spring of 1991. He did not know who had given that order but was sure
that it had not been him. J.O. also said that he had not seen M.S.
when he was taken to the Otočac police but that he knew that
M.Č., together with one or two other police officers, had taken
M.S. to the Gospić police in a police car. He had no knowledge
as to what had happened there but had heard rumours that on the same
day M. S. had run away to the occupied territories.
- On
13 July 2004 the Zadar Police Department (Policijka uprava
zadarska) interviewed Z.B., who had been Head of the Public
Safety Operational Tasks Division of the Gospić Police
Department (načelnik Odjela operativnih poslova javne
sigurnosti Policijske uprave Gospić) in the period between 1
August and 30 November 1991. He had no knowledge of the arrest and
disappearance of M.S. and had never heard of a person of that name.
- On
24 August 2004 the Ličko-Senjska Police Department interviewed
I.D., a retired police officer from the Gospić Police Department
who said that he had not ordered the arrest of M.S. and that it had
most likely been J.O. who had ordered it. He had not witnessed M.S.
being brought to the Gospić Police Department.
- In
October 2004 the Deputy State Attorney sent a letter to the first
applicant telling her that both the Gospić Police Department and
the Gospić County State Attorney’s Office had been ordered
to take all necessary steps to establish the circumstances of her
husband’s disappearance.
- On
11 November 2004 the Gospić County State Attorney’s Office
asked the Gospić County Court (Zupanijski sud u Gospiću)
to hear evidence from witnesses J.S. (the first applicant), J.O.,
M.Č., D.V., D.R., J.R. and I.O. At hearings held on 23 and 24
November 2004 an investigating judge of the Gospić County Court
heard evidence from all these witnesses, save J.O. All of them
repeated what they had already said to the police. Further to this,
on 10 February 2005 an investigating judge of the Zagreb County Court
(Zupanijski sud u Zagrebu) heard evidence from J.O. He
repeated the statement he had made to the police.
- At
the end of 2004 the first applicant wrote to the Vice-President of
the Government, enquiring about the progress of the investigation,
and the latter forwarded the letter to the State Attorney. In
February 2005 the Deputy State Attorney informed the applicant that
in November 2004 a request for an investigation into the
disappearance of M.S. to be opened had been lodged with the Gospić
County Court (Zupanijski sud u Gospiću). On 10 February
2005 the investigating judge assigned to the case heard evidence from
a number of witnesses.
- In
August 2005 the first applicant’s counsel sought information
about the investigation from the Gospić County Court.
- In
September 2005 the Gospić County State Attorney’s Office
informed the applicant that those responsible for the disappearance
of her husband had yet to be identified. The Gospić County State
Attorney asked the Gospić Police Department to continue with
their efforts to establish the circumstances of M.S.’s
disappearance.
- In
December 2005 the first applicant’s counsel asked the State
Attorney to transfer the case to another State Attorney’s
office, objecting to the lack of impartiality of the Gospić
County State Attorney’s Office on the grounds that the
investigation had revealed involvement on the part of the local
authorities in the disappearance of M.S.
- In
January 2006 the State Attorney replied to the first applicant’s
counsel that he had asked for a report from the Gospić County
State Attorney’s Office and the local police.
- In
July 2006 the first applicant’s counsel told the
representatives of the OSCE Mission to Croatia that the investigation
was ineffective. In August 2006 the Mission enquired of the State
Attorney as to progress with the investigation.
- At
the same time the first applicant’s counsel requested that M.S.
be listed as a disappeared person with the Department for Detained
and Disappeared Persons and provided information as to where his body
might be found. Soon afterwards, the Ministry of Family, Homeland War
Veterans and Intergenerational Solidarity (Ministarstvo obitelji,
branitelja i međugeneracijske solidarnosti) informed the
representative that three corpses of unidentified persons had been
found as a result of exhumation at a graveyard in Vraneš. In
connection with this the members of the SkendZić family gave
samples of their blood.
- In
October 2006 the State Attorney’s Office informed the OSCE
Mission to Croatia that further information had been requested from
the Gospić County State Attorney’s Office. The latter
ordered the local police authorities to undertake further steps in
order to identify the perpetrators. However, no further steps were
taken.
- On
6 September 2007 the applicants lodged a constitutional complaint
about the ineffectiveness of the investigation. The proceedings are
still pending.
Civil proceedings against the State
- In
March 2002 the applicants brought a civil action against the State in
the Otočac Municipal Court seeking damages in connection with
M.S.’s disappearance.
- In
a judgment of 6 May 2005 the Municipal Court established that M.S.
had been arrested by the police and alive while in police custody and
that therefore the State was responsible for his disappearance and
death. It awarded the applicants each 230,000 Croatian kunas (HRK)
for non-pecuniary damage in respect of their suffering for the death
of a close relative, and also a monthly allowance to the first
applicant until her death and to the second and third applicants for
as long as they attended school. The relevant part of the judgment
reads:
“... the arrest warrant issued by the Otočac
police station on 3 November 1991 in respect of M.S., on the basis of
which he was brought to that station, and at the same time the lack
of any evidence that M.S. was handed over to any other State body,
leads this court to establish the defendant’s responsibility.
...
As stated above, the fact that there is no evidence that
the Otočac police station handed the detainee M.S. over to any
other State body is crucial for the question of the defendant’s
responsibility because the issue of control over the detainee
includes taking of responsibility for his safety and for the
protection of his physical integrity.
The evidence given by the witnesses, in particular the
police officers who participated in M.S.’s arrest and his
transfer to Gospić, shows that their actions violated the
detainee’s fundamental human rights and freedoms guaranteed
under the Croatian Constitution, which cannot be restricted even at
the time of ... the immediate war danger ... as well as the rights
guaranteed by the Code on Criminal Procedure then in effect.
It has been established that the defendant, in addition
to infringing the procedure prescribed by law, did not secure to the
detainee the protection of his physical integrity and life, which
resulted in his disappearance and presumption of his death.
In such a way, it is clear that damage was caused by
unlawful and incorrect acts on the part of the State bodies, namely,
the Ministry of Interior ...
...
This court has no doubt that the suffering on account of
the death of a husband and father cannot be translated into money: it
concerns just satisfaction so that the plaintiffs may be at least
partially helped in regaining their mental balance, which was
certainly upset by the loss of a husband and father. In assessing the
amount of just satisfaction for the plaintiffs’ suffering, the
court has had particular regard to the circumstances and manner in
which the deceased M.S. disappeared, and accordingly considers the
plaintiffs’ sufferings as being particularly serious.
The court has taken into account that the deceased,
M.S., was arrested by the legitimate authorities and that since he
was taken from his home, his family – the plaintiffs –
have had no further information about [his whereabouts]. Of course
the fate of the plaintiffs’ husband and father has given rise
to an exceptionally frustrating and stressful situation for the
plaintiffs as a family, in particular seeing that the family has
never learned the complete truth about his disappearance.
In her statement the first plaintiff vividly described
the atmosphere of utter despair and uncertainty which the plaintiffs
felt at the time when M.S. was arrested and then disappeared,
stressing that she had taken tranquilisers because she had received
no answers as regards the fate of her husband.
The statement of the second plaintiff that as a six-year
old child she had been constantly crying, that she and her brother
had retreated into themselves and that she would like to know at
least where her father had been buried so that she could attend his
grave on All Saints Day was also moving.
The third plaintiff, who was three at the time of [the
disappearance of his father], stressed the strong bond between
himself and his father and the time of his arrest and uncertainty
about his fate, describing it as ‘horrible in which he cannot
remember a single nice moment.’
It is clear that the mental suffering caused by the loss
of a parent or a husband is immeasurable. In the case at issue the
plaintiffs’ suffering has an additional dimension owing to the
fact that they still do not know the exact circumstances of M.S.’s
death or the place of his grave.”
- The
part of the judgment concerning the award for non-pecuniary damage
was upheld by the Gospić County Court on 12 January 2006,
whereas the part concerning the monthly allowance was quashed. On
10 October 2007 the Supreme Court (Vrhovni sud Republike
Hrvatske) upheld the County Court’s judgment concerning the
award for non-pecuniary damage. This judgment was fully enforced on
29 April 2008.
- The
proceedings concerning the claim for a monthly allowance resumed
before the Otočac Municipal Court, which delivered a fresh
judgment on 11 February 2009, again awarding the applicants a monthly
allowance, which was upheld by the Gospić County Court on 3 July
2009.
- On
31 August 2009 the applicants sought enforcement of that judgment in
the Otočac Municipal Court and an enforcement order was issued
on 9 September 2009.
- However,
upon a request by the State on 22 September 2009, the enforcement of
the judgment was adjourned on the grounds that the State had in the
meantime lodged an appeal on points of law with the Supreme Court,
which was still pending.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicants complained that M.S. had been arrested by the Croatian
police in November 1991 and had subsequently disappeared and that no
effective investigation into the circumstances of his arrest and
disappearance had taken place. They relied on Article 2 of the
Convention, the relevant parts of which read:
“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.
...”
A. Admissibility
1. The parties’ arguments
- The
Government argued that the application had been lodged outside the
six-month time-limit because on 9 December 2005 the applicants had
already complained to the State Attorney about the inefficiency of
the investigation and therefore that date should be taken as the
starting date for the six-month time-limit.
- The
Government also argued that the applicants were no longer victims of
the alleged violations because in the civil proceedings against the
State the national courts had established the State’s
responsibility for the disappearance of M.S. and awarded the
applicants damages.
- In
reply, the applicants submitted that the investigation into the
disappearance of their close relative was still pending and that this
had been confirmed in the letters sent by the national authorities to
the applicants in reply to their enquiries about the progress of the
investigation. Furthermore, the applicants had lodged a
constitutional complaint which was aimed at remedying the violation
claimed.
2. The Court’s assessment
(a) Compatibility ratione temporis
- The
Court notes that the issue of the Court’s temporal jurisdiction
arises in respect of the applicants’ complaints under both the
substantive and procedural aspects of Article 2 of the Convention.
(i) Substantive aspect
- The
Court reiterates that the provisions of the Convention do not bind a
Contracting Party in relation to any act or fact which took place or
any situation which ceased to exist before the date of the entry into
force of the Convention with respect to that Party; this is an
established principle in the Court’s case-law based on the
general rule of international law (see, among other authorities,
Šilih v. Slovenia [GC], no. 71463/01, § 140,
9 April 2009).
- In
this connection the Court firstly notes that the Convention entered
into force in respect of Croatia on 5 November 1997. Therefore, any
complaints by the applicants asserting the responsibility of the
Contracting State for factual events in 1991 are outside the Court’s
temporal jurisdiction.
- The
Court notes that the applicants’ respective husband and father
was arrested by the Croatian police at the beginning of November 1991
and since then his whereabouts have remained unknown. The Court
further notes that M.S. was declared dead as of 2 November 1996. The
alleged substantive violation of Article 2 of the Convention
therefore occurred prior to 5 November 1997, when the Convention
entered into force in respect of Croatia.
- It
follows that the complaint under the substantive aspect of Article 2
of the Convention is incompatible ratione temporis with the
provisions of the Convention within the meaning of Article 35 § 3
and must be rejected in accordance with Article 35 § 4.
(ii) Procedural aspect
- In
so far as any complaints are raised concerning acts or omissions of
the Contracting State after 5 November 1997, the Court may take
cognisance of them (see Varnava and Others v. Turkey [GC],
nos. 16064/90, 16065/90, 16066/90, 16068/90,
16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, §
134, 18 September 2009). It notes in this respect that part of the
applicants’ claims relate to the situation pertaining after
5 November 1997, namely, the continuing failure to account for
the fate and whereabouts of M.S. by providing an effective
investigation.
- The
Court further notes that M.S. was declared dead as of 2 November
1996. However, even where a missing person is declared dead, this
does not dispose of the applicants’ complaints concerning the
lack of an effective investigation (see Varnava, cited above,
§144). In this connection the Court refers to the principles
established in paragraphs 145 and 148 of the Varnava judgment
(cited above):
“145. The Court would recall that the
procedural obligation to investigate under Article 2 where there has
been an unlawful or suspicious death is triggered by, in most cases,
the discovery of the body or the occurrence of death. 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.
...
148. It cannot therefore be said that a
disappearance is, simply, an “instantaneous” act or
event; the additional distinctive element of subsequent failure to
account for the whereabouts and fate of the missing person gives rise
to a continuing situation. Thus, the procedural obligation will,
potentially, persist as long as the fate of the person is unaccounted
for; the ongoing failure to provide the requisite investigation will
be regarded as a continuing violation (see the fourth inter-State
case, § 136). This is so, even where death may, eventually, be
presumed.”
- As
to the present case, the Court notes that the first steps aimed at
ascertaining the fate of M.S. were taken on 17 December 1991 when the
Ministry of the Interior sent an official letter to Otočac
police station enquiring as to the whereabouts of M.S. (see paragraph
11 above). Before 5 November 1997 several police reports had
been drawn up recording the circumstances of M.S.’s arrest, but
no official investigation had been opened.
- Following
a letter by the first applicant of 14 July 1999 calling for an
official investigation, the first investigative measures were ordered
by the Gospić County State Attorney’s Office on 7 July
2000 when that Office asked the Otočac police to interview
former police officer D.R. and former head of Otočac police
station J.O. about the disappearance of M.S. (see paragraph 17
above).
- After
that, various investigative steps were taken until 10 February 2005,
when an investigating judge of the Zagreb County Court heard evidence
from J.O.
- Thus,
all relevant investigative steps, aimed at establishing the
whereabouts of M.S., took place after 5 November 1997 when the
Convention entered into force in respect of Croatia. It follows that
all issues pertaining to the procedural aspect of Article 2 of the
Convention do fall under the Court’s temporal jurisdiction.
(b) The applicants’ victim status
- The
Court firstly takes note of the applicants’ complaint that
their close relative was arrested by the Croatian police and then
disappeared and that the investigation into the circumstances of his
arrest and disappearance was not effective. The Court reiterates that
the procedural aspect of Article 2 of the Convention in
circumstances such as those in the present case in principle require
an investigation capable of leading to the identification and
punishment of those responsible. The essential purpose of such
investigation is to secure the effective implementation of the
domestic laws which protect the right to life and, in those cases
involving State agents or bodies, to ensure their accountability for
deaths occurring under their responsibility (see Paul and Audrey
Edwards v. the United Kingdom, no. 46477/99, § 69, ECHR
2002 II).
- The
Court has already held that a civil procedure undertaken on the
initiative of an applicant which does not involve the identification
or punishment of any alleged perpetrator cannot be taken into account
in the assessment of the State’s compliance with its procedural
obligations under Article 2 of the Convention (see Hugh Jordan v.
the United Kingdom, no. 24746/94, § 141, ECHR 2001 III
(extracts)).
- As
to the present case, the Court notes that by means of a civil action
against the State the applicants did indeed obtain just satisfaction
in connection with their sufferings caused by the arrest and
subsequent disappearance of their close relative as well as the
acknowledgement of the State’s responsibility for the
disappearance of M.S. Despite a positive outcome for the applicants
in the form of a financial award, their civil action was not capable,
without the benefit of the conclusions of a criminal investigation,
of making any findings as to the identity of the perpetrators, and
still less of establishing their responsibility (see, mutatis
mutandis, Kaya v. Turkey, 19 February 1998, § 105,
Reports of Judgments and Decisions 1998 I; Yaşa
v. Turkey, 2 September 1998, § 74, Reports of Judgments
and Decisions 1998 VI; and Shanaghan v. the United
Kingdom, no. 37715/97, § 99, 4 May 2001). Furthermore, a
Contracting State’s obligation under the procedural aspect of
Article 2 of the Convention to conduct an investigation capable of
leading to the identification and punishment of those responsible in
cases of a person’s death at the hands of State officials might
be rendered illusory if an applicant were to cease being a victim in
respect of complaints under those Articles only on the ground of an
award of damages (see, mutatis mutandis, Isayeva and Others
v. Russia, nos. 57947/00, 57948/00 and 57949/00, § 149, 24
February 2005) even where it is, as in the present case, accompanied
by the acknowledgment of the State’s responsibility.
- It
follows that the applicants in the present case may still claim to be
victims of the alleged violations of the procedural aspect of Article
2 of the Convention and that the Government’s objections in
that respect must be dismissed.
(c) Compliance with the six-month rule
- As
to the Government’s objection concerning compliance with the
six-month rule, the Court refers to the following principles
established in Varnava (cited above):
“158. ...where a death has occurred,
applicant relatives are expected to take steps to keep track of the
investigation’s progress, or lack thereof, and to lodge their
applications with due expedition once they are, or should have
become, aware of the lack of any effective criminal investigation ...
159. Nonetheless it has been said that the
six month time-limit does not apply as such to continuing situations
...
161. ... Not all continuing situations are
the same; the nature of the situation may be such that the passage of
time affects what is at stake. In cases of disappearances, just as it
is imperative that the relevant domestic authorities launch an
investigation and take measures as soon as a person has disappeared
in life-threatening circumstances, it is indispensable that the
applicants, who are the relatives of missing persons, do not delay
unduly in bringing a complaint about the ineffectiveness or lack of
such investigation before the Court. With the lapse of time, memories
of witnesses fade, witnesses may die or become untraceable, evidence
deteriorates or ceases to exist, and the prospects that any effective
investigation can be undertaken will increasingly diminish; and the
Court’s own examination and judgment may be deprived of
meaningfulness and effectiveness. Accordingly, where disappearances
are concerned, applicants cannot wait indefinitely before coming to
Strasbourg. They must make proof of a certain amount of diligence and
initiative and introduce their complaints without undue delay. What
this involves is examined below.
162. The Court would comment, firstly, that a
distinction must be drawn with cases of unlawful or violent death. In
those cases, there is generally a precise point in time at which
death is known to have occurred and some basic facts are in the
public domain. The lack of progress or ineffectiveness of an
investigation will generally be more readily apparent. Accordingly
the requirements of expedition may require an applicant to bring such
a case before Strasbourg within a matter of months, or at most,
depending on the circumstances, a very few years after events. In
disappearance cases, where there is a state of ignorance and
uncertainty and, by definition, a failure to account for what has
happened, if not an appearance of deliberate concealment and
obstruction on the part of some authorities, the situation is less
clear-cut. It is more difficult for the relatives of the missing to
assess what is happening, or what can be expected to happen.
Allowances must be made for the uncertainty and confusion which
frequently mark the aftermath of a disappearance.
163. Secondly, the Court would take
cognisance of the international materials on enforced disappearances.
The International Convention for the Protection of All Persons from
Enforced Disappearance stipulates that any time-limit on the
prosecution of disappearance offences should be of long duration
proportionate to the seriousness of the offence, while the Rome
Statute of the International Criminal Court excludes any statute of
limitations as regards the prosecution of international crimes
against humanity, which includes enforced disappearances. Bearing in
mind therefore the consensus that it should be possible to prosecute
the perpetrators of such crimes even many years after the events, the
Court considers that the serious nature of disappearances is such
that the standard of expedition expected of the relatives cannot be
rendered too rigorous in the context of Convention protection.
164. Thirdly, in line with the principle of
subsidiarity, it is best for the facts of cases to be investigated
and issues to be resolved in so far as possible at the domestic
level. It is in the interests of the applicant, and the efficacy of
the Convention system, that the domestic authorities, who are best
placed to do so, act to put right any alleged breaches of the
Convention.
165. Nonetheless, the Court considers that
applications can be rejected as out of time in disappearance cases
where there has been excessive or unexplained delay on the part of
applicants once they have, or should have, become aware that no
investigation has been instigated or that the investigation has
lapsed into inaction or become ineffective and, in any of those
eventualities, there is no immediate, realistic prospect of an
effective investigation being provided in the future. Where there are
initiatives being pursued in regard to a disappearance situation,
applicants may reasonably await developments which could resolve
crucial factual or legal issues. Indeed, as long as there is some
meaningful contact between families and authorities concerning
complaints and requests for information, or some indication, or
realistic possibility, of progress in investigative measures,
considerations of undue delay will not generally arise. However,
where there has been a considerable lapse of time, and there have
been significant delays and lulls in investigative activity, there
will come a moment when the relatives must realise that no effective
investigation has been, or will be provided. When this stage is
reached will depend, unavoidably, on the circumstances of the
particular case.
166. In a complex disappearance situation
such as the present, arising in a situation of international
conflict, where it is alleged that there is a complete absence of any
investigation or meaningful contact with the authorities, it may be
expected that the relatives bring the case within, at most, several
years of the incident. If there is an investigation of sorts, even if
sporadic and plagued by problems, the relatives may reasonably wait
some years longer until hope of progress being made has effectively
evaporated. Where more than ten years has elapsed, the applicants
would generally have to show convincingly that there was some
ongoing, and concrete, advance being achieved to justify further
delay in coming to Strasbourg. Stricter expectations would apply in
cases where the applicants have direct domestic access to the
investigative authorities.”
- As
to the case at issue, the Court notes that the competent State
Attorney’s Office ordered the first investigative measures
concerning the disappearance of M.S. on 7 July 2000, upon a letter by
the first applicant of 14 July 1999. The present application was
lodged with the Court on 22 February 2008. At that time the
inquiry into the disappearance of the applicants’ close
relative conducted by the State Attorney’s Office was pending,
as it still is now. In that connection the Court notes that the last
step in the inquiry was taken on 10 February 2005, when an
investigating judge of the Zagreb County Court heard evidence from
witness J.O.
- In
February 2008, when the applicants submitted the present application
with the Court, their constitutional complaint about the
ineffectiveness of the inquiry was pending, as it still is now.
Furthermore, in view of the long delays in the inquiry, which has now
been pending for more than ten years, the fact that the applicants
waited for some years before bringing their application to Strasbourg
appears reasonable (see Varnava, cited above, § 166).
- The
inquiry is still ongoing. It cannot therefore be said that the
six-month time-limit expired at any time during that period. It
follows that the Government’s objection must be dismissed.
Conclusion as to the admissibility
- The
Court notes that the complaint under the procedural aspect of Article
2 is not manifestly ill-founded within the meaning of Article 35 §
3 of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicants contended that their close relative had been arrested by
the police and had subsequently disappeared. His body had never been
found and the relevant State authorities had failed to establish the
circumstances of his disappearance. The investigation into his
disappearance had been conducted by the Otočac and Gospić
authorities, which could not be regarded as independent because the
officials of those authorities had been implicated in the events at
issue.
- The
Government argued that the national authorities had done everything
they could in order to establish the circumstances of M.S.’s
disappearance.
2. The Court’s assessment
(a) Alleged lack of an effective and
prompt investigation
- The
Court reiterates that, according to its case-law, the obligation to
protect the right to life under Article 2, read in conjunction with
the State’s general duty under Article 1 to “secure to
everyone within [its] jurisdiction the rights and freedoms defined in
[the] Convention”, requires by implication that there should be
some form of effective official investigation when individuals have
been killed as a result of the use of force. This obligation is not
confined to cases where it has been established that the killing was
caused by an agent of the State. Nor is it decisive whether members
of the deceased’s family or others have lodged a formal
complaint about the killing with the competent investigation
authority. The mere fact that the authorities were informed of the
killing of an individual gives rise ipso facto to an
obligation under Article 2 of the Convention to carry out an
effective investigation into the circumstances surrounding the death
(see Tanrıkulu v. Turkey [GC], no. 23763/94, §§
101 and 103, ECHR 1999-IV). The nature and degree of scrutiny which
satisfies the minimum threshold of an investigation’s
effectiveness depends on the circumstances of each particular case.
It must be assessed on the basis of all relevant facts and with
regard to the practical realities of investigation work (see Velikova
v. Bulgaria, no. 41488/98, § 80, ECHR 2000-VI, and Ülkü
Ekinci, cited above, §144).
- There
is also a requirement of promptness and reasonable speediness
implicit in this context (see Yaşa v. Turkey, judgment of
2 September 1998, Reports 1998-VI, pp. 2439-40, §§
102-04, and Çakıcı v. Turkey [GC],
no. 23657/94, §§ 80, 87 and 106, ECHR 1999-IV). It
must be accepted that there may be obstacles or difficulties which
prevent an investigation from making progress in a particular
situation. However, a prompt response by the authorities in
investigating a disappearance may generally be regarded as essential
in ensuring public confidence in their maintenance of the rule of law
and in preventing any appearance of collusion in or tolerance of
unlawful acts (see, in general, McKerr v. the United Kingdom,
no. 28883/95, §§ 108-15, ECHR 2001-III; Avşar
v. Turkey, no. 25657/94, §§ 390-95, ECHR 2001-VII;
and Myronenko v. Ukraine,
no. 15938/02, § 35, 18 February 2010).
- The
Court notes that there is no proof that M.S. was killed. However, the
above-mentioned procedural obligations extend, but are not confined,
to cases which concern intentional killings resulting from the use of
force by agents of the State. The Court considers that these
obligations also apply to cases where a person has disappeared in
circumstances which may be regarded as life-threatening. In this
connection it must be accepted that the more time passes without any
news of the person who has disappeared, the greater the likelihood
that he or she has died (see Tahsin Acar v. Turkey [GC], no.
26307/95, § 226, ECHR 2004-III, and Şeker v. Turkey,
no. 52390/99, § 69, 21 February 2006).
- The
Court notes that M.S. was presumed dead from 2 November 1996 onwards
by virtue of a decision of the Otočac Municipal Court of
26 March 1998. In view of that decision and the fact that he was
arrested in November 1991 during the Homeland War in Croatia and that
his whereabouts have remained unknown ever since the Court accepts
that he must be presumed dead following his arrest by State
servicemen.
- In
the present case an official inquiry was indeed carried out into the
disappearance of the applicants’ close relative. However, there
were substantial shortcomings in the conduct of the investigation. In
this connection the Court will examine only the part of the inquiry
that took place after 5 November 1997, when the Convention entered
into force in respect of Croatia.
- First
of all, the Court notes that although the inquiry started soon after
the disappearance of M.S., it came to a standstill in October 1992.
After the ratification of the Convention by Croatia (i.e. 5 November
1997) the first steps were taken only upon the first applicant’s
letter of 14 July 1999, when on 7 July 2000 the Gospić
County State Attorney’s Office ordered investigative measures
in connection with the disappearance of M.S. and asked the Otočac
police to interview former police officer D.R. and former head of
Otočac police station J.O. about the disappearance of M.S.
- Further
investigative measures were plagued by inexplicable delays. Thus,
D.R. was interviewed only on 14 June 2002, almost two years after the
request by the State Attorney’s Office had been made. As
regards J.O, although the Otočac police had informed the Gospić
County State Attorney’s Office as early as 11 July 2000 that
they had not been able to interview J.O. because he had moved to
Zagreb, no steps were taken to establish his whereabouts and
interview him until 18 June 2004.
- The
Court further observes that between June 2002 and February 2004 no
serious attempts were made to obtain the relevant evidence.
- These
delays alone compromised the effectiveness of the investigation and
could not but have had a negative impact on the prospects of
establishing the truth.
- Other
elements of the investigation also call for comment. For example, two
police officers of Otočac police station, D.V. and M.Č.,
testified that they had taken M.S. to the Police Department of the
nearby town of Gospić and handed him over to I.O. They had seen
I.O. handcuffing M.S. and had then returned to Otočac. However,
the authorities did not see fit to confront these two police officers
with I.O. and ask them whether he was the man they were referring to
in their statements.
- It
also appears that the authorities made no serious effort to establish
the identity of all the police officers or other persons present at
the time of M.S.’s detention in the Gospić Police
Department in order to obtain their statements about the events
surrounding M.S.’s arrival at that Police Department and his
further fate. Furthermore, since February 2005 there has been no
specific activity aimed at identifying those responsible for the fate
of M.S.
- The
Court considers that the deficiencies described above are sufficient
to conclude that the national authorities failed to carry out an
adequate and effective investigation into the circumstances
surrounding the disappearance of M.S.
(b) Alleged lack of independence of the
investigation
- The
Court reiterates that for an investigation into an alleged unlawful
arrest of a person by State agents and his or her subsequent
disappearance to be effective, it may generally be regarded as
necessary for the persons responsible for carrying out the
investigation to be independent from those implicated in the events
(see, for example, Güleç v. Turkey, 27 July
1998, Reports 1998-IV, §§ 81-82, and Oğur v.
Turkey [GC], no. 21954/93, §§ 91-92, ECHR
1999-III). This means not only a lack of hierarchical or
institutional connection but also a practical independence (see, for
example, Ergi v. Turkey, 28 July 1998, Reports 1998 IV,
§§ 83-84; Hugh Jordan v. the United Kingdom,
no. 24746/94, § 120, ECHR 2001 III (extracts); and Kelly
and Others v. the United Kingdom, no. 30054/96, § 114, 4 May
2001).
- As
to the present case, the Court notes that the preliminary inquiry
into the circumstances of M.S.’s arrest by the police officers
of Otočac police station and his subsequent disappearance was
not independent. Notably, the inquiry was entrusted to the same
police station of which the police officers had arrested M.S. and
then transferred him to Gospić. Some of them, such as J.R., who
had arrested M.S., were still working at the same police station at
the time of the inquiry. In the Court’s view, those factors
produced an obvious conflict of interests and lack of independence of
the investigating authorities (see, mutatis mutandis,
Gharibashvili v. Georgia, no. 11830/03, § 68, 29
July 2008). In this connection the Court also notes that the first
applicant’s request from 2005 that the case be entrusted to a
different authority has remained unanswered.
(c) Conclusion
- The
Court finds that the shortcomings in the inquiry into the
disappearance of M.S. regarding its effectiveness and the lack of
independence of the authorities involved failed to comply with the
requirements of Article 2 of the Convention. There has accordingly
been a violation of the procedural obligation of Article 2 of the
Convention in those respects.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicants complained that the prolonged uncertainty as to the fate
of M.S. had caused them continual anxiety and fear. They relied on
Article 3 of the Convention which reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Admissibility
- The
Court will firstly examine whether the applicants may still be
considered victims of the alleged violation of Article 3 of the
Convention in connection with disappearances of their close relative.
In this connection the Court refers to the general principles stated
above in paragraphs 66 and 67. It also considers that for this issue
further principles, as stated in the Varnava case (cited
above), are also relevant in the circumstances of the present case:
“200. The phenomenon of disappearances
imposes a particular burden on the relatives of missing persons who
are kept in ignorance of the fate of their loved ones and suffer the
anguish of uncertainty. Thus the Court’s case-law recognised
from very early on that the situation of the relatives may disclose
inhuman and degrading treatment contrary to Article 3. The essence of
the violation is not that there has been a serious human rights
violation concerning the missing person; it lies in the authorities’
reactions and attitudes to the situation when it has been brought to
their attention (see, amongst many authorities, Orhan v. Turkey,
no. 25656/94, § 358, 18 June 2002, and Imakayeva, cited
above, § 164). Other relevant factors include the proximity
of the family tie, the particular circumstances of the relationship,
the extent to which the family member witnessed the events in
question, the involvement of the family member in the attempts to
obtain information about the disappeared person (Tanış,
cited above, § 219). The finding of such a violation is not
limited to cases where the respondent State has been held responsible
for the disappearance (see Osmanoğlu, cited above, § 96)
but can arise where the failure of the authorities to respond to the
quest for information by the relatives or the obstacles placed in
their way, leaving them to bear the brunt of the efforts to uncover
any facts, may be regarded as disclosing a flagrant, continuous and
callous disregard of an obligation to account for the whereabouts and
fate of a missing person.
201. The Court notes that in the fourth
inter-State case the Grand Chamber found that in the context of the
disappearances in 1974, where the military operation resulted in
considerable loss of life, large-scale arrests and detentions and
enforced separations of families, the relatives of the missing men
had suffered the agony of not knowing whether their family member had
been killed in the conflict or had been taken into detention and, due
to the continuing division of Cyprus, had been faced with very
serious obstacles in their search for information. The silence of the
authorities of the respondent State in face of the real concerns of
the relatives could only be categorised as inhuman treatment (at §
157).
202. The Court finds no basis on which it can
differ from this finding in the present case. The length of time over
which the ordeal of the relatives has been dragged out and the
attitude of official indifference in face of their acute anxiety to
know the fate of their close family members discloses a situation
attaining the requisite level of severity. There has, accordingly,
been a breach of Article 3 in respect of the applicants.”
- As
regards the present case, the Court notes that in the judgment of the
Otočac Municipal Court of 6 May 2005 the applicants were awarded
HRK 230,000 each in compensation for their suffering in
connection with the disappearance and death of M.S. In its judgment
the Municipal Court expressly acknowledged the applicants’
suffering in connection with the arrest and subsequent disappearance
of M.S. and the prolonged period during which they had been left
without any information as to his fate (see paragraph 46 above).
- In
the Court’s view, the language of the Municipal Court’s
judgment amounts to acknowledging a violation of Article 3 of the
Convention because the Municipal Court found the State authorities
responsible for the disappearance of the applicants’ close
relative and awarded them just satisfaction for their suffering as
regards the uncertainty of his fate. As to the amount of the just
satisfaction awarded, the Court notes that it actually exceeds the
amount the Court usually awards in the same type of case.
- Against
that background, the Court finds that the national courts expressly
acknowledged the breach of the applicants’ right not to be
subjected to inhuman treatment and afforded them appropriate redress
for their suffering. Therefore, the applicants can no longer claim to
be the victims of the violation alleged.
- It
follows that this complaint must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicants further complained that the arrest of their close relative
was illegal and that there was no effective investigation into the
circumstances of his arrest. They relied on Article 5 of the
Convention which reads:
“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;
(d) the detention of a minor by lawful order
for the purpose of educational supervision or his lawful detention
for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the
prevention of the spreading of infectious diseases, of persons of
unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a
person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view
to deportation or extradition.
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.”
A. Admissibility
- In
so far as the applicants’ complaint relates to the actual
arrest and detention of M.S., the Court notes it occurred in 1991
while the Convention entered into force in respect of Croatia on 5
November 1997.
- It
follows that this complaint is incompatible ratione temporis
with the provisions of the Convention within the meaning of Article
35 § 3 and must be rejected in accordance with Article
35 § 4.
- In
so far as the applicants’ claim concerns a duty of the State
which arose after M.S. had been arrested by the Croatian police and
subsequently disappeared, meaning that the Government, which were
responsible for his fate, had an obligation to account for him and
carry out a prompt, effective, independent and thorough investigation
into the circumstances of his arrest, the Court concludes that this
complaint concerns a continuous situation and falls within its
competence ratione temporis (see Varnava and Others
v. Turkey [GC], cited above, § 208). Furthermore, the
Court considers that this complaint is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicants maintained that the national authorities had not submitted
any documents regarding M.S.’s arrest despite the fact that it
had been their duty to keep records of the arrest, detention, removal
and transfer.
- The
Government argued that the relevant authorities had taken all
measures in order to establish the circumstances of M.S.’s
arrest.
2. The Court’s assessment
- The
Court notes that M.S. was arrested and taken away by the Croatian
police in November 1991 and that his whereabouts have remained
unknown ever since. The Court refers to the relevant paragraph of the
Cyprus v. Turkey judgment ([GC], no. 25781/94, ECHR 2001 IV):
“147. The Court stresses at the outset
that the unacknowledged detention of an individual is a complete
negation of the guarantees of liberty and security of the person
contained in Article 5 of the Convention and a most grave violation
of that Article. Having assumed control over a given individual, it
is incumbent on the authorities to account for his or her
whereabouts. It is for this reason that Article 5 must be seen as
requiring the authorities to take effective measures to safeguard
against the risk of disappearance and to conduct a prompt and
effective investigation into an arguable claim that a person has been
taken into custody and has not been seen since (see the Kurt v.
Turkey judgment of 25 May 1998, Reports 1998-III, p. 1185,
§ 124).”
and,
further, to the relevant paragraph in Varnava (cited above):
“208. The Court recalls that it has
found above that there was a prima facie or arguable case that
two of the men were last seen in circumstances falling within the
control of the Turkish or Turkish Cypriot forces, namely, Eleftherios
Thoma and Savvas Hadjipanteli who were included on ICRC lists as
detainees (see paragraphs 77 and 80 above). They have not been seen
since. However, the Turkish authorities have not acknowledged their
detention; they have not provided any documentary evidence giving
official trace of their movements. The Court notes the patent
disregard of the procedural safeguards applicable to the detention of
persons. While there is no evidence that any of the missing persons
were still in detention in the period under the Court’s
consideration, it remains incumbent on the Turkish Government to show
that they have since carried out an effective investigation into the
arguable claim that the two missing men had been taken into custody
and not seen subsequently (see, amongst many authorities, Kurt,
cited above, § 124). The Court’s findings above in
relation to Article 2 leave no doubt that the authorities have also
failed to conduct the requisite investigation in that regard. This
discloses a continuing violation of Article 5.”
- As
to the present case, the Court notes that, contrary to the situations
in the two above-cited cases, the Croatian authorities did
acknowledge their responsibility for the arrest and disappearance of
M.S. In a final civil judgment (see paragraphs 46 and 47 above) the
national courts established that M.S. had been arrested by the police
and that the State was responsible for his disappearance and death.
On the basis of those findings, they awarded the applicants
compensation.
- While
this element cannot in itself satisfy the procedural obligation to
investigate the circumstances surrounding the arrest of a person who
subsequently disappeared, the Court notes that in the present case
the national authorities took steps to establish the circumstances of
M.S.’s arrest. They interviewed the police officers involved
and established that M.S. had been arrested by two police officers of
the Otočac police on 3 November 1991 and taken to Otočac
police station on suspicion of having been involved in terrorist
activities. On the same day two other police officers took him to the
Police Department of the nearby town of Gospić and handed him
over to I.O. They saw I.O. handcuffing M.S. and then left. The
whereabouts of M.S. have remained unknown. As regards shortcomings in
establishing M.S.’s further fate, the Court has already found a
violation of the procedural aspect of Article 2 of the Convention.
- Against
this background, and in view of the violation found under the
procedural aspect of Article 2 of the Convention, the Court finds
that it is not necessary to examine further any complaint under
Article 5 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicants complained further that they had no effective domestic
remedy at their disposal by which to submit their Convention
complaints. They relied on Article 13 of the Convention, which reads:
“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.”
A. Admissibility
- The
Court considers that this complaint is closely linked to the one
concerning the procedural aspect of Article 2 of the Convention and
must also therefore be declared admissible.
B. Merits
- The
Court notes that the applicants were able to institute civil
proceedings against the State in the national courts seeking
compensation in connection with the arrest and disappearance of M.S.
and that they were duly awarded compensation.
- They
were also able to enquire as to the whereabouts of M.S. and call for
an official investigation and to lodge a constitutional complaint
about the ineffectiveness of the investigation. The issue of
effectiveness of these remedies has already been addressed in the
context of Article 2 of the Convention. In view of its findings under
Article 2 of the Convention, the Court considers that there is no
need to examine further the complaint under Article 13 of the
Convention.
V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN
CONJUNCTION WITH THE PROCEDRUAL ASPECT OF ARTICLE 2 OF THE CONVENTION
- The
applicants complained that M.S. had been arrested purely because of
his Serbian ethnic origin and that the national authorities had
failed to investigate that factor, contrary to Article 14 of the
Convention, which 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.”
A. Admissibility
- The
Court considers that this complaint is closely linked to the one
concerning the procedural aspect of Article 2 of the Convention and
must also therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicants argued that the reason for arresting M.S. had been his
Serbian ethnic origin and that there had been no evidence of his
supposed terrorist activities.
- The
Government argued that M.S. had been arrested on suspicion of having
been involved in terrorist activities and that there had been no
indication whatsoever that his arrest had been based on his ethnic
origin or any ground other than a suspicion of criminal activity. In
these circumstances the national authorities had had no reason to
investigate possible racial motivation for his arrest.
2. The Court’s assessment
- The
Court reiterates that Article 14 has no independent existence, but
plays an important role by complementing the other provisions of the
Convention and its Protocols, since it protects individuals placed in
similar situations from any discrimination in the enjoyment of the
rights set forth in those other provisions. Where a substantive
Article of the Convention or its Protocols has been relied on both on
its own and in conjunction with Article 14 and a separate breach
has been found of the substantive Article, the Court may not always
consider it necessary to examine the case under Article 14 as well,
though the position is otherwise if a clear inequality of treatment
in the enjoyment of the right in question is a fundamental aspect of
the case (see Dudgeon v.
the United Kingdom, 22
October 1981, § 67, Series A no. 45; Chassagnou
and Others v. France
[GC], nos. 25088/94, 28331/95 and 28443/95, § 89, ECHR 1999-III;
and Timishev v. Russia,
nos. 55762/00 and 55974/00, § 53, ECHR 2005-XII).
- As
to the present case, the Court notes that the applicants claimed that
M.S. had been arrested solely on the basis of his Serbian origin,
while the Government claimed that he had been arrested by the
Croatian police during the Homeland War in Croatia on suspicion of
having committed the criminal offence of terrorism and in execution
of an arrest warrant, signed by the then head of Otočac police
station.
- The
Court considers that the main issue in the present case is the one
concerning effectiveness of the investigation into the disappearance
of M.S. In this regard the Court has already found a violation of the
procedural aspect of Article 2 of the Convention after establishing
various shortcomings in the investigation. In view of the Court’s
analysis under that Article and the violation found, the Court
considers that in the circumstances of the present case it is not
necessary to examine any further complaint under Article 14 of the
Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The applicants claimed 30,000 euros (EUR) in respect
of non-pecuniary damage as regards the complaint under Article 2 of
the Convention; EUR 10,000 as regards the complaint under Article 5
of the Convention; EUR 10,000 each as regards the complaint under
Article 3 of the Convention; and EUR 12,000 as regards the complaint
under Article 13 of the Convention.
- The
Government argued that the applicants had received adequate
compensation in the civil proceedings where the State had been found
responsible for the disappearance of M.S. and where the applicants
were awarded the sum of approximately EUR 150,000.
- The
Court firstly notes that the violation found relates to the
procedural aspect of Article 2 only. The Court notes that by a final
judgment of the Otočac Municipal Court the applicants were
awarded HRK 230,000 each. That judgment has been enforced and
the amount awarded fully paid. The compensation was awarded on
account of their suffering as a result of the disappearance of their
respective husband and father, for which the State was found
responsible.
- Thus,
although the Court has found that the complaint under the procedural
aspect of Article 2 could not be remedied by paying monetary
compensation alone, it nevertheless considers it relevant when
assessing the applicants’ claim in respect of non-pecuniary
damage. In view of the compensation awarded and the fact that the
violation found by the Court concerns the procedural aspect of
Article 2 of the Convention, namely, the lack of an effective,
adequate and thorough investigation into the disappearance of M.S,
the Court finds that the just satisfaction awarded by the national
courts is sufficient and that the applicants’ claim in respect
of non-pecuniary damage has to be rejected.
B. Costs and expenses
- The
applicants also claimed EUR 7,615 for the costs and expenses incurred
before the Court.
- The
Government deemed the claim excessive and unsubstantiated.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 3,000 for costs and
expenses in the proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning the
procedural aspect of Article 2 and the complaints under Articles
5, 13 and 14 of the Convention admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
2 of the Convention on account of failings in the investigative
procedures concerning the disappearance of M.S.;
- Holds that there is no need to examine the
complaint under Article 5 of the Convention;
- Holds that there is no need to examine the
complaint under Article 13 of the Convention;
- Holds that there is no need to examine the
complaint under Article 14 of the Convention;
- Holds
(a) that the respondent State is to pay the applicants,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 3,000 (three thousand euros), plus any tax that may
be chargeable to the applicants, in respect of costs and expenses, to
be converted into Croatian kuna at the rate applicable on the date of
settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the applicants’ claim for just
satisfaction.
Done in English, and notified in writing on 20 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Section
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judges
Spielmann, Jebens and Malinverni
is annexed to this judgment.
C.L.R.
S.N.
JOINT CONCURRING OPINION OF JUDGES SPIELMANN, JEBENS AND
MALINVERNI
- We
are unable to agree with the reasoning concerning the alleged
violation of Article 14 of the Convention in conjunction with the
procedural aspect of Article 2 of the Convention.
- To
begin with, we would like to emphasise that the applicants complained
that M.S. had been arrested purely because of his Serbian ethnic
origin and that the national authorities had failed to investigate
that factor, contrary to Article 14 of the Convention (see paragraphs
113 and 115 of the judgment). This complaint has thus been phrased
mainly in connection with the arrest and the failure to
investigate the discriminatory factor as to that arrest. To
frame the complaint, as identified in the judgment, in terms of an
alleged violation of Article 14 in conjunction with Article 2 (see
paragraph 118) is thus, in our respectful submission, at best
artificial and, at worst, entirely misconceived.
- Moreover,
we are unable to agree with the general principle set out in
paragraph 116 and going back to Dudgeon v. the United Kingdom
(22 October 1981, Series A no. 45):
“Where
a substantive Article of the Convention or its Protocols has been
relied on both on its own and in conjunction with Article 14 and
a separate breach has been found of the substantive Article, the
Court may not always consider it necessary to examine the case under
Article 14 as well, though the position is otherwise if a clear
inequality of treatment in the enjoyment of the right in question is
a fundamental aspect of the case (see Dudgeon
v. the United Kingdom,
22 October 1981, § 67, Series A no. 45; Chassagnou
and Others v. France
[GC], nos. 25088/94, 28331/95 and 28443/95, § 89, ECHR 1999-III;
and Timishev
v. Russia,
nos. 55762/00 and 55974/00, § 53, ECHR 2005-XII).”
As
Judge Matscher eloquently put it in his dissenting opinion annexed to
the Dudgeon judgment:
“I regret that I do not feel able to agree with
this line of reasoning. In my view, when the Court is called on to
rule on a breach of the Convention which has been alleged by the
applicant and contested by the respondent Government, it is the
Court’s duty, provided that the application is admissible, to
decide the point by giving an answer on the merits of the issue that
has been raised. The Court cannot escape this responsibility by
employing formulas that are liable to limit excessively the scope of
Article 14 (art. 14) to the point of depriving it of all practical
value.
Admittedly, there are extreme situations where an
existing difference of treatment is so minimal that it entails no
real prejudice, physical or moral, for the persons concerned. In that
event, no discrimination within the meaning of Article 14 (art. 14)
could be discerned, even if on occasions it might be difficult to
produce an objective and rational explanation for the difference of
treatment. It is only in such conditions that, in my opinion, the
maxim "de minimis non curat praetor" would be
admissible (see, mutatis mutandis, my separate opinion appended to
the Marckx judgment, p. 58). I do not, however, find these conditions
satisfied in the present case, with the result that a definite
position must be taken regarding the alleged violation of Article 14
(art. 14) in relation to the complaints made by the applicant.”
- We
would like to add that it was unnecessary to make such a broad and
problematical obiter dictum in the above-mentioned judgments
(Dudgeon, Chassagnou and Timishev) and to repeat it in
the present case. Indeed, in the case of Dudgeon, and in
connection with one aspect of his complaint under Article 14 taken in
conjunction with Article 8 (namely, different laws concerning male
homosexual acts in various parts of the United Kingdom), the
applicant himself had conceded that, if the Court were to find a
breach of Article 8, then this particular question would cease to
have the same importance (see Dudgeon v. the United Kingdom,
22 October 1981, § 68, Series A no. 45). In Chassagnou
the Court found a violation of Article 1 of Protocol No. 1 taken in
conjunction with Article 14 of the Convention (see Chassagnou
and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95,
§ 95, ECHR 1999 III) and in Timishev the Court found
a violation of Article 14 of the Convention taken in conjunction with
Article 2 of Protocol No. 4 to the Convention (see Timishev v.
Russia, nos. 55762/00 and 55974/00, § 59, ECHR 2005 XII).
- The
importance of Article 14 is, furthermore, apparent in the Court’s
Grand Chamber judgment in the case of D.H. (see D.H. and
Others v. the Czech Republic [GC], no. 57325/00, ECHR
2007 ...), in which it found Article 14 to be applicable in
conjunction with Article 2 of Protocol No. 1 and found a
violation of the two provisions taken together. In our view, the
repetition in paragraph 116 of the judgment of the aforementioned
obiter dictum therefore runs counter to the robust case-law
that the Court has recently developed under Article 14 of the
Convention. It should be abandoned or at least qualified.
