M. AND OTHERS v. CROATIA - 50175/12 (Judgment : Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)) [2017] ECHR 394 (02 May 2017)

In the case of M. and Others v. Croatia,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

          Işıl Karakaş, President,
          Julia Laffranque,
          Nebojša Vučinić,
          Valeriu Griţco,
          Ksenija Turković,
          Jon Fridrik Kjølbro,
          Stéphanie Mourou-Vikström, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 14 March 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 50175/12) 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 Z.M., Mr R.M. and Mr D.M. (“the applicants”), on 3 July 2012.

2. The applicants were represented by Mr L. Šušak, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3. The applicants alleged, in particular, that the procedural obligations incumbent on the respondent Government under Articles 2 and 14 of the Convention had not been met and that they had no effective remedy in that respect, as required under Article 13 of the Convention.

4. On 30 October 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants live in Sisak.

A. Killing of S.M. and investigation

6. A report of 28 October 1991 drawn up by the Bosanski Šamac Police in Bosnia and Herzegovina indicated that the body of a man had been found on 27 October 1991 on the right bank of the river Sava. The body was identified as that of S.M., the applicants’ respective husband and father, because an identity card bearing that name was found on it. The autopsy carried out on the same day indicated that he had been shot in the head.

7. In 1996 the United Nations Security Council established the United Nations Transitional Administration in Eastern Slavonia, Baranja and Western Sirmium (the “UNTAES”). On 15 January 1998 the UNTAES mandate ceased and the transfer of power to the Croatian authorities began.

8. On 9 December 2002 Z.M., the victim’s wife, wrote to the Ministry of the Interior in Zagreb, alleging that on 23 September 1991 her husband had been taken away by men in black uniforms and then killed. Z.M., her two sons, R.M. and B.M., and two other residents of Novo Selo, I.D. and S.J., were direct eyewitnesses of the abduction of S.M.

9. The Sisak police interviewed Z.M. on 19 December 2002. She told them that on 23 September 1991 four Croatian soldiers had driven in a white van to their house in Novo Selo, on the outskirts of the town of Sisak. Two men had remained in the van while two others had come into their courtyard. These two were Š. and B., both of whom were known to her son R.M., who had played pool with them and knew their names. They were from Rijeka and members of a Croatian Army unit stationed in Novo Selo, commanded by I.M. Her husband had come out of the house. The men had been armed and had placed her husband in the van and driven away. After about five weeks she had been informed by the police that her husband’s body had been found in the river Sava near Bosanski Šamac.

10. On 7 January 2003 the Sisak police lodged a criminal complaint against a person or persons unknown for the killing of S.M. A police inquiry ensued. This inquiry was part of a broader inquiry into the killing of a number of persons of Serbian ethnic origin in the broader Sisak area and which resulted in the indictment of several individuals (see 37-41 below).

11. On 11 July 2003 the police interviewed D.M., the victim’s other son, who confirmed his mother’s statement. He said that his brother R.M. had told him that Š. had died after the war.

12. Between 28 July and 25 September 2003 the police interviewed eighteen former Croatian soldiers.

13. I.D. said that on 23 September 2001 he had been on guard duty in front of the ammunition depot, some forty metres from the house of the M. family, together with S.J. They had seen a white van which had stopped in front of the M. family’s house. Three men dressed in camouflage uniforms and with balaclavas on their heads had got out of the van and taken S.M. away. Later on I.D. had heard that it was Š. and B. who had taken S.M. away. I.M. had been the commander of the Croatian Army unit stationed in Novo Selo whose members had taken the victim away in the van on 23 September 1991.

14. S.J. confirmed that he had witnessed the taking of S.M. by two men, who had arrived in a white van with Rijeka licence plates, whilst the driver had stayed in the van. S.J. did not know the identity of those men since their faces had been masked. That same van had been there before and later had been parked in front of the fire station in Novo Selo.

15. I.V.H. said that he had joined the second group of about twenty volunteers from Rijeka who had joined the Croatian Army and arrived in Sisak some time around 15 September 1991. Some of them had travelled by van. Immediately after their arrival in Novo Selo, the group had been divided into two subgroups. One comprised M.M., Lj.G., B.G., Z.H. and N.S. They had been stationed in the fire station, together with D.P., and had not gone to “positions”. I.V.H. could not tell what that group had actually been doing in Novo Selo. After about ten days they had returned to Rijeka but most of them had later gone back to Novo Selo together with further volunteers.

16. I.V. said that he had joined the volunteers from Rijeka and that on 16 September 1991 a group of them had gone to Novo Selo. D.P. had been in charge of the Rijeka unit and had slept in the fire station, staying there during the day as well, but I.V. did not know what D.P. had done whilst there.

17. Z.M. said that he had joined the volunteers from Rijeka and that on 21 September 1991 a group of them had gone to Novo Selo. They had travelled to Novo Selo in two vans and another vehicle. They had stayed in Novo Selo for twenty to thirty days.

18. M.V. said that he had gone to Novo Selo together with about ten other volunteers in a light blue Citroen van. The Rijeka unit had been under the command of D.P. and N.S., and the commander of the “whole group” had been I.M. D.P., N.S., Z.H. and M.M. had been separated from the others and stationed in the fire station. The Citroen van had been parked in front of the fire station and driven by D.P. and the others who lodged there.

19. D.S. said that he had gone with a group of volunteers from Rijeka to Novo Selo on 5 September 1991. They had travelled in a blue Citroen van which was a rented vehicle, and later on they had stayed with the Sisak Police. D.P. had been in charge of the Rijeka unit. D.P., N.S. and Z.H. had not gone to “positions”. D.S. had heard about so called “night actions” There had been rumours that some of those who were staying in the fire station had gone to one such action and had come back after two or three hours. N.S., D.P. and Z.H. had remained together and later on joined the Military Police.

20. S.D. said that at the beginning of September 1991 he had gone with a group of volunteers which included Lj.G., N.S., D.P. and B.V. to Sisak in a white van. He could not tell which of the men from Rijeka had held the position of commander, but the most prominent men had been D.P. and N.S., otherwise known as Š. They had both been stationed in the fire station in Novo Selo, and had not gone on to “positions”. S.D. could not tell what those two men had actually been doing in Novo Selo.

21. M.M. stated that in 1991 he had joined a group of volunteers from Rijeka. Some time about the end of July 1991 they had gone to Novo Selo in a white van displaying Rijeka licence plates. The van had been driven by N.S. There had been seven of them in the van, including N.S., Z.H., B.V., D.P. and two more persons the names of whom M.M. could not remember. M.M. could not tell whether someone was formally in command, but D.P. had been in charge of the Rijeka unit. After about a month M.M. had gone back to Rijeka and returned with new volunteers, so that they had two vehicles, a white Volkswagen van and a blue Citroen van, both with Rijeka licence plates. The vans had been driven by Lj.G., B.V., N.S. and Z.H.

22. Z.M. said that he had been in the second group of the Rijeka volunteers who had gone to Novo Selo in autumn 1991. The group had included M.V., S.L., D.S., N.S., I.S., B.V., M.M., D.P., I.V.H. and others. D.P. and N.S. had both had a bad reputation because they had “behaved like Rambo”, had not gone to “positions” and spent all their time in Novo Selo.

23. B.A. said that at the beginning of September 1991 he had travelled to Sisak with a group of volunteers from Rijeka in a Citroen van, driven by N.S., together with D.P. ‒ the informal commander of the group ‒ B.V., M.M. and another six people. After two weeks they had returned to Rijeka for a short break and then gone back to Sisak. The headquarters of the group had been the fire station in Novo Selo. D.P. had once told him that during his stay in Sisak “some ugly things had happened”, but had not mentioned any details. B.A. had heard rumours that some people had been taken from their homes.

24. S.L. said that he had joined a group of volunteers in Rijeka and had travelled to Sisak together with seven others on 19 September 1991 in a Citroen van to Novo Selo. The van had been driven by his neighbour N.S. The leader of the group had been D.P. B.V. and D.S. had also been present.

25. I.S. said that his relative N.S., otherwise known as Š., had contacted him at the end of August 1991 and asked him to join a group of volunteers. He had travelled to Sisak as part of a group of nine volunteers comprising M.M., B.G., D.S., B.A., B.V., Z.H. and D.P. in a Citroen van rented from the Kompas car-rental agency. The Rijeka unit was under the command of D.P. After returning to Rijeka, he had not gone back to Sisak.

26. Lj.G. said that at the beginning of September 1991 he had been contacted by N.S., otherwise known as Š., who had asked whether he would join the volunteers in Sisak. Soon after that, a group of twenty to twenty-five men had travelled to Sisak in two rented Citroen vans. The leader of the group was D.P. Lj.G. had been stationed in the fire station, had been in charge of procuring weapons and had often travelled to Zagreb. He usually went in the van in which they had travelled to Sisak, while the other van stayed in Novo Selo. He had heard rumours about people being taken and liquidated and the bodies of the murdered being found, but in his view about eighty per cent of those stories had been fabricated. He knew that on one occasion a civilian aged between fifty-five and sixty had been brought to the fire station. One of the soldiers under the command of I.M. had telephoned and said that he would bring along a “chetnik” for N.S. to butcher. Lj.G. did not know what had happened to that person but he assumed that he had been handed over to the police.

27. Z.H. said that he had been a member of military and police formations during the Homeland war and had been stationed in Banovina, amongst other places. His commander there had been D.P. He did not want to say anything else about the war, stating that he was suffering from post-traumatic stress disorder.

28. On 25 September 2003 the police interviewed N.S., who said that he had been stationed in the fire station in Novo Selo but did not know anything about the killing of S.M. He had always been “on positions” whereas some others, such as M.M. and Lj.G. had organised the procurement of arms and equipment. He had not heard about the taking of any civilian but even if such things had happened, those civilians “had deserved it.” He maintained that even if something had happened at that time in that area, after so much time had passed “all that should not be opened up again or dug into”.

29. On the same date the police interviewed B.V., who said that he had been stationed in the fire station in Novo Selo. He had heard rumours about arrests and liquidations of civilians but could not confirm that any of the soldiers from the Rijeka unit had participated in it. He said that M.G. and Š. “had not come to Novo Selo to participate in the defence [of Croatia] but had obviously been engaged in other activities”.

30. On 30 September 2003 the Sisak police drew up a report in which it was stated that D.P. had told the police that he was not going to give any statement about the “Sisak case” because he had consulted his superiors who had told him not to say anything about it. The report also stated that others had said that D.P. was the informal commander of the Rijeka unit stationed in Novo Selo when S.M. was “taken and liquidated”. The report also stated that photographs of persons known as Š. and B. had been taken.

31. On 2 December 2003 the police interviewed R.M., the second applicant, who said that on 23 September 1991 he had been at home with his brother and father whereas his mother had been at the neighbour’s. A white Volkswagen van with Rijeka licence plates had driven to their house and two men had come out of it dressed in camouflage uniforms whereas two other men had remained in the vehicle. R.M. had heard that the van had been driven by I.P. One of the men who had exited the van was big and tall about 1,90 centimetres. R.M. had heard the other man addressing him as B. The other’s face had been uncovered and R.M. recognised him as Š. He had good relations with Š. and had often seen him in the fire station as well as B. and had sometimes played pool with them. They had taken R.M.’s father with them and driven away. R.M. was shown eighteen photographs of the members of the Rijeka unit but he said that he did not know any of the persons on the photographs save for the person under number 1 for whom he said that he knew him but could not remember where from. The person under number 1 was N.S., also known as Š. R.M. told the police officers that he could recognise both B. and Š. if he saw them in person and in particular if he heard their voices.

32. On 5 January 2005 the second applicant R.M. approached the Sisak police to enquire about the investigation into the killing of his father S.M. R.M. referred to his prior statement given to the police when R.M. had indicated Š. as one of the soldiers who had taken his father. R.M. also enquired whether Š had been detained. R.M. knew who Š. was and said that he would be able to recognise him because he had a characteristic face. At that time R.M. had also been a Croatian soldier. He also said that his friend M.O., a member of the special police, had told him that he had seen his father in “ORA”, a detention centre in Sisak, about three weeks after S.M. had been arrested. M.O. also said that it was not sure whether it was S.M. since he had been beaten.

33. On 29 July 2005 the State Attorney’s Office issued a document concerning enquiries into the killings of civilians between 1991 and 1995. The document was addressed to the County State Attorney’s Offices, which were required to examine all of the information collected to date on the killings of civilians during that period and to concentrate their activities on identifying the perpetrators and gathering the relevant evidence in order to initiate criminal proceedings.

34. On 9 October 2008 the State Attorney’s Office issued an instruction for implementation of the Criminal Code and the Code of Criminal Procedure to the County State Attorney’s Offices, in which it stated that an inspection of their work had indicated two main problems: possible partiality of the persons involved in the pending proceedings as regards the ethnicity of the victims or the perpetrators; and the problem of trials in absentia. The instructions advocated impartial investigations of all war crimes, irrespective of the ethnicity of those involved, whether victims or perpetrators, and stressed the duties of those working for the State Attorney in that respect.

35. The police again interviewed the victim’s wife and sons on 22 December 2008; they all repeated their prior statements. R.M. also said that the soldiers who had taken his father had had masked faces but that they had been addressing each other with the names Š. and B.

36. The inquiry continued and in January 2009 S.J. was again interviewed. He repeated his prior statement (see paragraph 14 above).

B. Proceedings on indictment

37. On 20 June 2011 the Sisak County Police lodged a criminal complaint against Đ.B., V.M. and D.B. on charges of war crimes against the civilian population. This included the killing of the applicant’s husband. On the same day Đ.B., Head of the Sisak Police Department in 1991 and 1992, V.M., police commander at the border territory of Sisak and Banovina in 1991 and 1992 and Deputy of Sisak Police Department, and D.B., a member of the “Wolves” Unit of the Croatian Army, were arrested.

38. On an unspecified date the investigation was opened. On 13 July 2011 Đ.B. died.

39. On 16 December 2011 the Osijek County State Attorney’s Office lodged an indictment against V.M. and D.B. at the Osijek County Court, alleging that they had been in command of the unit whose unknown members had committed a number of crimes against the civilian population between July 1991 and June 1992, including the killing of the applicant’s husband. They were charged with war crimes against the civilian population.

40. On 9 December 2013 a first-instance judgment was delivered. V.M. was found guilty of war crimes against the civilian population in that he, in his capacity as “the commander of police forces in the broader area of Sisak and Banovina” and “Deputy Head of the Sisak Police”, had allowed the killings of persons of Serbian origin and had failed to undertake adequate measures to prevent such killings. The relevant part of the judgment concerning the applicant’s close relative reads:

“on 23 September 1991 at about 7.30 p.m. four members of the Sisak Reserve Police, wearing camouflage uniforms and grey uniforms and armed with automatic guns, arrived in a white Volkswagen van bearing Rijeka licence plates at the house at Janko Rupčić 8 in Novo Selo, which had been damaged the previous day by unidentified persons before using explosives. They searched the premises, arrested its owner S.M., took him in the van to an unknown destination and shot him dead; his body was found on 27 October 1991 on the right bank of the river Sava in Bosanski Šamac with gunshot wounds to the head.”

V.M. was sentenced to eight years’ imprisonment. D.B. was acquitted of all charges.

41. On 10 June 2014 the Supreme Court upheld the conviction of V.M. and increased his sentence to ten years’ imprisonment.

C. Civil proceedings

42. On 27 February 2006 the applicants brought a civil action against the State in the Sisak Municipal Court, seeking compensation in connection with the death of their close relative. The claim was dismissed on 3 May 2007 and was upheld on appeal by the Sisak County Court and the Supreme Court on 4 December 2009 and 27 April 2011 respectively. The national courts found that the claim had been submitted after the statutory limitation period had expired.

43. A subsequent constitutional complaint lodged by the applicants was dismissed on 8 December 2011.

44. Following the conviction of V.M., the applicants sought the re-opening of civil proceedings on 1 August 2014. On 6 February 2015 the Sisak Municipal Court accepted that request.

II. RELEVANT DOMESTIC LAW AND REPORTS

45. Article 21 of the Constitution (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000 and 28/2001) reads as follows:

“Every human being has the right to life.

...”

46. Article 120 of the Basic Criminal Code of the Republic of Croatia (Osnovni krivični zakon Republike Hrvatske, Official Gazette nos. 53/1991, 39/1992 and 91/1992) prescribes imprisonment of at least five years or of twenty years for war crime against the civilian population.

47. 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) provide:

Article 174(2)

“In order to ... decide whether to request an investigation ... the State Attorney shall order the police to collect the necessary information and take other measures concerning the crime [at issue] with a view to identifying the perpetrator ...”

Article 177

“Where there is a suspicion that a criminal offence liable to public prosecution has been committed, the police shall take the necessary measures with a view to identifying the perpetrator ... and collect all information of possible relevance for the conduct of the criminal proceedings...”

Article 185

Urgent Investigative Steps

“When the perpetrator of a criminal offence is unknown, a state attorney may ask the police to carry out certain investigative steps where, given the circumstances of the case, it would be useful to carry out such steps before instituting an investigation. If the State Attorney considers that certain investigative steps should be carried out by an investigating judge ... he or she will invite an investigating judge to carry out these steps. ...”

Article 187

“(1) An investigation shall be opened in respect of a particular individual where there is a suspicion that he or she has committed a criminal offence.

(2) During the investigation evidence and information necessary for deciding whether an indictment is to be brought or the proceedings are to be discontinued shall be collected ...”

Article 243

“(1) If a properly summoned witness does not appear and does not offer a good reason for his or her absence, or if he or she leaves the place where he or she is to give his or her evidence without approval or a good reason, an order may be issued that he or she be brought using force, or he or she may be fined up to 20,000 Croatian kuna.

(2) If a witness appears and, after having been warned about the consequences of the refusal to give his or her evidence without a good reason prescribed by law, refuses to give his or her evidence, he or she may be fined up to 20,000 Croatian kuna. If the witness still refuses to give his or her evidence, he or she may be imprisoned. The imprisonment shall last as long as the witness refuses to give his or her evidence or until his or her evidence becomes irrelevant, or until the conclusion of the criminal proceedings, but no longer than one month.

...”

48. The report on the work of the State Attorney’s Office for the year 2012, submitted to Parliament in September 2013, states that in the period between 1991 and 31 December 2012 there were 13,749 reported victims of war in Croatia, of which 5,979 had been killed. Thus far, the Croatian authorities had opened investigations in respect of 3,436 alleged perpetrators. There had been 557 convictions for war-related crimes.

49. The relevant provision of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 57/2011, 148/2011 and 25/2013) reads as follows:

5. Reopening of proceedings

Section 421(1)

“10) if the party learned about new facts or has found or created a possibility to use new evidence on the basis of which a more favourable decision for that party could have been adopted for that party if the facts and evidence been used in the previous proceedings.”

50. The domestic courts of appeal, on the subject of the possibility for a civil court to apply a longer statutory limitation period under section 377 of the Civil Obligations Act, held that this could be applied only if it had been established by a final judgment of the criminal court that the damage had been caused as the result of a criminal offence. This view was confirmed by the practice of the Supreme Court. For example, in its decision no. Rev- 217/05-2 of 20 October 2005 it held as follows:

“The lower court correctly established that section 377 of the Civil Obligations Act was not applicable in this case. ... The longer statutory limitation period [under section 377 of the Civil Obligations Act] applies only when it has been established by a judgment in the criminal proceedings that the damage was caused by a criminal offence ...”

III. RELEVANT INTERNATIONAL LAW

51. The Statute of the International Criminal Court (Article 25), the Statute of the International Criminal Tribunal for Rwanda (Article 6) as well as the Statute of the International Criminal Tribunal for the Former Yugoslavia refer to the individual criminal responsibility. Article 7 of the latter reads:

Individual criminal responsibility

“1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.

2. The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.

3. The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

4. The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

52. The applicants complained about the killing of S.M. and insufficiencies in the investigation in that respect. They also claimed that S.M. had been killed because of his Serbian ethnic origin and that the national authorities had failed to investigate that factor. The applicants further complained that they had no effective remedy at their disposal in respect of the alleged violation of Article 2 of the Convention. They relied on Articles 2, 13 and 14 of the Convention. The Court, being master of the characterisation to be given in law to the facts of the case, will examine this complaint under Article 2 of the Convention alone which, in so far as relevant, reads as follows:

“1. Everyone’s right to life shall be protected by law. ...”

A. Admissibility

1. The parties’ arguments

53. The Government argued that the applicants had failed to exhaust all available domestic remedies. They contended that the applicants could have lodged a complaint against the individual police officers or employees in the State Attorney’s Office who were in charge of the investigation into the death of their relative. Such a complaint could have led to the institution of disciplinary proceedings. As regards protection against alleged unlawfulness in the conduct of the domestic authorities, the Government pointed out that the applicants could have sought damages from the State pursuant to the State Administration Act (Zakon o sustavu državne uprave). They argued that such a combination of remedies had been found effective by the Court in the case of D.J. v. Croatia (no. 42418/10, 24 July 2012).

54. In reply, the applicants submitted that the relevant authorities had been made aware of the killing of their relative as early as 1991 and that they had a duty to conduct an official State-assisted investigation. The remedies relied on by the Government were not relevant.

2. The Court’s assessment

55. Before turning to the points raised by the parties in respect of the exhaustion of domestic remedies, the Court will first address the issue of its temporal jurisdiction.

(a) Compatibility ratione temporis

56. The Court has already addressed its temporal jurisdiction as regards both the substantive and the procedural aspect of Article 2 in similar circumstances and found that it had no temporal jurisdiction in respect of the alleged substantive violation of that Article, but had such jurisdiction in respect of the alleged procedural violation in respect of facts that occurred after 5 November 1997, the date of the ratification of the Convention by Croatia (see of Jelić v. Croatia, no. 57856/11, §§ 47-56, 12 June 2014). The Court sees no reason to depart from such conclusions in the present case.

57. 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(a) and must be rejected in accordance with Article 35 § 4.

(b) Exhaustion of domestic remedies

58. The Court has already addressed the same objections as regards the exhaustion of domestic remedies in other cases against Croatia and rejected them (see Jelić, cited above, §§ 59-67). The Court sees no reason to depart from that view in the present case.

59. It follows that the Government’s objection must be dismissed.

60. The Court notes that the complaint under the procedural aspect of Article 2 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 (a) 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

61. The Government argued that there had been no violation of the procedural aspect of Article 2 in the present case. They maintained that the case at issue was very complex and sensitive and that the indictment brought against V.M. and D.B. concerned thirty-four victims. The main suspects in the case, Đ.B. and V.M, had held senior official positions until 1999, and this had impeded the investigation. Furthermore, one of the specific features of investigations into war crimes was a lack of material evidence and the prosecution was highly dependent on witness evidence. However, witnesses had often been reluctant to give evidence for fear of reprisals.

62. After Croatia became independent, the State apparatus had comprised many young and inexperienced officials, who had not known how to address those serious problems. In these difficult circumstances the authorities had done everything they could to identify the perpetrators and bring them to justice. Those who had given orders for the killings had been indicted, and one of the accused had been found guilty of war crimes against the civilian population and sentenced to eight years’ imprisonment.

63. The police had followed up all their leads and had interviewed a number of witnesses. However, none of the leads had produced any tangible results of a kind which could have served as a basis for a prosecution.

64. The applicants argued that the investigation into the death of their respective husband and father had so far yielded little results. None of the direct perpetrators had been indicted, although some of the witnesses had identified them. The indictment relied on by the Government concerned only those who had given orders. The war had ended some eighteen years previously, and the Government’s justification that the officials were young and inexperienced could not be accepted.

65. In particular, the applicants pointed out that the second applicant had stated that his father had been taken away by B. and the individual known as Š. It was clear that members of the Rijeka unit who had been stationed in the fire station in Novo Selo during the critical time had been implicated in the killing of S.M. N.S., otherwise known as Š., and B.V. had been members of that unit. Despite strong indications that those two had arrested S.M., the national authorities had not carried out a thorough investigation in that respect. Those two individuals had said that they had not been implicated in the killing of S.M. and their statement had satisfied the national authorities, who had abandoned any further attempts to prosecute them.

2. The Court’s assessment

(a) General principles

66. The Court reiterates that Article 2 ranks as one of the most fundamental provisions in the Convention. It enshrines one of the basic values of the democratic societies making up the Council of Europe. The object and purpose of the Convention as an instrument for the protection of individual human beings require that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see, among many other authorities, Anguelova v. Bulgaria, no. 38361/97, § 109, ECHR 2002-IV).

67. The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also 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 (see, Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 230, 30 March 2016).

68. The State must therefore ensure, by all means at its disposal, an adequate response - judicial or otherwise - so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished (see Armani Da Silva, cited above, § 230).

69. In order to be “effective” as this expression is to be understood in the context of Article 2 of the Convention, an investigation must firstly be adequate. This means that it must be capable of leading to the establishment of the facts, a determination of whether the force used was or was not justified in the circumstances and of identifying and - if appropriate - punishing those responsible. This is not an obligation of result, but of means. The authorities must take whatever reasonable steps they can to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of the clinical findings, including the cause of death. Moreover, where there has been a use of force by State agents, the investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (see Armani Da Silva, cited above, § 233).

70. In particular, the investigation’s conclusions must be based on thorough, objective and impartial analysis of all relevant elements. Failing to follow an obvious line of inquiry undermines to a decisive extent the investigation’s ability to establish the circumstances of the case and the identity of those responsible. Nevertheless, the nature and degree of scrutiny which satisfy the minimum threshold of the investigation’s effectiveness depend on the circumstances of the particular case. The nature and degree of scrutiny must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work. Where a suspicious death has been inflicted at the hands of a State agent, particularly stringent scrutiny must be applied by the relevant domestic authorities to the ensuing investigation (see Armani Da Silva, cited above, § 234).

71. A requirement of promptness and reasonable expedition is implicit in this context (see Yaşa v. Turkey, 2 September 1998, §§ 102-104, Reports 1998-VI; and Mahmut Kaya v. Turkey, no. 22535/93, §§ 106-107, ECHR 2003-III). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation (see Armani Da Silva, cited above, § 237). However, where events took place far in the past, due to the lapse of time, the level of urgency may have diminished; the immediacy of required investigative steps in the aftermath of an incident is likely to be absent (see Brecknell v. the United Kingdom, no. 32457/04, §§ 79-81, 27 November 2007). The standard of expedition in such historical cases is much different from the standard applicable in recent incidents where time is often of the essence in preserving vital evidence at a scene and questioning witnesses when their memories are fresh and detailed (see Emin and Others v Cyprus, no. 59623/08 et al., (dec.) 3 April 2012; and Gürtekin and Others v. Cyprus, nos. 60441/13, 68206/13 and 68667/13, § 21, 11 March 2014; see also Palić v. Bosnia and Herzegovina, no. 4704/04, § 70, 15 February 2011 concerning complex post-conflict situations).

(b) Application of these principles to the present case

72. The Court first notes the Government’s argument that the case was very complex and concerned thirty-four victims and that the Croatian State apparatus at the beginning of the country’s independence had been mainly comprised of inexperienced and young officials who had not known how to deal with such a difficult situation. The Court accepts that the case indeed is a complex one and that there are elements indicating that it concerned targeted killing of Serbian civilians by members of the Croatian police and army in the Sisak area in a prolonged period during 1991 and 1992 (see Jelić, cited above, § 78). The Court is aware that this situation was sensitive for a country that was in war and also accepts that during the war and at the beginning of the county’s independence the State authorities were faced with a difficult situation (compare to B. and Others v. Croatia, no. 71593/11, § 62, 18 June 2015).

73. In this connection the Court notes that Croatia declared its independence on 8 October 1991 and all military operations ended in August 1995. In January 1998 the UNTAES mandate ceased and the peaceful transfer of power to the Croatian authorities began (see paragraph 7 above). The Court accepts that certain delays in the investigation into the killing of Serbian civilians during the war and post-war recovery were attributable to the overall situation in Croatia, a newly-independent and post-war State which needed time to organize its apparatus and for its officials to gain experience. The Court also notes that the town of Sisak was never occupied and has since the independence of Croatia been under the control of the Croatian authorities.

74. The Court acknowledges the efforts of the State Attorney’s Office which, in July 2005, required the County State Attorney’s Offices to concentrate their activities on identifying the perpetrators and gathering the relevant information (see paragraph 33 above). A further global measure by the State Attorney’s Office occurred in October 2008 when it instructed the County State Attorney’s Offices to advocate impartial investigation of all war crimes, irrespective of the ethnicity of those involved (see paragraph 34 above). The Court also acknowledges that the prosecuting authorities by 31 December 2012 had opened investigations in respect of altogether 3,436 alleged perpetrators and that there had been 557 convictions (see paragraph 48 above).

75. As regards the killing of the applicants’ respective husband and father, the Court notes that it occurred during the war, on an unspecified date between 23 September and 27 October 1991, in the Sisak area. It appears that only in December 2002 the victim’s wife, Ms Z.M., wrote to the Ministry of the Interior in Zagreb, alleging that on 23 September 1991 her husband had been taken away by men in black uniforms and then killed. The investigation was instigated after that. Therefore, the Court will examine the steps taken by the relevant authorities since December 2002.

76. When it comes to the procedural aspect of Article 2 of the Convention, the Court notes that one person, V.M., was convicted of war crimes against the civilian population in his capacity as the Commander of the Police Forces in the broader area of Sisak and Banovina and the Deputy Head of Sisak Police in that he had allowed the killings of persons of Serbian origin and had failed to undertake adequate measures to prevent such killings (see paragraphs 40 and 41 above). However, it had not been established who the direct perpetrators were. In this connection the Court reiterates that in the context of war crimes the superior (command) responsibility is to be distinguished from the responsibility of their subordinates. The punishment of superiors for the failure to take necessary and reasonable measures to prevent or punish war crimes committed by their subordinates cannot exonerate the latter from their own criminal responsibility (see Jelić, cited above, § 88).

77. As regards the statements given to the police which could identify the possible direct perpetrators, the Court notes that the first and the second applicants and the Croatian soldiers I.D. and S.J., who had all seen S.M. being taken away, all said that at least three Croatian soldiers had arrived at the house of the M. family in Novo Selo in a white Volkswagen van with Rijeka licence plates. Two of them, whose faces were masked, had taken S.M. away, while the third ‒ and possibly a fourth ‒ had stayed in the van.

78. When interviewed on 19 December 2002 the first applicant said that her son R. knew the two men who had taken her husband as Š. and B., soldiers from Rijeka.

79. When interviewed on 2 December 2003 (see paragraph 31 above) the second applicant, who was also present when his father was taken by two Croatian soldiers, said that he had heard those two men addressing each other as Š. and B. He saw Š.’s face and recognised him. The second applicant did not recognise Š. on the photograph shown to him by the police. In the interview of 5 January 2005 (see paragraph 32 above) the second applicant said that he would be able to recognize Š. because he had a characteristic face. In the interview of 22 December 2008 (see paragraph 35 above), the second applicant said that the persons who had taken his father had all had balaclavas over their faces.

80. The authorities did not confront the second applicant with Š. even though the second applicant said that he would be able to recognise him in person and in particular if he heard his voice (see paragraphs 31 and 32 above and compare to Skendžić and Krznarić v. Croatia, no. 16212/08, § 86, 20 January 2011).

81. I.D. and J.S. said that the persons who had taken S.M. had all balaclavas over their faces. I.D. said that he had heard later on that Š. and B. had been the men who had taken S.M. away.

82. In the Court’s view the above statements gave an indication that a Croatian soldier N.S., otherwise known as Š., and possibly also soldier B., whose identity remained uncertain, were implicated in the arrest of S.M. When interviewed by the police in 2003 N.S. denied any knowledge of the arrests of civilians in Novo Selo and the killing of S.M. (see paragraph 28 above).

83. The statements of several Croatian soldiers interviewed between 28 July and 25 September 2003 indicate the following. The Rijeka unit was divided into two groups. One of these groups was stationed in the fire station in Novo Selo and comprised D.P., their leader, N.S., otherwise known as Š., B.V., Lj.G. and M.M. That group had two vans, one a light blue Citroen and the other a white Volkswagen, both rented from a car rental company and both displaying Rijeka licence plates.

84. Some of the Croatian soldiers confirmed that they had heard rumours that during their stay in Novo Selo some civilians had been taken from their homes and some of those had been liquidated (see paragraphs 23, 26 and 29 above).

85. Given the statements of the second applicant and of other witnesses, members of the Croatian army (see paragraphs 15, 18-24, 26 and 29 above), whose credibility was not called into question, it would have been expected that the authorities would take adequate steps to further investigate the matter, by, for example, confronting the second applicant and N.S. (compare to Skendžić and Krznarić, cited above, § 86).

86. Given the nature of the witness statements the Court considers that the authorities did not do their utmost to identify and investigate the possible direct perpetrators. In this connection the Court notes that the documents submitted by the parties indicate that examination of the circumstances surrounding the arrest and killing of S.M. by the national authorities remained at the level of a police inquiry since there is no evidence that any witnesses were heard by an investigating judge. However, the Code of Criminal Procedure allows for an urgent investigation against unknown perpetrators (see Article 185 of the Code of Criminal Procedure cited in paragraph 37 above). The difference between a police enquiry and an investigation is that in the former, statements given to the police amount only to informal statements and cannot be used as evidence in criminal proceedings. An investigation, however, is conducted by an investigating judge and statements given before him or her amount to valid evidence (see B. and Others v. Croatia, cited above, § 71). In this connection the Court in particular points out that the report drawn up by the Sisak police on 30 September 2003 indicates that D.P., who was allegedly the informal commander of the “group from Rijeka”, said that “he consulted with his superiors who advised him not to give a statement” (see paragraph 30 above)”.

87. The outcome of the investigation is vital in ensuring that the deterrent effect of the judicial system in place and the significance of the role it is required to play in preventing violations of the right to life are not undermined (see Gäfgen v. Germany [GC], no. 22978/05, § 121, ECHR 2010 and the authorities cited therein)

88. The Court has also held that among the main purposes of imposing criminal sanctions are retribution as a form of justice for victims and general deterrence aimed at prevention of new violations and upholding the rule of law. However, neither of these aims can be obtained without alleged perpetrators being brought to justice. Failure by the authorities to pursue the investigation of the possible direct perpetrators undermines the effectiveness of the criminal-law mechanism aimed at prevention, suppression and punishment of unlawful killings. Compliance with the State’s procedural obligations under Article 2 requires the domestic legal system to demonstrate its capacity and willingness to enforce criminal law against those who have unlawfully taken the life of another (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005-VII; Ghimp and Others v. the Republic of Moldova, no. 32520/09, § 43, 30 October 2012; and Jelić, cited above, § 90).

89. Having regard to the above, 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 killing of the applicants’ respective husband and father, S.M. There has accordingly been a violation of the procedural obligation under Article 2 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

90. The applicants also complained that the death of their respective husband and father caused them suffering. They relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

91. The Court has already examined the same complaint in the Jelić case in circumstances comparable to those in the present case and concluded that:

“112. ... despite its gruesome circumstances, the applicant sustained uncertainty, anguish and distress characteristic of the specific phenomenon of disappearances (see,

by contrast, Luluyev and Others v. Russia, no. 69480/01, § 115, ECHR 2006-XIII (extracts)).

113. In such circumstances, the Court considers that it cannot be held that the applicant’s suffering reached a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human-rights violation.”

92. The Court does not see any reason to depart from that view in the present case. Accordingly, this complaint of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

III. OTHER ALLEGED VIOLATIONS

93. The applicants complained under Article 6 § 1 of the Convention that the national courts by wrongly finding that their claim for damages had been lodged after the statutory limitation period had expired, had deprived them of the right of access to court because they had not examined their claim on the merits. They also invoked Article 5 of the Convention in relation to the taking of their respective husband and father by uniformed persons in August 1991.

94. As regards the complaint under Article 5 of the Convention, the Court notes that it relates to the events that took place in 1991 whereas 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 (a) and must be rejected in accordance with Article 35 § 4.

95. As regards the complaint under Article 6 § 1 of the Convention, the Court notes that following the conviction of V.M., the applicants sought and obtained the re-opening of the civil proceedings (see paragraph 44 above). Accordingly, this complaint is premature and must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

96. 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

97. The applicants claimed 3,000 euros (EUR) in respect of pecuniary damage as regards the expenses incurred for the stone erected on the grave of their relative, and EUR 30,000 in respect of non-pecuniary damage.

98. The Government deemed the sums claimed excessive, unfounded and unsubstantiated.

99. The Court reiterates that there must be a clear causal connection between the damages claimed by the applicants and the violation of the Convention. However, in the present case the Court has found a violation of the procedural aspect of Article 2 only. Therefore, the Court finds that there is no causal link between the pecuniary damage claimed and the violation found and dismisses the claim for pecuniary damage.

100. On the other hand, having regard to all the circumstances of the present case, the Court accepts that the applicants suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicants jointly EUR 20,000 in compensation for non-pecuniary damage, plus any tax that may be chargeable to them.

B. Costs and expenses

101. The applicants also claimed EUR 1,000 for the costs and expenses incurred before the Court and EUR 12,300 for those incurred in the civil proceedings whereby they claimed damages in connection with the death of their respective husband and father.

102. The Government submitted that the costs and expenses claimed concerned the domestic proceedings, which had no connection with the proceedings before the Court, and should therefore be rejected.

103. As to the costs and expenses, the Court has to establish first whether the costs and expenses indicated by the applicants’ representative were actually incurred and, second, whether they were necessary (see McCann and Others, cited above, § 220, and Fadeyeva v. Russia, no. 55723/00, § 147, ECHR 2005-IV).

104. As regards the claims of costs, the Court accepts the applicants’ claim for the costs and expenses incurred before it and awards them EUR 1,000 in that respect. However, as regards the costs and expenses incurred before the national courts in the civil proceedings for damages, the Court notes that no violation has been found as regards these proceedings and accordingly rejects the claim for costs incurred in them.

C. Default interest

105. The Court considers it appropriate that the default interest rate 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

1. Declares, unanimously, the complaint concerning the procedural aspect of Article 2 admissible and the remainder of the application inadmissible;

2. Holds, by four votes to three, that there has been a violation of Article 2 of the Convention under its procedural aspect;

3. Holds, by four votes to three,

(a) that the respondent State is to pay the applicants jointly, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Croatian kunas at the rate applicable at the date of settlement:

(i) EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses, unanimously, the remainder of the applicants’ claim for costs and expenses.

Done in English, and notified in writing on 2 May 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Işıl Karakaş
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 Griţco, Turković and Kjølbro is annexed to this judgment.

A.I.K.
S.H.N.

DISSENTING OPINION OF JUDGES GRIȚCO, TURKOVIĆ AND KJØLBRO

1. We regret that we are unable to agree with our colleagues in finding that there has been a violation of Article 2 of the Convention under its procedural aspect (see paragraphs 72 to 89 of the present judgment). We do not call into question the recapitulation of general principles guiding the Court’s jurisprudence concerning States’ procedural obligations under Article 2 of the Convention in relation to an effective official investigation (see paragraphs 66 - 71 of the judgment). We also agree with the majority that in the context of war crimes the superior (command) responsibility is to be distinguished from the responsibility of their subordinates, and that the punishment of superiors for the failure to take necessary and reasonable measures to prevent or punish war crimes committed by their subordinates cannot exonerate the latter from their own criminal responsibility (see paragraph 76 of the judgment relying on Jelić v. Croatia, no. 57856/11, § 88, 12 June 2014). However, we differ in the application of those general principles to the factual circumstances of the present case.

2. The majority considered that the national authorities failed to carry out an effective investigation into the circumstances surrounding the killing of S.M. in two ways: firstly, by failing to confront the second applicant and S.N. (see paragraph 85 of the judgment) and secondly, by keeping the examination at the level of police inquiry (see paragraph 86 of the judgment). We find both arguments unconvincing, particularly because the nature and degree of scrutiny by domestic authorities conducting investigation must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work (see Armani da Silva v. U.K. [GC], no. 5878/08 § 234, 30 March 2016; Velcea and Mazăre v. Romania, no. 64301/01, § 105, 1 December 2009; and Mustafa Tunç and Fecire Tunç [GC], no. 24014/05, § 175, 14 April 2015). Moreover, as the Court stressed in Mustafa Tunç and Fecire Tunç (§ 225), compliance with the procedural requirement of Article 2 is assessed on the basis of several essential parameters: the adequacy of the investigative measures, the promptness of the investigation, the involvement of the deceased person’s family and the independence of the investigation. These elements are inter-related and each of them, taken separately, does not amount to an end in itself. They are criteria which, taken jointly, enable the degree of effectiveness of the investigation to be assessed. It is in relation to this purpose of an effective investigation that any issues must be assessed.

3. Bearing that in mind, we find it important to note the following. Although the second applicant stated that he would be able to recognise Š. in person, in particular if he heard his voice (see paragraph 80 of the judgment) we find that confronting the second applicant with N.S. who was known as Š. could be of little, if any practical and/or evidential value in the present case for the three principal reasons. First, although, the second applicant stated that he would be able to recognise Š. because he had characteristic face, when he was shown eighteen photographs by the police, including the one of Š., he did not recognise him (see paragraph 79 of the judgment). Second, the second applicant gave contradictory statements in relation to Š. He was the only one of the five direct eyewitnesses to his father’s arrest (his mother, his brother and two neighbours) who initially claimed that Š. was not wearing balaclavas, that he saw his face and recognised him (see paragraphs 31 and 79 of the judgment). The other eye-witnesses stated that all four men who took S.M. away had covered faces (see paragraph 77 of the judgment). The second applicant himself, in his later statement, said that the soldiers who had taken his father away all had balaclavas over their faces (see paragraphs 35 and 79 of the judgment). Therefore, according to his own account he actually did not see the face of Š. on the day of the event. Thus, even if he recognised Š. on confrontation this would not necessarily confirm that Š. was among those who arrested his father. Third, even if the second applicant recognised Š.’s voice when confronted with him such recognition would have little evidentiary value since Š. was known to him independently of the critical event and owing to the passage of time. More than twenty years had passed since the event. In those circumstances, we consider that the police cannot be faulted with not having confronted the second applicant with S.N., and hold that the absence of such confrontation did not diminish the effectiveness of investigation. Moreover, evidence so obtained would have little, if any, credibility in the proceedings, which could then raise an issue of the accused’s right to a fair trial (see Laska and Lika v. Albania, nos. 12315/04 and 17605/04, 20 April 2010).

4. Furthermore, we do not agree with the majority that the investigation of the circumstances surrounding the arrest and killing of S.M. by the national authorities remained at the level of police inquiry (see paragraph 86 of the judgment). This investigation was a part of a broader investigation of the war crimes committed in the Sisak area. On an unspecified date the official investigation was opened against Đ.B., V.M. and D.B. (see paragraph 38 of the judgment). The investigation covered the killing of S.M. There was nothing to prevent the investigating judge, the State Attorney or the courts from taking formal statements in relation to arrest and killing of S.M. from any of the witnesses. Indeed, some of the witnesses questioned by the police in relation to the arrest and killing of S.M. during the police inquiry, in particular the second applicant R.M. and the eye-witness I.D., were included as witnesses in V.M.’s trial and testifind in court. Their testimonies, as recorded in the judgment against V.M., corresponded to the statements which they had given previously to the police when they had been interviewed in relation to the killing of S.M. The crimes for which V.M. was convicted included the killing of S.M. (see paragraphs 6, 37 to 41 of the judgment).

5. During the police inquiry into the circumstances surrounding the arrest and killing of S.M., the police identified nineteen out of twenty-two members of the police forces (“Croatian army”) stationed in Novo Selo at the time of the critical event and scheduled interviews with all of them, including N.S. (known as Š). D.P. was the only one who refused to give statements to the police. At the time, he was employed by the military secret services, and according to R. he was advised by his superiors not to testify (see paragraph 86 of the judgment; cf. police report in the file). All other eighteen members of the Croatian army were interviewed and none of them had any concrete or direct knowledge of the possible perpetrators, beyond rumours (see paragraphs 19, 23, 26, and 29 of the judgment). The identity of B. remained uncertain (see paragraph 82 of the judgment). N.S. was identified as Š. When questioned, he confirmed that he was stationed in Novo Selo, but denied any involvement in the abduction and killing of S.M. There were no further leads concerning him (ibid.). The second applicant himself said that one of his friends had told him that he had seen his father in the Sisak detention centre about three weeks after S.M. had been arrested (see paragraph 32 of the judgment). The investigation could not confirm when exactly and under what circumstances S.M. had been killed. After questioning all the witnesses identified (more than twenty), apart from D.P., no leads emerged concerning any possible direct perpetrators. Under those circumstances, contrary to the majority (see paragraph 86 of the judgment), we believe that it was not unreasonable for the State Attorney to conclude that for the moment there was no need to investigate any further. Unlike the majority, we do not find that the failure to take a formal statement from D.P., in the context of all other investigative steps taken and the available evidence, so diminished the effectiveness of the investigation as to justify a finding of a procedural violation of Article 2 of the Convention. This is especially true in view of the fact that there is no statute of limitation for war crimes and crimes against humanity and that the investigation in the present case (as in any other case concerning war crimes in Croatia) has not, and could not have, been closed, such cases have to be regularly updated, and should any new leads be discovered, the investigation can be resumed at any time. In that connection we would emphasise that it is not the Court’s task to micro-manage the functioning of, and procedures applied in, criminal investigative and justice systems in Contracting States (see Armani da Silva, cited above, § 278).

6. Having regard to all the above considerations we do not find that there were any significant oversights or omissions in the investigation of the arrest and killing of S.M. The facts of the case show that the police followed up all the leads, updating the witness statements, looking for witnesses and tracking down as far as possible the names of potential suspects which had been mentioned by witnesses. All the traceable witnesses, totalling more than twenty, except for D.P., were interviewed (see, to the contrary effect Jelić, cited above, §§ 89-95), the available evidence was collected and reviewed (see, to the contrary effect, Charalambous and Others v. Turkey (dec.), no. 46744/07, § 65, 3 April 2012). Inevitably, given the lapse of more than twenty years since the events, some of the potential witnesses have died in the meantime (cf. Gürtekin and Others v. Cyprus (dec.), nos. 60441/13 etc., § 25, 11 March 2014). The fact that the investigation did not succeed in identifying the perpetrators of S.M.’s killing does not necessarily mean that it was ineffective. In the circumstances, the authorities cannot be impugned for any culpable disregard, discernible bad faith or lack of will (ibid., § 27). Indeed, as the Court has held on many occasions (see, for example Hugh Jordan v. the United Kingdom, no. 24746/94, § 107, ECHR 2001-III, and Palić, cited above, § 65), the procedural obligation under Article 2 is an obligation not of result but of means. What is relevant is that the domestic authorities did all that could be reasonably expected of them in the circumstances of this particular case.

7. This leads us to conclude that the present case is not comparable to Jelić (in which three witnesses, some of whom had been eye-witnesses, stated that A.H. had personally shot and killed Vaso Jelić, cited above, § 89), but rather to the whole line of cases emphasising that Article 2 cannot be interpreted as imposing a requirement on the authorities to launch a prosecution irrespective of the evidence which is available. In the present case, we only have rumours about the possible persons involved in the arrest and killing of S.M. Bearing in mind the presumption of innocence, a prosecution on such a serious charge as involvement in war crimes should never be embarked upon lightly, irrespective of the standard of evidence required. The impact on a defendant who comes under the weight of the criminal justice system is considerable, being held up to public obloquy, with all the attendant repercussions on reputation, private, family and professional life. Given the presumption of innocence enshrined in Article 6 § 2 of the Convention, it can never be assumed that a particular person is so tainted with suspicion that the standard of evidence to be applied is an irrelevance. Rumour and gossip are a dangerous basis on which to base any steps that can potentially devastate a person’s life (cf. Palić v. Bosnia and Hercegovina, no. 4704/04, § 65, 15 February 2011, where the Court held that the investigation had been effective despite the fact that there had been no convictions; Gürtekin and Others, cited above, § 27; Mujkanović and Others v. Bosnia and Hercegovina (dec.), nos. 47063/08 et al., § 39, 3 June 2014; Fazlić and Others v. Bosnia and Hercegovina (dec.), nos. 66758/09 et al., § 37, 3 June 2014; Šeremet v. Bosnia and Hercegovina (dec.), no. 29620/05, § 35, 8 July 2014; Muratspahić v. Bosnia and Herzegovina (dec.), no. 31865/06, § 31, 2 September 2014; Demirović and Others v. Bosnia and Herzegovina (dec.), no. 35732/09, § 32, 2 September 2014; Zuban and Hamidović v. Bosnia and Herzegovina (dec.), nos. 7175/06 and 8710/06, § 32, 2 September 2014, and Žerajić and Gojković v. Bosnia and Herzegovina (dec.), no. 16503/08 et al., § 30, 13 November 2014).

8. The majority rightly emphasises the complexity and sensitivity of the case, concerning, as it does, thirty-four victims (see paragraphs 37-41 and 76 of the judgment); the overall situation in Croatia, a newly independent and post-war State which needed time to organise its apparatus and for its officials to gain experience (see paragraph 73 of the judgment, compare to Palić, cited above); the number of war crimes that are under prosecution, the practical realities of investigation work such as the passage of time or the large scope of investigation; and the significant efforts of the State Attorney’s office in prosecuting war crimes (see paragraph 74 of the judgment). In our view, however, the majority has not given sufficient weight to those circumstances in their concrete assessment of the present case. Finding a violation on the basis of two relatively minor alleged omissions in quite an extensive investigation effort covering a number of war crimes committed in the broader Sisak area, and in disregard of the overall context of the particular investigation (prioritising the establishment of the command responsibility, the investigation in the present case has not been closed and were any new leads to be discovered the investigation could be at any time resumed, the overall investigation into the crimes committed during the war in Croatia in the broader Sisak area, the intensity of the investigation in the present case (more than twenty witnesses interviewed) and the conviction of V.M.) imposes very heavy, and in our view excessive, burdens on the State when investigating massive war crimes (see in this context also Muratspahić, cited above, §§ 10, 28-35; Zuban and Hamidović, cited above, §§ 10, 30-36; Žerajić and Gojković, cited above, §§ 9, 29-34; and Demirović and Others, cited above §§ 10, 28-36).

9. The Court has already held that the procedural obligation under Article 2 must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities (see Osman v. the United Kingdom, 28 October 1998, § 116, Reports 1998-VIII; Palić, cited above, § 70; and Žerajić and Gojković, cited above, § 31). Consequently, having regard to the facts of the case, the Court’s case-law (see paragraph 6 above), the particular circumstances prevailing in Croatia in the post-war period, the large number of war crimes cases pending before the local courts and the large number of victims (see paragraphs 72-74 of the judgment), we do not find any reason to reach a different conclusion in the present case than in the cases raising similar issues, where the Court has found, in similar circumstances, that the investigation had not been shown to have infringed the minimum standard required under Article 2 (see paragraph 7 above).

10. In conclusion, we find no evidence in support of the applicants’ allegations that the authorities did not properly investigate the fate of the deceased or that they are somehow shielding or protecting those responsible. The investigation has not been shown to have infringed the minimum standard required under Article 2. There has accordingly been no violation of Article 2 of the Convention in its procedural limb.

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You are here: BAILII >> Databases >> European Court of Human Rights >> M. AND OTHERS v. CROATIA - 50175/12 (Judgment : Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)) [2017] ECHR 394 (02 May 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/394.html Cite as: [2017] ECHR 394, CE:ECHR:2017:0502JUD005017512, ECLI:CE:ECHR:2017:0502JUD005017512