FAZLIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA
Inadmissible
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
1. A list of the applicants is set out in the appendix. They are all citizens of Bosnia and Herzegovina and were represented by TRIAL (Track Impunity Always), a non-profit organisation based in Geneva. 2. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Deputy Agent, Ms Z. Ibrahimović. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. After its declaration of independence on 6 March 1992, a brutal war started in Bosnia and Herzegovina. It would appear that more than 100,000 people lost their lives and more than 2,000,000 people were displaced in the course of the war. It is estimated that around 30,000 people went missing and that around one quarter of them is still missing. The conflict came to an end on 14 December 1995 when the General Framework Agreement for Peace in Bosnia and Herzegovina entered into force. In accordance with that Agreement, Bosnia and Herzegovina consists of two Entities, the Federation of Bosnia and Herzegovina and the Republika Srpska. 5. In response to atrocities then taking place in Bosnia and Herzegovina, on 25 May 1993 the United Nations Security Council passed Resolution 827 establishing the International Criminal Tribunal for the former Yugoslavia (“the ICTY”), headquartered in The Hague. More than 70 individuals have already been convicted and proceedings are ongoing for 20 accused. In the period from February 1996 until October 2004, local prosecutors in Bosnia and Herzegovina were required to submit case files to the ICTY for review; no person could be arrested on suspicion of war crimes unless the ICTY Office of the Prosecutor had received the case file beforehand and found it to contain credible charges (the “Rules of the Road” procedure). Moreover, the ICTY had primacy over national courts and could take over national investigations and proceedings at any stage in the interest of international justice. As part of the ICTY’s completion strategy, in early 2005 war crimes chambers were set up within the Court of Bosnia and Herzegovina (“the State Court”) with primacy over other courts in Bosnia and Herzegovina as regards war crimes (for information about that court and its jurisdiction over war crimes cases, see Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, §§ 34-40, ECHR 2013). More than 100 persons have been finally convicted by the State Court. 6. Furthermore, the International Commission on Missing Persons (“the ICMP”) was established at the initiative of United States President Clinton in 1996. It is currently headquartered in Sarajevo. Reportedly, the ICMP has so far identified by DNA more than 14,000 missing persons in Bosnia and Herzegovina, whereas local authorities have identified more than 8,000 missing persons by traditional methods. In 2005 the Government of Bosnia and Herzegovina and the ICMP established a Missing Persons Institute, also headquartered in Sarajevo (see paragraph 22 below). It became operational on 1 January 2008. 7. Before the 1992-95 war, the population of the municipality of Prijedor was ethnically mixed: according to a 1991 census, out of a total population of 112,000, 44% were Bosniacs, 42.5% Serbs, 5.5% Croats; 8% others. On 30 April 1992 the Serbian Democratic Party took control of the city of Prijedor pursuant to a secret plan made in advance (notably, the Instructions for Organisation and Activities of the Organs of the Serb People in Bosnia and Herzegovina in a State of Emergency, adopted by the Main Board of the Serbian Democratic Party on 19 December 1991). Shortly thereafter, ethnic cleansing began. By the end of 1992, there were practically no Bosniacs and Croats left in the municipality of Prijedor (about the situation in the Prijedor area at that time, see the ICTY judgment in the Stanišić and Župljanin case, IT-08-91-T, §§ 500-684, 27 March 2013, not yet final). 8. In 1992 seven applicants lived with their families in Kozarac (all but Ms Refika Ališković and Mr Edin Ramulić) and the remaining applicants in Rakovčani, in the Prijedor area. Following the takeover of Prijedor, tension developed between the new Serb authorities and Kozarac, which contained a large concentration of Bosniacs: of the 4,000 inhabitants of Kozarac town, 90% were Bosniacs. Kozarac was attacked by Serb forces on 24 May 1992. The attack began with heavy shelling, followed by the advance of tanks and infantry. The purported reason for the attack was the death of a Serb soldier. As a result of the shelling, over 800 inhabitants were killed. After the local Bosniac population had attempted to put up a resistance, a large number of people surrendered on 26 May 1992. The military-aged men were taken to Omarska and Keraterm camps and the rest of the population to Trnopolje camp. People who initially fled into the nearby mountains were sought out there or surrendered either to be killed or to be taken to camps. Eventually, the few Serb inhabitants of Kozarac returned and Serbs displaced from other areas moved into Kozarac (see the ICTY judgment in the Stakić case, IT-97-24-T, §§ 139-52, 31 July 2003; the ICTY judgment in the Brđanin case, IT-99-36-T, §§ 402-404, 1 September 2004; the ICTY judgment in the Stanišić and Župljanin case, cited above, §§ 529-41). Mr Nedžad Fazlić (Ms Fatima Selimović’s ex-husband and the father of Ms Lejla Fazlić and Ms Dženana Fazlić), Mr Edin Mahmuljin (Ms Ismeta Mahmuljin’s and Mr Muharem Mahmuljin’s son) and Mr Emir Hodžić (Ms Mersija Hodžić’s son and Ms Emira Biščević’s brother) were most likely killed either during the takeover of Kozarac or shortly thereafter in the nearby mountains. 9. Around 20–21 July 1992 Room 3 at Keraterm camp, which had up to that time held people from Kozarac, was emptied. Approximately 200 new detainees from different villages, including Rakovčani, were crammed into that room. For the first few days, the detainees were denied food and were subjected to beatings and abuse. Around 24-26 July 1992 virtually all of the detainees in the room were killed (see the ICTY judgment in the Stakić case, §§ 203-207, and the ICTY judgment in the Stanišić and Župljanin case, §§ 588-89, both cited above). Mr Esad Ališković (the husband of Ms Refika Ališković) was among them (as stated in the ICTY judgment in the Stanišić and Župljanin case, cited above, §§ 1579-80). It would appear that Mr Enes Ramulić (Mr Edin Ramulić’s brother) survived that incident (ibid, §§ 1831-32). According to some accounts, on 4 August 1992 he was transferred to Omarska camp from where he was taken together with more than 120 other people to Hrastova glavica and killed the next day (that incident was noted in, for example, the ICTY judgment in the Stakić case, cited above, §§ 211-12). 10. The ICTY has so far convicted 16 persons in connection with crimes committed in the Prijedor area in 1992, including killings committed during or immediately after the takeover of Kozarac, killing of almost 200 persons in Room 3 at Trnopolje camp around 24-26 July 1992 and killing of at least 120 persons at Hrastova glavica on 5 August 1992. Among those 16 people, there were 11 direct perpetrators (Messrs Duško Tadić, Miroslav Kvočka, Dragoljub Prcać, Milojica Kos, Mlađo Radić, Zoran Žigić, Duško Sikirica, Damir Došen, Dragan Kolundžija, Predrag Banović, and Darko Mrđa) and five organisers (Ms Biljana Plavšić and Messrs Milomir Stakić, Radoslav Brđanin, Mićo Stanišić and Stojan Župljanin). The ICTY imposed prison sentences of different length (between 3 and 40 years; 256 years in total). 11. Cases against Mr Radovan Karadžić and Mr Ratko Mladić, the war-time civilian and military leaders, respectively, of the Republika Srpska, are also pending before the ICTY. They are charged with the participation in a joint criminal enterprise to permanently remove Bosniacs and Croats from the Prijedor area and other parts of the Republika Srpska. 12. As indicated in paragraph 5 above, war crimes chambers were set up within the State Court in 2005. Shortly thereafter, the ICTY referred the case against Željko Mejakić, Momčilo Gruban, Duško Knežević and Dušan Fuštar to the State Court. At the arraignment of 28 July 2006, the accused pleaded not guilty. However, on 27 March 2008, Mr Fuštar changed his plea to guilty. He was then sentenced to 9 years’ imprisonment for persecution as a crime against humanity committed in Keraterm camp in 1992. 13. As regards the three other accused, on 30 May 2008 a Trial Chamber of the State Court found them guilty of participation in the commission of killings, beatings, rapes and various other crimes in Omarska and Keraterm camps as a part of a widespread and systematic attack against the non-Serb civilian population of the municipality of Prijedor, and sentenced them to 11 (Mr Gruban), 21 (Mr Mejakić) and 31 (Mr Knežević) years’ imprisonment. On 16 February 2009 an Appeals Chamber of the State Court reduced the sentence of Mr Gruban to 7 years and upheld the remainder of the first-instance judgment. 14. In 2012 the State Prosecutor assigned a special prosecutor in charge of crimes committed as a part of a widespread and systematic attack against the non-Serb civilian population of the municipality of Prijedor in 1992 with the aim of stepping up the prosecution of such crimes. Shortly thereafter, in early 2013, indictments were issued against Dragomir Soldat, Zoran Babić and Velemir Đurić for one such crime. On 27 March 2014 a Trial Chamber of the State Court sentenced each of them to 21 years’ imprisonment. This judgment is not final yet. Investigation into several other crimes committed in the Prijedor area in 1992 is currently ongoing (cases nos. KT-RZ 125/05; KT RZ 126/05 against Dragan Kondić, Goran Lajić, Dragomir Šaponja and Nedeljko Timarac; KT-RZ 143/07; KT-RZ 170/07; and KT-RZ 164/05). 15. On different dates between 1996 and 2002, the applicants sought and obtained declarations of presumed death with respect to their missing relatives. 16. While many exhumations have been conducted in the Prijedor area, the applicants’ missing relatives have not yet been identified. It should be noted, however, that the biggest mass grave in Bosnia and Herzegovina has recently been discovered in Tomašica. Reportedly, it contains the remains of hundreds of victims from the Prijedor area. Identification is now ongoing. 17. In 2006 all the applicants lodged constitutional appeals alleging that the authorities’ reaction to the disappearance of their relatives amounted to a breach of Articles 2, 3, 5, 8 and/or 13 of the Convention. 18. On 16 July 2007 the Constitutional Court decided to join 227 similar cases and rendered a group decision finding a breach of Articles 3 and 8 of the Convention. It ordered the authorities to release any and all information in their custody pertaining to the fate or whereabouts of the missing persons in issue and to ensure that the State agencies envisaged by the Missing Persons Act 2004 (the Missing Persons Institute, Central Records and the Missing Persons Fund) become operational within six months. No compensation was awarded. 19. Under its mandate to examine complaints about non-enforcement of its decisions, on 27 March 2009 the Constitutional Court concluded that the decision of 16 July 2007, mentioned above, was to be considered enforced notwithstanding the fact that some of the State agencies envisaged by the Missing Persons Act 2004 (precisely, the Central Records and the Missing Persons Fund) had not yet become operational. It held that no further action was required from the Constitutional Court as the failure to enforce a similar decision had already been reported to the State Prosecutor (non-enforcement of a final and enforceable decision of the Constitutional Court amounts to a criminal offence; for the relevant law in that regard, see Bobić v. Bosnia and Herzegovina, no. 26529/10, §§ 14-15, 3 May 2012). 20. On different dates in 2009 and 2010 all of the applicants requested damages from the Republika Srpska for the death of their relatives under the Republika Srpska’s general compensation scheme for war damage (for more information about that scheme, see Čolić and Others v. Bosnia and Herzegovina, nos. 1218/07 et al., § 10, 10 November 2009). Their requests were either rejected as out of time or are still pending. One of the applicants, Ms Refika Ališković, has lodged an appeal with the Constitutional Court of Bosnia and Herzegovina in this connection which is still pending. 21. The Missing Persons Act 2004 entered into force on 17 November 2004 (Official Gazette of Bosnia and Herzegovina no. 50/04). In accordance with section 3 of the Act, families have the right to know the fate of missing persons (that is, their whereabouts if they are still alive, or the circumstances of death and their place of burial, if they are dead) and to obtain their mortal remains. Under section 4 of the Act, the relevant domestic authorities have the obligation to provide any and all such information in their keeping. 22. Section 7 of that Act provides for the setting up of a Missing Persons Institute. In 2005 the ICMP and the Government of Bosnia and Herzegovina founded the Institute, headquartered in Sarajevo, pursuant to that provision and the Agreement on Assuming the Role of Co-founders of the Missing Persons Institute of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina, International Treaty Series, no. 13/05). It became operational on 1 January 2008. One of the organs of that Institute is an Advisory Board, comprised of six representatives of families of missing persons (see Article 10 of the Agreement mentioned above). 23. In accordance with section 9 of the Act, the status of missing person comes to an end on the date of identification. Therefore, if a missing person is declared dead but the mortal remains have not been found and identified, the process of tracing continues. 24. Pursuant to section 11 of the Act, the families of missing persons are entitled to monthly financial support under some conditions, notably if they were supported by the missing family member until his or her disappearance and if they are still in need of support (in other words, if they are not in paid employment and do not receive welfare benefits beyond 25% of the average salary paid in Bosnia and Herzegovina). Section 15 of the Act provides for the setting up of a Missing Persons Fund for that purpose. However, as the Fund has not yet been established, no payment has been made so far. 25. Families of missing persons are also entitled to, inter alia, temporary administration of the property of missing persons, burial of mortal remains at public expense and priority in access to education and employment for the children of missing persons (section 18 of the Act). 26. Section 21 of the Act provides for the setting up of Central Records with the aim of verifying information about missing persons from different sources (government agencies, associations of families of missing persons, the ICMP and the International Committee of the Red Cross) and creating a single database. While Central Records were founded on 3 February 2011, it would appear that the verification process is still ongoing. Once that process is completed, all those recorded as missing will be declared dead (section 27 of the Act), but the tracing process will nevertheless continue (see paragraph 23 above). 27. Despite the fact that the verification process outlined in paragraph 26 above is pending, any person may request that a declaration of presumed death be issued with respect to a missing person (see the Non-Contentious Procedure Act 1998, Official Gazette of the Federation of Bosnia and Herzegovina – “OG FBH”, nos. 2/98, 39/04, 73/05; the Non-Contentious Procedure Act 2009, Official Gazette of the Republika Srpska, no. 36/09). 28. Pursuant to section 21(4) of the War Veterans and their Families Act 2004 (OG FBH no. 33/04), which entered into force in June 2004, relatives of missing combatants were required to seek such declarations by June 2006 if they wished to keep the social benefits provided by that Act. By the same token, pursuant to the 2006 amendment to section 69 of the Social Care Act 1999 (OG FBH no. 39/06), which entered into force in September 2006, relatives of missing civilians were required to do so by September 2008. It should be noted that there is no such an obligation in the legislation of the Republika Srpska where most of the present applicants live.