CASE OF MILIĆ AND OTHERS v. CROATIA
No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković
5. The applicants’ particulars appear in the appendix to this judgment. 6. During 1991 and 1992 Serbian paramilitary forces gained control of about a third of the territory of Croatia and proclaimed the “Serbian Autonomous Region of Krajina” (Srpska autonomna oblast Krajina, hereinafter “Krajina”). At the beginning of August 1995 the Croatian authorities announced their intention to take military action with the aim of regaining control over Krajina. The operation was codenamed “Storm” (Oluja) and took place from 4 to 7 August 1995. Before the military action, the vast majority of the population of Krajina fled Croatia. Most of them went to Bosnia and Herzegovina but some also went to Serbia. Some returned to Croatia after the war. The number of people who fled is estimated at between 100,000 and 150,000. 7. On 5 November 1997 Croatia ratified the Convention. 8. The applicants and P.M. (born in 1942), who was the husband of one of the applicants and the father of the others, lived in Razbojište, near the larger village of Krupa, on the territory of Krajina. During the night of 4 to 5 August 1995 all the family, save for P.M., fled Croatia. P.M. was killed during Operation Storm on 5 August 1995. According to the applicants, P.M. was killed in the courtyard of his house in Razbojište, although he was an unarmed civilian. According to the Government, he was armed and was killed in an exchange of fire with the Croatian Army in the broader area of Krupa. The villages of Razbojište, Krupa and Žegar and the settlement of Milići are located near each other. 9. On 11 October 1995 the police found the remains of an unidentified person in Razbojište and they were buried in Gračac Cemetery under the number 434. 10. On June 2002 exhumations were carried out at Gračac Cemetery. The process was conducted under the auspices of the International Criminal Tribunal for the former Yugoslavia (Međunarodni kazneni sud za bivšu Jugoslaviju) and the County State Attorney’s Office in Zadar. Body no. 434 was also dug up and an identity card was found in the name of P.M. The remains were examined at the Institute for Forensic Medicine in Zagreb (Zavod za sudsku medicinu i kriminalistiku) and on 15 October 2002 an autopsy report was issued which concluded that the cause of death had been three wounds from shelling. On 24 November 2003 the third applicant identified the remains as those of her father, P.M. 11. The police opened an investigation into the circumstances of P.M.’s death after the applicants on 5 September 2005 brought a claim for damages with the State Attorney’s Office in connection with his killing (see paragraph 20 below). 12. On 21 October 2005 the police interviewed Ž.M., who said that P.M. had joined a village guard unit during the war. Ž.M. did not know who might have killed P.M. 13. On 11 August 2015 the Zadar police received an anonymous letter stating that on 10 August 1995 two men, V.G. and M.B., had killed twelve elderly people in the village of Žegar in the “Milića” cave, near Krupa. 14. On 25 August 2015 the police interviewed O.M. and S.M., residents of Žegar. O.M. said that he had never heard of someone being killed in the “Milića” cave even though he had lived all his life in the area. He also said that during Operation Storm five people from the settlement called Milići, part of the village of Žegar, had been killed, including P.M. They had all been members of the paramilitary forces and had been armed. He had heard that they all had perished in rocky areas of the village but did not know the cause and manner of their deaths. S.M. had no information about the possible perpetrators of the alleged crime in question. 15. On 26 August 2015 the Zadar police informed the Zadar County State Attorney’s Office that five persons had been killed in the settlement of Milići during Operation Storm, one of whom was P.M., who had died on 5 August 1995. 16. On 14 September 2015 the police interviewed V.G., a captain in the Croatian Army during Operation Storm, who had been in command of the Zadar Military Police Third Company of the 72nd Battalion, who said that he had never been to Žegar and had never heard of anyone being killed there. He had been in Benkovac (a town situated some forty kilometres from Žegar) throughout Operation Storm. He had also said that he could state with certainty that none of the members of his unit had committed any crimes, otherwise he would have known about it. 17. On 16 September 2015 the police interviewed M.B., a Croatian soldier and member of the 72nd Battalion during Operation Storm. He also said that he had never been to Žegar and had never heard of anyone being killed there. He had been near Obrovac (a town situated some twenty kilometres from Žegar) during the military operation. 18. On 1 October 2015 the Zadar County State Attorney’s Office closed the investigation. 19. On 22 January 2016 the Zadar County State Attorney’s Office informed its counterpart in Split County that it had not been able to confirm the allegations made in the anonymous letter of 11 August 2015 as there was no indication that twelve elderly people had been killed in the “Milića” cave. However, five members of the Serbian paramilitary forces had been killed during Operation Storm, including P.M. Enquiries had therefore been stopped since the information given in the anonymous letter had proved to be unreliable. 20. On 5 September 2005 the applicants submitted a claim for damages with the State Attorney’s Office in connection with the killing of P.M. The request was refused. On 12 April 2006 the applicants brought a civil action against the State in the Zagreb Municipal Court, seeking compensation in connection with P.M.’s death. The claim was dismissed on 30 March 2010 on the grounds that it had not been established how P.M. had been killed and that the applicants had not proved that his killing had amounted to a terrorist act for which the State was liable. It had also not been established that he had been killed by members of the Croatian army or police in areas where there had been no operations related to the war. In addition, the claim had become statutebarred. During the proceedings information was obtained from the archives of the Ministry of Defence showing that the Croatian army had entered the area in question on 6 August 1995, whereas P.M. had been killed on 5 August 1995. The first-instance court also accepted the statement of the witness O.M., who said that the village of Žegar had been shelled on 5 August 1995. The first-instance judgment was upheld by the Zagreb County Court on 21 September 2010. On 10 June 2014 the Supreme Court upheld the lower courts’ judgments in respect of the ruling that the applicants’ claim had become statute-barred. 21. A constitutional complaint lodged by the applicant was dismissed on 25 February 2015.