CASE OF JELIĆ v. CROATIA
Preliminary objection partially dismissed (Article 35-3 - Ratione temporis);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1934 and lives in Sisak. A. Killing of the applicant’s husband and investigation 6. According to the applicant at 9.45 p.m. on 15 November 1991 five men, wearing camouflage uniforms and balaclavas, had come to their house in Sisak and taken her husband, Vaso Jelić, who was of Serbian ethnic origin. All five men were carrying firearms. She had reported the entire incident to the police on the same evening. 7. On 19 November 1991 the Sisak Police interviewed a certain B.S., who told them that on 15 November 1991 four men dressed in camouflage uniforms and wearing balaclavas had come to his flat and taken him to a lorry, where they had tied his hands and blindfolded him. Soon afterwards they had placed another person in the van, and they were transported to an unknown building. There the men had questioned him, then driven him somewhere else and released him. Later he learned that the other person who had been taken with him was Vaso Jelić. 8. On 9 February 1992 the body of Vaso Jelić was found on the banks of the river Kupa in Sisak. An autopsy carried out on 10 February 1992 showed that he had been shot dead. 9. On 10 February 1992 the applicant learned that her husband’s body had been found in Sisak, on the banks of the river Kupa. 10. On 3 April 1992 the Sisak Police lodged a criminal complaint with the Sisak County State Attorney’s Office against a person or persons unknown on charges of murdering Vaso Jelić. 11. It appears that no further investigative measures were taken in respect of the death of Vaso Jelić between 1992 and September 1999. 12. 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. 13. On 10 September 1999 the Prevention of Terrorism Unit in the Criminal Justice Section of the Sisak County Police (Policijska uprava sisačko-moslavačka, Odjel kriminalističke policije, Odsjek za suzbijanje terorizma, hereinafter “the Sisak Police Prevention of Terrorism Unit”) interviewed a certain S.K. He said that he had been collecting information about the killing of persons of Serbian ethnic origin in Sisak and its area. To his knowledge fifty-four Serbs had been killed in Sisak and a further twenty-nine in Kinjačka, a village near Sisak, all of them in the period 1991-1992. In addition, about five hundred persons of Serbian origin were listed as having disappeared. S.K. also said that he had heard that Đ.B., then Head of the Sisak Police, had expressed his surprise that one S.B. had been killed, given that he had not been on the list for liquidation. 14. On 8 December 2000 the Sisak Police Prevention of Terrorism Unit interviewed the applicant. She reiterated that at 9.45 p.m. on 15 November 1991 five men, wearing camouflage uniforms and balaclavas, had come to their house and taken her husband. All five men were carrying firearms. She further reiterated that she had reported the entire incident to the police on the same evening. 15. On 9 January 2001 the Sisak Police Prevention of Terrorism Unit again interviewed B.S. (see paragraph 7 above) and on 12 January 2001 they questioned the doctor who had, on 10 February 1992, carried out the autopsy on Vaso Jelić’s body. 16. On 25 January 2001 the Sisak Police Prevention of Terrorism Unit interviewed M.Lj. and Mi.Lj., who had lived with the Jelić family at the relevant time; they confirmed the statement given by the applicant. 17. On 24 December 2002 an investigating judge at the Sisak County Court heard evidence from witness M.M., who said that in 1991 he had been a member of the reserve police. One night he had been driving in a car with three of his colleagues (he identified them by their nicknames) when they saw a van parked in the street and several men dressed in camouflage uniforms standing around it. M.M. and his colleagues asked those men what was happening and were told that they had come “to search the house of a Serb who had some hunting weapons”. One of the men took off his balaclava and M.M. recognised him as [A.]H. He also saw an older woman crying and wailing, and asking the men to release the man they were taking with them. M.M. and his friends had then driven away. Later he heard that the man who had been taken away was Vaso Jelić; he had been taken to Jodno, a sanatorium where Croatian troops were stationed at the material time, opposite the Siscia factory. He had received that information from a person called G., who also told him that Vaso Jelić had been liquidated and thrown in the river Kupa. 18. M.M. further explained that one night he noticed that several persons were being held in the toilet of the ORA military base near Sisak, where he was stationed. Next to the toilet he saw three bodies covered with a blanket. He asked some of his colleagues to give him a lift in their van from the military base to Sisak. They had stopped before arriving in Sisak and thrown three bodies, covered in blankets, into a hole. He had later met all of the men who had been in the van with him in Sisak, but did not know their names. He had been told not to tell anyone. 19. Finally, M.M. said that on several occasions he had seen the police taking naked persons into the ORA Croatian military base, and sometimes he had heard screams from the barracks. 20. On 26 March 2003 the Sisak Police interviewed an anonymous witness who gave information about the killings of persons of Serbian origin in the Sisak area in 1991 and 1992. He said that the arrests and killings of persons of Serbian ethnic origin had been carried out on the orders of Đ.B., Head of the Sisak Police, who had a list of persons to be arrested and liquidated. His main assistant was his Deputy, V.M. The motive for the arrests had often been material gain. The individuals in question had first been labelled as having abetted enemy activity and being members of the Serbian Democratic Party and then, once they had been arrested, all their valuables had been taken from their houses and sold on. The money had been divided between V.M. and Đ.B. 21. As regards the arrest of Vaso Jelić, the witness identified M.M. as one of the persons implicated. He said that Vaso Jelić had first been taken to the police station and then to Jodno. He had then been taken to the ORA and killed there. One of the persons who had arrested Vaso Jelić was A.H., who had also killed him. 22. The witness added that he was willing to give his evidence about those events before a court. 23. On 19 May 2003 another anonymous witness was interviewed by the Sisak County State Attorney’s Office. He said that at the beginning of 1991 he joined the Croatian Army, namely the Office for the Defence of Sisak. He had been assigned to the reserve units of the Sisak County Police, headed by Đ.B., whose Deputy was V.M. The unit the witness had joined had been headed by Ma.M. The witness named several of his colleagues. Đ.B., V.M. and the late J.B. had made a list of persons to be arrested and brought to the First Police Station, and given orders to that effect. A.H. had almost always been present when the orders for arrests were given. The members of the reserve units had been given Serbian flags with four C-s, badges and cards allegedly issued by the Serbian Democratic Party, and certificates issued by that Party recognising contributions to its spread in the occupied territories; these items were to be planted in the houses of Serbs in the Sisak area so that they could serve as evidence of enemy activity. 24. He stated that victims had been arrested at their homes and that money, gold and other valuables had always been taken. The victims had first been taken to the police station, then to Jodno, and later to the ORA military base, where they had been stripped and killed. 25. He said that he had personally been involved in the arrest of Vaso Jelić and that his hunting guns had also been taken from his house. 26. On 29 July 2005 the State Attorney’s Office issued a document on 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. 27. On 29 May 2006 the Office of the Head of the Sisak County Police (Policijska uprava sisačko-moslavačka, Ured načelnika), interviewed a certain A.R., a former member of the police, who told them that he would inform the media of everything he knew about the killing of Serbs and mining of their houses during the war in Croatia and would testify against Đ.B., a former Head of the Sisak County Police during the war, if his request for alterations to his “war record” were not complied with. He added that he had carried out orders, as had many others, and that he knew who had ordered what at Jodno, and what had happened there and in other locations in Sisak and the surrounding area. 28. 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 they indicated 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 favoured 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. 29. On 24 March 2009 the War Crimes Unit in the Criminal Justice Section of the Sisak County Police (Policijska uprava sisačko-moslavačka, Odjel kriminalističke policije, Odsjek ratnih zločina, hereinafter “the Sisak Police War Crimes Unit”), sent a gun belonging to A.H. and a bullet extracted from the body of Vaso Jelić for ballistic examination. The report of 30 April 2009 indicated that they did not match. 30. On 23 August 2010 the Criminal Justice Section of the Sisak County Police filed a report with the Sisak County State Attorney’s Office, informing it that they had carried out an analysis of their Section’s official documents and found documents concerning the arrest and killing of a number of civilians. With regard to Vaso Jelić, it was stated that his dead body had been found on 9 February 1992 on the Kupa river bank in Sisak. 31. On 28 March 2011 the Sisak County Police, Criminal Justice Section interviewed M.Mi., President of the Sisak Area Municipality during the war, who identified the commander of the Croatian Army units stationed in Jodno in 1991. B. Proceedings on indictment 32. 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. 33. On an unspecified date the investigation was opened and on 13 July 2011 Đ.B. died. 34. 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 committed a number of crimes against the civilian population between July 1991 and June 1992, including the killings of the applicant’s husband. They were charged with war crimes against the civilian population. 35. 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 husband reads: “on the evening of 15 November 1991 in Sisak a group of unidentified armed members of the Sisak Police wearing camouflage uniforms and balaclavas ... went to the home of Vaso Jelić and, under the threat of arms, tied his hands and blindfolded him and then drove him to an unknown location in Sisak ... and killed him with firearms ... [H]is body was found on 9 February 1992 with seven shots to the head, chest and left hand, on the left bank of the river Kupa near the Old City in Sisak.” V.M. was sentenced to eight years’ imprisonment. D.B. was acquitted of all charges. C. Civil proceedings 36. On 28 February 2003 the applicant brought a civil action against the State in the Sisak Municipal Court, seeking compensation in connection with the death of her husband. The claim was dismissed on 6 December 2005 and was upheld on appeal by the Sisak County Court and the Supreme Court on 22 March 2007 and 23 December 2008 respectively. The national courts found that the claim had been submitted after the statutory limitation period had expired. 37. A subsequent constitutional complaint lodged by the applicant was dismissed on 17 February 2011.