FEJZIĆ AND OTHERS v. SERBIA
Inadmissible
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Luis López Guerra;Pere Pastor Vilanova
1. A list of the applicants is set out in the appendix. All the applicants are nationals of Bosnia and Herzegovina and are represented by Ms T. Drobnjak, a lawyer practicing in Belgrade. 2. The Serbian Government (“the Government”) are represented by their Agent, Ms N. Plavšić. 3. Following its declaration of independence from the former Socialist Federal Republic of Yugoslavia (SFRY) in March 1992, a brutal war broke out in Bosnia and Herzegovina. More than 100,000 people were killed and more than 2,000,000 others were displaced as a result of “ethnic cleansing” or generalised violence. The following local forces were the main parties to the conflict: the Army of the Republic of Bosnia and Herzegovina (Armija Republike Bosne i Hercegovine, hereinafter ARBH), which was mostly made up of Bosniacs and loyal to the central authorities in Sarajevo, the Croatian Defence Council (Hrvatsko vijeće odbrane, hereinafter HVO), which was mostly made up of Croats, and the Army of the Republika Srpska (Vojska Republike Srpske, hereinafter VRS) which was mostly made up of Serbs. The conflict ended in December 1995 when the General Framework Agreement for Peace (“the Dayton Agreement”) entered into force between Bosnia and Herzegovina, Croatia and the Federal Republic of Yugoslavia (succeeded by Serbia by 2006). 4. Žepa, a town in eastern Bosnia and Herzegovina, is situated some twelve kilometres from the border with Serbia. Before the war it had a population of less than 3,000, of whom the majority were Bosniacs. During the war, Žepa was one of three Bosniac enclaves in eastern Bosnia surrounded by the VRS. In 1993 it was declared a “safe area” by the United Nations Security Council. 5. In 1995, there were between 6,500 and 8,000 people living in Žepa, of whom some two-thirds were displaced persons from other parts of Bosnia and Herzegovina. 6. On 12 July 1995 the VRS attacked the Žepa “safe area”, capturing it on 25 July. In the days that followed, several hundred Bosniacs – predominantly able-bodied men who refused to surrender to VRS forces – managed to cross the border and flee to Serbia. The present applicants’ relatives were among them. 7. When Žepa was captured by the VRS, the applicants’ relatives (Mr Abid Agić, the brother of the first applicant; Mr Šećan Dizdarević, the son of the second applicant and brother of the third and the fourth applicant; Mr Edem Torlak, the father of the fifth applicant and the husband of the sixth applicant; and Mr Meho Jahić, the husband of the seventh applicant) crossed into Serbia from Bosnia and Herzegovina, hoping that they would be able to find refuge in a third country. They were discovered by a border guard patrol of the Yugoslav Army (Vojska Jugoslavije, hereinafter VJ) and taken to two detention camps. It would appear that more than 800 exiled individuals were brought to the camps between 29 July and 3 August 1995. The applicants claim that the men received notification that they had prisoner-of-war status; it is not clear whether all of them were indeed members of ARBH or some of them were civilians. The first camp, Šljivovica, was situated in the municipality of Čajetina and the second, Mitrovo Polje, in the municipality of Aleksandrovac, both in Serbia. The Šljivovica detention camp was located in an abandoned workers’ barracks and Mitrovo Polje in a former children’s recreational facility. 8. Both camps were guarded by the Serbian police force and none of the applicants was allowed to leave them. According to the applicants, during their transportation to the camps or while interned in them, their relatives were either murdered or died as a result of torture and lack of medical assistance. 9. During their existence the camps were visited by representatives of the International Committee of the Red Cross and the State Commission for Missing Persons of Bosnia and Herzegovina. The latter compiled a report in which it found that the conditions of detention were disturbing. 10. Following the entry into force of the Dayton Agreement, the UNHCR facilitated the transfer of the camp survivors into third countries and the camps were closed in February/April 1996. 11. The applicants maintained that Mr Agić, along with the other men, was captured by a border guard stationed at the Jagoštica watch-tower on 31 July or 1 August 1995. Upon capture and before being handed over to the competent police authorities, he was severely beaten by the soldiers and died there from the injuries sustained. 12. The Government maintained that nobody by the name of Abid Agić is mentioned in the relevant police or military records. 13. The applicants maintained that Mr Dizdarević, who was seventeen years old at the time, was captured along with the other men by a border guard stationed at the Jagoštica watch-tower on 31 July or 1 August 1995. Upon capture and before being handed to the competent police authorities, he was repeatedly kicked in the abdomen by the soldiers, sustaining internal injuries as a result. He was then transferred to an internment camp where, despite the deterioration of his health, he was not provided with medical care. He died of the inflicted injuries on the way to hospital on 9 September 1995. 14. The Government maintained that the autopsy report shows that Mr Dizdarević died of natural causes due to “heart failure and stay of breathing resulting from self-poisoning caused by deterioration of part of the small intestine, aggravated by breathing of stomach contents as a result of vomiting and acute inflammation of the stomach.” 15. The applicants made no comment on the Government’s submission. 16. Mr Torlak was detained at the Jagoštica watch-tower and transported to the Šljivovica camp on 1 August 1995. He was transported with another sixty detainees in a closed curtainside truck designed to transport a maximum of twenty people. He died apparently of suffocation during transportation. His body was taken out of the truck and buried on 11 August 1995 by the Muslim religious community in the Priboj cemetery. There is apparently a pathologist’s report of 10 August 1995, without post mortem examination, stating that he had died from heart attack. In June 2007 the Serbian Commission for missing persons ordered the exhumation of his corps, identified him and transported him to Bosnia and Herzegovina. The Commission stated in its request to a competent court that it did not have any information that the persons may have died by the cause of a crime. The autopsy could not determine the cause of death due to the corps’ state. 17. The applicants maintain that Mr Jahić was severely beaten by guards at the Šljivovica camp and that he died of the injuries inflicted in October 1995. 18. The Government maintained that the only person registered as a detainee under the name of Meho Jahić at the Šljivovica camp was transferred to the Office of the UN High Commissioner for Refugees in Belgrade on 7 December 1995 and had been scheduled for emigration to Ireland. They further claim that this person died on 25 January 2005 in Hrasnica, Ilidža, Bosnia and Herzegovina and was buried in Vlakovo, Ilidža, Bosnia and Herzegovina. 19. On 6 September 2011 the Humanitarian Law Centre (Fond za humanitarno pravo, hereinafter FHP), a Belgrade-based NGO, lodged a criminal complaint on behalf of the applicants and other individuals as victims with the Office of the War Crimes Prosecutor of Serbia (Tužilaštvo za ratne zločine, hereinafter OWCP) against more than fifty individuals for alleged war crimes (see paragraph 32 below). In its criminal complaint the FHP submitted statements from the camps’ detainees, medical documentation, documentation from the International Committee of the Red Cross and the State Commission for Missing Persons of Bosnia and Herzegovina, and other evidence. They submitted an extensive list of potential witnesses and proposed other investigative steps. Among those alleged to have taken part in the killings, the Centre identified members of the State Security Agency of Serbia, police officers, and military servicemen of various ranks. It would appear that on 8 September 2011 the OWCP requested the FHP to provide evidence it referred to in the criminal complaint, but the FHP apparently failed to do so. 20. On 23 September 2011 the OWCP undertook a preliminary verification of the information submitted by the applicants and requested the Ministry of the Interior and the Ministry of Defence to submit information regarding the criminal complaint. 21. On 17 November 2011 and 2 December 2011 the Ministry of the Interior submitted two reports to the OWCP. In their reports it was stated that the situation in the camps had been generally good, that the camps had not been enclosed behind a fence, and that residents who were given refugee status had had access to health services, a canteen, a post office, a phone, a bank, and both private visits and visits by officials from international organisations. While one of the reports describes the conditions in Šljivovica camp as unsatisfactory, the conditions in Mitrovo Polje were described as lodgings with the quality of “hotel accommodation”. This preliminary examination also revealed some inconsistencies and irregularities in the criminal complaint regarding the identity of the alleged victims and the circumstances of their death and burial. 22. On 1 March 2013 the OWCP notified the FHP that it decided, having regard to the FHP’s allegations and evidence collected by the OWCP, not to prosecute (da nema mesta krivičnom gonjenju, Ktrr. 134/11) on the ground that there had not been elements of the alleged war crime or any other crime within the OWCP’s jurisdiction in the acting of the suspects. A reasoned decision (rešenje o odbačaju), if it had been made in writing, has neither been sent to the applicants, nor to the FHP. 23. On 8 April 2013 the applicants lodged a constitutional appeal before the Constitutional Court of Serbia, claiming violations of Articles 2, 3 and 6 of the Convention. On 4 February 2014 the Constitutional Court rejected the applicants’ constitutional appeal, finding that, given the legal nature and content of the OWCP’s decision, it could not be considered as an individual act which was decisive with respect to the applicants’ human rights, as required by Article 170 of the Constitution (da se ne radi o pojedinačnom aktu iz člana 170. Ustava; see paragraph 25 below). 24. The decision of the Constitutional Court was delivered to the applicants’ representative on 2 July 2014. 25. The relevant provisions of the Constitution read as follows: Article 170 “A constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed.” 26. The Criminal Code of the Socialist Federal Republic of Yugoslavia 1976 (Official Gazette of the Socialist Federal Republic of Yugoslavia – OG SFRY – nos. 44/76, 36/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90 and 54/90, in the Official Gazette of the Federal Republic of Yugoslavia nos. 35/92, 16/93, 31/93, 37/93, 24/94 and 61/01, and in OG RS no. 39/03) was in force until 1 January 2006. The relevant provisions thereof are set out hereunder. 27. Article 95 governs the statutory limitation periods in respect of criminal liability. The relevant parts are worded as follows: “(1) If not prescribed differently by this Code, criminal liability shall be statutebarred: 1) twenty-five years from the date on which the offence was committed in instances where the law provides for the death penalty or twenty years’ imprisonment; 2) fifteen years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding ten years; 3) ten years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding five years; 4) five years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding three years; 5) three years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding one year; ...” 28. Article 100 of the same Code is worded as follows: “The statutory limitation of criminal liability does not apply to the crimes covered by Articles 141-145 of this Code [genocide and war crimes] or to crimes for which statutory limitation is proscribed by international treaties.” 29. The Criminal code of the Republic of Serbia (Official Gazette of the Republic of Serbia, nos. 85/2005, 88/2005, 107/2005, 72/2009, 111/2009, 121/2012 and 104/2013) entered into force on 1 January 2006. Article 103 governs the statutory limitation periods in respect of criminal liability. The relevant parts are worded as follows: “(1) If not prescribed differently by this Code, criminal liability shall be statutebarred: 1) twenty-five years from the date on which the offence was committed where the law provides for thirty to forty years’ imprisonment; 2) twenty years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding fifteen years; 3) fifteen years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding ten years; 4) ten years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding five years; 5) five years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding three years; 6) three years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding one year; ...” 30. Article 100 of the same Code is worded as follows: “The statutory limitation of criminal liability does not apply to crimes covered by Articles 370-375 of this Code [genocide and war crimes] or to crimes for which statutory limitation is proscribed by ratified international treaties.” 31. Article 142 - War crime against the civilian population “Whoever, acting in violation of the rules of international law applicable in time of war, armed conflict or occupation, orders that a civilian population be subject to killing, torture, inhumane treatment, biological experiments, immense suffering or violation of their bodily integrity or health; dislocation or displacement or forcible conversion to another nationality or religion; forcible prostitution or rape; application of measures of intimidation and terror, hostage-taking, imposition of collective punishment, unlawful transfer to concentration camps or other illegal arrests and detention, deprivation of rights to fair and impartial trial; forcible service in the armed forces of the enemy’s army or in its intelligence service or administration; forced labour, starvation of the population, property confiscation, pillaging, illegal and intentional destruction or large-scale stealing of property that is not justified by military needs, taking an illegal and disproportionate contribution or requisition, devaluation of domestic currency or the unlawful issuance of currency; or personally commits one of the aforementioned actions, shall be punished by not less than five years’ imprisonment or the death penalty.” 32. Article 144 - War crime against prisoners of war “Whoever, acting in violation of the rules of international law, orders the murder, torture or inhumane treatment of prisoners of war, including biological experiments, extreme suffering or serious injury to their bodily integrity or health, compulsory enlistment in the armed forces of an enemy power, or deprivation of the right to a fair and impartial trial, or personally commits any of the aforementioned acts, shall be punished by not less than five years’ imprisonment or by the death penalty.” 33. The Criminal Code of the Socialist Republic of Serbia (Official Gazette of the Socialist Republic of Serbia nos. 26/77, 28/77, 43/77 and 20/79) was in force in until 1 January 2006. Its relevant provisions read as follows: 34. Article 47 – Murder “(1) Whoever causes the death of another shall be punished by not less than five years’ imprisonment. (2) No less than twelve years’ imprisonment or the death penalty shall be imposed on whoever: 1) causes the death of another in a cruel or insidious manner; 2) causes the death of another by callous, violent behaviour; 3) causes the death of a person and with premeditation endangers the life of (an)other person(s); 4) causes the death of another for the purpose of gain, or to commit or conceal another offence, or for callous revenge or other base motives; 5) causes the death of an official or serviceman during the discharge or related to the discharge of duties concerning the state or public security...; 6) with premeditation causes the death of several persons, where this is not a case of manslaughter committed in the heat of passion, or infanticide, or mercy killing. 35. Article 53 – Serious bodily harm “(1) Whoever causes serious injury to another, or serious impairment of another’s health, shall be punished by imprisonment of between six months and five years. (2) Whoever causes serious injury to another or impairment of another’s health resulting in the endangering of the life of that person or the destruction or permanent significant damage to or weakening of a vital function of his body or an organ thereof, or permanent serious health impairment or disfigurement, shall be punished by one to ten years’ imprisonment. (3) If the injured party dies as a consequence of sustained injuries according to paragraphs 1 and 2 of this Article, the perpetrator shall be punished by one to twelve years’ imprisonment.” 36. Article 113 - Murder Whoever causes the death of another shall be punished by imprisonment of between five and fifteen years. 37. Article 114 - Aggravated Murder Whoever: 1) causes the death of another in a cruel or insidious manner; 2) causes the death of another by callous violent behaviour; 3) causes the death of another and with premeditation endangers the life of another person; ... 5) causes the death of another for the purpose of gain, or to commit or conceal another offence, or for callous revenge or other base motives; ... 9) with premeditation causes the death of several people, where this is not a case of manslaughter committed in the heat of passion, or infanticide, or mercy killing; shall be punished by thirty to forty years’ imprisonment . 38. Article 121 – Serious bodily harm “(1) Whoever causes serious injury to another, or serious impairment of another’s health, shall be punished by imprisonment of between six months and five years. (2) Whoever causes serious injury to another or impairment of another’s health resulting in the endangering of the life of that person or the destruction or permanent significant damage to or weakening of a vital function of his body or an organ thereof, or permanent serious health impairment or disfigurement, shall be punished by one to eight years’ imprisonment. (3) If the actions specified in paragraphs 1 and 2 of this Article result in the death of the injured party, the offender shall be punished by two to twelve years’ imprisonment. ...” 39. Article 371 – Crime against humanity “Whoever, acting in violation of the rules of international law, orders as part of a wider and systematic attack against a civilian population: murder; placement of the group in living conditions calculated to bring about its complete or partial extermination, enslavement, deportation, torture, or rape; enforced prostitution; forcible pregnancy or sterilisation aimed at changing the ethnic balance of the population; persecution on political, racial, national, ethical, sexual or other grounds, detention or abduction of persons without disclosing information about such acts in order to deny such person legal protection; oppression of a racial group or establishing domination of one such group over another; or other similar inhumane acts that intentionally cause serious suffering or serious impairment of health, or personally commits any of the aforementioned offences, shall be punished by imprisonment of at least five years or imprisonment of between thirty and forty years. ” 40. Article 372 – War crime against civilian population (1) Whoever, acting in violation of international law in time of war, armed conflict or occupation orders: an attack on the civilian population, a settlement, particular civilians, persons incapable of combat or members or facilities of humanitarian organisations or peacekeeping missions; wanton attack without target selection that harms the civilian population or civilian buildings under the special protection of international law; an attack against military targets knowing that such an attack would cause collateral damage among civilians or damage to civilian buildings that is evidently disproportionate to the military effect; the infliction on the civilian population of bodily injury, torture, inhumane treatment, biological, medical or other research experiments, or the taking of tissue or organs for transplantation or the performing of other acts that impair health or inflict great suffering or the deportation or relocation or forced change of nationality or religion; forcible prostitution or rape; applying intimidation and terror measures, taking hostages, collective punishment, unlawful deprivation of freedom and detention; deprivation of the rights to a fair and impartial trial; declaration of the prohibition, suspension or non-admissibility in court proceedings of the rights and acts of enemy nationals; the coercion into service of a hostile power or its intelligence or administration services; the coercion into military service of persons under seventeen years of age; forced labour; starvation of the population; unlawful seizure, appropriation or destruction of property not justified by military needs; taking unlawful and disproportionate contributions and requisitions; devaluation of local currency or unlawful issuing of currency, or personally commits any of the above offences, shall be punished by at least five years’ imprisonment. ...” 41. Article 374 – War crimes against prisoners of war “(1) Whoever, acting in violation of international law, orders the injury, torture, or inhumane treatment of prisoners of war, or biological, medical or other research experiments on them, or the taking of their tissues or body organs for transplantation or the commission of other acts harmful to health and causing them serious suffering, or compels prisoners of war to serve in the forces of a hostile power or deprives them of the rights to fair and regular trial; or personally commits any such offences, shall be punished by at least five years’ imprisonment. (2) Whoever orders the murder of prisoners of war or personally commits such an offence, shall be punished by at least ten years’ imprisonment or imprisonment of between thirty and forty years.” 42. This Act (published in Official Gazette of the Republic of Serbia no. 67/03, amendments published in Official Gazette nos. 135/04, 61/05, 101/07 and 104/09) entered into force on 9 July 2003. The War Crimes Prosecutor, the War Crimes Police Unit and the War Crimes Sections within the Belgrade Higher Court and the Belgrade Court of Appeal were set up pursuant to this Act. They have jurisdiction over serious violations of international humanitarian law committed anywhere in the former Yugoslavia (see section 3 of this Act). 43. In a number of previous cases concerning war crimes, the OWCP has treated the war in Bosnia and Herzegovina between June 1992 and 1995 as an internal armed conflict (see the judgments in cases Škorpioni, Zvornik I, Bijeljina, Prijedor, Zvornik II and Stari Majdan). The majority of the indictments in these cases came into being before 2006. The final judgments in most of these cases had been adopted by the domestic courts by 2010.