CASE OF TRIVKANOVIĆ v. CROATIA
No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković
5. The applicant was born in 1950 and lives in Sisak. 6. The applicant was married to N.T. and they had two sons, Z.T. and B.T. In 1985 the applicant and N.T. divorced. 7. On 25 August 1991 a number of members of the “Wolves” (Vukovi) unit of the Sisak police entered the house of the applicant’s son Z.T., They abducted Z.T., the applicant’s second son B.T. and her former husband N.T. On 26 August 1991 the body of N.T. was found in the River Sava and the autopsy showed that he had been shot and killed. Z.T. and B.T. disappeared. On 2 September 1991 the Sisak police lodged a criminal complaint with the Sisak County State Attorney’s Office in connection with the killing of N.T. Police enquiries were started by the Sisak police, under the command of Ɖ.B. and his deputy V.M. (see paragraph 31 below). 8. On 9 September 1991 the applicant contacted the Ministry of the Interior and informed them that her former husband and two sons had disappeared. 9. The commander of the Wolves unit was J.G., who died in a road accident in 1992. 10. On 14 June 1993 the applicant lodged a criminal complaint with the State Attorney’s Office 11. On an unspecified date broader police enquiries were opened into the killing of individuals of Serb ethnicity in the Sisak area during the war. The enquiries into the killing of N.T. and disappearance of the applicant’s sons were part of these overall enquiries. 12. Before 5 November 1997, when Croatia ratified the Convention, the police interviewed the applicant as well as potential witnesses D.F.T., M.T., Ž.B., D.M. and J.J. None of them had any concrete knowledge about the potential perpetrators. 13. On 15 October 2002 an investigating judge of the Sisak County Court heard evidence from Z.G., a former Croatian soldier who firstly denied knowing anything about the fate of the applicant’s sons and former husband but later on, through tears and saying that he was scared, said that he had seen all three of them in ORA, a military base near Sisak. Z.T. and B.T. had been visibly beaten. 14. In October and November 2002, January and February 2003 the police interviewed a number of former Croatian soldiers as witnesses, some of whom (Z.K., M.D., S.Š., S.K., Ž.R., M.B., I.A., M.P., A.D., S.G., D.M.S.K.I.Š., I.K., M.G., M.R., D.V. as well as two anonymous individuals) had given statements about the arrest of individuals during the war in the Sisak area and their detention in ORA. None of them had any knowledge about the fate of the applicant’s former husband and sons. 15. On 4 November 2002 the police interviewed D.M., a friend of the applicant’s sons, who had witnessed their and their father’s arrest by four people dressed in camouflage uniforms and had heard that they had been taken to ORA. 16. On 9 January 2003 an investigating judge of the Sisak County Court heard evidence from the applicant. She said that she had not witnessed the arrest of her former husband and sons but had heard from D.F.T., wife of her son Z.T., about it. D.M. had also witnessed the arrest of her former husband and sons. Also, M.F. had told her that he had seen her sons in ORA and his girlfriend had also told her that her sons had been beaten in ORA. Another person, C., had also told her that he had seen her son B.T. in ORA. 17. A report drawn up by the Sisak police in 2004 for the Sisak County State Attorney’s Office on disappeared individuals lists the applicant’s sons as missing. 18. 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 Office, which were required to examine all 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. 19. On 21 November 2005 the applicant’s sons were declared dead by the Sisak Municipal Court as of 25 August 1991. 20. On 5 October 2006 the Sisak County State Attorney’s Office classified the killing of N.T. and the disappearance of the applicant’s sons as war crimes against the civilian population. 21. On 13 December 2006 the applicant again lodged a criminal complaint. She alleged that her sons had been arrested by the members of the Croatian army and taken to ORA, under the command of B.B. 22. On 25 January 2007 an investigating judge of the Sisak County Court heard evidence from witnesses D.M. and D.F.T. D.M. repeated his previous statements (see paragraph 15 above). D.F.T., the wife of the late Z.T., had witnessed the arrest of the victims but had no information on possible direct perpetrators. 23. On 9 October 2008 the State Attorney’s Office issued an instruction to the County State Attorney’s Offices concerning implementation of the Criminal Code and the Code of Criminal Procedure, in which it indicated that an inspection of their work had indicated two main problems: possible partiality on the part of the individuals involved in the pending proceedings as regards the ethnicity of the victims or the perpetrators; and the problem of trials in absentia. The instruction advocated the impartial investigation of all war crimes, irrespective of the ethnicity of those involved, whether victims or perpetrators, and reiterated the duty of those working for the State Attorney in that connection. 24. On 14 October 2008 the Sisak police compiled an analysis of the criminal complaints concerning the crimes committed in 1991 and 1992 in the broader Sisak area and adopted a plan for further actions to be taken, including in the Trivkanović case. 25. On 17 December 2008 the police again interviewed the applicant. She said that she had heard that Z.R. was one of the people who had taken her former husband and sons and that her daughter-in-law D.F.T. also knew one of the individuals implicated but was afraid to talk about it. 26. On the same day the Sisak County State Attorney’s Office compiled a report on the cases concerning war crimes, including the killing of the applicant’s sons. 27. On 18 December 2008 the police interviewed D.F.T. and M.F. D.F.T. said that she did not know any of the individuals who had arrested the victims. M.F. said that he had no knowledge of the events at issue. 28. On 26 January 2009 the Sisak police sent a report on the interviews to the Sisak County State Attorney’s Office. 29. In January and March 2009 the police interviewed D.K., M.R., I.V., J.J., and K.J., none of whom had any relevant knowledge of the critical events. The police also again interviewed D.M. and Z.G., who both repeated their respective prior statements. 30. On 25 March and 18 August 2009 the Sisak police sent a report to the Sisak County State Attorney’s Office. 31. The enquiries into the killing of the applicant’s former husband and sons were a part of broader police enquiries which concerned officials of the Sisak police as suspects and altogether thirty-four victims (see paragraph 61 below). As a result of these enquiries an investigation was opened in the Sisak County Court (see below, paragraphs 32 and 33). 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 sons and former husband. On the same day Đ.B., head of the Sisak police in 1991 and 1992, V.M., police commander at the border territory of Sisak and Banovina in 1991 and 1992 and deputy head of the Sisak police, and D.B., a member of the Wolves, a reserve unit of the Sisak police, were arrested. 33. On an unspecified date an investigation was opened. On 13 July 2011 Đ.B. died. 34. During the trial D.F., D.M., D.F.T., S.R., Z.G., P.M. and S.L. as well as the applicant all testified as witnesses that they had either seen or heard that the applicant’s former husband and two sons had been abducted from their home by the members of the Wolves unit and taken to ORA. 35. On 16 December 2011 the Osijek County State Attorney’s Office lodged an indictment against V.M. and D.B. with the Osijek County Court, alleging that they had been in command of the unit whose unnamed members had committed a number of crimes against the civilian population between July 1991 and June 1992, including the killing of the applicant’s relatives. They were charged with war crimes against the civilian population. 36. On 9 December 2013 a first-instance judgment was delivered. V.M. was found guilty of war crimes against the civilian population in that, in his capacity as “commander of police forces in the broader area of Sisak and Banovina” and “deputy head of the Sisak police”, he had allowed the killings of individuals of Serb ethnicity and had failed to take adequate measures to prevent such killings. The relevant part of the judgment concerning the applicant’s sons and former husband reads: “On the afternoon of 25 August 1991 a number of members of the ‘Wolves’ unit of the Sisak police forcibly abducted N.T. and his sons Z. and B.T. from their family home at 38 Slavonska Street in Sisak and took them in a white van to the improvised prison at ‘ORA’, where they were beaten during an unlawful interrogation after which N.T. was taken to an unknown place on the same day and shot and killed and his body was found on 26 August 1991 at the left bank of the River Sava at a place called Gušće, whereas the fate of Z. and B.T. after they had been taken to ‘ORA’ remains unknown.” V.M. was sentenced to eight years’ imprisonment. D.B. was acquitted of all charges. 37. On 10 June 2014 the Supreme Court upheld the conviction of V.M. and increased his sentence to ten years’ imprisonment.