CASE OF MILEUSNIĆ AND MILEUSNIĆ-ESPENHEIM v. CROATIA
No violation of Article 14+2 - Prohibition of discrimination (Article 14 - Discrimination) (Article 2 - Right to life;Article 2-1 - Effective investigation)
Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
6. The applicants were born in 1936 and 1967. Until his death the first applicant lived in Novska, Croatia. The second applicant lives in Dieskau, Germany. 7. According to the applicants, on 18 December 1991, during the armed conflict in Croatia, a number of the first applicant’s neighbours, together with the other members of their family, gathered in the first applicant’s home in Novska, Croatia, because the town was being shelled. At about 9.45 p.m. several soldiers broke into the house and immediately started to hit and kick the first applicant. He could not see them well because the house, like the rest of the town, was without electricity. When he fell to the ground, they dragged him into the kitchen where V.M., the first applicant’s wife and the second applicant’s mother, and G.M., the first applicant’s daughter and the second applicant’s sister, and B., one of their neighbours, were sheltering. In the candlelight, the first applicant saw five men in military uniforms of the Croatian Army with balaclavas on their heads. They continued to hit and kick the first applicant and one of the men cut through the first applicant’s palm with a knife. The other man cut one of B.’s fingers off with the knife. One of the soldiers shot G.M. in the head, the other then cut B.’s throat with a knife and subsequently shot at her with a firearm. The soldiers then ordered V.M. to make coffee for them. One of the soldiers introduced himself as Grgić from a nearby village, Bročice. He asked the first applicant if he knew him and then hit him on the head with the shotgun. One soldier then cut a muscle in the first applicant’s right hand. Next, the soldiers shot V.M. dead. After that, a soldier shot the first applicant through his right cheek. The soldiers then left the kitchen. The first applicant escaped through the window and ran away, reaching a nearby medical centre. From there he was transferred to a hospital in Kutina, then to Zagreb where he lay in a coma for three days. When he came round, one of the doctors told him that three men had been looking for him and wanted him killed. His sister sent an ambulance from Germany and he was transferred from Zagreb to Germany, where he was treated from 6 January to 15 May 1992. 8. When the first applicant returned to his home in Novska on 19 July 1992, he found refugees accommodated in part of the house. In the intervening period, all of his possessions had been taken away. 9. It appears that the police were alerted of the above-described events the following day. On 30 December 1991 the Sisak County Court ordered an investigation into the events in respect of suspects Ž.B., D.L, D.M., I.G. and Z.P. 10. On 23 March 1992 the Zagreb Military Prosecutor dropped the charges against I.G. and Z.P. on the ground that there was insufficient evidence that “any projectiles had been shot from their weapons”. 11. On 23 March 1992 the Zagreb Military Prosecutor indicted the remaining three suspects, Ž.B., D.L. and D.M. before the Zagreb Military Court on three counts of murder aggravated by an exceptionally immoral purpose. 12. The Zagreb Military Court terminated the proceedings against Ž.B., D.L. and D.M. on 2 November 1992 on the basis of the General Amnesty Act. 13. D.L. died on 19 January 1997. 14. On 30 October 2008 the applicants lodged a criminal complaint against six suspects, namely, Ž.B., D.L., D.M., I.G. and Z.P., on charges of war crimes against the civilian population. 15. On 10 December 2008 the Sisak County State Attorney’s Office dismissed the complaint against D.L. since he had died in 1997. 16. On 12 January 2009 an investigating judge of the Sisak County Court heard evidence from the first applicant. On 13 January 2009 the first applicant asked that two witnesses be called and provided their addresses and telephone numbers to the County Court. 17. On 9 February 2009 the Police interviewed the potential witnesses, M.B. and P.U. 18. On 30 July 2009 the State Attorney’s Office in Sisak County submitted a request to the Sisak County Court to open an investigation into the above-mentioned criminal complaint. The request was denied on 1 October 2009. However, upon an appeal lodged by the Sisak County State Attorney’s Office of 6 October 2009, the Supreme Court of Croatia ordered on 30 March 2010 that the investigation in respect of Ž.B., D.M., I.G. and Z.P. be carried out. 19. On 20 May 2010 the investigating judge heard evidence from the four suspects. One of them confessed to some of the charges but the other three remained silent. The investigating judge ordered the detention of all four suspects. 20. The investigating judge heard evidence from the first applicant and one other witness on 11 June 2010 and from another four witnesses on 28 June 2010. She heard the first applicant again on 5 July 2010, as well as an expert witness and one of the accused. 21. On 9 July 2010 the Sisak County State Attorney’s Office indicted Ž.B., D.M., I,.G and Z.P. in the Sisak County Court on charges of war crimes against the civilian population, which included the killing of V.M. and G.M. and seriously wounding the first applicant. The accused lodged objections to the indictment which were dismissed by the Supreme Court (Vrhovni sud Rpublike Hrvatske) on 19 August 2010. 22. Hearings were held on 23 and 24 September 2010. On the latter date the County Court commissioned a report on the autopsy of V.M. and G.M. and a psychiatric report in respect of the accused Ž.B. The report on the autopsy was submitted on 2 November 2010 and the psychiatric report on 11 November 2010. 23. Hearings were held on 15, 16 and 19 November 2010. On the last-mentioned date a judgment dismissing the charges was delivered on the ground that the accused had already been tried for the same offence before the Zagreb Military Court. The charges against I.G. and Z.P. had been dropped by the prosecutor and the proceedings against Ž.B. and D.M. had been terminated under the General Amnesty Act. 24. The Sisak State Attorney’s Office lodged an appeal on 23 February 2011 and on 21 February 2012 the Supreme Court upheld the judgment in respect of I.G. and Z.P. and quashed the judgment in respect of Ž.B. and D.M. As regards I.G. and Z.P. the Supreme Court concluded that the prosecutor had dropped the charges against them because there had not been sufficient evidence that they had participated in the shooting of the victims. Neither had the evidence adduced in the proceedings before the Sisak County Court indicated their involvement in the killing and wounding of the victims. The relevant part of the judgment referring to the actions of I.G. and Z.P. reads: “The evidence presented [at the trial] ... did not establish any activity on the part of the accused I.G. and Z.P. so as to indicate [that they had committed] acts of violence towards Petar Mileusnić or any other person in the house, before Ž.B., D.M. and the late D.L. started to shoot at the victims. The [first-instance] court concluded that the accused I.G. had not entered the house at all and that the accused [D.]P. had quickly entered and exited the house of the victim Petar Mileusnić, without having committed any act in the house.” The Supreme Court further held as follows: “Since no new facts were established in the fresh criminal proceedings in which the impugned judgment was delivered ... save for those [facts] in respect of which the State Attorney had already dropped the charges, irrespective of their different legal qualification, the conclusion of the first-instance court that [the situation] was a matter of res judicata is correct and, contrary to the assertion of the State Attorney in the appeal, the indictment was correctly dismissed in respect of the accused I.G. and Z.P. in accordance with Article 353 point 5 of the Code of Criminal Procedure (1997).” 25. The case was then transferred to the Zagreb County Court. 26. Hearings before the Zagreb County Court were held on 28 November 2012 and 23 January 2013. 27. On 29 October 2013 that court found the accused Ž.B. and D.M. guilty as charged and sentenced them to ten and nine years’ imprisonment respectively. The judgment was upheld by the Supreme Court on 7 March 2013. 28. On 22 December 2004 the applicants brought a civil action against the State in the Novska Municipal Court (Općinski sdu u Novskoj), seeking compensation in connection with the deaths of V.M. and G.M., wounding of the first applicant as well as pecuniary damage as regards the expenses incurred for the stone erected on the grave of their relatives. In these proceedings the Croatian State was represented by the State Attorney’s Office. 29. On 29 September 2005 the Municipal Court dismissed the applicants’ claim, finding that it had become time-barred. 30. That judgment was upheld by the Sisak County Court on 31 August 2006 and by the Supreme Court of Croatia on 21 February 2007. 31. A subsequent constitutional complaint lodged by the applicants concerning the assessment of facts and interpretation of laws was dismissed by the Constitutional Court (Ustavni sud Republike Hrvatske) on 13 May 2009. 32. On 25 November 2014 the second applicant and the Republic of Croatia, Ministry of Defence, represented by the State Attorney’s Office, reached a settlement by which the State was to pay the second applicant the following amounts: 150,000 Croatian Kuna (HRK) for non-pecuniary damage for the killing of his mother; HRK 75,000 for non-pecuniary damage for the killing of his sister; HRK 12,800 for pecuniary damage concerning the expenses incurred for the stone erected on the grave of his mother and sister; and HRK 2,500 for costs he incurred in the civil proceedings. The said amounts, together with the applicable interest rates, were paid to the second applicant on 8 December 2014.