ŠEREMET v. BOSNIA AND HERZEGOVINA, MONTENEGRO AND SERBIA
Inadmissible
Ineta Ziemele;Nebojša Vučinić;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva
1. The applicant, Mr Renad Šeremet, is a citizen of Bosnia and Herzegovina, who was born in 1966 and lives in Sarajevo. He was represented before the Court by Mr D. Alagić, a lawyer practising in Sarajevo. 2. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms M. Mijić. The application was not communicated to the Governments of Montenegro and Serbia. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. After its declaration of independence on 6 March 1992, a brutal war started in Bosnia and Herzegovina. It would appear that more than 100,000 people lost their lives and more than 2,000,000 people were displaced in the course of the war. It is estimated that around 30,000 people went missing and that around one quarter of them is still missing. The conflict came to an end on 14 December 1995 when the General Framework Agreement for Peace in Bosnia and Herzegovina entered into force. In accordance with that Agreement, Bosnia and Herzegovina consists of two Entities, the Federation of Bosnia and Herzegovina and the Republika Srpska. 5. In response to atrocities then taking place in Bosnia and Herzegovina, on 25 May 1993 the United Nations Security Council passed Resolution 827 establishing the International Criminal Tribunal for the former Yugoslavia (“the ICTY”), headquartered in The Hague. More than 70 individuals have already been convicted and proceedings are ongoing for 20 accused. In the period from February 1996 until October 2004, local prosecutors in Bosnia and Herzegovina were required to submit case files to the ICTY for review; no person could be arrested on suspicion of war crimes unless the ICTY Office of the Prosecutor had received the case file beforehand and found it to contain credible charges (the “Rules of the Road” procedure). Moreover, the ICTY had primacy over national courts and could take over national investigations and proceedings at any stage in the interest of international justice. As part of the ICTY’s completion strategy, in early 2005 war crimes chambers were set up within the Court of Bosnia and Herzegovina (“the State Court”) with primacy over other courts in Bosnia and Herzegovina as regards war crimes (for information about that court and its jurisdiction over war crimes cases, see Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, §§ 34-40, ECHR 2013). More than 100 persons have been finally convicted by the State Court. 6. Furthermore, the International Commission on Missing Persons (“the ICMP”) was established at the initiative of United States President Clinton in 1996. It is currently headquartered in Sarajevo. Reportedly, the ICMP has so far identified by DNA more than 14,000 missing persons in Bosnia and Herzegovina, whereas local authorities have identified more than 8,000 missing persons by other methods. In 2005 the Government of Bosnia and Herzegovina and the ICMP established a Missing Persons Institute, also headquartered in Sarajevo (see paragraph 17 below). It became operational on 1 January 2008. 7. During the 1992-95 war the Grbavica neighbourhood of Sarajevo was controlled by the VRS forces. In the first several months of the war, many Bosniacs and Croats were killed, disappeared, tortured and/or raped by a paramilitary group led by Veselin Vlahović, also known as Batko. It would appear that the applicant’s parents were killed by that group on 9 July 1992. 8. On 2 October 2002 Ms Biljana Plavšić, one of the war-time leading political figures of the Republika Srpska, pleaded guilty before the ICTY to having participated in the persecution of Bosniacs and Croats from, among other areas, the Grbavica neighbourhood of Sarajevo. She was sentenced to 11 years’ imprisonment. 9. Cases against Radovan Karadžić, the war-time civilian leader of the Republika Srpska, Ratko Mladić, the war-time military leader of that Entity, and Vojislav Šešelj, a leading political figure of Serbia in the 1990s, are also pending before the ICTY. They are charged with the participation in a joint criminal enterprise to permanently remove Bosniacs and Croats from, inter alia, the Sarajevo area. 10. As indicated in paragraph 5 above, war crimes chambers were set up within the State Court in 2005. In 2008 an international arrest warrant was issued against Veselin Vlahović, mentioned in paragraph 7. He was arrested in Spain and extradited to Bosnia and Herzegovina in 2010. On 17 February 2011 the Prosecutor of Bosnia and Herzegovina (“the State Prosecutor”) issued an indictment against him for crimes against humanity. Having heard more than 100 testimonies, on 29 March 2013 a Trial Chamber of the State Court found him guilty of participation in the commission of a number of killings, beatings, rapes and other crimes in the Grbavica neighbourhood of Sarajevo in 1992 as a part of a widespread and systematic attack against the non-Serb civilian population of that territory and sentenced him to 45 years’ imprisonment (the heaviest penalty in Bosnia and Herzegovina). On 13 June 2014 an Appeals Chamber of the State Court upheld the conviction against Veselin Vlahović and rendered its judgment, sentencing him to 42 years’ imprisonment. 11. On 9 November 2011 and 22 November 2013 Trial Chambers of the State Court found also two of his accomplices guilty of participation in the commission of a number of killings, beatings, rapes and other crimes in the Grbavica neighbourhood of Sarajevo in 1992 as a part of a widespread and systematic attack against the non-Serb civilian population of Grbavica and sentenced them to 18 (Saša Baričanin) and 11 years’ imprisonment (Zoran Dragičević, also known as Krompir). On 28 March 2012 and 28 February 2014, respectively, Appeals Chambers of the State Court upheld those first-instance judgments. 12. On 14 October 2002 the applicant sought and obtained declarations of presumed death with respect to his parents. 13. The applicant’s father, Fahrudin Šeremet, was identified by DNA on 28 December 2005. His mother, Zijada Šeremet, has not yet been identified. 14. On 3 November 2004 the Human Rights Commission held that there had been a violation of Articles 3 and 8 of the Convention. It ordered the Republika Srpska to release any and all information in its custody pertaining to the fate or whereabouts of the applicant’s parents and to conduct a full, meaningful, thorough and detailed investigation aimed at making known the fate or whereabouts of the applicant’s parents and bringing the responsible to justice. Lastly, it awarded the applicant 5,000 convertible marks (BAM) for non-pecuniary damage. 15. By a judgment of the Sarajevo Cantonal Court of 23 September 2011 the applicant was awarded damages as regards the disappearance and death of his parents in the amount of BAM 35,000. The Republika Srpska lodged an appeal against that judgment which would appear to be still pending. 16. The Missing Persons Act 2004 entered into force on 17 November 2004 (Official Gazette of Bosnia and Herzegovina no. 50/04). In accordance with section 3 of the Act, families have the right to know the fate of missing persons (that is, their whereabouts if they are still alive, or the circumstances of death and their place of burial, if they are dead) and to obtain their mortal remains. Under section 4 of the Act, the relevant domestic authorities have the obligation to provide any and all such information in their keeping. 17. Section 7 of that Act provides for the setting up of a Missing Persons Institute. In 2005 the ICMP and the Government of Bosnia and Herzegovina founded the Institute, headquartered in Sarajevo, pursuant to that provision and the Agreement on Assuming the Role of Co-founders of the Missing Persons Institute of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina, International Treaty Series, no. 13/05). It became operational on 1 January 2008. One of the organs of that Institute is an Advisory Board, comprised of six representatives of families of missing persons (see Article 10 of the Agreement mentioned above). 18. In accordance with section 9 of the Act, the status of missing person comes to an end on the date of identification. Therefore, if a missing person is declared dead but the mortal remains have not been found and identified, the process of tracing continues. 19. Pursuant to section 11 of the Act, the families of missing persons are entitled to monthly financial support under some conditions, notably if they were supported by the missing family member until his or her disappearance and if they are still in need of support (in other words, if they are not in paid employment and do not receive welfare benefits beyond 25% of the average salary paid in Bosnia and Herzegovina). Section 15 of the Act provides for the setting up of a Missing Persons Fund for that purpose. However, as the Fund has not yet been established, no payment has been made so far. 20. Families of missing persons are also entitled to, inter alia, temporary administration of the property of missing persons, burial of mortal remains at public expense and priority in access to education and employment for the children of missing persons (section 18 of the Act). 21. Section 21 of the Act provides for the setting up of Central Records with the aim of verifying information about missing persons from different sources (government agencies, associations of families of missing persons, the ICMP and the International Committee of the Red Cross) and creating a single database. While Central Records were founded on 3 February 2011, it would appear that the verification process is still ongoing. Once that process is completed, all those recorded as missing will be declared dead (section 27 of the Act), but the tracing process will nevertheless continue (see paragraph 18 above). 22. Despite the fact that the verification process outlined in paragraph 21 above is pending, any person may request that a declaration of presumed death be issued with respect to a missing person (see the Non-Contentious Procedure Act 1998, Official Gazette of the Federation of Bosnia and Herzegovina, nos. 2/98, 39/04, 73/05; and the Non-Contentious Procedure Act 2009, Official Gazette of the Republika Srpska, no. 36/09).