MUJKANOVIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA
Inadmissible
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
1. The applicants, Ms Munira Mujkanović, Ms Asima Memić, Mr Vehidin Elezović, Mr Muharem Elezović, Ms Naila Bajrić and Ms Sabiha Huskanović are citizens of Bosnia and Herzegovina who were born in 1964, 1938, 1974, 1943, 1945 and 1965, respectively. They live in different towns near the city of Prijedor. The applicants were represented by TRIAL (Track Impunity Always), a non-profit organisation based in Geneva. Four of them had been granted legal aid. 2. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Deputy Agent, Ms Z. Ibrahimović. 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 traditional methods. In 2005 the Government of Bosnia and Herzegovina and the ICMP established a Missing Persons Institute, also headquartered in Sarajevo (see paragraph 26 below). It became operational on 1 January 2008. 7. Before the 1992-95 war, the population of the municipality of Prijedor was ethnically mixed: according to a 1991 census, out of a total population of 112,000, 44% were Bosniacs, 42.5% Serbs, 5.5% Croats; 8% others. On 30 April 1992 the Serbian Democratic Party took control of the city of Prijedor pursuant to a secret plan made in advance (notably, the Instructions for Organisation and Activities of the Organs of the Serb People in Bosnia and Herzegovina in a State of Emergency, adopted by the Main Board of the Serbian Democratic Party on 19 December 1991). Shortly thereafter, ethnic cleansing began. By the end of 1992, there were practically no Bosniacs and Croats left in the municipality of Prijedor (about the situation in the Prijedor area at that time, see the ICTY judgment in the Stanišić and Župljanin case, IT-08-91-T, §§ 500-684, 27 March 2013, not yet final). 8. One of the many crimes committed in the context of ethnic cleansing of the Prijedor area was the taking of approximately 150-200 male detainees from Trnopolje camp to the location called Korićanske stijene and their killing by Prijedor policemen on 21 August 1992. The men were made to leave the buses and walk towards the gorge where they were told to kneel down. Then the shooting began. The bodies fell into the gorge or were pushed over the edge. Grenades were then thrown into the gorge to make sure no one survived. The incident lasted for approximately half an hour. Fifteen policemen were reported to be involved in the incident. Only twelve persons survived the massacre, mainly by hiding under the corpses of others (ibid., §§ 641-42; and the ICTY judgment in the Mrđa case, IT-02-59-S, § 10, 31 March 2004). Mr Fahrudin Mujkanović (the husband of Ms Munira Mujkanović), Mr Asmir Memić (the son of Ms Asima Memić), Mr Fahrudin Elezović (Mr Vehidin Elezović’s father), Messrs Edin Elezović and Emir Elezović (the sons of Mr Muharem Elezović), Messrs Zafir Bajrić and Šerif Bajrić (Ms Naila Bajrić’s son and husband), and Mr Zijad Huskanović (Ms Sabiha Huskanović’s husband) were killed in that incident (see the ICTY judgment in the Stanišić and Župljanin case, cited above, §§ 1949-50, 2033-34, 2036-37, 2137-38, 2278-79, 2290-92; and the State Court’s judgment in the Ivanković case, X-KR-08/549-1, p. 2, 2 July 2009). 9. On 24 July 2003 Mr Darko Mrđa pleaded guilty before the ICTY to having participated in the killing at Korićanske stijene. He was sentenced to 17 years’ imprisonment. 10. On 31 July 2003 the ICTY convicted Mr Milomir Stakić, the leading figure in the war-time municipality of Prijedor, for, among other crimes, the killing at Korićanske stijene and sentenced him to life imprisonment. On 22 March 2006 an Appeals Chamber upheld the convictions against Mr Stakić and rendered its judgment, sentencing him to 40 years’ imprisonment. 11. On 27 March 2013 a Trial Chamber of the ICTY convicted Mr Mićo Stanišić and Mr Stojan Župljanin, key figures in the war-time police of the Republika Srpska, of the participation in a joint criminal enterprise to remove Bosniacs and Croats from the territory of the Republika Srpska, a natural and foreseeable consequence of which was, among other crimes, the killing at Korićanske stijene (the third category of joint criminal enterprise –a definition of this form of liability is set out in the ICTY judgment in the Tadić case, IT-94-1-A, § 204, 15 July 1999). Each of them was sentenced to 22 years’ imprisonment. The case is currently pending before an Appeals Chamber of the ICTY. 12. A case against Mr Radovan Karadžić, the war-time President of the Republika Srpska, is also currently pending before the ICTY. He is charged with, among other crimes, the participation in a joint criminal enterprise to permanently remove Bosniacs and Croats from the Republika Srpska, a natural and foreseeable consequence of which was the killing at Korićanske stijene (the third category of joint criminal enterprise). 13. As indicated in paragraph 5 above, war crimes chambers were set up within the State Court in 2005. Shortly thereafter, the Prosecutor of Bosnia and Herzegovina (“the State Prosecutor”) opened an investigation into the killing at Korićanske stijene. In the next three years, more than 150 persons were questioned. This led to indictments against 13 persons (see paragraphs 14-15 below). Furthermore, international arrest warrants were issued against two persons who are still on the run, Messrs Draško Krndija and Željko Zec. 14. On 8 January 2009 the State Prosecutor issued an indictment against eight persons for having participated in the killing at Korićanske stijene as a crime against humanity (namely, Messrs Damir Ivanković, Gordan Đurić, Ljubiša Četić, Zoran Babić, Milorad Škrbić, Dušan Janković, Željko Stojnić and Milorad Radaković). It entered into force on 12 January 2009. At the arraignment of 13 February 2009, the accused pleaded not guilty. However, on 22 June 2009, 26 August 2009 and 9 March 2010 three of them, Messrs Ivanković, Đurić and Četić, changed their plea to guilty. They were then sentenced to 14, 8 and 13 years’ imprisonment, respectively. 15. On 10 July 2009 and 17 September 2009 the State Prosecutor issued indictments against five more individuals for the same crime (Saša Zečević, Radoslav Knežević, Marinko Ljepoja, Petar Čivčić and Branko Topola). They entered into force on 13 July and 18 September 2009, respectively. All the accused pleaded not guilty at their arraignment. The State Court decided to join the cases against those five individuals on 3 November 2009. 16. On 21 December 2010 a Trial Chamber of the State Court found four persons guilty of participation in the killing at Korićanske stijene as a crime against humanity (Messrs Zoran Babić, Milorad Škrbić, Dušan Janković and Željko Stojnić) and sentenced them, respectively, to 22, 22, 27 and 15 years’ imprisonment. On 25 October 2011 an Appeals Chamber of the State Court quashed that judgment and scheduled a fresh hearing. On 15 February 2013 it convicted those four people of the same offence and sentenced them to 22, 21, 21 and 15 years’ imprisonment, respectively. One accused in that case, Mr Milorad Radaković, was acquitted. 17. On 28 June 2012 a Trial Chamber of the State Court found three more persons guilty of that crime (Saša Zečević, Radoslav Knežević and Marinko Ljepoja) and sentenced each of them to 23 years’ imprisonment. The other two accused in that case, Petar Čivčić and Branko Topola, were acquitted. An Appeals Chamber of the State Court has recently upheld that judgment. 18. On different dates between 1998 and 2005, the applicants sought and obtained declarations of presumed death with respect to their missing relatives. 19. Four exhumations have so far been carried out at Korićanske stijene: May 2003, October 2003, July-August 2009 and April 2013. Ninety victims have been identified by DNA (see the State Court’s judgment in the Zečević and Others case, S1 1 K 003365 09 KrI, pp. 88-95, 28 June 2012), including Mr Asmir Memić on the basis of four bones on 23 June 2011 and Mr Zafir Bajrić on the basis of two bones the day later. On 24 June 2011 the ICMP confirmed through DNA tests also that some fragments of bones which had been exhumed at Korićanske stijene belonged to either Mr Edin Elezović or Mr Emir Elezović (since they were brothers and did not have children, the available mortal remains were insufficient for definite identification). 20. Around ten burnt bodies were also exhumed (ibid., p. 7). These are impossible to identify. 21. In 2006 all the applicants lodged constitutional appeals alleging that the authorities’ reaction to the disappearance of their relatives amounted to a breach of Articles 2, 3, 5, 8 and/or 13 of the Convention. 22. On 16 July 2007 the Constitutional Court decided to join 227 similar cases and rendered a group decision finding a breach of Articles 3 and 8 of the Convention. It ordered the authorities to release any and all information in their custody pertaining to the fate or whereabouts of the missing persons in issue and to ensure that the State agencies envisaged by the Missing Persons Act 2004 (the Missing Persons Institute, Central Records and the Missing Persons Fund) become operational within six months. No compensation was awarded. 23. Under its mandate to examine complaints about non-enforcement of its decisions, on 27 March 2009 the Constitutional Court concluded that the decision of 16 July 2007, mentioned above, was to be considered enforced notwithstanding the fact that some of the State agencies envisaged by the Missing Persons Act 2004 (precisely, the Central Records and the Missing Persons Fund) had not yet become operational. It held that no further action was required from the Constitutional Court as the failure to enforce a similar decision had already been reported to the State Prosecutor (non-enforcement of a final and enforceable decision of the Constitutional Court amounts to a criminal offence; for the relevant law in that regard, see Bobić v. Bosnia and Herzegovina, no. 26529/10, §§ 14-15, 3 May 2012). 24. On different dates in 2009 and 2010 all of the applicants requested damages from the Republika Srpska for the death of their relatives under the Republika Srpska’s general compensation scheme for war damage (for more information about that scheme, see Čolić and Others v. Bosnia and Herzegovina, nos. 1218/07 et al., § 10, 10 November 2009). Their requests were either rejected as out of time or are still pending. One of the applicants, Ms Asima Memić, has lodged an appeal with the Constitutional Court of Bosnia and Herzegovina in this connection which is still pending. 25. 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. 26. 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). 27. 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. 28. 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. 29. 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). 30. 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 27 above). 31. Despite the fact that the verification process outlined in paragraph 30 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; the Non-Contentious Procedure Act 2009, Official Gazette of the Republika Srpska, no. 36/09). Pursuant to an amendment to section 69 of the Social Care Act 1999 (Official Gazette of the Federation of Bosnia and Herzegovina no. 39/06), which entered into force in September 2006, relatives of missing persons were required to seek such declarations with respect to their missing relatives by September 2008 if they wished to maintain the social benefits provided by that Act. There is no such an obligation in the legislation of the Republika Srpska where most of the present applicants live (all but Ms Munira Mujkanović).