ŽERAJIĆ AND GOJKOVIĆ v. BOSNIA AND HERZEGOVINA
Inadmissible
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva
1. The applicant in the first case, Ms Branka Žerajić, is a citizen of Bosnia and Herzegovina, who was born in 1946 and lives in Serbia. She was represented before the Court by Mr A. Zečević, a lawyer practising in Belgrade. The applicant in the second case, Ms Mira Gojković, is a citizen of Bosnia and Herzegovina, who was born in 1955 and also lives in Serbia. She was represented before the Court by Mr B. Ćupović. 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. More than 100 persons have been finally convicted by the State Court. Many others have been convicted by the competent Entity courts (see paragraphs 20-22 below). 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 thus 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 14 below). It became operational on 1 January 2008. 7. Mr Božidar Žerajić and Mr Radomir Gojković disappeared in an area of Sarajevo controlled by the ARBH forces on 24 July 1992 and 12 May 1992 respectively. 8. The ICTY has convicted six members of the ARBH forces for various crimes committed against Serbs during the war, including killings and cruel treatment at Čelebići and Kamenica camps (Zdravko Mucić, Hazim Delić, Esad Landžo, Enver Hadžihasanović, Amir Kubura and Rasim Delić), but none of the cases dealt with killings of Serbs in Sarajevo by those forces. 9. Domestic authorities have taken statements from a number of persons. However, no formal charges have been brought yet as the perpetrators in the case of Mr Žerajić have not been identified and the key suspects in the case of Mr Gojković were killed in 1992/93 (namely, S.S., S.K. and J.P). At the same time, domestic authorities have finalised investigations into other war crimes committed by the ARBH forces against Serbs in Sarajevo; indictments have so far been issued against S.B., M.F., I.Č., R. A. and I-N. V. and criminal proceedings are pending. 10. On 6 September 1999 Ms Žerajić sought and obtained a declaration of presumed death with respect to her husband. 11. While many exhumations have been conducted in the Sarajevo area, the applicants’ husbands have not yet been identified. 12. In the case of Ms Žerajić, 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 Federation of Bosnia and Herzegovina to release any and all information in its custody pertaining to the fate or whereabouts of Mr Žerajić as well as to conduct a full, meaningful, thorough and detailed investigation aimed at bringing the responsible to justice. Lastly, it awarded Ms Žerajić 5,000 convertible marks (BAM) for non-pecuniary damage. In the case of Ms Gojković, the Constitutional Court gave a similar decision on 13 September 2007. However, no damages were awarded. 13. 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. 14. 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). 15. 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. 16. 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. 17. 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). 18. 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 15 above). 19. Despite the fact that the verification process outlined in paragraph 18 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). 20. War crimes cases fall, as a general rule, under the jurisdiction of the State Court, but the State Court may transfer any such case to the competent Entity court in accordance with the criteria set out in paragraph 21 below (see Article 27 of the 2003 Code of Criminal Procedure). For example, only in 2012 the State Court transferred 217 cases to 15 Entity courts. 21. In accordance with the Book of Rules on the Review of War Crimes Cases of December 2004 the following types of cases were, as a rule, to be heard before the State Court: (a) cases concerning genocide, extermination, multiple murders, rape and other serious sexual assaults as part of a system (such as in camps), enslavement, torture, persecution on a widespread and systematic scale, mass forced detention in camps; (b) cases against past or present military commanders, past or present political leaders, past or present members of the judiciary, past or present police chiefs, camp commanders, persons with a past or present notorious reputation, multiple rapists; (c) cases with insider or suspect witnesses; (d) if there was a risk of witness intimidation; and (e) cases involving perpetrators in an area which is sympathetic to them or where the authorities have a vested interest in preventing public scrutiny of the crimes. All other war crimes cases were, as a rule, to be heard before the Entity courts. 22. In December 2008 the authorities adopted the National War Crimes Strategy, providing a new set of criteria. However, they are almost identical to those outlined in paragraph 21 above. In addition, the Strategy defines the time-frames, capacities, criteria and mechanisms for managing those cases, standardisation of court practices, issues of regional cooperation, protection and support to victims and witnesses, as well as financial aspects, and supervision over the implementation of the Strategy. One of its objectives is to process the most complex and top priority cases within seven years (that is, by the end of 2015) and other war crimes cases within fifteen years (that is, by the end of 2023). In order to comply with that time-frame, the local authorities have, inter alia, almost doubled the number of State prosecutors in charge of war crimes (from 19 to 37) in the last 12 months.