CASE OF PALIĆ v. BOSNIA AND HERZEGOVINA
No violation of Art. 2 (procedural aspect);No violation of Art. 3 (substantive aspect);No violation of Art. 5-1
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
6. 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 were killed and more than two million people were displaced. It is estimated that almost 30,000 people went missing and that one third of them is still missing. The major parties to the conflict were the ARBH (mostly made up of Bosniacs and loyal to the central authorities of Bosnia and Herzegovina), the HVO (mostly made up of Croats) and the VRS (mostly made up of Serbs). The conflict came to an end on 14 December 1995 when the General Framework Agreement for Peace (“the Dayton Peace Agreement”) 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. The Dayton Peace Agreement failed to resolve the Inter-Entity Boundary Line in the Brčko area, but the parties agreed to a binding arbitration in this regard under UNCITRAL rules (Article V of Annex 2 to the Dayton Peace Agreement). The Brčko District, under the exclusive sovereignty of the State and international supervision, was formally inaugurated on 8 March 2000. 7. 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. Although the ICTY and national courts have concurrent jurisdiction over serious violations of international humanitarian law committed in the former Yugoslavia, the ICTY can claim primacy and may take over national investigations and proceedings at any stage if this proves to be in the interest of international justice. It can also refer its cases to competent national authorities in the former Yugoslavia. More than 60 individuals have been convicted and currently more than 40 people are in different stages of proceedings before the ICTY. Two accused are still at large (Mr Goran Hadžić and Mr Ratko Mladić). 8. 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. In addition to its work in the former Yugoslavia, the ICMP is now actively involved in helping governments and other institutions in various parts of the world address social and political issues related to missing persons and establish effective identification systems in the wake of conflict or natural disaster. Reportedly, the ICMP has so far identified by DNA around 13,000 missing persons in Bosnia and Herzegovina, whereas local authorities have identified by traditional methods around 7,000 missing persons. 9. After the war, the ARBH, HVO and VRS forces merged into the Armed Forces of Bosnia and Herzegovina. 10. The applicant was born in 1967 and lives in Sarajevo. 11. The applicant’s husband, Mr Avdo Palić, was a military commander of the ARBH forces in the United Nations “safe area” of Žepa during the war. On 27 July 1995, shortly after the VRS forces had taken control of that area, Mr Palić went to negotiate the terms of surrender with the VRS forces and disappeared. 12. Following many fruitless attempts to obtain any official news about her husband, on 18 November 1999 the applicant lodged an application against the Republika Srpska with the Human Rights Chamber, a domestic human-rights body set up by Annex 6 to the Dayton Peace Agreement. 13. On 5 September 2000 the Human Rights Chamber held a public hearing and heard several witnesses, including Mr Abdurahman Malkić and Mr Sado Ramić who had been detained together with Mr Palić in a military prison in Bijeljina in August 1995. The Republika Srpska maintained at the hearing that it had no knowledge of the arrest and detention of Mr Palić. 14. In its decision of 9 December 2000, the Human Rights Chamber held that Mr Palić had been a victim of “enforced disappearance” within the meaning of the Declaration on the Protection of All Persons from Enforced Disappearance and found a breach of Articles 2, 3 and 5 of the Convention in respect of Mr Palić and Articles 3 and 8 of the Convention in respect of the applicant. The Republika Srpska was ordered: (a) to carry out immediately a full investigation capable of exploring all the facts regarding the fate of Mr Palić with a view to bringing the perpetrators to justice; (b) to release Mr Palić, if still alive, or to make available his mortal remains to the applicant; and (c) to make all information about the fate and whereabouts of Mr Palić known to the applicant. The applicant was awarded, for non-pecuniary damage, 15,000 convertible marks (BAM – 7,669 euros (EUR)) and, in respect of her husband (which sum was to be held by the applicant for her husband or his heirs), BAM 50,000 (EUR 25,565). The decision was delivered on 11 January 2001 and entered into force on 8 March 2001 when the full Chamber rejected the Republika Srpska’s request for review. 15. On 14 November 2001 the Republika Srpska acknowledged that Mr Palić had been held in Vanekov mlin, a military prison in Bijeljina administered by the VRS forces, between 4 August and 5 September 1995 and that on the latter date Mr Dragomir Pećanac, Security Officer of the Main Staff of the VRS, had taken Mr Palić from that prison. 16. Having found that Mr Pećanac had meanwhile settled in Serbia, in February 2002 the Republika Srpska authorities issued a domestic arrest warrant against him. In March and April 2002 they interviewed the entire war-time personnel of Vanekov mlin, including its governor. 17. On 12 June 2003 the Bijeljina District Prosecutor (answerable to the Prosecutor of the Republika Srpska) asked the State Prosecutor to take over this case. On 25 December 2003 the latter decided that the case should remain with the Bijeljina District Prosecutor and returned the case file. 18. On 7 September 2005 the Human Rights Commission, which had replaced the Human Rights Chamber, rendered another decision in this case: while noting that the monetary award had been paid, it held that the decision of 9 December 2000 had not yet been fully enforced. The Republika Srpska was given an additional three-month period in which to do so. 19. From October until December 2005 the authorities of the Republika Srpska and Serbia, at the request of the Republika Srpska, interviewed eighteen people in connection with this case, including Mr Pećanac. 20. On 16 January 2006 the Human Rights Commission repeated in another decision that the core element of the decision of 9 December 2000 had not been enforced: the Republika Srpska had not released Mr Palić, if still alive, or otherwise had not made available his mortal remains to the applicant and no prosecution had been brought. This decision was submitted to the State Prosecutor (non-enforcement of the decisions of the Human Rights Chamber constitutes a criminal offence, see paragraph 36 below). 21. On 25 January 2006 the Republika Srpska, at the request of the High Representative, established an ad hoc commission to investigate this case. It included Mr Milorad Bukva who had allegedly attended the meeting of 27 July 1995 mentioned in paragraph 11 above (see paragraph 61 below). The applicant appointed her representative to that commission. 22. On 17 March 2006 the Sarajevo Municipal Court, at the applicant’s request, issued a declaration of presumed death with respect to Mr Palić (see paragraph 39 below). 23. On 20 April 2006 the ad hoc commission adopted a report. Having interviewed numerous people, it established that Mr Palić had been captured by the VRS forces (that is, by Mr Radomir Furtula of the Rogatica Brigade) and handed over to Mr Zdravko Tolimir, Assistant Commander for Intelligence and Security of the Main Staff of the VRS. By order of Mr Mladić, the Commander of the VRS, he was held in a private flat in Rogatica (belonging to Mr Zoran Čarkić, Security Officer of the Rogatica Brigade) for a week or so and then in Vanekov mlin, the military prison mentioned above. He was interrogated daily by security officers of the VRS. It was also established that Mr Pećanac and his driver, Mr Željko Mijatović, had taken Mr Palić from that prison on the night of 4/5 September 1995. While questioned by the Serbian authorities, at the request of the Republika Srpska, Mr Pećanac and Mr Mijatović said that they had taken Mr Palić to Han Pijesak and handed him over to the late Mr Jovo Marić. However, the report established that Mr Marić had not been in Han Pijesak at that time. 24. On 13 December 2006 the Prime Minister of the Republika Srpska established another ad hoc commission to investigate this case. He also met the applicant who appointed her representative to that commission. 25. On 20 December 2006 the Court of Bosnia and Herzegovina issued international arrest warrants against Mr Pećanac and Mr Mijatović on suspicion of having committed an enforced disappearance as a crime against humanity. 26. In March 2007 the second ad hoc commission established that Mr Palić had been buried in a mass grave in Rasadnik near Rogatica and, having searched the area in vain, that he could have been transferred to a secondary mass grave in Vragolovi near Rogatica (where nine unidentified bodies had been exhumed on 12 November 2001) or elsewhere in that area. 27. On 31 May 2007 the authorities of Bosnia and Herzegovina arrested Mr Tolimir and transferred him to the custody of the ICTY. 28. On 5 August 2009 the ICMP established that one of the unidentified bodies from the mass grave in Vragolovi (which had been exhumed on 12 November 2001 and reburied in a nameless grave in Visoko on 14 March 2002) was that of Mr Palić. The Sarajevo Cantonal Court then ordered that the body be exhumed. On 20 August 2009 the ICMP confirmed through DNA tests that the body indeed belonged to Mr Palić. 29. On 26 August 2009 Mr Palić was finally buried on the grounds of the Ali Pasha’s Mosque in Sarajevo with military honours. 30. On 16 December 2009 the ICTY amended the indictment against Mr Tolimir. He is charged with the participation in joint criminal enterprise to forcibly transfer and deport the Muslim populations of Srebrenica and Žepa, a natural and foreseeable consequence of which was the killing of Mr Palić and two other Muslim leaders from Žepa by the VRS (the third category of joint criminal enterprise). His trial commenced on 26 February 2010. 31. Mr Pećanac and Mr Mijatović live in Serbia. They were granted Serbian citizenship on 4 January 1999 and 17 September 1998, respectively. 32. Armed conflicts often lead to the disappearance of hundreds or even thousands of people. Pursuant to Articles 32-34 of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977, families have the right to be informed of the fate of missing relatives; the parties to a conflict must search for persons reported missing by an adverse party and facilitate enquiries made by members of families dispersed as a result of the conflict so as to help them restore contact with one another and try to bring them together again; and lists showing the exact location and markings of the graves, together with particulars of the dead interred therein, must be exchanged. The International Committee of the Red Cross (ICRC), with the assistance of its Central Tracing Agency, has long experience in searching for soldiers and combatants who go missing during military operations (“missing in action”) and for civilians who are reported missing as a consequence of armed conflict. 33. This is a much narrower concept. A recent definition of “enforced disappearance” is set out in Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance of 20 December 2006: “For the purposes of this Convention, ‘enforced disappearance’ is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorisation, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.” 34. The widespread or systematic practice of enforced disappearance is described as a crime against humanity in Article 7 of the Rome Statute of the International Criminal Court of 17 July 1998. 35. The Agreement between Bosnia and Herzegovina and Serbia on Mutual Assistance in Civil and Criminal Matters (published in Official Gazette of Bosnia and Herzegovina, International Treaty Series, no. 11/05 of 8 December 2005, amendments published in Official Gazette no. 8/10 of 29 July 2010) entered into force on 9 February 2006. Under Article 39 thereof, when a citizen or resident of one Contracting State is suspected of having committed an offence in the territory of the other Contracting State, the latter may request the former to take proceedings in the case. While such a request is pending, the requesting State may not prosecute the suspected person for the same offence. Moreover, a person in respect of whom a final criminal judgment has been rendered in the requested State may not be prosecuted for the same offence in the requesting State if he or she has been acquitted or if the sanction imposed has been enforced or the subject of a pardon or amnesty (Article 41 of the Agreement). Lastly, when one State intends to request the transfer of proceedings, it may also request the other State to provisionally arrest the suspected person (Article 40a of the Agreement). 36. The 2003 Criminal Code (published in Official Gazette of Bosnia and Herzegovina nos. 3/03 of 10 February 2003 and 37/03 of 22 November 2003, amendments published in Official Gazette nos. 32/03 of 28 October 2003, 54/04 of 8 December 2004, 61/04 of 29 December 2004, 30/05 of 17 May 2005, 53/06 of 13 July 2006, 55/06 of 18 July 2006, 32/07 of 30 April 2007 and 8/10 of 2 February 2010) entered into force on 1 March 2003. The relevant part of Article 172 of the Code provides as follows: “1. Whoever, as part of a widespread or systematic attack directed against any civilian population, with knowledge of such an attack perpetrates any of the following acts: ... i) enforced disappearance of persons; ... shall be punished by imprisonment for a term not less than ten years or long-term imprisonment. 2. For the purpose of paragraph 1 of this Article the following terms shall have the following meanings: ... h) Enforced disappearance of persons means the arrest, detention or abduction of persons by, or with the authorisation, support or acquiescence of, a State or a political organisation, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with an aim of removing them from the protection of the law for a prolonged period of time. ...” Furthermore, in accordance with Article 239 of the Code, non-enforcement of a decision of the Human Rights Chamber is an offence: “An official of the State, the Entities or the Brčko District who refuses to enforce a final and enforceable decision of the Constitutional Court of Bosnia and Herzegovina, the Court of Bosnia and Herzegovina, the Human Rights Chamber or the European Court of Human Rights, or who prevents the enforcement of any such decision, or who frustrates the enforcement of any such decision in some other way, shall be punished by imprisonment for a term between six months and five years.” 37. The 2003 Code of Criminal Procedure (published in Official Gazette of Bosnia and Herzegovina nos. 3/03 of 10 February 2003 and 36/03 of 21 November 2003, amendments published in Official Gazette nos. 32/03 of 28 October 2003, 26/04 of 7 June 2004, 63/04 of 31 December 2004, 13/05 of 9 March 2005, 48/05 of 19 July 2005, 46/06 of 19 June 2006, 76/06 of 25 September 2006, 29/07 of 17 April 2007, 32/07 of 30 April 2007, 53/07 of 16 July 2007, 76/07 of 15 October 2007, 15/08 of 25 February 2008, 58/08 of 21 July 2008, 12/09 of 10 February 2009, 16/09 of 24 February 2009 and 93/09 of 1 December 2009) entered into force on 1 March 2003. Article 247 of the Code reads as follows: “An accused may never be tried in absentia.” 38. War Crimes Sections of the Criminal and Appellate Divisions of the Court of Bosnia and Herzegovina have been set up pursuant to the Court of Bosnia and Herzegovina Act 2000 (a consolidated version thereof published in Official Gazette of Bosnia and Herzegovina no. 49/09 of 22 June 2009, amendments published in Official Gazette nos. 74/09 of 21 September 2009 and 97/09 of 15 December 2009). 39. Any person or body demonstrating a legitimate interest may lodge a request for a declaration of presumed death with respect to those who went missing during the 1992-95 war as from the expiry of the waiting period, which is one year from the cessation of the hostilities (the Non-Contentious Procedure Act 1989, published in Official Gazette of the Socialist Republic of Bosnia and Herzegovina no. 10/89 of 23 March 1989, which was in force in the Federation of Bosnia and Herzegovina until 28 January 1998 and in the Republika Srpska until 15 May 2009; the Non-Contentious Procedure Act 1998, published in Official Gazette of the Federation of Bosnia and Herzegovina no. 2/98 of 20 January 1998, amendments published in Official Gazette nos. 39/04 of 24 July 2004 and 73/05 of 28 December 2005; and the Non-Contentious Procedure Act 2009, published in Official Gazette of the Republika Srpska no. 36/09 of 7 May 2009). Pursuant to section 27(1) of the Missing Persons Act 2004, a declaration of presumed death will automatically be issued with respect to all those recorded as missing in the Central Records (see paragraph 40 below). 40. The Missing Persons Act 2004 (published in Official Gazette of Bosnia and Herzegovina no. 50/04 of 9 November 2004) entered into force on 17 November 2004. It provides, in so far as relevant, as follows: “Families of missing persons have the right to know the fate of their missing family members and relatives, their place of (temporary) residence, or if dead, the circumstances and cause of death and location of burial, if such location is known, and to receive the mortal remains.” “The status of missing person is terminated on the date of identification, and the process of tracing the missing person is concluded. In the event that a missing person is proclaimed dead, but the mortal remains have not been found, the process of tracing shall not be terminated.” The Missing Persons Institute and, within that Institute, the Central Records have been set up as domestic institutions pursuant to that Act. The Missing Persons Fund, although envisaged, has not yet been set up. 41. The War Crimes Act 2003 (published in Official Gazette of the Republic of Serbia no. 67/03, amendments published in Official Gazette nos. 135/04, 61/05, 101/07 and 104/09) entered into force on 9 July 2003. The War Crimes Prosecutor, the War Crimes Police Unit and the War Crimes Sections within the Belgrade Higher Court and the Belgrade Court of Appeal have been set up pursuant to this Act. They have jurisdiction over serious violations of international humanitarian law committed anywhere in the former Yugoslavia (see section 3 of this Act). A number of persons have been convicted in Serbia for war crimes committed during the 1992-95 war in Bosnia and Herzegovina. As an example, at the request of Bosnia and Herzegovina, the Serbian authorities have taken proceedings and convicted Mr Nenad Malić of war crimes committed against Bosniacs in Stari Majdan in 1992 and sentenced him to 13 years’ imprisonment. As another example, they have recently convicted Mr Slobodan Medić, Mr Branislav Medić, Mr Pero Petrašević and Mr Aleksandar Medić of war crimes committed against Bosniacs in Trnovo in 1995 and sentenced them to 20, 15, 13 and 5 years’ imprisonment respectively. 42. The Mutual Assistance in Criminal Matters Act 2009 (published in Official Gazette of the Republic of Serbia no. 20/09) entered into force on 27 March 2009. Under section 16 of this Act, Serbian citizens may not be extradited. This Act repealed the corresponding provision of the Code of Criminal Procedure 2001 (published in Official Gazette of the Federal Republic of Yugoslavia no. 70/01, amendments published in Official Gazette of the Federal Republic of Yugoslavia no. 68/02 and Official Gazette of the Republic of Serbia nos. 58/04, 85/05, 115/05, 49/07, 20/09 and 72/09) which was in force between 28 March 2002 and 27 March 2009.