CASE OF BOROJEVIĆ AND OTHERS v. CROATIA
No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković
5. The applicants were born in 1946, 1966 and 1973, respectively, and live in Sisak. 6. On 17 October 1991 the body of Stevo Borojević, the applicants’ respective husband and father, was found on the right bank of the river Kupa in Sisak. An on-site inspection was carried out immediately as well as an autopsy the following day which showed that the victim had been stabbed to death. 7. On 24 October 1991 the Sisak Police lodged a criminal complaint with the Sisak County State Attorney’s Office. 8. The police interviewed Ms Jasenka Borojević, the victim’s wife, on 5 December 1991. She told them that her husband had left her workplace at about 10.30 a.m. on 6 October 1991 to return home because a general emergency had been announced and their daughter, who was a minor, was there alone. However, after he left she had not seen him again. 9. In 1996 the United Nations Security Council established the United Nations Transitional Administration in Eastern Slavonia, Baranja and Western Sirmium (the “UNTAES”). On 15 January 1998 the UNTAES mandate ceased and the transfer of power to the Croatian authorities began. 10. On 27 February 2002 the police interviewed Jasenka Borojević and Edita Mihić, respectively the wife and daughter of the late Stevo Borojević. They said that prior to Stevo Borojević’s disappearance on 6 October 1991, Croatian soldiers had carried out searches in their flat in July 1991 and on 3 October 1991. One of the soldiers, T.P., had been known to them. They had subsequently learned that an individual named G. had also been implicated. A certain M.T. had also told them that he had asked Đ.B. about the killing of Stevo Borojević and that Đ.B. had shown M.T. a list of persons to be followed and a list of persons to be liquidated, and that Stevo Borojević had been on neither of those lists. 11. On 29 July 2005 the State Attorney’s Office issued a document concerning enquiries into the killings of civilians between 1991 and 1995. The document was addressed to the County State Attorney’s Offices, which were required to examine all the information collected to date on the killings of civilians during that period and to concentrate their activities on identifying the perpetrators and gathering the relevant evidence in order to initiate criminal proceedings. 12. On 9 October 2008 the State Attorney’s Office issued an instruction to the County State Attorney’s Offices for implementation of the Criminal Code and the Code of Criminal Procedure, in which it indicated that an inspection of their work had indicated two main problems: possible partiality of the persons involved in the pending proceedings as regards the ethnicity of the victims or the perpetrators, and the problem of trials in absentia. The instruction advocated the impartial investigation of all war crimes, irrespective of the ethnicity of those involved, whether victims or perpetrators, and reiterated the duties of those working for the State Attorney in that respect. 13. On 11 December 2008 an investigating judge at the Sisak County Court heard evidence from Jasenka Borojević and Edita Mihić, who repeated what they had said to the police. 14. The police interviewed J.B., a relative of Stevo Borojević, on 30 December 2008 but he had no knowledge of the latter’s disappearance and killing. 15. On 5 January 2009 the police interviewed V.P. and on 8 January 2009 they questioned T.P. 16. On 27 January 2009 an investigating judge at the Sisak County Court heard evidence from T.P., a neighbour of the Borojević family. He said that one day in 1991 when Sisak was being shelled, he and other tenants from the building had been in the basement when three armed men dressed in military uniforms had entered. He had exited the basement with them and they had told him that someone had been shooting from the building. T.P. had shown them the flats where Serbs lived. The three men had entered the flat of the Borojević family while T.P. waited outside. They had not taken anyone from the flat. T.P. remembered that the men had been young. 17. On the same day the judge heard evidence from V.P., who said that a certain T.Š., who had died in the meantime, had told him that he had learned that Stevo Borojević had been taken to Žabno by the men who controlled the roads. He had been tortured and then taken to Vurot. V.P. had the impression that T.Š. knew who had taken Stevo Borojević but he had not identified that person. Later he had seen a vehicle belonging to Stevo Borojević on the Topolovac agricultural estate. However, when he had attempted to find out who was driving the vehicle, a man wearing a camouflage uniform and a balaclava and armed with a Kalashnikov had threatened to kill him. 18. On 20 June 2011 the Sisak County Police lodged a criminal complaint against Đ.B., V.M and D.B. on charges of war crimes against the civilian population. This included the killing of the applicants’ relative. On the same day Đ.B., Head of the Sisak Police Department in 1991 and 1992, V.M., police commander at the border territory of Sisak and Banovina in 1991 and 1992 and Deputy of Sisak Police Department, and D.B., a member of the “Wolves” Unit of the Croatian Army, were arrested. 19. On an unspecified date the investigation was opened. On 13 July 2011 Đ.B. died. 20. On 16 December 2011 the Osijek County State Attorney’s Office lodged an indictment against V.M. and D.B. at the Osijek County Court, alleging that they had been in command of the unit whose unknown members had committed a number of crimes against the civilian population between July 1991 and June 1992, including the killing of the applicants’ relative. They were charged with war crimes against the civilian population. 21. On 9 December 2013 a first-instance judgment was delivered. V.M. was found guilty of war crimes against the civilian population in that, in his capacity as “the commander of police forces in the broader area of Sisak and Banovina” and “Deputy Head of the Sisak Police”, he had allowed the killings of persons of Serbian origin and had failed to undertake adequate measures to prevent such killings. The relevant part of the judgment concerning the applicants’ relative reads: “in the morning of 6 October 1991 at a checkpoint in Odra Sisačka, some unknown members of the reserve police stopped a white vehicle, a Fiat 127, which was being driven by Stevo Borojević, took the vehicle from him and kept it for themselves, and arrested Stevo Borojević and took him to an unknown location where they killed him, after which his body was found on 17 October 1991 on the right bank of the river Kupa at the location called “Rušetina” in Sisak, with several open wounds and contusions on his head and a wound caused by stabs and cuts in his chest.” V.M. was sentenced to eight years’ imprisonment. D.B. was acquitted of all charges. 22. On 10 June 2014 the Supreme Court upheld the conviction of V.M. and increased his sentence to ten years’ imprisonment. 23. On various dates the applicants brought separate civil actions against the State, seeking compensation in connection with the death of their close relative. The claims were dismissed on the grounds that they had been lodged after the statutory limitation period had expired. 24. Following the criminal conviction of V.M., the applicants sought the reopening of these proceedings in the Petrinja Municipal Court. Their request is now pending.