KAMENICA AND OTHERS v. SERBIA
Inadmissible
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
1. A list of the applicants is set out in the appendix. All the applicants are nationals of Bosnia and Herzegovina and are represented by Ms T. Drobnjak, a lawyer practicing in Belgrade. 2. The Serbian Government (“the Government”) are represented by their Agent, Ms N. Plavšić. 3. Following its declaration of independence from the former Socialist Federal Republic of Yugoslavia (SFRY) in March 1992, a brutal war broke out in Bosnia and Herzegovina. More than 100,000 people were killed and more than 2,000,000 others were displaced as a result of “ethnic cleansing” or generalised violence. The following local forces were the main parties to the conflict: the ARBH (mostly made up of Bosniacs and loyal to the central authorities in Sarajevo), the HVO (mostly made up of Croats) and the VRS (mostly made up of Serbs). The conflict ended in December 1995 when the General Framework Agreement for Peace (“the Dayton Agreement”) entered into force between Bosnia and Herzegovina, Croatia and the Federal Republic of Yugoslavia (succeeded by Serbia in 2006). 4. Žepa, a town in eastern Bosnia and Herzegovina, is situated some twelve kilometres from the border with Serbia. Before the war it had a population of less than 3,000, of whom the majority were Bosniacs. During the war, Žepa was one of three Bosniac enclaves in eastern Bosnia surrounded by the VRS. In 1993 it was declared a “safe area” by the United Nations Security Council. 5. In 1995, there were between 6,500 and 8,000 people living in Žepa, of whom some two-thirds were displaced persons from other parts of Bosnia and Herzegovina. 6. On 12 July 1995 the VRS attacked the Žepa “safe area”, capturing it on 25 July. In the days that followed, several hundred Bosniacs – predominantly able-bodied men who had refused to surrender to VRS forces – managed to cross the border and flee into Serbia. The present applicants were among them. 7. The facts of the case, as submitted by the parties, may be summarised as follows. 8. When Žepa was captured by the VRS, the applicants crossed into Serbia from Bosnia and Herzegovina, hoping that they would be able to find refuge in a third country. They were discovered by the border guard of the VJ and taken to two detention camps. The applicants claim that they received notification that they had prisoner-of-war status; it would appear that some of them were indeed members of ARBH but some were civilians. The first camp, Šljivovica, was situated in the municipality of Čajetina and the second, Mitrovo Polje, in the municipality of Aleksandrovac, both in Serbia. The Šljivovica detention camp was located in an abandoned workers’ barracks and the Mitrovo Polje camp in a former children’s recreational facility. 9. During their existence the camps were visited by representatives of the International Committee of the Red Cross and the State Commission for Missing Persons of Bosnia and Herzegovina. The latter compiled a report in which it found that the conditions of detention were disturbing. 10. Between January and April 1996 the UNHCR facilitated the transfer of the camps’ detainees to third countries and the camps were closed in April 1996. 11. On 6 September 2011 the Humanitarian Law Centre (Fond za humanitarno pravo), a Belgrade-based NGO, lodged a criminal complaint on behalf of the applicants with the Office of the War Crimes Prosecutor of Serbia against more than 50 individuals for alleged war crimes. In the criminal complaint it was alleged that, when the applicants were discovered at the Serbian border, the army and the police had used force against them and transported them to the aforementioned camps. Both camps had been guarded by officers of the Serbian police force and none of the applicants had been allowed to leave them. According to the applicants, during the time they spent in the camps they had been regularly verbally abused, taken to mock executions, kicked and punched, and beaten with fists, batons, cables, shovels and metal rods. Some of the applicants had had burning cigarettes held against their skin, had been forced to drink water mixed with motor oil and some had also been sexually abused (in particular, some of the applicants had been forced to perform sexual acts on each other). The applicants who had been suspected of being members of the ARBH had suffered particularly harsh treatment and had been forced to engage in mutual fights, look directly into the sun, move heavy rocks and had been denied medical assistance. 12. In its criminal complaint the Humanitarian Law Centre submitted statements by the camps’ detainees, medical documentation, documentation from the International Committee of the Red Cross and the State Commission for Missing Persons of Bosnia and Herzegovina, and other evidence. Amongst those who were alleged to have taken part in torture, the Centre identified members of the State Security Agency of Serbia, police officers, and military servicemen of various ranks. 13. On 23 September 2011 the Office of the War Crimes Prosecutor undertook preliminary verification of the information submitted by the applicants and requested that the Ministry of Interior and the Ministry of Defence submit information regarding the criminal complaint. 14. On 17 November 2011 and 2 December 2011 the Ministry of Interior submitted two reports to the Office. In their reports it was stated that the situation in the camps had been generally good, that the camps had not been enclosed behind a fence, and that residents who were given refugee status had had access to health services, a canteen, a post office, a phone, a bank, and both private visits and visits by officials from international organisations. While one of the reports describes the conditions in Šljivovica camp as unsatisfactory, the conditions in Mitrovo Polje were described as lodgings with the quality of “hotel accommodation”. 15. On 1 March 2013 the Office of the War Crimes Prosecutor notified the Humanitarian Law Centre that it did not find any grounds for initiating criminal investigation since the alleged acts could not be classified as war crimes or any other crime under the jurisdiction of the Office of the War Crimes Prosecutor. On 8 April 2013 the applicants lodged a constitutional appeal before the Constitutional Court of Serbia claiming violations of Articles 2, 3 and 6 of the Convention. On 4 February 2014 the Constitutional Court rejected the applicants’ constitutional appeal as incompatible ratione materiae with the provisions of the Constitution, finding that the notification in question was not an act which was decisive with respect to the applicants’ human rights. 16. On 13 June 2014 Belgrade Court of Appeal, acting upon a civil action for damages brought by two of the applicants, Enes Bogilović and Mušan Džebo, delivered a final judgment in civil proceedings in which it found that the applicants in question had suffered “intensive torture and inhumane treatment” and that the “applicants survived what was without a doubt the harshest suffering an individual [could] experience”. The court further described the actions of the guards towards the two applicants and other detainees as “conduct ... hardly worthy of a human being”. Each plaintiff was awarded 300,000 Serbian dinars (RSD) in non-pecuniary damage. 17. The decision of the Constitutional Court was delivered to the applicants’ representative on 2 July 2014. 18. The Criminal Code of the Socialist Federal Republic of Yugoslavia 1976 (Official Gazette of the Socialist Federal Republic of Yugoslavia – OG SFRY – nos. 44/76, 36/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90 and 54/90, in the Official Gazette of the Federal Republic of Yugoslavia nos. 35/92, 16/93, 31/93, 37/93, 24/94 and 61/01, and in OG RS no. 39/03) was in force until 1 January 2006. The relevant provisions thereof are set out hereunder. 19. Article 95 governs the statutory limitation periods in respect of criminal liability. The relevant parts are worded as follows: “(1) If not prescribed differently by this Code, criminal liability shall be statutebarred: 1) twenty-five years from the date on which the offence was committed in instances where the law provides for the death penalty or twenty years’ imprisonment; 2) fifteen years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding ten years; 3) ten years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding five years; 4) five years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding three years; 5) three years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding one year; ...” 20. Article 100 of the same Code is worded as follows: “The statutory limitation of criminal liability does not apply to the crimes covered by Articles 141-145 of this Code [genocide and war crimes] or to crimes for which statutory limitation is proscribed by international treaties.” 21. The Criminal code of the Republic of Serbia (Official Gazette of the Republic of Serbia, nos. 85/2005, 88/2005, 107/2005, 72/2009, 111/2009, 121/2012 and 104/2013) entered into force on 1 January 2006. Article 103 governs the statutory limitation periods in respect of criminal liability. The relevant parts are worded as follows: “(1) If not prescribed differently by this Code, criminal liability shall be statutebarred: 1) twenty-five years from the date on which the offence was committed where the law provides for thirty to forty years’ imprisonment; 2) twenty years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding fifteen years; 3) fifteen years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding ten years; 4) ten years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding five years; 5) five years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding three years; 6) three years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding one year; ...” 22. Article 100 of the same Code is worded as follows: “The statutory limitation of criminal liability does not apply to crimes covered by Articles 370-375 of this Code [genocide and war crimes] or to crimes for which statutory limitation is proscribed by ratified international treaties.” 23. Article 142 - War crime against the civilian population “Whoever, acting in violation of the rules of international law applicable in time of war, armed conflict or occupation, orders that a civilian population be subject to killing, torture, inhumane treatment, biological experiments, immense suffering or violation of their bodily integrity or health; dislocation or displacement or forcible conversion to another nationality or religion; forcible prostitution or rape; application of measures of intimidation and terror, hostage-taking, imposition of collective punishment, unlawful transfer to concentration camps or other illegal arrests and detention, deprivation of rights to fair and impartial trial; forcible service in the armed forces of the enemy’s army or in its intelligence service or administration; forced labour, starvation of the population, property confiscation, pillaging, illegal and intentional destruction or large-scale stealing of property that is not justified by military needs, taking an illegal and disproportionate contribution or requisition, devaluation of domestic currency or the unlawful issuance of currency; or personally commits one of the aforementioned actions, shall be punished by not less than five years’ imprisonment or the death penalty.” 24. Article 144 - War crime against prisoners of war “Whoever, acting in violation of the rules of international law, orders the murder, torture or inhumane treatment of prisoners of war, including biological experiments, extreme suffering or serious injury to their bodily integrity or health, compulsory enlistment in the armed forces of an enemy power, or deprivation of the right to a fair and impartial trial, or personally commits any of the aforementioned acts, shall be punished by not less than five years’ imprisonment or by the death penalty.” 25. The Criminal Code of the Socialist Republic of Serbia (Official Gazette of the Socialist Republic of Serbia nos. 26/77, 28/77, 43/77 and 20/79) was in force in until 1 January 2006. Its relevant provisions read as follows: 26. Article 53 – Serious bodily harm “(1) Whoever causes serious injury to another, or serious impairment of another’s health, shall be punished by imprisonment for six months to five years. (2) Whoever causes serious injury to another or impairment of another’s health resulting in the endangering of the life of that person or the destruction or permanent significant damage to or weakening of a vital function of his body or an organ thereof, or permanent serious health impairment or disfigurement, shall be punished by one to ten years’ imprisonment.” 27. Article 121 – Serious bodily harm “(1) Whoever causes serious injury to another, or serious impairment of another’s health, shall be punished by imprisonment for six months to five years. (2) Whoever causes serious injury to another or impairment of another’s health resulting in the endangering of the life of that person or the destruction or permanent significant damage to or weakening of a vital function of his body or an organ thereof, or permanent serious health impairment or disfigurement, shall be punished by imprisonment of one to eight years’ imprisonment. (3) If the actions specified in paragraphs 1 and 2 of this Article result in the death of the injured party, the offender shall be punished by imprisonment of two to twelve years. ...” 28. Article 137 – Ill-treatment and Torture “(1) Whoever ill-treats another or treats a party in a humiliating and degrading manner shall be punished by a fine or imprisonment for up to one year. (2) Whoever causes anguish to another with the aim of obtaining information or a confession from him or another person or of intimidating him or a third party or of exerting pressure on such persons, or does so for motives based on any form of discrimination, shall be punished by imprisonment from six months to five years. (3) If the offence specified in paragraphs 1 and 2 of this Article is committed by an official whilst discharging his duty, that person shall be punished for the offence in described in paragraph 1 by imprisonment from three months to three years, and for the offence described in paragraph 2 by one to eight years’ imprisonment.” 29. Article 371 – Crime against humanity “Whoever, acting in violation of the rules of international law, orders as part of a wider and systematic attack against a civilian population: murder; placement of the group in living conditions calculated to bring about its complete or partial extermination, enslavement, deportation, torture, or rape; enforced prostitution; forcible pregnancy or sterilisation aimed at changing the ethnic balance of the population; persecution on political, racial, national, ethical, sexual or other grounds, detention or abduction of persons without disclosing information about such acts in order to deny such person legal protection; oppression of a racial group or establishing domination of one such group over another; or other similar inhumane acts that intentionally cause serious suffering or serious impairment of health, or personally commits any of the aforementioned offences, shall be punished by imprisonment of at least five years or imprisonment of between thirty and forty years. ” 30. Article 372 – War crime against civilian population (1) Whoever, acting in violation of international law in time of war, armed conflict or occupation orders: an attack on the civilian population, a settlement, particular civilians, persons incapable of combat or members or facilities of humanitarian organisations or peacekeeping missions; wanton attack without target selection that harms the civilian population or civilian buildings under the special protection of international law; an attack against military targets knowing that such an attack would cause collateral damage among civilians or damage to civilian buildings that is evidently disproportionate to the military effect; the infliction on the civilian population of bodily injury, torture, inhumane treatment, biological, medical or other research experiments, or the taking of tissue or organs for transplantation or the performing of other acts that impair health or inflict great suffering or the deportation or relocation or forced change of nationality or religion; forcible prostitution or rape; applying intimidation and terror measures, taking hostages, collective punishment, unlawful deprivation of freedom and detention; deprivation of the rights to a fair and impartial trial; declaration of the prohibition, suspension or non-admissibility in court proceedings of the rights and acts of enemy nationals; the coercion into service of a hostile power or its intelligence or administration services; the coercion into military service of persons under seventeen years of age; forced labour; starvation of the population; unlawful seizure, appropriation or destruction of property not justified by military needs; taking unlawful and disproportionate contributions and requisitions; devaluation of local currency or unlawful issuing of currency, or personally commits any of the above offences, shall be punished by at least five years’ imprisonment. ...” 31. Article 374 – War crimes against prisoners of war “(1) Whoever, acting in violation of international law, orders the injury, torture, or inhumane treatment of prisoners of war, or biological, medical or other research experiments on them, or the taking of their tissues or body organs for transplantation or the commission of other acts harmful to health and causing them serious suffering, or compels prisoners of war to serve in the forces of a hostile power or deprives them of the rights to fair and regular trial; or personally commits any such offences, shall be punished by at least five years’ imprisonment. (2) Whoever orders the murder of prisoners of war or personally commits such an offence, shall be punished by at least ten years’ imprisonment or imprisonment of between thirty and forty years.” 32. This Act (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 were 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). 33. In a number of previous cases concerning war crimes, this Office has treated the war in Bosnia and Herzegovina between 1992 and 1995 as an internal armed conflict (see judgments in cases Škorpioni, Zvornik I, Bijeljina, Prijedor, Zvornik II and Stari Majdan). The majority of the indictments in these cases came into force by 2006. The final judgments in the majority of these cases were adopted by the domestic courts by 2010. 34. Articles 199 and 200 of the Obligations Act (Zakon o obligacionim odnosima; published in the OG SFRY nos. 29/78, 39/85, 45/89, 57/89 and 31/93) provide, inter alia, that anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of his or her personal rights (prava ličnosti) is entitled, depending on the duration and intensity of the breach, to sue for financial compensation in the civil courts and, in addition, to request other forms of redress capable of affording adequate non-pecuniary satisfaction.