CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 2 septembre 2010

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She is represented before the Court by Mr D. Bučanac, a lawyer practising in Velika Gorica. The Croatian Government (“the Government”) are represented by their Agent, Mrs Š. Stažnik. The facts of the case, as submitted by the parties, may be summarised as follows. Background to the case The events at issue took place in Vukovar, a Croatian town near the Serbian border which was heavily attacked by the Yugoslav People's Army and paramilitary Serbian armed forces from August to November 1991 and finally occupied at the end of November. Between 1992 and 1996 Vukovar was a part of the United Nations Protected Areas(the “UNPA”). In 1996 the United Nations Security Council established the United Nations Transitional Administration in Eastern Slavonia, Baranja and Western Sirmium (the “UNTAES”), which included Vukovar. On 15 January 1998 the UNTAES mandate ceased and the transfer of power to the Croatian authorities began. Facts concerning the death of the applicant's husband According to the applicant, on 17 September 1991 several members of the Serbian paramilitary forces came to her home, took some money and ransacked the house, looking for money and gold. The applicant recognised three of them as P.Z., S.Z. and V.Z. On 3 October 1991 three men, dressed in Yugoslav People's Army uniforms, one of whom was M.S., personally known to the applicant, came to the applicant's family house in Vukovar and hit her husband, A.J., before taking him away. A few minutes later the applicant heard shots from an automatic weapon. The uniformed men then also took the applicant and her grandson, M.J., together with some other persons, including S.M., to the military headquarters. On the way there the applicant saw the dead body of her husband, his head battered, lying on a path in front of a house; the persons who had brought him out of the house were standing next to the body. Investigation into the death of the applicant's husband In autumn 1991 the applicant reported the above event to the Vukovar Police Station, which was stationed in Zagreb at that time. On 18 March 1992 the Vinkovci Police department lodged a criminal complaint with the Osijek Military Prosecution against ten alleged perpetrators (G.J., M.S., S.S., M.N., B.G., M.K., Z.R., P.N., S.Z. and V.Z.), alleging that on 3 October 1991 they had arrested several individuals and then killed two of them, one of whom was the applicant's husband, and had thus committed a war crime against the civilian population. At the request of the Osijek Military Prosecution, dated 14 May 1992, the Osijek Military Court opened an investigation in respect of the ten suspects on 31 August 1992, on the criminal charge of armed rebellion. The Military Court also ordered the suspects' detention and issued a warrant to find and arrest them, as they had absconded. On 9 February 1993 the Military Court heard evidence from the applicant and her son. The applicant said that in September and October 1991, after the Serbian forces had entered Vukovar, but before the city's final fall, several persons, including her former neighbours M.S., S.S. and three brothers Z., all dressed in Yugoslav People's Army uniforms and equipped with shotguns and “Kalashnikovs”, had been coming daily to the yard in front of her house, threatening her and asking for her sons. She further stated that one of the persons who had come to her house on 3 October 1991 and taken her husband away was M.S., but she did not know the names of the others. Some minutes later, when she was being taken to the military headquarters, the applicant had passed the dead body of her husband. Her neighbour, S.M., who had been with her at the time, knew the names of the men who had taken the applicant's husband. On 17 December 1996 the Osijek County State Attorney's Office requested that the investigation be extended to two further suspects, Đ.P. and A.G. The charge was changed to one of war crimes against the civilian population. It was also requested that two witnesses be called once the police had found out their addresses. On 29 December 1996 the Osijek County Court requested the police to inform them of the addresses of the two witnesses. On 9 January 1997 the Osijek County Court extended the investigation to Đ.P. and A.G. and ordered their detention and issued arrest warrants. On 23 January 1997 the police informed the County Court of the requested addresses. On 30 January 1997 the applicant and another witness gave evidence before the Osijek County Court. The applicant specifically named one of the perpetrators, and the witness S.M. said that she had seen all twelve suspects at the scene. On 16 May 1997 the Osijek County Court stayed the investigation on the ground that that the suspects and some of the witnesses resided in the occupied territory of Croatia, where the Croatian authorities were not able to exercise their power. The territories of Eastern Slavonija, Baranja and Western Slavonija were re-integrated into Croatia in January 1998. On 27 November 2000 jurisdiction in the matter was transferred to the Vukovar County Court ( Županijski sud u Vukovaru ) and the investigation resumed. On 2 October 2001 one of the suspects, Đ.B., was arrested and gave evidence before an investigating judge of the Vukovar County Court. On 10 October 2001 the investigating judge heard evidence from three further suspects, B.G., Z.R. and S.Z. On 11 October 2001 Đ.B. again gave evidence before the investigating judge. All the suspects denied their involvement in the murder of the applicant's husband. On 5 December 2001 the applicant again gave evidence. On 14 May 2002 the Vukovar County State Attorney's Office called for further investigation. On 13 and 23 September 2002 the investigating judge again heard evidence from the witness S.M and two other witnesses. Witness D.K., who had been ordered to bury the body of the applicant's husband, stated that he had been arrested by members of the Serbian paramilitary forces and taken to the place where the dead body of the applicant's husband had lain. The head had been battered and the body shot with many bullets. The witness could not name any of the uniformed men who had stood next to the body and ordered him to bury it. The other witness, M.K., had no knowledge of the relevant facts. The applicant enquired about the investigation on several occasions and on 17 December 2002 she was informed that an investigation had been opened against S.Z., V.Z. and others in the Vukovar County Court on charges of war crimes against the civilian population, and was still pending. On 21 May 2003 the investigating judge terminated the investigation on account of a general amnesty in respect of the criminal offence of armed rebellion. On 27 May 2003 a three-judge panel of the Vukovar County Court quashed that decision on the ground that the offence had already been reclassified as a war crime against the civilian population. On 17 September 2003 the case file was forwarded to the State Attorney's Office. On 31   October 2003 that Office requested further investigation. A psychiatric report in respect of witness Z.F. was commissioned. The report was submitted to the Vukovar County Court on 6 February 2004. On 17 February 2004 Z.F. gave evidence before the investigating judge. He had no specific knowledge of the facts in issue. On 6 April 2005 the applicant again gave evidence. She stated that another witness, A.M., had been present when her husband had been taken on 3 October 1991. Further hearings were held before the investigating judge on 28 April, 29 October and 15 November 2004, 17 March, 6 and 21 April, 15 June, 13 July, 8   August and 11 November 2005 and 11 May 2006, when sixteen witnesses and two defendants gave evidence. A.M. was not called as a witness. In the meantime, on 20 September 2004, the investigation in respect of G.J. was terminated owing to his death. On 13 January 2005 the applicant complained to the State Attorney about the inactivity and delays in the investigation into the death of her husband and the failure to commit the suspect for trial. On 25 March 2006 the applicant lodged a constitutional complaint of inactivity on the part of the investigating authorities. The Constitutional Court answered in a letter of 31 March 2006 that the applicant's complaint was not suitable for proceedings before that court. At a hearing held before the investigating judge on 14 November 2007, a further witness gave evidence. Identification parades were held on 17 November and 9 December 2008 in order to verify the identity of the suspect M.S. None of the three witnesses called, including S.M., recognised him as one of the people who had taken the applicant's husband. On 5 March 2009 the investigation in respect of M.S. was terminated for lack of evidence. On 1 July 2009 the investigating judge requested international legal assistance in order to have the suspect A.G. interviewed in Sweden. On 3   April 2009, in reply to a request from the Swedish authorities, the investigating judge supplied a list of questions to be asked of A.G. The investigation is still pending. COMPLAINTS   The applicant complained that the relevant authorities had not carried out a thorough and effective investigation into the death of her husband, as required under Article 2 of the Convention. The applicant also complained under Article 6 of the Convention about the length of the investigation. THE LAW Article 2 of the Convention The applicant firstly complained that the relevant authorities had not taken all relevant and adequate steps to investigate the death of her husband, identify the perpetrators and bring them to justice. She relied on Article 2 of the Convention which reads: “1.     Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2.     Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a)     in defence of any person from unlawful violence; (b)     in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c)     in action lawfully taken for the purpose of quelling a riot or insurrection.” The parties' arguments as to admissibility The Government firstly argued that the application was out of the Court's temporal jurisdiction since the applicant's husband had died in 1991 but the Convention had not been ratified by Croatia until 5 November 1997. As regards the procedural obligation to investigate the death of the applicant's husband and the criteria established in Šilih ( Šilih v. Slovenia [GC], no.   71463/01, 9   April 2009), the Government argued that there was no connection between the death of the applicant's husband and the entry into force of the Convention in respect of Croatia. Furthermore, the applicant's husband had not been killed by State officials but by private individuals on the territory occupied during the Homeland War in Croatia, when the Croatian authorities had had no real authority over that territory. Only in 1998 did the Croatian authorities regain power over those territories. The Government argued further that the applicant had failed to comply with the six-month rule because she had lodged her application with the Court on 24 April 2006 even though she had complained about the ineffectiveness of the investigation before the domestic authorities as early as 10 January 2005. This showed, the Government argued, that already in January 2005 the applicant had considered the investigation ineffective, and should thus have lodged her application with the Court within six months of 10 January 2005. The Government also maintained that the applicant had not exhausted domestic remedies because she could have sought damages in civil proceedings against the State. Furthermore, she had remained entirely passive as regards the investigation into the death of her husband. They maintained that the applicant had never asked to consult the case-file, nor had she ever complained that the investigation had been ineffective. The applicant argued that the State's procedural obligation to investigate the death of her husband had persisted throughout the eighteen years that had passed since. The Court's assessment Jurisdiction ratione temporis The Court reiterates that the provisions of the Convention do not bind a Contracting Party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the   Convention with respect to that Party; this is an established principle in the Court's case-law based on the general rule of international law (see, among other authorities, Blečić v. Croatia [GC], no. 59532/00, § 70, ECHR 2006 ‑ III; and Šilih v. Slovenia [GC], cited above, § 140). As to the present case, the Court notes that the applicant reported that her husband had been killed in 1991. The Convention entered into force in respect of Croatia on 5 November 1997. Therefore, the Court has no jurisdiction ratione temporis as regards the killing of the applicant's husband, it being an instantaneous act. As regards the procedural obligation under Article 2 of the Convention, the Court has recently delivered its judgment in Šilih , cited above, which reviewed the jurisprudence on the question whether a procedural violation could be found where a death occurred before the date of acceptance of the right of individual petition and the alleged deficiencies or omissions in investigative measures took place afterwards (§§ 148-152). The Court clarified that the procedural obligation to carry out an effective investigation under Article 2 constituted a separate and autonomous duty of Contracting States. It therefore considered that an independent obligation capable of binding the State even when the death took place before the critical date arose under Article 2 of the Convention (see, inter alia , Šilih , cited above, § 159; Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 147, ECHR 2009 ‑ ...; and Velcea and Mazăre v. Romania , no. 64301/01, § 81, 1 December 2009). As the Court has observed, the procedural obligation under Article 2 binds the State throughout the period in which the authorities can reasonably be expected to take measures with an aim to elucidate the circumstances of death and establish responsibility for it (see Šilih , cited above, § 157). In this context, it should be noted that there is little ground to be overly prescriptive as regards the possibility of an obligation to investigate unlawful killings arising many years after the events, since the public interest in obtaining the prosecution and conviction of perpetrators is firmly recognised, particularly in the context of war crimes and crimes against humanity (see Brecknell v. the United Kingdom , no. 32457/04, § 69, 27 November 2007). The Court has previously considered cases in which some investigation into the deaths in question, as well as relevant court proceedings seeking redress, took place both before and after the critical date (see, for example, Šilih , cited above; Teren Aksakal v. Turkey , no. 51967/99, ECHR 2007-X (extracts); Agache and Others v. Romania , no. 2712/02, 20 October 2009; Velcea and Mazăre , cited above; Şandru and Others v. Romania , no. 22465/03, 8 December 2009; and Tuna v. Turkey , no. 22339/03, 19 January 2010 Tuna ). In such cases, having established that some of the steps were taken after the critical date, the Court examined the nature of these steps and their significance to the procedural obligation under Article   2 in order to assess whether it had temporal jurisdiction. Accordingly, in Šilih , the proximity in time of the death of the applicant's son to the acceptance by Slovenia of the right of individual petition, as well as the fact that the large majority of the civil and criminal proceedings occurred after the critical date, established the temporal competence of the Court in respect of the procedural obligation under Article 2 of the Convention (see Šilih , cited above, §§ 164-165). In finding that it had temporal jurisdiction in the cases of Agache and Others , Velcea and Mazăre and Tuna , the Court emphasised that all or most of the criminal and civil proceedings had begun and were completed after the critical date and that the complaints before the Court essentially related to those proceedings (see Agache and others , cited above, §§ 70-72; Velcea and Mazăre , cited above, §§ 86-87; and Tuna , cited above, §§ 61-62). On the basis of these principles, in the present case the Court considers that, following the killing of the applicant's husband, a procedural obligation arose requiring the authorities of the respondent State to investigate and to identify and punish the perpetrators. The Court notes that the official investigation into the killing of the applicant's husband was opened in 1992 and was continued until May 1997. On 16 May 1997 the Osijek County Court stayed the investigation because the suspects and some of the witnesses resided in the territory of Croatia where the Croatian authorities were not able to exercise their power. This was the state of affairs on 5 November 1997, the date of ratification of the Convention by Croatia. However, in 2000 the authorities decided, on their own motion, to continue the investigation and the case was transferred to the Vukovar County Court since, meanwhile, in January 1998, Croatia had regained control over the territory where the applicant's husband had been killed. In the period after 2000, a number of steps in the investigation were taken (see the Facts section, above), such as taking evidence from the accused and from a number of witnesses at a series of hearings before the investigating judge. The investigation is still ongoing and the authorities are making efforts to trace one of the defendants and summon him through the Swedish authorities. The facts of the case thus show that a significant part of the investigation, which is still pending, has taken place after the ratification of the Convention by Croatia. In view of the above, the Court finds that the alleged interference with Article 2 in its procedural aspect falls within the Court's temporal jurisdiction and that it is therefore competent to examine this part of the application and that the Government's objection as to the Court's competence ratione temporis must be dismissed. Compliance with the six-month rule As to the general principles concerning the six-month rule, the Court has recently reiterated the following principles in the Varnava case: “156.     The object of the six-month time-limit under Article   35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see, amongst other authorities, Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000 ‑ I). 157.     As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset however that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant ( Dennis and Others v. the United Kingdom (dec.), no.   76573/01, 2 July 2002). Nor can Article 35 § 1 be interpreted in a manner which would require an applicant to seize the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level. Where, therefore, an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period from the date when the applicant first became or ought to have become aware of those circumstances (see Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 4 June 2001). 158.     Consequently, where a death has occurred, applicant relatives are expected to take steps to keep track of the investigation's progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any effective criminal investigation (see Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002; also Bayram and Yıldırım v. Turkey (dec.), no. 38587/97, ECHR 2002 ‑ III). ... Indeed, the families of victims cannot wait indefinitely to bring their complaints to Strasbourg; undue delay issues may arise where there is no meaningful contact between families and authorities concerning complaints and requests for information, and no indication, or realistic possibility, of progress in investigative measures ( Varnava , cited above, § 165). As to the case at issue, the Court notes that the present application was lodged with it on 24 April 2006. At that time the investigation into the death of the applicant's husband was pending, as it still is now. When addressing the issues pertinent to its temporal jurisdiction, the Court has already found that a significant share of the procedural steps have been taken after 5 November 1997. The Court notes further that in the period preceding the lodging of the present application, hearings were held before the investigating judge on 28 April, 29 October and 15 November 2004, 17 March, 6 and 21 April, 15 June, 13 July, 8 August and 11 November 2005 and 11 May 2006, when sixteen witnesses and two defendants gave evidence. These facts show that there were no significant delays or inactivity in the investigation for at least two years or so prior to the date when the applicant lodged her application with the Court. The investigation is still ongoing. It cannot therefore be said that the six-month time-limit expired at any time in that period. It follows that the applicant has complied with the six-month time-limit and that therefore the Government's objection must be dismissed. Exhaustion of domestic remedies The Court recalls that the rule of exhaustion of domestic remedies referred to in Article   35   §   1 of the Convention obliges applicants first to use the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article   35   §   1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but that no recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey , 18 December 1996, Reports of Judgments and Decisions 1996-VI, §§   51-52; Akdivar and Others v. Turkey , 16 September 1996, Reports 1996-IV, §§   65-67; and Estamirov and Others v. Russia , no. 60272/00, § 73, 12 October 2006). The Court emphasises that the application of the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see Akdivar and Others , cited above, §   69; Aksoy , cited above, §§ 53 and 54 and Estamirov and Others , cited above, § 74). As regards the specific features of the State's obligations under Article 2 of the Convention and the requirement of the exhaustion of domestic remedies, the Court reiterates that when there is reason to believe that an individual has died in suspicious circumstances the State is required to conduct an effective official investigation. It cannot be left to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (see, for example, mutatis mutandis , Ilhan v.   Turkey [GC], no. 22277/93, ECHR 2000-VII, § 63). As regards the Government's argument that the applicant could have brought a civil action for damages against the State, the Court has repeatedly held that the procedural obligation of the State under Article 2 to conduct a thorough, official, effective and prompt investigation when individuals have been killed as a result of the use of force cannot be substituted by payment of damages. The Court confirms that a civil action is not capable, without the benefit of the conclusions of a criminal investigation, of making any findings as to the identity of the perpetrators and still less of establishing their responsibility. Furthermore, a Contracting State's obligation under Article 2 of the Convention to conduct an investigation capable of leading to the identification and punishment of those responsible in cases of fatal assault might be rendered illusory if, in respect of complaints under those Articles, an applicant were required to exhaust an action leading only to an award of damages (see, Yaşa v.   Turkey , 2   September 1998, Reports 1998-VI, §   74, and Isayeva and Others v. Russia , nos. 57947/00, 57948/00 and 57949/00, § 149, 24 February 2005). The Government also argued that the applicant had not exhausted all available remedies in the context of the criminal investigation because she remained passive. As to the applicant's conduct as regards the investigation, the Court notes that the applicant informed the Croatian authorities of the killing of her husband as early as 1991. She thus complied with her duty to inform the relevant national authorities that her husband had been killed as a result of the use of force and described how it had happened. There is no dispute between the parties as to the requirement that an investigation into a death resulting from the use of force is to be undertaken officially and that the applicant had no duty under the national law to ask the competent prosecuting or other authorities to comply with their procedural obligations under Article 2 of the Convention. The facts of the case show that the applicant did indeed show interest in the progress of the investigation. She enquired about progress on several occasions and on 17 December 2002 she was informed that an investigation had been opened against S.Z., V.Z. and others in the Vukovar County Court, on charges of war crimes against the civilian population, and was still pending. On 13 January 2005 the applicant complained to the State Attorney about the inactivity and delays in the investigation into the death of her husband and the failure to commit the suspect for trial. On 25 March 2006 the applicant lodged a constitutional complaint for inactivity on the part of the investigating authorities. The Constitutional Court answered in a letter of 31 March 2006 that the applicant's complaint was not suitable for proceedings before that court. The Court concludes that the civil remedies invoked by the Government were not those the applicant is required to exhaust. As regards the remedies invoked by the Government in the context of investigation, the Court considers that, in view of the above considerations, it cannot be said that the applicant has not exhausted those remedies. It follows that the Government's objection must be dismissed. The parties' arguments as to the merits The applicant argued that in the eighteen years that had passed since the killing of her husband the national authorities had failed in their duty to conduct an effective and thorough investigation capable of identifying the perpetrators and bringing them to justice. The Government argued that the killing of the applicant's husband had occurred in 1991, during the Homeland War in Croatia, probably at the hands of members of the occupying forces and on territory outside the control of the Croatian authorities. Croatia had regained control over that territory in January 1998 and until that time it had been very difficult to conduct an effective investigation. Since 1998 numerous steps had been taken. However, some of the suspects were still untraceable. The difficulties in the investigation were also due to the unwillingness of witnesses to recall traumatic experiences related to the war. The Court's conclusion The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. Article 6 § 1 of the Convention The applicant further complained about the length of the investigation into the death of her husband. She relied on Article 6 § 1 of the Convention, the relevant part of which reads: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” The Court notes that Article 6 does not apply to criminal proceedings against third persons. Furthermore, the requirement of promptness is inherent in the procedural aspect of Article 2 and will in the present case be examined in that context. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35   §   3 and must be rejected in accordance with Article 35   §   4. For these reasons, the Court unanimously Declares admissible, without prejudging the merits of the case, the complaint concerning the procedural aspect of Article 2 of the Convention; Declares the remainder of the application inadmissible.   Søren Nielsen   Christos Rozakis   Registrar   President