CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 30 août 2016

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border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s5F28D861 { width:17.82%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } .sC36A6361 { font-family:Arial; color:#000000 }   THIRD SECTION DECISION Application no. 49037/15 Mehida MUSTAFIĆ-MUJIĆ and others against the Netherlands The European Court of Human Rights (Third Section), sitting on 30   August 2016 as a Chamber composed of:   Luis López Guerra, President,   Helena Jäderblom,   Johannes Silvis,   Branko Lubarda,   Pere Pastor Vilanova,   Alena Poláčková,   Georgios A. Serghides, judges, and Fatoş Aracı, Deputy Section Registrar, Having regard to the above application lodged on 23 October 2015, Having deliberated, decides as follows: THE FACTS 1.     A list of the applicants is appended to this decision. The applicants are all represented by Ms L. Zegveld and Mr T. Kodrzycki, lawyers practising in Amsterdam. 2.     Ms Mehida Mustafić-Mujić is the widow of the late Mr Rizo Mustafić. Ms Alma Mustafić and Mr Damir Mustafić are the daughter and son, respectively, of the late Mr Rizo Mustafić. Mr Hasan Nuhanović is the son of the late Mr Ibro Nuhanović and the brother of the late Mr Muhamed Nuhanović. 3.     Mr Rizo Mustafić, Mr Ibro Nuhanović and Mr Muhamed Nuhanović died on or shortly after 13 July 1995 in what has come to be known as the Srebrenica massacre. 4.     The circumstances of the case, as stated by the applicants and as apparent from documents accessible to the public, may be summarised as follows. A.     Background to the case 1.     The breakup of the Socialist Federative Republic of Yugoslavia 5.     The Socialist Federative Republic of Yugoslavia (SFRY) was made up of six republics, Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia and Slovenia. Slovenia and Croatia declared their independence from the SFRY on 25 June 1991 following referenda held earlier. Thereupon the Presidency of the SFRY ordered the JNA ( Jugoslovenska Narodna Armija/Југословенска народна армија , or Yugoslav People’s Army) into action with a view to reasserting the control of the federal government. 6.     Other component republics of the SFRY followed Slovenia and Croatia in declaring independence. Eventually only Serbia and Montenegro were left to constitute the SFRY’s successor state, the Federal Republic of Yugoslavia (FRY). Hostilities ensued, largely along ethnic lines, as groups who were ethnic minorities within particular republics and whose members felt difficulty identifying with the emerging independent states sought to unite territory that they inhabited with that of republics with which they perceived an ethnic bond. 7.     By its Resolution 743 (1992) of 21 February 1992, the Security Council of the United Nations set up a United Nations Protection Force (UNPROFOR) intended to be “an interim arrangement to create the conditions of peace and security required for the negotiation of an overall settlement of the Yugoslav crisis”. Although UNPROFOR’s mandate was originally for twelve months, it was extended; UNPROFOR (later renamed UNPF, the name UNPROFOR coming to refer only to the operation in Bosnia and Herzegovina) continued in operation until late December 1995. Troop-contributing nations included the Netherlands. 2.     The war in Bosnia and Herzegovina 8.     Bosnia and Herzegovina declared independence on 6 March 1992 as the Republic of Bosnia and Herzegovina. Thereupon war broke out, the warring factions being defined largely according to the country’s pre-existing ethnic divisions. The main belligerent forces were the ARBH ( Armija Republike Bosne i Hercegovine , or Army of the Republic of Bosnia and Herzegovina, mostly made up of Bosniacs [1] and loyal to the central authorities of the Republic of Bosnia and Herzegovina), the HVO ( Hrvatsko vijeće obrane , or Croatian Defence Council, mostly made up of Croats [2] ) and the VRS ( Vojska Republike Srpske/Војска Републике Српске , or Army of the Republika Srpska, also called the Bosnian Serb Army, mostly made up of Serbs [3] ). 9.     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; in 2010, approximately one-third of them were still so listed [4] . 10.     The conflict came to an end on 14 December 1995 when the General Framework Agreement for Peace (“the Dayton Peace Agreement”, adopted in Dayton, Ohio, USA) entered into force. 3.     The VRS 11.     The bulk of the JNA withdrew from Bosnia and Herzegovina in May 1992, leaving behind units whose members were nationals of Bosnia and Herzegovina with their weapons and equipment. These became the backbone of the VRS. In its operations the VRS obtained the assistance of paramilitary units, most of which were composed of Serbs but some of which comprised non-Serbs including nationals of countries outside the former SFRY. 4.     The Srebrenica massacre 12.     The municipality of Srebrenica in eastern Bosnia is constituted of a number of towns and villages, among them Potočari and the town of Srebrenica from which the municipality takes its name. Before the outbreak of the war its population was almost entirely Bosniac and Serb, Bosniacs outnumbering Serbs by more than three to one. It is now part of the Republika Srpska. 13.     Being an obstacle to the formation of the Republika Srpska as a continuous territorial entity as long as it remained in the hands of the central government of the Republic of Bosnia and Herzegovina, Srebrenica came under VRS attack already in the course of 1992. 14.     It appears that the central government of the Republic of Bosnia and Herzegovina refused to countenance any evacuation of Srebrenica’s civilian population, since that would amount to the acceptance of “ethnic cleansing” and facilitate the surrender of territory to the VRS. 15.     On 16 April 1993 the Security Council of the United Nations adopted, by a unanimous vote, a resolution (Resolution 819 (1993)) demanding that “all parties and others concerned treat the eastern Bosnian town of Srebrenica and its surroundings as a safe area which should be free from any armed attack or any other hostile act.” 16.     By July 1995 the Srebrenica “safe area” was an enclave surrounded by territory held by the VRS. It contained ARBH combatants, most of them disarmed, and civilians. The latter numbered in their tens of thousands, mostly Bosniacs; these included by then, in addition to the local residents, persons displaced from elsewhere in eastern Bosnia. 17.     There was also an UNPROFOR presence within the enclave, nominally consisting of some four hundred lightly-armed Netherlands air-mobile infantry, known as Dutchbat (from “Dutch” and “battalion”). In fact, however, Dutchbat was under-strength by this time, troops returning from leave having been prevented by the VRS from rejoining their unit. In July 1995 Dutchbat’s leadership consisted of its commander, Lieutenant Colonel Karremans; its deputy commander, Major Franken; and other commissioned and non-commissioned officers including Warrant Officer Oosterveen who was in charge of personnel matters. 18.     On 10 July 1995 the Drina Corps of the VRS attacked the Srebrenica “safe area” in overwhelming force, overrunning the area and taking control despite the presence of Dutchbat. 19.     In the early afternoon of 11 July the VRS entered the town of Srebrenica meeting little resistance from either the ARBH or UNPROFOR. By this time the civilian population had left the town. A throng of civilians consisting of women, children and mostly elderly men were converging on the Dutchbat compound in the village of Potočari. The Dutchbat commander estimated the number of civilians inside the compound at 15,000. 20.     At the UNPF Commander’s request, the acting UNPROFOR Commander then issued instructions to Dutchbat, ordering them to enter into negotiations with the VRS to secure an immediate ceasefire. He ordered Dutchbat to concentrate their forces in the Potočari compound and to “take all reasonable measures to protect refugees and civilians in [their] care”. He added that Dutchbat should “continue with all possible means to defend [their] forces and installation from attack”. This was “to include the use of close air support if necessary”. 21.     That night, as meetings were taking place between the Dutchbat Commander and General Mladić, a column of Bosniac men, possibly numbering as many as 15,000, started to move out of the enclave in the direction of Tuzla. 22.     In the morning of 12 July a meeting took place between General Mladić and Lieutenant Colonel Karremans. Among other matters discussed, General Mladić threatened to shell the Dutchbat compound in retaliation if air power was used against the VRS. He also demanded to see all the men between the ages of 17 and 60 because, as he alleged, there were “criminals” in the crowd gathered at Potočari and he would need to question each of them. It was also arranged that the civilian population would be transported by bus to Kladanj, the nearest town in the hands of the government of the Republic of Bosnia and Herzegovina. 23.     In the early afternoon of the same day the VRS entered Potočari in force and the deportation of the civilians began, beginning with those outside the compound. VRS soldiers separated the men (between the ages of approximately 16 and 65) from the women, children and elderly who were allowed to board the buses. Major Franken instructed civilian representatives to draw up a list of all the men between the ages of 16 and 65 both inside and outside the compound. The resulting list eventually included 239 names. He later explained that his intention had been to forward the information to the International Committee of the Red Cross and other authorities, so as to keep track of the men. He also explained afterwards that he had protested to the VRS about the separation of the men from the others, but had relented upon being told that the men would not be harmed and would simply be questioned as prisoners of war in accordance with the Geneva Convention. 24.     On 13 July 1995 Lieutenant Colonel Karremans was instructed by the UNPROFOR command in Sarajevo to ensure that Dutchbat left the enclave together with locally recruited United Nations staff. Lieutenant Colonel Karremans informed General Mladić accordingly. Lieutenant Colonel Karremans interpreted these instructions so as to include staff of the non-governmental organisation Médecins Sans Frontières . Major Franken drew up a list of the persons concerned, which came to comprise 29 names. It was later learned that the Médecins Sans Frontières leadership had given Major Franken the names of persons who were related to its staff members but who were not actually employed by that body for inclusion on that list, misrepresenting them as staff members. 25.     Also on 13 July 1995 Dutchbat personnel in Potočari turned men out of the compound. Once the men had left the compound they were taken prisoner by the VRS. Dutchbat personnel later stated that they had believed the VRS would treat the men in accordance with the Geneva Conventions. 26.     In the days that followed, Bosniac men who had fallen into the hands of the VRS were killed. Others managed to evade immediate capture and attempted to escape from the enclave; some succeeded in reaching safety but many were caught and put to death, or died en route of wounds, or were killed by landmines. It is now generally accepted as fact that upwards of 7,000, perhaps as many as 8,000 Bosniac men and boys died in this operation at the hands of the VRS and of Serb paramilitary forces. 27.     The remains of the victims were buried in mass graves. In the years that followed, attempts were made to hide evidence of the massacre by re-burying remains in secondary mass graves in remote locations. B.     The applicants’ relatives 1.     Mr Rizo Mustafić 28.     Mr Rizo Mustafić was employed by Dutchbat as an electrician. On 11 July 1995 he sought refuge on the compound in Potočari with his wife and children. Although he did not hold a United Nations identity pass, he was placed on the list of 29 locally recruited United Nations staff who would be allowed to leave with Dutchbat on account of the length of his service. Nevertheless, on 13 July 1995 Warrant Officer Oosterveen – who was unaware of the existence of the list of 29 – ordered Mr Rizo Mustafić to leave the compound with the other refugees. Warrant Officer Oosterveen was later reprimanded by Major Franken for this “incredibly stupid mistake”. 2.     Mr Muhamed Nuhanović 29.     Mr Muhamed Nuhanović was the younger brother of the applicant Mr Hasan Nuhanović. The latter was at that time employed as an interpreter for Dutchbat and for that reason his name was on the list of 29 United Nations employees who would be evacuated with Dutchbat. It appears that Mr Muhamed Nuhanović had intended to join the column of Bosniac men breaking out on foot in the direction of Tuzla, but had changed his mind and sought the protection of Dutchbat on the compound at Potočari on the strong urging of Mr Hasan Nuhanović. Both Mr Hasan Nuhanović and Mr   Muhamed Nuhanović asked Major Franken to place Mr Muhamed Nuhanović on the list of United Nations staff. Major Franken asked the battalion security and intelligence officer whether a UN pass could be made on the compound but was told that this was not possible: such passes came from the United Nations office in Sarajevo. Major Franken then refused to place Mr Muhamed Nuhanović on the list, reasoning that he would compromise the safety of legitimate United Nations staff members by including among their number a person who did not meet the relevant criteria. Major Franken ordered Mr Muhamed Nuhanović to leave the compound. 3.     Mr Ibro Nuhanović 30.     Mr Ibro Nuhanović, the father of Mr Hasan Nuhanović and Mr   Muhamed Nuhanović, acted as the refugees’ representative and attended the meeting between Lieutenant Colonel Karremans and General Mladić on 12 July 1995. He was permitted for this reason by Major Franken to stay in the compound and leave with Dutchbat. However, when Mr Muhamed Nuhanović was ordered to leave the compound Mr Ibro Nuhanović elected to leave with him. 4.     Their eventual fate 31.     It is known that all three, Mr Rizo Mustafić, Mr Ibro Nuhanović and Mr Muhamed Nuhanović, were killed after having left the compound, either by VRS or by Serb paramilitary forces. Their remains were found buried in mass graves on various dates in 2007, 2010 and 2011. C.     Domestic proceedings 1.     The criminal complaint proceedings (a)     The complaint to the public prosecutor i.     The correspondence phase 32.     On 5 July 2010 the applicants lodged a criminal complaint in writing with the public prosecutor ( officier van justitie ) to the Arnhem Regional Court ( rechtbank ). The complaint included a request for a criminal investigation to be initiated into the alleged complicity of Lieutenant Colonel Karremans, Major Franken and Warrant Officer Oosterveen in genocide or alternatively in war crimes committed by the VRS against Mr   Rizo Mustafić, Mr Ibro Nuhanović and Mr Muhamed Nuhanović. Their argument was that Lieutenant Colonel Karremans, Major Franken and Warrant Officer Oosterveen had exposed the three men to the likelihood of death at the hands of the VRS in full awareness of their probable fate. The complaint made made reference to, inter alia , Articles 1 and 2 of the Convention. The public prosecutor acknowledged receipt on 12   August 2010. 33.     On 31 August 2010 the applicants’ counsel, Ms Zegveld, wrote to the public prosecutor asking for the applicants to be allowed to make statements. On various dates in 2011 she submitted information including inter alia statements made by witnesses in the parallel civil proceedings (see below), and excerpts from the debriefing report (see paragraph 65 below) and the report of the Secretary General of the United Nations (see paragraphs 81-83 below). 34.     On 17 November 2011 the public prosecutor wrote to Ms Zegveld informing her that the Public Prosecution Service ( Openbaar Ministerie ) had decided to enter into “particular reflection” ( nadrukkelijke reflectie ) on the results of the investigation up to that point with a view to deciding whether a full criminal investigation was called for. On 12 January 2012 this was followed up by a letter informing Ms Zegveld that a national reflection chamber ( nationale reflectiekamer ) had been appointed to consider the case. 35.     On 7 May 2012 Ms Zegveld wrote to the public prosecutor stating that she had been contacted by the NOS ( Nederlandse Omroep Stichting , Netherlands Broadcasting Foundation), a domestic public service radio and television broadcaster, who had apparently been informed that the reflection chamber had recommended that the prosecution go ahead. She asked the public prosecutor to confirm this. 36.     On 9 May 2012 the NOS published a press item to the effect that the national reflection chamber had recommended the prosecution of Lieutenant Colonel Karremans, Major Franken and Warrant Officer Oosterveen. The press item cited unnamed sources and added that the Public Prosecution Service was refusing to give any details. 37.     On 7 June 2012 the public prosecutor confirmed to Ms Zegveld that the reflection chamber had expressed an opinion but declined to give any details. 38.     On 11 July 2012 Ms Zegveld wrote to the public prosecutor complaining that two years had passed since the criminal complaint had been lodged and asking that a decision be taken. ii.     The decision 39.     On 7 March 2013 the public prosecutor wrote to Ms Zegveld informing her of his decision not to bring any prosecution. The reasoning on which this decision was based included the following: “In this matter, I have examined in depth the sources to which you refer in your criminal complaint as well as other sources for the presence of inculpating and disculpating material in relation to the complaint. An analysis has been made of the operational and factual context within which the impugned conduct has taken place and the legal framework within which this conduct must be considered. Important sources from which I have drawn are: the criminal complaint; the Srebrenica archive of the Regional Public Prosecution Service ( arrondissementsparket ) Eastern Netherlands (Arnhem) and the National Office of the Public Prosecution Service ( parket-generaal ); the account of the facts resulting from the Srebrenica debriefing ( Feitenrelaas Debriefing Srebrenica ) (22 September 1995); the defence report Debriefing Srebrenica (4 October 1995); the parliamentary letters concerning Srebrenica; the reports of the Secretary General of the United Nations (27 November 1995 and 12 November 1999); the final report and the hearings of the parliamentary committee of inquiry, Missie zonder Vrede (Mission without Peace) (2003); the NIOD report [NIOD Institute for War, Holocaust and Genocide Studies ( NIOD Instituut voor Oorlogs-, Holocaust- en Genocidestudies , ‘NIOD’): Srebrenica: Reconstruction, background, consequences and analyses of the fall of a ‘safe’ area ] (2002); the case-law of the International Criminal Tribunal for the Former Yugoslavia (‘ICTY’) (among others, Krstić , Popović . Blagojević and Tolimir ); the evidence given by, among others, members of the Netherlands armed forces before the ICTY; the evidence given in the [applicants’ parallel civil proceedings] against the Netherlands State; the correspondence of Hasan Nuhanović published in the daily newspaper Trouw . There has, at various times, been broad internal consultation on the results of the various parts of the investigation and the analyses and further investigative measures have been ordered and carried out. In the factual investigation no witnesses have been heard. The investigation was followed and monitored by a steering group consisting of members of the Regional Public Prosecution Service Eastern Netherlands, the National Organised Crime Prosecution Service ( landelijk parket ), the Public Prosecution Service at the Arnhem-Leeuwarden Court of Appeal ( ressortsparket ), and the National Office of the Public Prosecution Service.” The decision takes ten pages to describe the events leading up to and surrounding the fall of the Srebrenica enclave to the VRS and the deaths of Mr Rizo Mustafić, Mr Ibro Nuhanović and Mr Muhamed Nuhanović. It continues: “3.     Criminal responsibility 3.1     General It must be noted at the outset that the (deadly) violence to which Rizo Mustafić, Ibro Nuhanović and Muhamed Nuhanović were exposed after they had left the compound on 13 July 1995 constitute conduct that can be qualified as one or more of the crimes penalised in the Genocide Convention (Implementation) Act ( Uitvoeringswet Genocideverdrag ) and the War Crimes Act ( Wet Oorlogsstrafrecht ) and also that these crimes were committed by the VRS. ... 3.2     Culpable involvement in the killing of the victims named in the criminal complaint Muhamed Nuhanović ... [Major] Franken, as deputy battalion commander, after a sub-list of the UNMO with names of local staff had been placed before him, struck out the name of Muhamed Nuhanović. He did so deliberately, because, as he later informed the Netherlands UNMO officer and Hasan Nuhanović, he did not wish any names to appear on that list of persons who did not hold a UN pass and did not belong to the local staff of an international organisation. [Major] Franken was entitled to consider the possibility that the VRS would check the convoy that was due to leave the compound with care – he had pertinent knowledge – and that in so doing they would discover that Muhamed Nuhanović was being evacuated unduly ( ten onrechte ) with the local staff. [Major] Franken has stated that he feared for the lives of the persons who did hold a UN pass, which might, in the event of [Muhamed Nuhanović’s] discovery, be in danger of VRS reprisals. In the given circumstances of that moment and the powerless position in which Dutchbat found itself, this weighing of interests is not unreasonable. Moreover, [Major] Franken did, as he could be expected to in the given circumstances, have the possibility to forge a UN pass on the compound checked. However, a staff officer of section S2 (intelligence and security) informed him that this was not possible, because only access passes could be made on the compound and not UN passes as well. In this actual and acute situation in which [Major] Franken was faced with a grave dilemma in which each of the choices to be made could cost the lives of one or two people, [Major] Franken weighed the interest of the local staff more heavily than that of Muhamed Nuhanović. He made a very difficult choice between these interests, but nonetheless one that can be condoned, after having had a possible alternative investigated. In this connection, it should be observed that [Lieutenant Colonel] Karremans had received from his line of command the instruction to negotiate with the VRS about the evacuation. In view of Dutchbat’s task – and the responsibilities thereto pertaining – [Lieutenant Colonel] Karremans and [Major] Franken gave their attention to the collective, more specifically to the position of the women, children, wounded, local staff in the service of the UN or other international organisations (for example Médecins Sans Frontières ). He tried in vain to carry out these instructions by negotiating with Mladić about the evacuation in order that Dutchbat ensure the evacuation or accompany it. The position of Dutchbat to impose its will was however an impossible one, considering the events of that day and the preceding days. It turned out impossible to accompany or actually exercise any supervision, despite Dutchbat’s attempts, since attempts to do so were made impossible by the VRS. There was therefore no alternative course of action as regards the refugees in general, nor in respect of individual cases. The decision concerning the position of Muhamed Nuhanović was taken at a time when the evacuation of the refugees was still in full swing. Muhamed Nuhanović left the compound with the last of the refugees. The local staff that was in the service of the UN or other international organisations remained behind. The conduct of [Lieutenant Colonel] Karremans and [Major] Franken in relation to Muhamed Nuhanović must also be considered in this light. The involvement of [Lieutenant Colonel] Karremans was no more than indirect. It appears from the sources studied that he was aware that [Major] Franken had been approached with the request to allow Muhamed Nuhanović to remain on the compound. [Lieutenant Colonel] Karremans was aware that [Major] Franken had turned this request down. There are however no indications from which it would follow that [Lieutenant Colonel] Karremans was involved in the decision-making on this point. [Major] Franken’s decision was compatible with his instruction relating to the local staff that would in due course be evacuated together with Dutchbat. There was therefore no reason for [Lieutenant Colonel] Karremans to countermand [Major] Franken’s decision, the less so since this instruction as such was not contrary to any legal rule. It does not appear that [Warrant Officer] Oosterveen was aware of Muhamed Nuhanović’s presence on the compound and the decision-making regarding his position. I am of the view, on the above grounds, that there is no criminal reproach to be made against [Lieutenant Colonel] Karremans, [Major] Franken and [Warrant Officer] Oosterveen in this matter. Ibro Nuhanović As a member of the committee of representatives of the local population Ibro Nuhanović together with [Lieutenant Colonel] Karremans attended a meeting with Mladić. There, the impression was given that Ibro Nuhanović was entitled to safe passage. He was therefore permitted to remain on the compound to be evacuated together with Dutchbat. After [Lieutenant Colonel] Karremans had agreed with Mladić that local staff would be allowed to be evacuated with Dutchbat, he ordered his staff, in his capacity of battalion commander, to draw up a list with the names of local staff possessing a UN pass. In so doing he gave the instruction that only those employees enjoyed protected status. [Lieutenant Colonel] Karremans did not concern himself further with the composition of the list and was under the impression that Ibro Nuhanović had been granted safe passage. When Ibro Nuhanović made moves to leave the compound, it was brought to his attention by [Major] Franken that he had safe passage and could remain on the compound. Ibro Nuhanović did not wish to leave his wife and son alone and left the compound together with them. His wife and son did not have safe passage. It must be recognised that Ibro Nuhanović took this decision in dramatic circumstances. I realise that Ibro Nuhanović’s decision can be traced to [Major] Franken’s decision not to allow Muhamed Nuhanović to be evacuated together with Dutchbat. Since this decision by [Major] Franken – as I have set out above – does not incur any criminal reproach, Ibro Nuhanović’s decision to leave the compound and his consequent death cannot be impugned in a criminal sense to [Lieutenant Colonel] Karremans or [Major] Franken. As regards [Warrant Officer] Oosterveen, no involvement could be established in Ibro Nuhanović’s leaving the compound. In this respect, no criminal reproach attaches to him. Rizo Mustafić Also in respect of Rizo Mustafić, the gist of the [applicants’] reproach is that Rizo Mustafić left the compound by the fault of [Lieutenant Colonel] Karremans, [Major] Franken and [Warrant Officer] Oosterveen, because he could not be evacuated together with the battalion. [Warrant Officer] Oosterveen was given duties outside the compound on 12 July 1995. He was not aware that a list of names of local staff had been composed that in all probability included the name of Rizo Mustafić. In the morning of 13 July 1995 he met Rizo Mustafić on the compound more or less by coincidence. That meeting was brief and consisted only of Rizo Mustafić’s statement ‘We stay here’ [5] , to which [Warrant Officer] Oosterveen replied ‘That is not possible, everyone has to leave with the exception of UN staff’. That reply corresponded to his knowledge that the battalion command had given the instruction that only local staff possessing a UN pass could be evacuated with Dutchbat and that the other local staff was to be treated in the same way as the refugees. That instruction was not contrary to any legal rule. In the evening of 13 July 1995, after all refugees had left the compound, [Warrant Officer] Oosterveen told [Major] Franken about the meeting that morning with Rizo Mustafić. [Major] Franken took [Warrant Officer] Oosterveen to task for an immense blunder. [Major] Franken considered Rizo Mustafić to be a person who could count on special protection. That was when [Warrant Officer] Oosterveen first heard of the ‘list of 29’ and understood that Rizo Mustafić was on it. [Lieutenant Colonel] Karremans did not see Rizo Mustafić during those days. He only noticed Rizo Mustafić’s absence after 13 July 1995 and it surprised him that Rizo Mustafić had not remained on the compound. [Lieutenant Colonel] Karremans considered him to be a kind of permanent employee and had not realised that Rizo Mustafić did not possess a UN pass. As regards [Warrant Officer] Oosterveen, it appears that he only informed Rizo Mustafić of what he had understood from the information given by the battalion command. [Lieutenant Colonel] Karremans and [Major] Franken have displayed no conduct of criminal relevance in this matter. Accordingly, no criminal blame attaches to [Lieutenant Colonel] Karremans, [Major] Franken and [Warrant Officer] Oosterveen in respect of the killing of Rizo Mustafić either. On the basis of the events surrounding the departure of Rizo Mustafić from the compound I conclude that in the final analysis there must have been a dramatic misunderstanding.” and further includes: “The criminal complaint paints a picture in which [Lieutenant Colonel] Karremans, [Major] Franken and [Warrant Officer] Oosterveen removed the loved ones of your clients without any concern for their fate. On the basis of the results of the investigation into the facts, it is however possible to consider that this picture is not tenable: the interests and the safety of the refugees have at all times guided the decisions taken, in so far as that could safely be done within the framework in which the Dutchbat leadership had to discharge their duties.”   (b)     Proceedings before the Military Chamber of the Court of Appeal i.     Before the hearing 40.     On 3 April 2014 the applicants lodged a complaint under Article 12 of the Code of Criminal Procedure ( Wetboek van Strafvordering ) about the failure to prosecute Lieutenant Colonel Karremans, Major Franken and Warrant Officer Oosterveen. They complained that the time taken for the public prosecutor to come to a decision had been excessive; that the investigation had been flawed in that it had been limited to information already available to the public; that the applicants had not been sufficiently involved, and in particular that they had not been heard; that the opinion of the reflection chamber – which in their submission favoured prosecution – had been ignored; that the decision not to prosecute was politically motivated; and that substantive criminal law had been misapplied. 41.     On 19 May 2014 the applicants wrote to the Court of Appeal ( gerechtshof ) challenging the presence of a military member in the chamber that was to decide their complaint and asked that the case be heard by a regular civilian chamber of the Court of Appeal. They cited the fear that a serving officer would lack independence from the Ministry of Defence. They alleged that the Ministry of Defence had in the past obstructed investigations that might have led to criminal proceedings against Dutchbat members at an earlier stage. 42.     On 23 October 2014 the Challenge Chamber ( wrakingskamer ) of the Court of Appeal dismissed the challenge. It found that there was no objective reason to doubt the independence and impartiality of the military member. It also pointed out that if the prosecution of Lieutenant Colonel Karremans, Major Franken and Warrant Officer Oosterveen were to be ordered by a civilian chamber of the Court of Appeal, the defence might well be in a position to challenge that order on the ground that it had not been given by a tribunal invested by law with the necessary competence. 43.     On 28 August 2014 the public prosecutor who had earlier refused to order the prosecution submitted an official report ( ambtsbericht ). As relevant to the case, he argued that the Netherlands lacked jurisdiction within the meaning of Article 1 of the Convention, because as of 11 July 1995 “effective control” of the Srebrenica enclave had been exercised by the VRS not Netherlands armed forces. The length of the proceedings was acceptable given the sheer quantity of factual information to be examined and the painstaking consultation process that had taken place within the Public Prosecution Service. Information submitted by the applicants had been examined, as had information obtained by the Public Prosecution Service of its own motion; against the background of the information available there had been no perceived need for the applicants themselves to be heard in person. The opinion of the national reflection chamber was a purely internal document. The public prosecutor’s position was therefore that the complaint about his decision not to prosecute should be dismissed. ii.     The hearing and the interlocutory decision 44.     On 13 November 2014 a hearing took place before the Military Chamber of the Court of Appeal. The Military Chamber included as its military member an officer of the Royal Navy ( Koninklijke Marine ) holding titular flag rank and qualified for judicial office. 45.     Two advocates general ( advocaten-generaal ) to the Court of Appeal submitted a position paper ( standpunt ) in which they endorsed the position of the public prosecutor that Lieutenant Colonel Karremans, Major Franken and Warrant Officer Oosterveen were not criminally liable and stated the view that a prosecution was bound to end in an acquittal. 46.     On 5 December 2014 the Military Chamber of the Court of Appeal gave an interlocutory decision finding that the file was incomplete. It reopened the investigation and ordered the Public Prosecution Service to add to the file the official record drawn up by the Royal Military Constabulary ( Koninklijke Marechaussee ) of statements taken from certain named Dutchbat members and the debriefing report of 22 September 1995. 47.     On 26 January 2015 the applicants submitted written comments protesting that these documents had been deliberately drawn up so as to avoid any prosecutions but nonetheless highlighting particular statements contained in them. iii.     The decision 48.     On 29 April 2015 the Military Chamber of the Court of Appeal gave its decision dismissing the applicants’ complaint. Its reasoning, as relevant to the case before the Court, was the following (translation published by the applicants; emendations by the Court; footnotes omitted; emphasis in the original): “ Procedural documents 3.1 Overview of the documents Both the original charges and the complaint are accompanied by many appendices. The written responses and pleadings from the lawyers of the Defendants have also been accompanied by many exhibits. The Advocates General have only submitted an official message from the Chief Public Prosecutor for the district Oost-Nederland [i.e. Eastern Netherlands] dated 28 August 2014. In addition, a great deal of relevant information is available in the public domain via internet. In particular, the Court of Appeal mentions the following information, but this list is not exhaustive: -the report entitled ‘ Srebrenica: een “veilig” gebied ’ (Srebrenica: a ‘safe’ area), from [NIOD], with the accompanying component studies; -the parliamentary documents on the subject of ‘Srebrenica’ (Lower House of Parliament, Parliamentary Years 1997-2003, 26   122); -documentation from the parliamentary enquiry into the course of events in Srebrenica (Lower House of Parliament, Parliamentary Years 2001-2003, 28   506); -statements made by witnesses before the International Criminal Tribunal for the former Yugoslavia (ICTY); -pronouncements [i.e. judgments] of the ICTY and the International Court of Justice (ICJ); -pronouncements in the civil cases brought by the Plaintiffs [i.e. the applicants] against the Kingdom of the Netherlands; -pronouncements in the civil case brought by the Mothers of Srebrenica Foundation [i.e. Stichting Mothers of Srebrenica] and others against the Kingdom of the Netherlands and the United Nations. The parties have also drawn on these sources; the Court of Appeal therefore feels at liberty to use such documentation in arriving at its decision. The following documents were also submitted by the Advocate General in response to the interim decision: -the testimony of witnesses 2 nd Lieutenant R., Sergeant Major S., 1 st Lieutenant K, [Warrant Officer] Oosterveen and Corporal D. given before the [Royal Military Constabulary] on 2 August 1995 (official record no. P13/1995-JD); - ‘The Account of the Facts in connection with the Srebrenica debriefing’, with appendices, dated 22 September 1995. Included with a letter from the lawyers for the Plaintiffs dated 26 January 2015 was also: -an email message dated 5 December 2015 from a person of unspecified sex who claims to be a Dutchbat III veteran and wishes to remain completely anonymous. ... Expediency 5. In his [advisory opinion], the Chief Advocate General notes that it is not, or insufficiently, evident what general interest would currently be served with the criminal prosecution of the Defendants. On behalf of the Plaintiffs, [the applicant’s counsel Mr] Sluiter has argued that this is an improper ground for non-prosecution. There is no scope for a discretionary dismissal, since International law obliges the Netherlands to prosecute the most serious crimes. The Court of Appeal agrees with [Mr] Sluiter that the margins for a discretionary dismissal are narrow in the case of very serious offences that have had a serious impact on the national or international rule of law. But International law does not permit the categorical exception called for by [Mr] Sluiter. Article 53 of the Statute of the International Criminal Court (ICC) describes the Prosecutor’s authority to institute a discretionary dismissal in so many words. If there are justifiable reasons to assume that an investigation would not be in the interests of a proper administration of justice, or if prosecution would not be in the interests of the proper administration of justice, the Prosecutor is at liberty to reject a request for an investigation or refrain from prosecution. The supervision of such a discretionary dismissal by the Pre-Trial Chamber is more strictly regulated than it is under Dutch criminal procedure, because - in the case of the ICC - a non-prosecution decision must first be confirmed by the Pre-Trial Chamber. Nonetheless, this does not affect the basic principle of policy-making discretion for the Prosecutor under the watchful eye of the Courts. Interim conclusion on the basis of the formal standpoints 6. All that which the Court of Appeal has considered and decided, leads it to the opinion that: -one the one hand there are no formal obstacles to prosecution, but -on the other hand, prosecution is by no means a foregone conclusion. The Court of Appeal must therefore consider the complaint on its own substantive merits. Substantive appraisal of the complaint ... 7.3.3 In the opinion of the Court of Appeal, the Public Prosecution Service could have carried out a more extensive investigation. A number of concrete possibilities to that end were summarized in [Ms] Zegveld’s letter to the acting Chief Public Prosecutor dated 25 July 2011. The question is then: should there have been a further investigation? 7.3.4 The Plaintiffs have submitted that when a crime causing a fatality occurs, Article 2 of the [Convention] obliges the Public Prosecution Service to institute an effective investigation on its own initiative. In the view of the Plaintiffs, based on [ Hugh Jordan v. the United Kingdom , no. 24746/94, 4 May 2001], they should have been involved in that investigation. ... The Plaintiffs ... ascribe too broad a scope to the [ Hugh Jordan judgment]. In that [judgment], the European Court of Human Rights said: ‘ In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests. ’ [6] The examples given are the right to be notified of a decision not to prosecute, and access to the case file. But that does not imply that they must be involved in the investigation . In addition, the jurisprudence [of] the European Court of Human Rights (on the obligation to institute an effective official investigation [7] ) always relates to deadly force exercised by public servants themselves . That is not the situation in this case. The primary and heaviest responsibility lay and lies [with] the Bosnian Serbs, not [with] Dutchbat in general or the Defendants in particular. In the opinion of the Court of Appeal, this does not mean that the Public Prosecution Service was not under an obligation to institute an effective investigation [8] , but this circumstance does matter when appraising the criteria that such an investigation must satisfy. Whichever way you look at it, complicity in a statistically minor part of a crime cannot be compared with responsibility for the crime itself. 7.3.5 As the Plaintiffs themselves state, the facts of the Srebrenica drama have been thoroughly investigated in the past. They themselves cite the NIOD report, the investigation by the Van Kemenade Commission and the parliamentary enquiry. The Court of Appeal supplements this list with the investigations carried out by the [ICTY] in a large number of cases to date, and the information which became available during the civil proceedings, including - in particular - the statements of the Plaintiffs and Defendants themselves. In her letter of 7 March 2013, the Chief Public Prosecutor gives an overview of the sources referenced by the Public Prosecution Service. The Plaintiffs argue that the Public Prosecution Service’s investigation, on the basis of these sources, cannot be qualified as effective since it was based only on public information and cannot therefore (italicised by the Court [of Appeal]) lead to the identification and punishment of those responsible. The Court of Appeal is unable to follow the rationale of this argument. Historical and criminal investigations are not mutually exclusive; they overlap and can have a mutually beneficial effectiveness. On the basis of these sources, they were able to submit an extensive, detailed and argumented Complaint. It is perfectly clear who they had in their sights as suspects, and why. If the Public Prosecution Service had concurred with the Plaintiffs’ interpretation of the underlying facts, and with their standpoint with regard to the expediency of prosecution, it would certainly have proceeded to seek a prosecution on the basis of the material available. ... 7.4 Re c: defective decision-making The Plaintiffs are correct in contending that the Public Prosecution Service failed to explicitly include the advice of the National Reflec