CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 14 mars 2023

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padding-right:5.03pt; padding-left:5.03pt; vertical-align:top; background-color:#f3f3f3 } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }     FIRST SECTION DECISION Application no. 79065/13 Sejda KRDŽALIJA and Others against Montenegro   The European Court of Human Rights (First Section), sitting on 14 March 2023 as a Chamber composed of:   Marko Bošnjak , President ,   Krzysztof Wojtyczek,   Alena Poláčková,   Lətif Hüseynov,   Ivana Jelić,   Erik Wennerström,   Raffaele Sabato , judges , and Renata Degener, Section Registrar, Having regard to the above application lodged on 8 December 2013, Having regard to the decision of 19 January 2018 to give notice to the Montenegrin Government (“the Government”) of the complaints under Articles 2 and 3 concerning the investigation by the domestic authorities, and to declare inadmissible the remainder of the application, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having regard to the comments submitted by the Government of Bosnia and Herzegovina, as a third-party, pursuant to Article 36 § 1 of the Convention,   Having deliberated, decides as follows: INTRODUCTION 1.     The present case mainly concerns the alleged lack of an effective investigation, for the purposes of Article 2 of the Convention, into the removal of the applicants’ next-of-kin and their handing over to the authorities of the self-proclaimed Srpska Republika Bosna i Hercegovina [1] in May 1992, in the midst of an armed conflict. Later, the applicants’ next-of ‑ kin were either found dead in Bosnia and Herzegovina or have been missing and were declared dead. THE FACTS 2.     A list of the applicants is set out in the appendix. They were all represented before the Court by Ms Tea Gorjanc Prelević, the executive director of the non-governmental organisation Human Rights Action. 3.     The Montenegrin Government were represented by their Agent, Ms   V.   Pavličić. The circumstances of the case 4.     The facts of the case, as submitted by the parties, may be summarised as follows. Background information 5.     After a declaration of independence of Bosnia and Herzegovina in March 1992, following the dissolution of the former Socialist Federal Republic of Yugoslavia (SFRY), armed conflict broke out in Bosnia and Herzegovina in April 1992. The major parties to the conflict were the Army of the Republic of Bosnia and Herzegovina ( Armija Republike Bosne i Hercegovine , which was mostly made up of Bosniacs [2] and was loyal to the central authorities of Bosnia and Herzegovina), the Croatian Defence Force ( Hrvatsko vijeće obrane , which was mostly made up of Croats) and the Army of Republika Srpska ( Vojska Republike Srpske , or “VRS”, which was mostly made up of Serbs). 6.     On 27 April 1992 the Republic of Montenegro and the Republic of Serbia proclaimed the Federal Republic of Yugoslavia (FRY). 7.     On 15 May 1992 the United Nations Security Council, acting in accordance with Chapter VII of the United Nations Charter, demanded that all units of the SFRY Army (“the JNA”) and all elements of the Croatian Army either be withdrawn from Bosnia and Herzegovina, be subject to the authority of the Government of Bosnia and Herzegovina, or be disbanded and disarmed, with their weapons placed under effective international monitoring (see United Nations Security Council Resolution 757). While the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, the United Nations Secretary General and the International Criminal Tribunal for the former Yugoslavia (“the ICTY”) – a United Nations court of law dealing with war crimes that took place during the conflicts in the Balkans in the 1990s – later established that JNA members born in Bosnia and Herzegovina had actually remained there with their equipment and joined the VRS forces, and that only those born in Serbia and Montenegro had left and joined the Yugoslav Army forces (see Đokić v. Bosnia and Herzegovina , no. 6518/04, § 15, 27 May 2010, and the authorities cited therein). 8.     By 22 May 1992 Bosnia and Herzegovina had been internationally recognised, and on that date it became a UN member State. 9 .     The conflict came to an end on 14 December 1995, when the General Framework Agreement for Peace (commonly known as “the Dayton Peace Agreement”) entered into force (for more background information, see Palić   v. Bosnia and Herzegovina , no. 4704/04, § 6, 15 February 2011). 10.     On 4 February 2003 the FRY became the State Union of Serbia and Montenegro. 11.     On 3 June 2006 Montenegro declared its independence, after holding a referendum on the subject on 21 May 2006. The Republic of Serbia became the successor State to the State Union of Serbia and Montenegro. The removal of the applicants’ next of kin 12.     In April and May 1992 many Serbs and Bosniacs, including the applicants’ next-of-kin (as specified in the annex), left Bosnia and Herzegovina and relocated to Montenegro. 13.     Between 24 and 27 May 1992 a group of between seventy-three and eighty-three people (various documents enclosed in the case-file indicate different figures – see paragraphs 18 in fine , 30, 40 and 51 below), including the applicants’ next-of-kin, were apprehended in various towns in Montenegro by employees of the Ministry of the Interior of the Republic of Montenegro, at that time part of the FRY, and handed over to the forces of the self-proclaimed Srpska Republika Bosna i Hercegovina (hereinafter “Republika Srpska”). 14.     The mortal remains of two of the applicants’ next-of-kin were subsequently found in a mass grave in Bosnia and Herzegovina and identified by DNA analysis. Between 18 August 1998 and 9 May 2005 the other applicants’ relatives were declared dead by decisions of Bosnia and Herzegovina courts. Their remains have not been found to date. The ensuing proceedings in Montenegro (a)    Civil proceedings 15 .     Between December 2004 and March 2005 the applicants lodged civil claims for compensation against the Republic of Montenegro (specifically, the Ministry of the Interior) with the Court of First Instance ( Osnovni sud ) in Podgorica. They submitted that their next-of-kin had been unlawfully deprived of their liberty and deported to Republika Srpska, where they had been killed. They maintained that the respondent party had thus committed a war crime against civilians by unlawfully depriving them of their liberty, which had led to their deaths ( sa smrtnom posljedicom ), and had thereby violated the prohibition on discrimination, the right to liberty and security, and the right to life. The applicants alleged, inter alia , that the respondent party had failed for more than twelve years to carry out an adequate and serious investigation and to bring a criminal prosecution ( nesprovođenje odgovarajuće istrage i krivičnog gonjenja protiv odgovornih lica; ne sprovodi ozbiljnu istragu ) against those responsible for the crimes in question – in particular against those who had put the lives of their next-of-kin in danger, that is to say those responsible for ordering and committing a criminal offence that had resulted in their death. In total, forty-two civil claims were lodged by 193 members of the families of those who had been handed over to the forces of Republika Srpska in May 1992. In accordance with the legislation in force at the material time, the State was represented in the civil proceedings by the Supreme State Prosecutor (see paragraphs 55 and 57 below), who was represented in the cases in question by G.R. and M.M., Deputy State Prosecutors from Podgorica. 16 .     Between 29 June 2006 and 1 February 2008 the Podgorica Court of First Instance ruled partly in favour of the first, second, third, fifth and sixth applicants, and awarded them certain amounts. The court found, in substance, that the applicants’ next-of-kin had been unlawfully deprived of their liberty and of the right to lodge an appeal. The court also found that they could have been handed over only in accordance with the procedure governing extradition proceedings initiated at the request of a foreign State, which had not been the case. In addition, the court deemed that the United Nations Convention Relating to the Status of Refugees (“the Refugee Convention”) was applicable and that Article 33 thereof had been breached (see paragraph 78 below). The same court dismissed the fourth applicant’s claim as unfounded and the seventh applicant’s claim as time-barred. There is no information in the case file as to whether the parties to the proceedings appealed against all these judgments. 17 .     On 25 December 2008 the Government of Montenegro decided to settle all forty-two cases. By 27 December 2008 settlements in respect of all of the forty-two cases had been reached (including with the applicants). By 29 December 2008 the Ministry of Finance had paid 4,135,000 euros (EUR) in total to the victims’ spouses, children, parents and siblings. The applicants received EUR 165,000 in total. In particular, the first and second applicants received EUR 25,000 each; the third applicant received EUR 35,000 (EUR   25,000 as the mother of one victim and EUR 10,000 as the sister of another victim); the fourth applicant received EUR 10,000; the fifth applicant received EUR 10,000; the sixth applicant received EUR 35,000 (EUR 25,000 as the spouse of one victim and EUR 10,000 as the sister of another victim); and the seventh applicant received EUR 25,000. The settlement declarations provided that “by the payment of the quoted amounts of compensation the claimants are considered to have been completely compensated for all ... damage caused by the death [of their next-of-kin] and waive all other possible future claims for compensation on this ground”. At the same time the Podgorica Court of First Instance, having apparently reopened the proceedings, accepted the settlements and quashed its own first-instance judgments issued in favour of the applicants. (b)    Criminal proceedings (i)       Investigation and trial 18 .     On 18 October 2005 the High State Prosecutor ( Viši državni tužilac ), N.R., requested that an investigation ( zahtjev za sprovođenje istrage ) be opened in respect of six persons who held the following positions in the State apparatus of the Republic of Montenegro, which was part of the FRY at the relevant time in 1992: an assistant to the Minister of the Interior ( pomoćnik ministra ), heads of two separate Security Centres of the Police Directorate ( načelnici Centara bezbjednosti – hereinafter “Security Centres”), a deputy head of a Security Centre, a local police commander ( komandir stanice milicije ), and an intelligence officer of the State Security Department ( operativni radnik DB-a ). They were suspected of having committed a war crime against eighty-three refugees from Bosnia and Herzegovina by depriving them of their liberty and handing them over to police officers from four Bosnia and Herzegovina municipalities. 19 .     The prosecutor proposed that the suspects be interviewed, along with ninety-two witnesses and/or injured parties, including: the first, second, sixth and seventh applicants; the next-of-kin of the third, fourth, fifth and sixth applicants; the disappeared son of the third applicant; twenty-two family members of other victims; N.P., the Minister of the Interior after 14 July 1992; and M.B., the President of the Republic of Montenegro, part of the FRY, at the time of the events in question. 20 .     In November 2005 an investigating judge interviewed the six suspects. 21 .     On 18 February 2006 the Podgorica High Court ( Viši sud ) decided to conduct an investigation into the six persons on suspicion of their committing a war crime against civilians. 22.     Between November 2006 and April 2008 seven witnesses were heard by the Podgorica High Court: two witnesses were heard in November 2006, two in May 2007, and three in April 2008. 23 .     In March 2008 the High Court requested police assistance in its attempts to find four other witnesses. At the same time it requested international legal assistance from the Prosecutor’s Office of Bosnia and Herzegovina, the Ministry of Justice of Republika Srpska (an entity of Bosnia and Herzegovina), and the Belgrade District Court in Serbia. It asked that twenty-eight injured parties be interviewed as witnesses, together with a further twenty-nine witnesses. 24 .     In April and May 2008 twenty witnesses were interviewed by the Prosecutor’s Office of Bosnia and Herzegovina, including the first, second, third, sixth and seventh applicants. The other witnesses had either refused to testify, or had moved away, or had not been summoned owing the fact that the details of their respective addresses were incomplete or missing. The Podgorica High Court requested that certain additional persons be interviewed. 25.     In May 2008 three witnesses were interviewed in Serbia. 26 .     The investigating judge from the Podgorica High Court and a deputy Special State Prosecutor, L.V., attended the interviews held in Bosnia and Herzegovina and in Serbia. The interviews in Serbia were also attended by three defendants and the representative of another defendant. 27.     Between May and September 2008 four witnesses were interviewed in Republika Srpska. 28 .     Between May and December 2008 forty-nine witnesses were interviewed by the Podgorica High Court. 29 .     In October 2008 the investigation was extended to three more persons. 30 .     On 19 January 2009 the above-mentioned deputy Special State Prosecutor, L.V., issued an indictment against nine people who had been employees of the Ministry of the Interior of the Republic of Montenegro, part of the FRY at the time of the events in question, for committing a war crime against civilians: two assistants to the Minister of the Interior, three heads of Security Centres, one head ( rukovodilac sektora ) of the State Security Department in Herceg Novi, the head of the State Security Department in Ulcinj, the chief commander of the Herceg Novi police, and an intelligence officer of the State Security Department in Herceg Novi. They were indicted for breaching international law, during and in relation to the armed conflict in Bosnia and Herzegovina, by unlawfully deporting ( nezakonito preseljavanje ) seventy-nine civilians – citizens of Bosnia and Herzegovina, who had had the status of “refugees” (including the applicants’ next-of-kin). The indictment specified that they had executed an order of the Minister of the Interior – namely, to act on the requests of the Ministry of the Interior of Republika Srpska to deprive of their liberty persons who had come from the territory of Bosnia and Herzegovina and to return them to Bosnia and Herzegovina. In particular, the first defendant had requested the employees of the State Security Department to collect information about certain persons being sought and to forward that information to the State Security Department ( Upravi Službe državne bezbjednosti ), and thereafter to Public Security departments within their centres, with a request for further instructions; the second defendant had forwarded to all Security Centres a telegram dated 23   May 1992 that had requested compliance with the request of the Ministry of the Interior of Republika Srpska to bring in all Serbs from the territory of Bosnia and Herzegovina who were aged between 18 and 60 so that they could be returned to Bosnia and Herzegovina. Acting on those requests the third, fourth and fifth defendants had collected and obtained information from Republika Srpska and had forwarded that information to the State Security Department (from which they had been receiving instructions regarding further action to be undertaken) and to the Public Security departments in Herceg Novi, Bar and Ulcinj. The sixth, seventh, eighth and ninth defendants, on the basis of that information, had requested the authorised persons in the said Security Centres to identify people from the territory of Bosnia and Herzegovina, to deprive them of their liberty, and to bring them in and return them to the territory of Bosnia and Herzegovina. Subsequently, authorised persons from those Security Centres had unlawfully deprived of their liberty seventy-nine citizens of Bosnia and Herzegovina and had forcefully deported them in several batches ( u više navrata ), handing some of them (including the first and second applicants’ sons) over to a prison officer in Foča, some others (including the other applicants’ next-of-kin) to police staff ( Sekretarijat za unutrašnje poslove ) in Srebrenica, and some others to police staff in Sokolac. The indictment referred to: Article 3 § 1(c) (in conjunction with Article 147) of the Fourth Geneva Convention (see paragraphs 71 and 72 below); Article 4 § 2 (e) and Article 17 of Additional Protocol II to the Geneva Conventions; Article 5 of the European Convention on Human Rights; Article   1A (2) and Article 33 §   1 of the 1951 Refugee Convention; Article   1(2) of the 1967 Protocol relating to the Status of Refugees; and Article 142 § 1 of FRY Criminal Code. 31 .     The indictment proposed that the defendants be heard, along with more than a hundred witnesses and representatives of injured parties ( oštećene porodice ), and that more than seventy pieces of written evidence be read. 32 .     In 2009 the Podgorica High Court issued an information leaflet for injured parties and witnesses. It provided information, inter alia , on: testifying; the procedure to be followed in the event that a witness’s earlier statement differed from a more recent one or from statements made by the others involved; the security of witnesses; and various practical arrangements. It was distributed to all those involved in the proceedings, and published on the noticeboard of the High Court and on the High Court’s website. 33 .     The first, second, third, and sixth applicants had their costs of travel to the court and their daily expenses reimbursed in May 2010 and September 2012, and the seventh applicant was reimbursed in September 2012. 34.     It can be seen from the case file that the deputy Special State Prosecutor altered the “factual description” ( činjenični opis ) contained in the indictment on 15   February 2011 and on 14 September 2012. 35 .     In the course of the trial fifty-two hearings were held: two hearings were held in 2009, forty-one in 2010, four in 2011, and five in 2012. Five hearings were adjourned: three in 2010, one in 2011 and one in 2012. The court heard all the defendants and five witnesses. Pursuant to a joint proposal ( saglasni predlog ) made by the parties to the proceedings, the statements of another ninety-two witnesses were read, together with more than 120   pieces of written evidence. 36 .     In the course of the proceedings: (a) one of the defendants stated that he had warned his neighbours to hide their son, as he had not known on what grounds people from Bosnia and Herzegovina were being arrested; (b)   another of the defendants submitted that they had been cheated by the “Bosnian structures” and that if they had known what would happen to the arrested people they would not have returned them. He also submitted that at the time in question (28 May 1992) one more bus had been “ready to go”, but that they had allowed those people to walk away free, upon which the operation had effectively ended. He further maintained that he and his colleagues had had information that terrorist actions were being prepared in one of the towns of Montenegro and that their task had been to prevent the war from spilling over to Montenegro. Arrest warrants ( potjernice ) had been issued in respect of some of the persons sought by Bosnia and Herzegovina; (c) the chief of the Security Centre in Kotor testified that his staff had released five captured Bosniacs, as they had feared what could happen to them if they were handed over to the VRS forces; and (d) the Secretary-General of the Montenegrin Red Cross stated that all those who had fled to Montenegro from other republics of the former Yugoslavia had had refugee status. 37.     It would appear from some of the testimony given that one of the buses carrying some of those who had been handed over to forces of the self-proclaimed Republika Srpska was hit by grenades launched by Bosniacs as it was passing through Bosnia and Herzegovina. 38.     A report prepared by the State Security Office in Herceg Novi on 1   July 1992 stated that after the armed conflict had broken out in Bosnia and Herzegovina, several thousand Serbs and Bosniacs had sought refuge in Herceg Novi. The same report also stated that the State Security Office had learned that twenty-two   Bosniacs who had been handed over on 25 May 1992 had been murdered in Bosnia and Herzegovina, even though it had been said that they would be exchanged for other prisoners. 39.     It appears from the case-file material that at least seven people of those handed over survived. At least one of them was a Bosniac. (ii)     The High Court judgment 40 .     On 22 November 2012, after a remittal, the High Court, sitting as a three-judge panel, acquitted all the defendants in a judgment which ran to 107   pages. The court examined the facts of the case and established that on 25 and 27   May 1992 a total of seventy-three civilians (some of them Serbs and some of them Bosniacs – including the applicants’ next-of-kin) had been unlawfully deprived of their liberty by the police in Montenegro. 41 .     The most crucial extracts of the judgment appear to be the following: “... [it] is indisputably established that an order [was issued] by the Minister of the Interior of the Republic of Montenegro, the late P.B., which was in the form of a telegram that was withdrawn ... [requiring] compliance with requests [made by] the Ministry of the Interior of [Republika Srpska] that ... Muslims who had come from ... Bosnia and Herzegovina to Montenegro be deprived of liberty and be returned to Bosnia and Herzegovina ... ... ... [It] is indisputably established ... that, [i] by way of executing the order of the Minister of the Interior of the Republic of Montenegro, the late P.B., to act on the requests of the Ministry of the Interior of [Republika Srpska] ..., [one of the defendants] ... sent to all Security Centres ... in the Republic of Montenegro a telegram ... dated 23   May 1992 requesting [them] to comply with the request of the Ministry of the Interior of [Republika Srpska] that all [Serbs] from Bosnia and Herzegovina aged between eighteen and sixty be brought in, in order that they might be taken in hand and returned to Bosnia and Herzegovina, and [ii] by executing the order of the Minister of the Interior of the Republic of Montenegro, the late P.B. – which was in the form of a telegram and which referred to ... [Muslims] – and by acting on a telegram ... of 23 May 1992 [another defendant and one more person] requested authorised employees [ ovlašćeni službenici ] ... to deprive of their liberty [people coming from Bosnia and Herzegovina], bring them in, and return them to ... Bosnia and Herzegovina, after which the authorised employees of the Security Centre ... deprived them of their liberty and in several batches handed them over to [police and prison staff – Kazneno-popravni dom ] in Foča and [police staff] in Srebrenica ... ... It is therefore indisputably established that the injured parties were civilians, and that they were unlawfully deprived of their liberty and then returned to Bosnia and Herzegovina; in particular, [Serbs] were returned because they had avoided their military-service obligations, and [Muslims] [were returned] so that they could be exchanged for captured [Serbs]. ... ... a report [ informacija ] produced by the Minister of the Interior ... dated 24   November 1992 stated, inter alia , ... that, in principle, it had ‘accepted’ an opinion [ važio stav ] [given by] the relevant prosecution office ... [to the effect] that it was more expedient [ cjelishodnije ] – owing to ... difficulties in securing material evidence and securing witnesses – to hand over persons who were suspected of having committed a criminal offence and who were being sought by official police bodies to the relevant body of the internationally-recognised Bosnia and Herzegovina. Such factual allegations [as are made in] the report are, however, irrelevant for the purposes of any assessment of the defendants’ criminal responsibility, given that neither the Criminal Procedure Code [of SFRY and FRY] nor the Internal Affairs Act [of the Socialist Republic of Montenegro] provides that the police, when apprehending people pursuant to requests made by telegram ..., have to obtain an opinion from the relevant prosecutor before complying with such a request. The 1992 FRY Constitution provided in its Article 23 that everybody had the right to liberty and that no one could be deprived of their liberty save in cases and under a procedure prescribed by federal law. ... After Bosnia and Herzegovina had been internationally recognised, the Ministry of the Interior of the Republic of Montenegro had no authority to process [ servisira ] the requests of the Bosnia and Herzegovina Security Centres the way that it did. ... The legal regulation relating to international legal assistance in criminal/legal matters was prescribed in Articles 517-40 of the SFRY Criminal Procedure Code, as in force at the time in question, and the people from Bosnia and Herzegovina could have been handed over only if the criteria [ pretpostavke ] for extradition ... had been met, and [only] after the extradition procedure had been initiated by [the lodging of a] request by a foreign State ... and following a decision affirming that the criteria for extradition had been met. ... In the instant case, people were unconstitutionally deprived of their liberty ... and of their constitutionally-guaranteed right to appeal or to avail themselves of another legal remedy ..., and were returned to Bosnia and Herzegovina against their will. ... ... None of the evidence examined ... has established the [truth of the] allegations [contained in] the indictment that [one of the defendants] acted on the [late] Minister’s order ... to comply with the requests of ... [Republika Srpska] ... None of the evidence examined ... has established the [truth of the] allegations [contained in] the indictment that [three other defendants] acted on the [late] Minister’s order ... to comply with the requests of ... [Republika Srpska] ... ... A war crime against civilians under Article 142 of the SFRY Criminal Code can be committed only during war or an armed conflict ..., and the armed conflict [does not have to be] international [in nature]; ... [it may be] non-international [ unutrašnji ], provided that the conditions set out in the 1977 Additional Protocol II to the 1949 Geneva Convention have been met. [For a person] to be deemed to have committed this criminal offence it is sufficient to have committed any one of numerous stipulated acts, provided that the ... victim ... was a civilian. A war crime can be committed [either] by ordering the undertaking of a prohibited act or by committing such an act. ... In order for a criminal offence to be categorised as a war crime and not as some other criminal offence, it is decisive that: - the injured party belongs to a category of persons protected by international law, and - at the time (and place of the execution of the offence) there is a state of war or armed conflict, there is a link between the criminal offence and that armed conflict, and the rules of international law have been breached. ... This was an armed conflict between people living in [Bosnia and Herzegovina], Serbs, Croats and Muslims; [in the light of that fact], this conflict was not ... international .... ... ... active participants in an [armed] conflict are bound by the rules of international law – that is to say the Geneva Conventions and additional protocols. ... ... Under the indictment ... the defendants were charged with breaching the rules of international law by unlawfully removing [ preseljavanje ] civilians – citizens of Bosnia and Herzegovina of Muslim and Serb [ethnicity], who had the status of ‘refugees’... ... ... even though [the prosecutor] charged [the defendants] with having removed persons holding the status of ‘refugees’ under the [Refugee Convention] and the Protocol on Status of Refugees, the prosecutor failed to indicate any legal terms or to describe acts from which it would be apparent [ proizilazilo ] that ... [they] ... had such a status. Therefore, the prosecutor ... [referred] to provisions that were not incorporated into the factual description [ nijesu ugrađene u činjenični opis ]. ... ... [E]ven though [the prosecutor] charged [the defendants] with acting in a manner contravening Article 3 § 1 (c) of the Fourth Geneva Convention [he] failed to indicate any legal terms [in respect thereof] or to describe any acts relating to a violation of human dignity – in particular humiliating and degrading treatment. Accordingly, the prosecutor [was alleged to have] acted in a manner contravening the rules of international law by referring to provisions of international law that were not incorporated in the factual description [contained in the indictment]. ... ... [T]he prosecutor ... charged the defendants with the act of unlawful ‘deportation’ [ preseljavanje ] of civilians, as one of the forms of criminal offence listed under Article 142 § 1 of the FRY Criminal Code, but referred to Article 17 of Additional Protocol II as a violation of ... international law, which relates only to ‘displacement’ [ premještanje ]. On 14   September 2012 the Deputy Special Prosecutor changed the indictment, leaving out [ izostavljajući ] from its factual description [the allegation] that the defendants had also acted in a manner contrary to Article 147 of the Fourth Geneva Convention - a provision that relates to deportation (and is applicable only to international armed conflicts). Both deportation [ preseljavanje ] and displacement [ premještanje ] constitute forms of involuntary and unlawful evacuation [ evakuaciju ] of people from the territory in which they are staying [ na kojoj borave ]. However, under customary international law, these two terms do not have the same meaning. ‘Deportation’ means the removal of persons from a State, whereas ‘forceful displacement’ within the meaning of Article 17 of Additional Protocol II means displacement ... within one State. The same view was taken in various judgments delivered by international courts, such as the Milutinović ..., Krstić ..., Krnjojelac ..., Simić and others ..., Brđanin ..., and Blagojević ... judgments. ... Even under the Rome Statute of the International Criminal Court (ICC), both displacement and deportation are viewed as constituting expulsion [ se vrše u smislu protjerivanja ] from territory where persons are lawfully staying [ legalno nastanjena ]. In the present case, returning the above-mentioned persons to Bosnia and Herzegovina was not undertaken with the purpose of their expulsion [ nije bilo u svrhu da se protjeraju ]. The perpetrator has to have the intention of permanently removing [ trajno udalji ] a person from a territory, which implies an intention to impede that person’s return, and it has to be done on a discriminatory basis. ... The court established that the deportation (that is to say the displacement, which was the act that ... the defendants [had actually been charged] with) had not been [carried out] on a discriminatory basis, as Muslims ... and Serbs had been returned to ... Bosnia and Herzegovina at the same time. Indeed, some of the Serbs who had been returned to Bosnia and Herzegovina had later returned to Montenegro ..., where some of them still lived. ... ... The proposition [ teza ] of the prosecutor that the deportation had been carried out on discriminatory basis because [the deported] Muslims ... had been returned in order to be exchanged, whereas the Serbs ... [had been returned] in order that they could participate in the armed conflict, thereby distinguishing between them on the basis of their ethnicity, cannot in any way whatsoever be considered [ podvesti pod pojmom ] to constitute discrimination on the basis of national affiliation (racial discrimination). Notably, the International Convention on the Elimination of All Forms of Racial Discrimination ... [defines] racial discrimination as ‘any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life’, which is not so in the instant case [ a što u konkretnom slučaju ne stoji ], as racial discrimination consists of measures and acts restricting the rights of one ethnic group or an entire nation and treating [such a group or nation in a manner that is] visibly different in comparison to others who are treated normally. It can be seen [ proizilazi ] from the indictment itself that the present case is not about ‘deportation’ [ u konkretnom slucaju ne radi [se] o ‘preseljavanju’ ], ... as the prosecutor specified in the indictment ... that the civilians in question had had the right to have their persons, honour and resolve ‘not to participate in an armed conflict’ respected; from this it follows that the prosecutor described the act of ‘deportation’, with which he charged the defendants, as an altogether different act – from the latter [act] it follows that the civilians were returned to Bosnia and Herzegovina precisely in order that they could participate in the armed conflict, and not in order that they be removed [ iz čega proizilazi da tužilac radnju izvršenja ‘preseljavanje’ koju optuženim stavlja na teret opisuje kao sasvim drugu radnju iz koje proizilazi da su civilna lica vraćena u BiH upravo da bi učestvovala u oružanom sukobu, a ne da bi bila preseljena ]. “Deportation” is one of the criminal offences listed under Article 142 § 1 of the FRY Criminal Code; ‘displacement’ – which is specified in Article 17 of Additional Protocol II ..., and which the defendants had been charged with – is not [one of those offences]. On the other hand, and contrary to the prosecutor’s position, it should be borne in mind that for a crime to be considered to constitute a war crime against a civilian population it is necessary that it be committed by violating the rules of international law, which are binding on active participants in war, armed conflict or occupation. Therefore, its perpetrator had to have been a member of a military, political or administrative organisation that was a party to the conflict in question, or any person who had acted in support of a party to the conflict, regardless of whether he had been a member of armed forces or any other unarmed organisations, and who would, by virtue of his activity, have taken a side in the conflict. A person who committed one of the acts listed in the Article outside of an organisational structure as understood in the aforementioned way would not be deemed responsible for a war crime, but rather for a corresponding criminal offence, even if the offence was committed during a war, armed conflict or occupation. The prosecutor did not indicate in the indictment the parties to the conflict. ... Nor did he charge the defendants with having acted as members of any of the parties to the conflict; on the contrary, he asserted that they had acted pursuant to the order of the Minister of the Interior of the Republic of Montenegro, the late P.B. ... Even according to the theory of international law, armed forces perform armed operations on behalf of parties to the conflict ... Their organisation and ... functioning are strictly within the internal jurisdiction of [the respective] State. Armed forces are all organised combat units that are under the command of one of the parties to the conflict in question, be they State or non-State actors. ... ... On 27 April 1992 the FRY Constitution was proclaimed, by which the SFRY legally ceased to exist and the FRY came into existence. ... [Under the law, police may – in war, [or] when there is an immediate danger of war [or] during a state of emergency – be used to execute combat tasks [usually assigned to] armed forces. ... Under Article 78 of the FRY Constitution, the Federal Parliament was entitled to ... declare war, an imminent danger of war, [or] a state of emergency. Under Article 99, in the event that the Federal Parliament is unable to convene ... the Federal Government may make [such] a declaration instead. Neither the Federal Parliament nor the Federal Government declared war, an imminent danger of war, or a state of emergency. In the present case the defendants were neither members of the armed forces nor in the service of any of the parties to the conflict in Bosnia and Herzegovina. The prosecutor did not even charge them with acting as members of any of the parties to the conflict. The defendants, as members of the Ministry of the Interior of the Republic of Montenegro, were carrying out routine duties [ pristupili svakodnevnim djelatnostima ]; in respect of the case in question they acted on the orders of the Minister of the Interior, the late P.B., which [were delivered] in the form of a telegram – they identified and brought in persons who had come from the territory of Bosnia and Herzegovina and were in the territory of Montenegro, and handed them over, pursuant to [P.B.’s] order, to the authorities in Bosnia and Herzegovina ... The actions of the defendants, as well as the order itself, were unlawful under international law. However, as it had not been proved that the defendants, as members of the Ministry of the Interior, had belonged to the armed forces of the FRY, or that they had been in the service of any of the parties to the conflict and thereby active participants [in it], in which case the rules of international law would be binding on them, their actions could not be examined and assessed as falling within the meaning of executing the acts listed under Article 142 of the SFRY Criminal Code ...., as they lacked a certain quality – [namely,] membership in armed forces or membership in the services of one of the parties to the conflict. As it was not proved that the defendants had committed the criminal offence in question, the court acquitted them. ...” 42.     In establishing the facts the court explained which pieces of evidence it had accepted and which it had not, and for what reasons. (iii)    The Court of Appeal’s judgment 43 .     Following an appeal by the Supreme State Prosecutor and several injured parties, on 17 May 2013 the Court of Appeal ( Apelacioni sud ) in Podgorica upheld the above judgment, in substance endorsing its reasoning. 44 .     The relevant part of the judgment reads as follows: “...[the first-instance] judgment extensively and in detail presented the established facts, and set out ... the evidence on [the basis of] which [those facts] had been established, ... [and] rightly indicated shortcomings and [the fact] that the legal terminology and actions indicating the violations of the international-law provisions to which the State prosecutor referred had not been incorporated in the factual description contained in the amended indictment ... The first-instance court ... correctly established and completely clarified all the ... facts relevant for the delivering of a correct judgment and lawful decision, and then correctly ... concluded that it had not been proved that the defendants had committed the criminal offence for which they had been indicted ... Bearing in mind the content of Article 3 § 1 (c) of the Fourth Geneva Convention ..., Article 4 §§ 1 and 2 (e) of the Additional Protocol to that Convention ..., and Article 17 of the same Protocol... (provisions that, according to the amended indictment, were violated by the defendants), it is clear that they have not been incorporated in the factual description of the altered indictment. In order to correctly assess [ za pravilnu ocjenu ] a [possible] violation of those provisions it was not sufficient to indicate that [that alleged violation] had concerned a violation of the human dignity of civilians who had not been directly participating in the hostilities and who had had the right for their [personal integrity], honour and conviction that they should not participate in the armed conflict to be respected, and who should have been treated in every situation humanely and without any unfavourable discrimination based on religion or conviction; but it was necessary to specify ... which violations of human dignity and humiliating acts had been committed, given that ... the Serb and Muslim [civilians] had been returned to Bosnia and Herzegovina for different reasons. It ... was also necessary to indicate ... in what way the defendants had breached Article 17 of the Protocol in question, which relates to a prohibition on the forceful ‘displacement’ [ premještanje ] of civilians, where paragraph   2 of this Article imperatively provides that civilians cannot be forced to leave their territory for reasons related to the conflict, and given that the factual description contained in the indictment indicated that the defendants had carried out an unlawful ‘deportation’ [ preseljavanje ] of civilians – an action which, according to the written indictment, was the only of numerous alternative variations of this criminal offence with which the defendants had been charged. It was necessary to indicate [in what way the defendants had breached Article 17 of the Proto