CEDH · CASELAW;CLIN;ENG — 15 février 2011

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Bosnia and Herzegovina - 4704/04 Judgment 15.2.2011 [Section IV] Article 2 Article 2-1 Effective investigation Effectiveness of investigation into disappearance of applicant’s husband during the war in Bosnia and Herzegovina: no violation   Facts – In 1995, during the war in Bosnia and Herzegovina, the applicant’s husband, a military commander in a UN “safe zone”, disappeared after going to negotiate terms of surrender with an opposing local force (the VRS). In 1999, following repeated attempts to obtain any official news about her husband, the applicant lodged a complaint with the Human Rights Chamber, a domestic human rights body set up by the 1995 Dayton Peace Agreement, which concluded that he had been a victim of enforced disappearance and ordered Republika Srpska, one of the entities of Bosnia and Herzegovina, to carry out a full investigation and to either release Mr   Palić, if still alive, or to hand his remains over to his wife. In 2001 the authorities acknowledged that Mr   Palić had been held in a military prison for about a month following his disappearance before being taken away by a VRS security officer. Following findings by the Chamber’s successor body, the Human Rights Commission, in September 2005 and January 2006 that the core elements of the Chamber’s decision had still not been enforced in that Mr   Palić’s fate had not been established and no prosecution had been brought, the Republika Srpska authorities set up an ad hoc commission to investigate his case (it was alleged by the applicant that one of the members of this commission had attended the surrender negotiations in 1995 prior to Mr   Palić’s disappearance). Having interviewed numerous witnesses, the ad hoc commission adopted a report establishing that, after being held in a military prison, Mr   Palić had been taken away by two VRS officers. Six months later the Court of Bosnia and Herzegovina issued an international arrest warrant against the two VRS officers, who had meanwhile taken up Serbian citizenship in Serbia and could not be extradited. A third person allegedly implicated in Mr   Palić’s disappearance was arrested and transferred to the custody of the International Criminal Tribunal for the former Yugoslavia. Following inquiries by a second ad hoc commission Mr   Palić’s body was identified in August 2009. Law – Article 2: Notwithstanding initial delays, the investigation had finally led to the identification of the body. Given that almost 30,000 people had gone missing as a result of the war in Bosnia and Herzegovina, that in itself was a significant achievement. Between October 2005 and December 2006 the domestic authorities had taken various investigative steps which had led to international arrest warrants being issued. The investigation had been at standstill ever since as both suspects had in the interim moved to Serbia and taken up Serbian citizenship, and so could not be extradited. It was not necessary to establish whether Bosnia and Herzegovina was obliged to request Serbia to take proceedings in this case, since the applicant herself could have reported the case to the Serbian War Crimes Prosecutor, who had jurisdiction over serious violations of international humanitarian law committed anywhere in the former Yugoslavia. In such circumstances, the Court found that, notwithstanding the lack of any convictions to date, the domestic criminal investigation had been effective in the sense that it had been capable of leading to the identification of those responsible for Mr   Palić’s death. The procedural obligation under Article   2 was one of means, not of result. As to the independence of the investigation, there was no reason to doubt that the competent prosecutor’s office had acted independently. Even though it was of grave concern for the Court that a member of the ad hoc commission had allegedly played a role, no matter how minor, in Mr   Palić’s disappearance, it was not necessary to examine the question of the independence of that commission since it had had no influence on the conduct of the ongoing criminal investigation. As to the requirement for promptness, the Court reiterated that the obligations under Article   2 had to be interpreted in a way which did not impose an impossible or disproportionate burden on the authorities. In a post-conflict situation, what amounted to an impossible and/or disproportionate burden had to be measured by the very particular facts and context. More than 100,000 people had been killed, almost 30,000 people had gone missing and more than 2,000,000 people had been displaced during the war in Bosnia and Herzegovina so that, inevitably, choices had had to be made in terms of post-war priorities and resources. The country had also undergone a fundamental overhaul of its internal structure and political system, with new institutions being created and existing ones restructured. While it was difficult to pinpoint when exactly that process had ended, the Court considered that the domestic legal system should have become capable of effectively dealing with disappearances and other serious violations of international humanitarian law by 2005. The criminal investigation into Mr   Palić’s disappearance had effectively begun late that year. Since there had been no substantive period of inactivity since then on the part of the domestic authorities, the domestic criminal investigation could be considered to have been conducted with reasonable promptness and expedition. Conclusion : no violation (five votes to two). The Court also concluded that there had been no violation of Articles 3 and   5.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes