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FIRST
SECTION
CASE OF JULARIĆ v. CROATIA
(Application
no. 20106/06)
JUDGMENT
STRASBOURG
20 January
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Jularić v.
Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Registrar,
Having
deliberated in private on 13 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 20106/06) against the Republic
of Croatia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Croatian national, Ms Marta Jularić
(“the applicant”), on 24 April 2006.
- The
applicant, who had been granted legal aid, was represented by Mr D.
Bučanac, a lawyer practising in Velika Gorica. The Croatian
Government (“the Government”) were represented by their
Agent, Ms Š. StaZnik.
- The
applicant alleged, in particular, that the relevant authorities had
not carried out a thorough and effective investigation into the death
of her husband, as required under Article 2 of the Convention.
- By
a decision of 2 September 2010 the Court declared the application
partly admissible.
- The
Government but not the applicant filed additional observations on the
merits (Rule 59 § 1).
THE FACTS
- The
applicant was born in 1936 and lives in Osijek.
1. Background to the case
- The
events at issue took place in Vukovar, a Croatian town near the
Serbian border which was heavily attacked by the Yugoslav People’s
Army and paramilitary Serbian armed forces during the Homeland War
from August to November 1991 and finally occupied at the end of
November 1991. Between 1992 and 1996 Vukovar was a part of the United
Nations Protected Area (the “UNPA”).
- In
1996 the United Nations Security Council established the United
Nations Transitional Administration in Eastern Slavonia, Baranja and
Western Sirmium (the “UNTAES”), which included Vukovar.
On 15 January 1998 the UNTAES mandate ceased and the transfer of
power to the Croatian authorities began.
2. Facts concerning the death of the applicant’s
husband
- According
to the applicant, on 17 September 1991 several members of the Serbian
paramilitary forces came to her home, took some money and ransacked
the house looking for money and gold. The applicant recognised three
of them as P.Z., S.Z. and V.Z.
- On
3 October 1991 three men, dressed in Yugoslav People’s Army
uniforms, one of whom was M.S. and personally known to the applicant,
came to the applicant’s family house in Vukovar. They hit her
husband, A.J., before taking him away. A few minutes later the
applicant heard shots from an automatic weapon. The uniformed men
then also took the applicant and her grandson, M.J., together with
some other persons, including S.M., to the military headquarters. On
the way there the applicant saw the dead body of her husband, his
head battered, lying on a path in front of a house; the persons who
had brought him out of the house were standing next to the body.
3. Investigation into the death of the applicant’s
husband
- In
autumn 1991 the applicant reported the above-mentioned event to the
Vukovar police station, which was located in Zagreb at that time.
- On
18 March 1992 the Vinkovci Police Department lodged a criminal
complaint with the Osijek Military Prosecution against ten alleged
offenders (G.J., M.S., S.S., M.N., B.G., M.K., Z.R., P.N., S.Z. and
V.Z.), alleging that on 3 October 1991 they had arrested several
individuals and then killed two of them, one of whom was the
applicant’s husband, and had thus committed a war crime against
the civilian population. Following a request of the Osijek Military
Prosecution, dated 14 May 1992, the Osijek Military Court opened an
investigation in respect of the ten suspects on 31 August 1992
on the criminal charge of armed rebellion. The Military Court also
ordered the suspects’ detention and issued a warrant to find
and arrest them, as they had absconded.
- On
9 February 1993 the Military Court heard evidence from the applicant
and her son. The applicant said that in September and October 1991,
after the Serbian forces had entered Vukovar, but before the city
finally fell, several persons, including her former neighbours M.S.,
S.S. and three brothers Z., all dressed in Yugoslav People’s
Army uniforms and equipped with shotguns and Kalashnikovs, had been
coming to the yard in front of her house daily, threatening her and
asking for her sons. She further stated that one of the persons who
had come to her house on 3 October 1991 and taken her husband away
was M.S., but she did not know the names of the others. A few minutes
later, while she was being taken to the military headquarters, the
applicant had passed the dead body of her husband. Her neighbour,
S.M., who had been with her at the time, knew the names of the men
who had taken the applicant’s husband away.
- On
17 December 1996 the Osijek County State Attorney’s Office
requested that the investigation be extended to two further suspects,
Đ. P. and A.G. The charge was changed to one of war crimes
against the civilian population. It was also requested that two
witnesses be called once the police had found out their addresses. On
29 December 1996 the Osijek County Court requested the police to
inform them of the addresses of the two witnesses. On 9 January 1997
the Osijek County Court extended the investigation to Đ.P. and
A.G. and issued arrest warrants against them. On 23 January 1997 the
police gave the County Court the requested addresses.
- On
30 January 1997 the applicant and another witness gave evidence
before the Osijek County Court. The applicant specifically named one
of the perpetrators, and the witness S.M. said that she had seen all
twelve suspects at the scene.
- On
16 May 1997 the Osijek County Court stayed the investigation on the
ground that the suspects and some of the witnesses resided in the
occupied territory of Croatia, where the Croatian authorities were
not able to exercise their power.
- The
Convention was ratified by Croatia on 5 November 1997.
- The
territories of Eastern Slavonija, Baranja and Western Slavonija were
re-integrated into Croatia in January 1998.
- On
27 November 2000 jurisdiction in the matter was transferred to the
Vukovar County Court (Zupanijski sud u Vukovaru) and the
investigation was resumed.
- On
2 October 2001 one of the suspects, Đ.B., was arrested and gave
evidence before an investigating judge of the Vukovar County Court.
On 10 October 2001 the investigating judge heard evidence from
three further suspects, B.G., Z.R. and S.Z. On 11 October 2001 Đ.B.
again gave evidence before the investigating judge. All the suspects
denied their involvement in the murder of the applicant’s
husband. On 5 December 2001 the applicant again gave evidence.
- On
14 May 2002 the Vukovar County State Attorney’s Office
requested a further investigation. On 13 and 23 September 2002 the
investigating judge again heard evidence from the witness S.M and two
other witnesses. Witness D.K., who had been ordered to bury the body
of the applicant’s husband, stated that he had been arrested by
members of the Serbian paramilitary forces and taken to the place
where the dead body of the applicant’s husband had been lying.
The head had been battered and the body was riddled with bullets. The
witness could not name any of the uniformed men who had been standing
next to the body and had ordered him to bury it. The other witness,
M.K., had no knowledge of the relevant facts.
- The
applicant enquired about the investigation on several occasions and
on 17 December 2002 she was informed that an investigation had been
opened against S.Z., V.Z. and others in the Vukovar County Court on
charges of war crimes against the civilian population, and was still
pending.
- On
21 May 2003 the investigating judge terminated the investigation
following a general amnesty granted in respect of the criminal
offence of armed rebellion. On 27 May 2003 a three-judge panel of the
Vukovar County Court quashed that decision on the ground that, prior
to the amnesty, the offence had already been reclassified as a war
crime against the civilian population. On 17 September 2003 the case
file was forwarded to the State Attorney’s Office. On 31
October 2003 that Office requested a further investigation.
- A
psychiatric report in respect of witness Z.F. was commissioned. The
report was submitted to the Vukovar County Court on 6 February 2004.
On 17 February 2004 Z.F. gave evidence before the investigating
judge. He had no specific knowledge of the facts in issue. Further
hearings were held before the investigating judge on 28 April, 29
October and 15 November 2004. In the meantime, on 20 September
2004, the investigation in respect of G.J. was terminated owing to
his death.
- On
13 January 2005 the applicant complained to the State Attorney of
inactivity and delays in the investigation into the death of her
husband and of failure to commit the suspect for trial.
- At
a hearing held before the investigating judge on 17 March 2005
witness S.M. gave her evidence.
- On
6 April 2005 the applicant again gave evidence. She stated that
another witness, A.M., had been present when her husband had been
taken away on 3 October 1991. A.M. was not called as a witness.
- Further
hearings were held before the investigating judge on 6 and 21 April,
15 June, 13 July, 8 August and 11 November 2005.
- On
25 March 2006 the applicant lodged a constitutional complaint of
inactivity on the part of the investigating authorities. The
Constitutional Court answered in a letter of 31 March 2006 that the
applicant’s complaint was not suitable for proceedings before
that court.
- At
hearings held before the investigating judge on 11 May 2006 and
14 November 2007, further witnesses gave evidence.
- Identification
parades were held on 17 November and 9 December 2008 in order to
verify the identity of the suspect M.S. None of the three witnesses
called, including S.M., recognised him as one of the people who had
taken the applicant’s husband away. On 5 March 2009 the
investigation in respect of M.S. was terminated for lack of evidence.
- On
1 July 2009 the investigating judge requested international legal
assistance in order to have the suspect A.G. interviewed in Sweden.
On 3 April 2009, in reply to a request from the Swedish
authorities, the investigating judge supplied a list of questions to
be put to A.G. The latter was heard by the Swedish authorities on 9
February 2010.
- On
31 March 2010 the investigating judge heard evidence from witness
M.J.
- On
22 April 2010 the Vukovar County Court terminated the proceedings in
respect of the suspect M.N. because he had died.
- On
27 April 2010 the offence with which the suspects had been charged
was reclassified as armed rebellion. On the basis of that
reclassification and pursuant to the Amnesty Act, the Vukovar County
Court terminated the proceedings on 30 July 2010.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicant complained that the relevant authorities had not taken all
relevant and adequate steps to investigate the death of her husband,
identify the perpetrators and bring them to justice. She relied on
Article 2 of the Convention, which reads:
“1. Everyone’s right to life
shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court
following his conviction of a crime for which this penalty is
provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
1. The parties’ arguments
- The
applicant argued that in the eighteen years that had passed since the
killing of her husband the national authorities had failed to comply
with their duty to conduct an effective and thorough investigation
capable of identifying the perpetrators and bringing them to justice.
- The
Government argued that the killing of the applicant’s husband
had occurred in 1991, during the Homeland War in Croatia, probably at
the hands of members of the occupying forces and on territory outside
the control of the Croatian authorities. Croatia had regained control
over that territory in January 1998 and until that time it had been
very difficult to conduct an effective investigation.
- Since
1998 numerous steps had been taken. However, some of the suspects
were still untraceable. The difficulties in the investigation were
also due to the unwillingness of witnesses to recall traumatic
experiences related to the war.
2. The Court’s assessment
- The
Court firstly notes that the alleged perpetrators were not State
officials but members of either the Yugoslav People’s Army or
the Serbian paramilitary forces, both acting on Croatian territory
without the authorisation or consent of the Croatian authorities.
They shall therefore, as regards the responsibility of the respondent
State under Article 2 of the Convention, be regarded as private
individuals.
- The
Court has already held that the obligation to protect life under
Article 2 of the Convention, read in conjunction with the
State’s general duty under Article 1 of the Convention to
“secure to everyone within [its] jurisdiction the rights and
freedoms defined in [the] Convention”, requires that there
should be some form of effective official investigation when
individuals have been killed as a result of the use of force, either
by State officials or by private individuals (see, for example Branko
Tomašić and Others v. Croatia, no.
46598/06, § 62, ECHR 2009 ... (extracts)).
- The
investigation must be effective in the sense that it is capable of
leading to the identification and punishment of those responsible
(see Oğur v. Turkey [GC], no. 21594/93, § 88,
ECHR 1999 III). In particular, the authorities must take the
reasonable steps available to them to secure evidence concerning the
incident, including, inter alia, eyewitness testimony,
forensic evidence and, where appropriate, an autopsy which provides a
complete and accurate record of injury and an objective analysis of
clinical findings, including the cause of death (see, for an example
concerning autopsies, Salman v. Turkey [GC], no. 21986/93,
§ 106, ECHR 2000-VII; for an example concerning
witnesses, Tanrıkulu v. Turkey [GC], no. 23763/94,
ECHR 1999-IV, § 109; and for an example concerning forensic
evidence, Gül v. Turkey, no. 22676/93, § 89, 14
December 2000). Any deficiency in the investigation which undermines
its ability to establish the cause of death or the person responsible
may risk falling foul of this standard.
- There
must also be an implicit requirement of promptness and reasonable
expedition (see Yaşa v. Turkey, 2 September 1998, Reports
of Judgments and Decisions 1998-VI, §§ 102-04, and
Mahmut Kaya v. Turkey, no. 22535/93, §§ 106-07,
ECHR 2000 III,). It must be accepted that there may be obstacles
or difficulties which prevent progress in an investigation in a
particular situation. However, a prompt response by the authorities
in investigating the use of lethal force may generally be regarded as
essential in preserving public confidence in the maintenance of the
rule of law and in preventing any appearance of collusion in or
tolerance of unlawful acts.
- For
the same reasons, there must be a sufficient element of public
scrutiny of the investigation or its results to secure accountability
in practice as well as in theory. The degree of public scrutiny
required may well vary from case to case. 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 (see
Shanaghan v. the United Kingdom, no. 37715/97, §§ 91-92,
4 May 2001).
- As
regards the present case, the Court notes that in 1991 the applicant
reported to the Croatian authorities that her husband had been taken
away and killed on 3 October 1991 by members of the Serbian
paramilitary forces or the Yugoslav People’s Army.
- In the present case an official investigation was
indeed opened in connection with the killing of the applicant’s
husband. However, there were substantial shortcomings in the conduct
of the investigation. In this connection the Court will examine only
the part of the inquiry that took place after January 1998 since
before then the Croatian authorities had had no real authority in the
town of Vukovar.
- The
Court notes firstly that although the investigation started soon
after the killing of the applicant’s husband no steps
whatsoever were taken in the period between January 1998 and 2
October 2001 during which one of the suspects, Đ.B., was
arrested and gave evidence before an investigating judge of the
Vukovar County Court. While the Court accepts that the respondent
State needed some time to organise its judicial system in the newly
regained territories, it nevertheless finds that a period of complete
inactivity as regards the progress of the investigation in the
present case of about three years and nine months appears
unreasonable even in these circumstances.
- Further
investigative measures were plagued by inexplicable delays. Thus, no
relevant activity was carried out during the following periods:
between 5 December 2001 and 14 May 2002; between 14 May and
13 September 2002; between 13 September 2002 and 21 May 2003;
between 17 February 2004 and 6 April 2005; between 11 November 2005
and 11 May 2006 and between 14 November 2007 and 17 November 2008.
- These
delays together with the overall length of the inquiry compromised
the effectiveness of the investigation and could not but have had a
negative impact on the prospects of establishing the truth.
- Other
elements of the investigation are also relevant. For example, in his
evidence given on 23 September 2002 witness D.K. said that he had
been ordered by several uniformed men to bury the body of the
applicant’s husband. While it is true that he was not able to
name any of those men, the investigating authorities made no effort
to find out whether D.K. could recognise any of the suspects as those
men, for example by organising an identification parade to that end.
Furthermore, in her evidence given on 6 April 2005 the applicant
stated that witness A.M. had been present when her husband had been
taken away on 3 October 1991. However, the investigating authorities
made no effort to call witness A.M.
- The Court considers that the deficiencies described
above are sufficient to conclude that the national authorities failed
to carry out an adequate and effective investigation into the
circumstances surrounding the killing of the applicant’s
husband. There has accordingly been a violation of the procedural
obligation of Article 2 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed 50,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government deemed the amount claimed excessive and unsubstantiated.
- Having
regard to all the circumstances of the present case, the Court
accepts that the applicant suffered non-pecuniary damage which cannot
be compensated solely by the finding of a violation. Making its
assessment on an equitable basis, the Court awards the applicant EUR
30,000 in respect of non-pecuniary damage, plus any tax that may be
chargeable to her on that amount.
B. Costs and expenses
- The
applicant did not claim any costs and expenses incurred. Accordingly,
the Court considers that there is no call to award her any sum on
that account.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of the
procedural obligation of Article 2 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 30,000
(thirty thousand euros), plus any tax that may be chargeable to the
applicant, in respect of non-pecuniary damage, to be converted into
Croatian kuna at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 20 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis Registrar President
