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2017 | EUROPEAN COURT OF HUMAN RIGHTS | Rabija Fejzi? and others vs Serbia, Application no. 4078/15, 19 October 2017

 

Court

European Court of   Human Rights

Type of decision

Judgment

Date judgment

19 October 2017

Applicaton no.

4078/15

Area of   jurisdiction

Violations of Human Rights under the European   Convention of Human Rights

Claim

The Serbian State failed in its obligations under the   procedural aspect of Article 2, and Articles 6 and 13 of the  ECHR to conduct an effective, impartial and thorough investigation capable of leading to the  identification and punishment of those responsible for the deaths of   applicants’ relatives.

Principle legal   argument(s)

Application lodged outside of the necessary time-frame.

Type of reparation sought

Satisfaction

This judgement includes an examination of applicants' duty to bring applications to the European Court of HUman Rights (ECtHR) within the apprpriate time-frame. Conducting effective investigations in response to alleged war crimes is part of the reparation known as 'Satisfaction' and the case illustrates that in order to obtain this remedy from the ECtHR, victims or their relatives must first take initiative themselves in monitoring the progress (or indeed the lack) of any domestic investigations. 

This case was brought against Serbia before the ECtHR by relatives of four Bosniaks (Bosnian Muslims) who were living in Žepa, a UN-declared safe-haven in war-torn eastern Bosnia and Herzegovina (BiH), in 1995. After days of siege, and in disregard of United Nations Security Council Resolutions, the Army of the Republika Srpska seized Žepa on 15 July 1995. The applicants’ relatives were among those who fled by crossing the border into nearby Serbia. They were discovered by members of the Yugoslav Army (VJ) and the Serbian security forces (MUP), and severely beaten and ill-treated while underway and in the Serbian detention camps of Šljivovica and Mitrovo Polje. Applicants claim that one of the men suffocated in a densely packed transport to the camps, while others were murdered or died as a result of injuries sustained and lack of medical assistance in the camps. 

In September 2011 the Humanitarian Law Centre (HLC) lodged a criminal complaint on behalf of the applicants and other individuals as victims with the Office of the War Crimes Prosecutor of Serbia (OWCP) against members of the VJ, the MUP for alleged war crimes. (Founded in 2003, the OWCP has jurisdiction over grave breaches of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991). On 1 March 2013, the OWCP decided not to prosecute finding that elements neither of the alleged war crimes nor of any other crime within the OWCP’s jurisdiction were present in the actions of the suspects. 

The applicants challenged this decision in an appeal before the Constitutional Court of Serbia in April 2013. The appeal was rejected on technical grounds: ‘given the legal nature and content of the OWCP’s decision, it could not be considered as an individual act which was decisive with respect to the applicants’ human rights, as required by Article 170 of the Constitution (para.23).’ The Applicants where informed of this in July 2014. 

In December 2014 the HLC filed this complaints against Serbia with the ECtHR, on behalf of victim’s relatives, alleging failure to carry out an effective investigation, capable of leading to the identification and punishment of those responsible for their deaths. 

The Serbian Government submitted that the applicants had failed to bring their complaint to the ECtHR within the time allowed (6 months from the closure of the last domestic legal remedy), as required by Article 35 (1) of the European Convention of Human Rights (ECHR). It argued that (i) at the time when the criminal complaint was first lodged with the domestic authorities, prosecution of the alleged crimes had already become statute-barred in Serbia and (ii) that by the time the applicants submitted their application before the ECtHR, they could and should have realized that the OWCP was not investigating war crime allegations in relation to the war in BiH, which it saw as an internal conflict. (para. 51). 

The Applicants submitted, among other things, (i) that their application pertained to a situation in which the Serbian state was in continual breachits obligation to properly investigate the allegations and (ii) that alleged war crimes cannot be statute-barred. 

The Court reiterated that it may only deal with applications after all domestic remedies have been exhausted and within a period of six months from the date on which the final decision was taken. However, the Court went on to explain that in the following three situations, the six month period may be calculated from a different starting point:

1)    when it is clear from the outset, that no effective domestic remedy is availableto the applicant (para. 59 under 259);

2)    when an existing domestic remedy turns out to be ineffective, the six month period starts running from the date when the applicant first became or ought to have become aware of that ineffectiveness(para. 59 under 260). 

3)    in cases of a continuing situation or of continuing breach of the authorities’ obligation to provide a remedy, the period starts to run afresh each day. Only when that situation ends, may the six-month period actually begin to run (para. 59 under 261). 

Thus, an applicant’s duty of diligence to act promptly is two-fold: s/he must 
a) be prompt in contacting the domestic authorities concerning progress in the investigation, and 
b) lodge the application promptly with the ECtHR once s/he is, or could have beenaware that the domestic investigation is ineffective (para. 59 under 264). 

In this particular case, the Court found that the delay in lodging a complaint with the Serbian authorities (until 2011), about events that had taken place in 1995, was not fatal to the claim, since the Serbian authorities had an ongoing duty to investigate any allegations of ill-treatment or deaths occurring in the presence of Serbian police officers, even without a complaint. Moreover, such a delay was acceptable in view of the complexity of the case, the nature of the alleged violations, and the reasonableness of waiting for domestic developments that might have resolved the case at some earlier point (para. 59 under 265).

However, the Court went on to reiterates that persons who wish to bring a complaint to the ECtHR about the ineffectiveness or lack of an investigation by domestic authorities, must also do so without undue delay, and - very importantly – that they themselves have the responsibility to realize whether or not an effective investigation has been or will be carried out (para. 59 under 268). It held that there were no realistic indications that domestic investigations would be initiated by the Serbia authorities, and that the applicants could have realized this from the following circumstances: (i) since its creation in 2003, the OWCP had refrained from investigating the deaths of victims inside Serbia that had occurred in the presence of State authorities; (ii) since 2006 the OWCP had consistently treated the war in BiH as an internal armed conflict to which Serbia was not a party. Thus the war crime provisions of Serbia’s Criminal Code were not applicable, so there could be no ground for initiating criminal proceedings for war crimes committed there (paras. 51, 60, 63, 64). 

The judges concluded that the applicants had therefore failed to introduce their complaints in a timely way and declared the case inadmissible. 

Epilogue

The ECtHR clearly requires victims to take an active role in initiating domestic proceedings, keeping track of investigations and filing any applications to the Court. Arguably, this places a weighty burden of responsibility for the investigation (and also the prosecution) of war crimes on the  shoulders of victims/applicants. In the light of this decision, the path to a remedy seems narrow indeed.