This case was brought before the European Court on Human Rights (ECtHR) by relatives of four Bosniacs who were living in Žepa, a Bosniac enclave in eastern Bosnia and Herzegovina (BiH), in 1995. BiH’s self-declared independence from the former Socialist Federal Republic of Yugoslavia in March 1992 generated a brutal war between the Army of the Republic of Bosnia and Herzegovina (predominantly consisting of Bosniacs), the Croatian Defence Council (predominantly consisting of Croats) and the Army of the Republika Srpska (which was mostly made up of Serbs). After days of besiege, and in disregard of the United Nations Security Council Resolutions appointing Žepa and other towns as ‘safe areas’ not to be attacked, the Army of the Republika Srpska seized Žepa on 15 July 1995. Thereupon, the applicants’ relatives fled to Serbia where they hoped to find refuge. However, they were discovered by a members of the Yugoslav Army (VJ) and the Ministry of the Interior of the Republic of Serbia (MUP) , severely beaten and ill-treated underway to and in the Serbian detention camps Šljivovica and Mitrovo Polje, where reportedly conditions were bad. Applicants claim that one of the men suffocated in a too densely packed transport to the camps, while the others were either murdered or died as a result of their injuries sustained and lack of medical assistance in the camps. The war ended in 1995.
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, the Serbian State Security 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 on the ground that there had not been elements of the alleged war crime or any other crime within the OWCP’s jurisdiction in the acting of the suspects. Challenging this decision, the applicants lodged a constitutional appeal before the Constitutional Court of Serbia in April 2013 which subsequently was rejected on formal grounds (i.e. the OWCP’s decision was found not to fall within the scope of Article 170 of the Constitution of the Republic of Serbia 2006), a decision applicants where informed of in July 2014. As a last resort, the HLC -on behalf of victim’s relatives- filed two complaints with the ECtHR against Serbia in December 2014; one for the failure to investigate cases of torture of the detained men and one for the lack of an effective investigation, capable of leading to the identification and punishment of those responsible for their deaths. Whereas the Court handed down its decision on the first complaint in October 2016, this judgment addresses the second complaint.
The Serbian Government submitted that the applicants had failed to bring their complaint to the ECtHR timely, namely within six month from the date on which the final decision was taken, as required by Article 35 (1) of the European Convention of Human Rights and Fundamental Freedoms (ECHR). Firstly, it argued that at the time when the criminal complaint had been lodged with the domestic authorities, prosecution of the alleged crimes had already become statute-barred and secondly, that at the time when applicants submitted their application before the ECtHR, they should have realized for longer than six months that the OWCP would not initiate investigations into the war crime allegations (para. 51).
Meanwhile, the applicants put forward that that their application referred to the situation wherein the Serbian state continuously breached its obligation to properly investigate the allegations, continuously infringed their rights under the ECHR, that it would have been unreasonable to expect them to initiate investigative measures so soon after the deaths of their relatives, that the OWCP made slow yet significant progress in the prosecution of war crimes and that the alleged war crimes do not become statute-barred.
While the debate centres around the question whether applicants lodged their complaints timely, the Court outlines the relevant provision and principles relating to the extent of the applicants’ “duty of diligence” to timely lodge their complaints about the lack of any or an effective investigation into deaths or ill-treatment to the ECtHR, reiterating that Article 35 (1) ECHR determines that the Court 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, three situations allow the six months period to run from a different moment:
In sum: an applicant’s duty of diligence is two-folded: he must a) contact the domestic authorities promptly concerning progress in the investigation – which implies the need to apply to them with diligence, since any delay risks compromising the effectiveness of the investigation and b) lodge his applications promptly with the ECtHR once he is, or should have become, aware that the investigation at the domestic level is ineffective (para. 59 under 264). Having noted that is difficult to determine with precision whether an applicant has responded timely or promptly and that it depends on the circumstances of the case, the Court applies the first element to the present case and finds that the delay in lodging a complaint to the Serbian authorities in 2011 about events that took place in 1995, is not crucial since the Serbian authorities had the duty to investigate the ill-treatment and deaths of the victims occurring in the presence of Serbian police officers, even without a complaint. Such delay is also acceptable in view of an applicant’s vulnerable situation, the complexity of the case, the nature of the alleged human rights violations at stake, and when it is reasonable for the applicant to wait for developments that could have resolved the case (para. 59 under 265).
With regards to the second element of the duty of diligence, the Court reiterates that persons who wish to bring a complaint to the ECtHR about the ineffectiveness or lack of an investigation by domestic authorities, do so without unduly delay and, importantly, are assigned with the responsibility to realize at a point in time that no effective investigation has been, or will be, provided (para. 59 under 268). The Court observes that unduly delay normally does not arise as long as there is some meaningful contact between the relatives and authorities concerning the complaint and requests for information, or some indication of (expected) progression in the investigations (para. 59 under 269). However, for two reasons the Court holds that there were no realistic indications that investigations would be initiated and finds that the applicants should have realized this: first, since its creation in 2003, the OWCP refrained from investigating the death of the victims in Serbia that notably had occurred in the presence of State authorities. Second, since 2006 the OWCP consistently treated the war in BiH as an internal armed conflict to which Serbia was not a party and hence found no ground for initiating criminal proceedings for war crimes (paras. 51, 60, 63, 64).
Following its conclusion that applicants have failed to introduce their complaints with due diligence and the complaint thus falls outside the six-month limit provided for by Article 35 (1) ECHR, the Court declares the case inadmissible.
The ECtHR clearly requires victims to have an active attitude in initiating proceedings at a domestic level, in keeping track of investigations and in filing an application to it timely. But, if even the Court (justly) notes that it is difficult to determine whether an applicant has responded timely or promptly, how justified is it to expect a victim to assess this? How should victims make a successful assessment of “the circumstances of the case” influencing their duty of diligence? Is it reasonable to expect this of them? In this case, one could argue that the burden of responsibility for the prosecution of war crimes is being unduly put on the applicants’ shoulders which can have far-reaching consequences for future victims of human rights violations who may find themselves left with no remedy for the injustice they are faced with.