FOURTH SECTION

DECISION

Application no . 29620/05 Renad Å EREMET against Bosnia and Herzegovina , Montenegro and Serbia

The European Court of Human Rights (Fourth Section), sitting on 8 July 2014 as a Chamber composed of:

Ineta Ziemele , President, Päivi Hirvelä , Dragoljub Popović , Nona Tsotsoria , Zdravka Kalaydjieva , Nebojša Vučinić , Faris Vehabović , judges, and Françoise Elens-Passos, Section Registrar ,

Having regard to the above application lodged on 1 August 2005,

Having regard to the observations submitted by the Government of Bosnia and Herzegovina and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Renad Šeremet , is a citizen of Bosnia and Herzegovina, who was born in 1966 and lives in Sarajevo. He was represented before the Court by Mr D. Alagić , a lawyer practising in Sarajevo.

2. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms M. Miji ć . The application was not communicated to the Governments of Montenegro and Serbia.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

1. Relevant background

4 . After its declaration of independence on 6 March 1992, a brutal war started in Bosnia and Herzegovina. It woul d appear that more than 100,000 people lost their lives and more than 2,000,000 people were displaced in the course of the war. It is estimated that around 30,000 people went missing and that around one quarter of them is still missing. The conflict came to an end on 14 December 1995 when the General Framework Agreement for Peace in Bosnia and Herzegovina entered into force. In accordance with that Agreement, Bosnia and Herzegovina consists of two Entities, the Federation of Bosnia and Herzegovina and the Republika Srpska .

5 . In response to atrocities then taking place in Bosnia and Herzegovina, on 25 May 1993 the United Nations Security Council passed Resolution 827 establishing the International Criminal Tribunal for the former Yugoslavia (“the ICTY”), headquartered in The Hague. More than 70 individuals have already been convicted and proceedings are ongoing for 20 accused. In the period from February 1996 until October 2004, local prosecutors in Bosnia and Herzegovina were required to submit case files to the ICTY for review; no person could be arrested on suspicion of war crimes unless the ICTY Office of the Prosecutor had received the case file beforehand and found it to contain credible charges (the “Rules of the Road” procedure). Moreover, the ICTY had primacy over national courts and could take over national investigations and proceedings at any stage in the interest of international justice. As part of the ICTY ’ s completion strategy, in early 2005 war crimes chambers were set up within the Court of Bosnia and Herzegovina (“the State Court”) with primacy over other courts in Bosnia and Herzegovina as regards war crimes (for information about that court and its jurisdiction over war crimes cases, see Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, §§ 3 4-40, ECHR 2013). More than 100 persons have been finally convicted by the State Court.

6. Furthermore, the International Commission on Missing Persons (“the ICMP”) was established at the initiative of United States President Clinton in 1996. It is currently headquartered in Sarajevo. Reportedly, the ICMP has so far identified by DNA more than 14,000 missing persons in Bosnia and Herzegovina, whereas local authorities have identified more than 8,000 missing persons by other methods. In 2005 the Government of Bosnia and Herzegovina and the ICMP established a Missing Persons Institute, also headquartered in Sarajevo (see paragraph 17 below). It became operational on 1 January 2008.

2. Situation in the Grbavica neighbourhood of Sarajevo in 1992

7 . During the 1992-95 war the Grbavica neighbourhood of Sarajevo was controlled by the VRS forces [1] . In the first several months of the war, many Bosniacs [2] and Croats [3] were killed, disappeared, tortured and/or raped by a paramilitary group led by Veselin Vlahovi ć, also known as Batko . It would appear that the applicant ’ s parents were killed by that group on 9 July 1992.

3. Criminal proceedings

(a) ICTY proceedings

8 . On 2 October 2002 Ms Biljana Plavšić, one of the war-time leading political figures of the Republika Srpska , pleaded guilty before the ICTY to having participated in the persecution of Bosniacs and Croats from, among other areas, the Grbavica neighbourhood of Sarajevo. She was sentenced to 11 years ’ imprisonment.

9 . Cases against Radovan Karadžić , the war-time civilian leader of the Republika Srpska , Ratko Mladić , the war-time military leader of that Entity, and Vojislav Šešelj , a leading political figure of Serbia in the 1990s, are also pending before the ICTY. They are charged with the participation in a joint criminal enterprise to permanently remove Bosniacs and Croats from, inter alia , the Sarajevo area.

(b) Domestic proceedings

10 . As indicated in paragraph 5 above, war crimes chambers were set up within the State Court in 2005. In 2008 an international arrest warrant was issued against Veselin Vlahović , mentioned in paragraph 7. He was arrested in Spain and extradited to Bosnia and Herzegovina in 2010. On 17 February 2011 the Prosecutor of Bosnia and Herzegovina (“the State Prosecutor”) issued an indictment against him for crimes against humanity. Having heard more than 100 testimonies, on 29 March 2013 a Trial Chamber of the State Court found him guilty of participation in the commission of a number of killings, beatings, rapes and other crimes in the Grbavica neighbourhood of Sarajevo in 1992 as a part of a widespread and systematic attack against the non-Serb civilian population of that territory and sentenced him to 45 years ’ imprisonment (the heaviest penalty in Bosnia and Herzegovina). On 13 June 2014 an Appeals Chamber of the State Court upheld the conviction against Veselin Vlahović and rendered its judgment, sentencing him to 42 years ’ imprisonment.

11 . On 9 November 2011 and 22 November 2013 Trial Chambers of the State Court found also two of his accomplices guilty of participation in the commission of a number of killings, beatings, rapes and other crimes in the Grbavica neighbourhood of Sarajevo in 1992 as a part of a widespread and systematic attack against the non-Serb civilian population of Grbavica and sentenced them to 18 ( Saša Baričanin ) and 11 years ’ imprisonment (Zoran Dragičević , also known as Krompir ). On 28 March 2012 and 28 February 2014, respectively, Appeals Chambers of the State Court upheld those first-instance judgments.

4. Declarations of presumed death

12. On 14 October 2002 the applicant sought and obtained declarations of presumed death with respect to his parents.

5. Identification of mortal remains

13 . The applicant ’ s father, Fahrudin Šeremet , was identified by DNA on 28 December 2005. His mother, Zijada Šeremet, has not yet been identified.

6. Proceedings before the Human Rights Commission of Bosnia and Herzegovina

14 . On 3 November 2004 the Human Rights Commission held that there had been a violation of Articles 3 and 8 of the Convention. It ordered the Republika Srpska to release any and all information in its custody pertaining to the fate or whereabouts of the applicant ’ s parents and to conduct a full, meaningful, thorough and detailed investigation aimed at making known the fate or whereabouts of the applicant ’ s parents and bringing the responsible to justice. Lastly, it awarded the applicant 5,000 convertible marks (BAM) [4] for non-pecuniary damage.

7. Civil proceedings for damages against the Republika Srpska

15 . By a judgment of the Sarajevo Cantonal Court of 23 September 2011 the applicant was awarded damages as regards the disappearance and death of his parents in the amount of BAM 35,000. The Republika Srpska lodged an appeal against that judgment which would appear to be still pending.

B. Relevant domestic law

1. Missing Persons Act 2004

16. The Missing Persons Act 2004 entered into force on 17 November 2004 (Official Gazette of Bosnia and Herzegovina no. 50/04). In accordance with section 3 of the Act, families have the right to know the fate of missing persons (that is, their whereabouts if they are still alive, or the circumstances of death and their place of burial, if they are dead) and to obtain their mortal remains. Under section 4 of the Act, the relevant domestic authorities have the obligation to provide any and all such information in their keeping.

17 . Section 7 of that Act provides for the setting up of a Missing Persons Institute. In 2005 the ICMP and the Government of Bosnia and Herzegovina founded the Institute, headquartered in Sarajevo, pursuant to that provision and the Agreement on Assuming the Role of Co-founders of the Missing Persons Institute of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina, International Treaty Series, no. 13/05). It became operational on 1 January 2008. One of the organs of that Institute is an Advisory Board, comprised of six representatives of families of missing persons (see Article 10 of the Agreement mentioned above).

18 . In accordance with section 9 of the Act, the status of missing person comes to an end on the date of identification. Therefore, if a missing person is declared dead but the mortal remains have not been found and identified, the process of tracing continues.

19. Pursuant to section 11 of the Act, the families of missing persons are entitled to monthly financial support under some conditions, notably if they were supported by the missing family member until his or her disappearance and if they are still in need of support (in other words, if they are not in paid employment and do not receive welfare benefits beyond 25% of the average salary paid in Bosnia and Herzegovina [5] ). Section 15 of the Act provides for the setting up of a Missing Persons Fund for that purpose. However, as the Fund has not yet been established, no payment has been made so far.

20. Families of missing persons are also entitled to, inter alia , temporary administration of the property of missing persons, burial of mortal remains at public expense and priority in access to education and employment for the children of missing persons (section 18 of the Act).

21 . Section 21 of the Act provides for the setting up of Central Records with the aim of verifying information about missing persons from different sources (government agencies, associations of families of missing persons, the ICMP and the International Committee of the Red Cross) and creating a single database. While Central Records were founded on 3 February 2011, it would appear that the verification process is still ongoing. Once that process is completed, all those recorded as missing will be declared dead (section 27 of the Act), but the tracing process will nevertheless continue (see paragraph 18 above).

2. Declarations of presumed death

22. Despite the fact that the verification process outlined in paragraph 21 above is pending, any person may request that a declaration of presumed death be issued with respect to a missing person (see the Non-Contentious Procedure Act 1998, Official Gazette of the Federation of Bosnia and Herzegovina, nos. 2/98, 39/04, 73/05; and the Non-Contentious Procedure Act 2009, Official Gazette of the Republika Srpska , no. 36/09).

COMPLAINTS

23. The applicant maintained that Bosnia and Herzegovina, Montenegro and Serbia were all responsible for the disappearance of his parents which took place in July 1992. He also complained that Bosnia and Herzegovina had failed to fulfil its procedural duty to investigate their disappearance and that the authorities ’ reactions to his suffering had been inadequate. He relied on Articles 2, 3, 5, 8, 13 and 14 of the Convention.

THE LAW

A. As regards Bosnia and Herzegovina

1. Article 2 of the Convention

24. The relevant part of Article 2 reads as follows:

“1. Everyone ’ s right to life shall be protected by law. ...”

(a) Substantive aspect

25. The Government claimed that the Court lacked temporal jurisdiction to deal with this complaint because the applicant ’ s parents had disappeared in July 1992, whereas the Convention had entered into force with respect to Bosnia and Herzegovina in July 2002.

26. The applicant did not make any comments in this connection.

27 . The Court reiterates that the provisions of the Convention do not bind a Contracting Party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the Convention with respect to that Party; this is an established principle in the Court ’ s case-law based on the general rule of international law (see, for example, Blečić v. Croatia [GC], no. 59532/00, § 70, ECHR 2006 ‑ III).

28 . Insofar therefore as the applicant ’ s complaint is based on the event of disappearance itself in July 1992, the Court lacks temporal jurisdiction (see Varnava and Others v. Turkey [GC], nos. 16064/90 et al ., § 134, ECHR 2009; Emin and Others v. Cyprus, Greece and the United Kingdom ( dec. ), nos. 59623/08 et al ., 3 June 2010; and Skendžić and Krznarić v. Croatia , no. 16212/08, §§ 56-59, 20 January 2011). It follows that this complaint is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

(b) Procedural aspect

29. The Government argued that the Court lacked temporal jurisdiction, that the application had been lodged out of time and/or that the applicant could no longer claim to be a victim. Alternatively, they contended that this complaint was manifestly ill-founded. In their opinion, the investigation into the disappearance and death of the applicant ’ s parents had complied with all the requirements of Article 2.

30. The applicant disagreed. He criticised, in particular, the fact that the mortal remains of his mother had not yet been identified and that not all of those responsible for his parents ’ disappearance and death had been brought to justice.

31. In view of its conclusion below, the Court considers that it can leave open the question, raised by the Government, as to whether the Court has temporal jurisdiction to deal with this complaint, whether the application had been lodged within the six-month time-limit and whether the applicant can still claim to be a victim (see, in this connection, Palić v. Bosnia and Herzegovina , no. 4704/04, 15 February 2011).

32. As to the Government ’ s alternative argument, the Court recalls that Article 2 of the Convention requires the authorities to conduct an official investigation into an arguable claim that a person who was last seen in their custody subsequently disappeared in a life-threatening context. Where disappearances in life-threatening circumstances are concerned, the procedural obligation to investigate can hardly come to an end on discovery of the body or the presumption of death; this merely casts light on one aspect of the fate of the missing person. An obligation to account for the disappearance and death, and to identify and prosecute any perpetrator of unlawful acts in that connection, will generally remain. According to the Court ’ s settled case-law, the investigation must be independent from all those implicated in the events, must be effective in the sense of being capable of ascertaining the facts and of leading to the identification and punishment of those responsible, must be accessible to the victim ’ s family to the extent necessary to safeguard their legitimate interests and must be carried out with reasonable promptness and expedition (see, among many other authorities, Kurt v. Turkey , 25 May 1998, § 124, Reports of Judgments and Decisions 1998 ‑ III; Varnava and Others v. Turkey [GC], nos. 16064/90 et al ., § 145, ECHR 2009; Association “21 December 1989” and Others v. Romania , nos. 33810/07 and 18817/08, § 97, 24 May 2011 ; Aslakhanova and Others v. Russia , nos. 2944/06 et al ., § 121, 18 December 2012; Palić , cited above, § 63 ).

33 . Since the present applicant did not assert, let alone substantiate, that the investigation into the disappearance and death of his missing parents lacked independence, the Court will turn to the question of its effectiveness. In this regard, it notes that notwithstanding initial delays, the investigation finally led to the identification of his father (see paragraph 13 above). In view of the large number of victims of the war in Bosnia and Herzegovina, this is in itself a major achievement. It is unfortunate that the remains of the applicant ’ s mother have not yet been identified, but this is not sufficient in itself to find a procedural violation of Article 2. Indeed, as the Court has held on numerous occasions (see Hugh Jordan v. the United Kingdom , no. 24746/94, § 107, ECHR 2001-III, and Palić , cited above, § 65), the procedural obligation under that Article is not an obligation of result, but of means.

34. The Court further notes that the investigation led to the identification and punishment of the leader and two members of the paramilitary group which had terrorised the Bosniac and Croat population of Grbavica in 1992 (see paragraphs 10-11 above). Furthermore, the ICTY has thus far convicted one of the organisers of the persecution of Bosniacs and Croats from that area (see paragraph 8 above).

36. As regards the accessibility of the investigation and the existence of sufficient public scrutiny, the Court has already emphasised the importance of the right of victims and their families and heirs to know the truth about the circumstances surrounding events involving a massive violation of rights as fundamental as that of the right to life. However, the Court notes that this aspect of the procedural obligation does not require applicants to have access to police files, or copies of all documents during an ongoing inquiry, or for them to be consulted or informed about every step (see Association “21 December 1989” and Others , cited above, § 106; Gürtekin and Others , cited above, § 29; Mujkanović and Others , cited above, § 40; Fazlić and Others , cited above, § 38). It cannot be automatically required that the families be provided with the names of the potential suspects against whom insufficient evidence has been gathered for prosecution. This would lead to the risk that the families and others would assume that the individuals were in fact guilty and to potentially unpleasant repercussions. The Court notes that, in any event, the hearings held before domestic courts are, in principle, open to the public and that the hearing schedules are easily available. Moreover, the applicant has not shown that any of his requests for information has remained unanswered (contrast Association “21 December 1989” and Others , cited above, § 102). It is true that the authorities have sometimes resorted to press releases or group meetings with victims and/or their associations, rather than individual meetings, but the Court considers this approach to be reasonable in view of the large number of war crimes cases pending before domestic courts and the large number of victims (see paragraph 4 above). In this regard, the Court would emphasise that the procedural obligation under Article 2 must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities (see Osman , cited above, § 116, and Palić , cited above, § 70).

37 . Insofar as the applicant makes reference to a lack of expedition and to the lapse of time since his parents disappeared, the Court will take into consideration merely the period since 2005 when the domestic legal system became capable of dealing with disappearance cases (see Palić , cited above, § 70, about the situation in post-war Bosnia and Herzegovina, notably in the first ten years following the war; see also paragraph 5 above concerning the relationship between domestic authorities and the ICTY during that period). It should be noted, in this connection, that the standard of expedition in such historical cases is much different from the standard applicable in recent incidents where time is often of the essence in preserving vital evidence at a scene and questioning witnesses while their memories are fresh and detailed (see Varnava and Others , cited above, §§ 191-92; Gürtekin and Others , cited above, § § 21-22; Mujkanović and Others , cited above, § 41; Fazlić and Others , cited above, § 39). In this connection, the Court notes that there has been no substantial period of inactivity post-2005 on the part of local authorities regarding the crimes committed in the Grbavica neighbourhood of Sarajevo. During that period, the domestic authorities questioned more than 100 persons and finally convicted three persons. That being the case, the criminal investigation can be considered to have been conducted with reasonable promptness and expedition.

39. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2. Article 3 of the Convention

40. Article 3 reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

41. The Government maintained that the authorities were making efforts to locate, exhume and identify the mortal remains of all missing persons and to bring to justice all those responsible for serious violations of international humanitarian law committed during the 1992-95 war.

42. The applicant responded that he was suffering from post-traumatic stress disorder because of the authorities ’ indifference towards his concerns and anguish.

43. The main principles in this connection were restated in Varnava and Others , cited above, § 200; Palić , cited above, § 74; and Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, §§ 178-79, ECHR 2013.

44. In the present case, the Court has found in paragraphs 33-37 above that the authorities have not failed in any duty of reasonable expedition or of notification of the applicant in accordance with Article 2 of the Convention. Moreover, the applicant received compensation for non-pecuniary damage in respect of the disappearance and death of his parents (see paragraphs 14-15 above).

45. Accordingly, while acknowledging the gravity of the phenomenon of disappearances and the suffering of the applicant, the Court finds that, in the circumstances of this case, the authorities ’ reactions cannot be regarded as inhuman or degrading treatment (see, by analogy, Mujkanović and Others and Fazlić and Others , cited above). This complaint is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

3. Articles 5, 8, 13 and 14 of the Convention

46. Article 5, in so far as relevant, provides as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

Article 8, in so far as relevant, provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence. ...”

Article 13 reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 14 reads:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour , language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

47. Having examined the parties ’ submissions and having regard to its findings regarding Articles 2 and 3 above, the Court considers that the facts complained of do not disclose any appearance of a violation of Articles 5, 8, 13 and/or 14 of the Convention. It follows that this part of the application is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. As regards Montenegro and Serbia

48. Lastly, turning to the applicant ’ s substantive complaint under Article 2 against Montenegro and Serbia, the Court has not overlooked the fact that there is much evidence of direct and indirect participation by the VJ forces in military operations in Bosnia and Herzegovina (see Đokić v. Bosnia and Herzegovina , no. 6518/04, §§ 15-17, 27 May 2010, and the authorities cited therein). The Court further reiterates that a Contracting State ’ s jurisdiction under Article 1 of the Convention could extend to acts of its agents operating outside its territory under certain conditions ( Al- Skeini and Others v. the United Kingdom [GC], no. 55721/07, §§ 130-42, ECHR 2011). However, the Convention entered into force in respect of Montenegro and Serbia on 3 March 2004. Insofar therefore as the applicant ’ s complaint is based on the event of disappearance itself in July 1992, the Court lacks temporal jurisdiction (for the Court ’ s case-law in this regard, see paragraphs 27 - 28 above). As a result, this complaint is, like the same complaint against Bosnia and Herzegovina, incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Françoise Elens-Passos Ineta Ziemele Registrar President

[1] Local armed forces mostly made up of Serbs established on 12 May 1992. Serbs are an ethnic group whose members may be natives of Serbia or of other States including Bosnia and Herzegovina. The term “Serb” is normally used to refer to members of the ethnic group , regardless of their nationality; it is not to be c onfused with the term “Serbian” which normally refers to nationals of Serbia.

[2] Bosniacs were known as Muslims until the 1992-95 war. The term “ Bosniacs ” should not be confused with the term “Bosnians” which is commonly used to denote citizens of Bosnia and Herzegovina irrespective of their ethnic origin.

[3] Croats are an ethnic group whose members may be natives of Croatia or of other States including Bosnia and Herzegovina. The term “Croat” is normally used to refer to members of the ethnic group, regardless of their nationality; it is not to be confused with the term “Croatian” which normally refers to nationals of Croatia.

[4] The convertible mark uses the same fixed exchange rate to the euro that the German mark has (1 euro = 1.95583 convertible marks).

[5] The average salary paid in Bosnia and Herzegovina in 2013 was 423 euros.