SECOND SECTION

DECISION

Application no . 40410/07 Milijan KOSTIĆ against Serbia

The European Court of Human Rights ( Second Section ), sitting on 17 September 2013 as a Chamber composed of:

Guido Raimondi, President, Danutė Jočienė, Dragoljub Popović, András Sajó, Işıl Karakaş, Paulo Pinto de Albuquerque, Helen Keller, judges, and Stanley Naismith , Section Registrar ,

Having regard to the above application lodged on 1 September 2007 ,

Having regard to the decision to grant priority to the above application unde r Rule 41 of the Rules of Court,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Milijan Kostić, was a Serbian national, who was born in 1950 and lived in Požega. On 6 December 2011, the applicant ’ s legal representative notified the Court of his client ’ s death in a car accident on 15 February 2010, while the case was pending before the Court . By the same submission, the applicant ’ s widow and daughter, Mrs Anđa Kostić and Ms Maja Kostić respectively, stated that they wished the case to proceed. They designated the same counsel, Mr P. Savić, a lawyer practising in Belgrade, to represent them . For reasons of convenience, the applicant ’ s widow and daughter will be referred to as “the applicant ’ s successors” and/or by their initials, while the deceased applicant will be referred to as “the applicant” .

2 . T he applicant ’ s son and the applicant ’ s successors ’ son and brother , Mr Dragan Kostić (“D.K.”), was born in 1981 and died on 27 August 2004 while serving in the army of then State Union of Serbia and Montenegro (“SCG”). The present application concerns his death.

3 . The facts of the case, as submitted by the applicant and as they appear from the documents submitted by him and his successors, may be summarised as follows.

1. The death of the applicant ’ s son and the official investigation thereafter

4 . At the time of the incident, the applicant ’ s son, Mr Dragan Kostić, was serving as a conscript drafted into the mandatory military service of the SCG in Leskovac (VP 4796/6) on 1 March 2004. It appears that on the night before the incident, he had been posted as a night guard in room no. 4 (VP 4796) on the second floor of building 23 at the military barracks “Jablanica” in Leskovac (VP 3878).

5 . At around 7 a.m. on 27 August 2004 he allegedly committed suicide by shooting himself in the chest area in a nearby dormitory. On the same day, at an unspecified time, D.K. ’ s family was informed of his death.

(a) The inspection of the scene of the incident

6 . On the same date an on-duty investigating judge of the Niš Military Court, captain ( kapetan ) I.D. (hereinafter “the military investigating judge”) drew up a scene of incident report “as regards the suicide of D.K.” ( zapisnik o uviđaju ... povodom samoubistva D.K.; Kr. Br. 96/04).

7 . The report stated that on 27 August 2004 at 7.15 a.m. the military investigating judge had received a report on the telephone by a Senior Corporal ( stariji vodnik ), P.Z., of the Leskovac Military Police (V.P. 8070/3) that a conscript had most probably committed suicide at around 7 a.m. at the military barracks. The military investigating judge ordered that the scene of incident be secured until his arrival.

8 . The inspection team consisting of the military investigating judge, the Niš military prosecutor, Colonel ( pukovnik ) S.R., the crime scene technicians Senior Corporals, P.Z. and LJ.T., of the Military Police, Colonel R.N. in respect of VP 7357 Leskovac and Captain first class ( kapetan prve klase ) Z.V. in respect of VP 4796/6 Leskovac, conducted an inspection of the incident scene between 9 a.m. and 11.45 a.m.

9 . The body was found around 2 metres from the entrance door of the dormitory, leaning on the front side towards the ground, with the arms under it. In the course of the inspection, Major S.J. (VP 3878) explained that he had been in his office, which was in a nearby corridor, when he had heard two gunshots. When he reached the dormitory he saw D.K. lying on the floor and convulsing. A Warrant Officer ( zastavnik ), B.C., who was also at the scene, turned D.K. on to his side to prevent suffocation, while he ran out to announce the incident. On his return, D.K. was giving no signs of life and he was left in the position in which he had been found by the inspection team.

10 . T he body was then turned on its back. The damaged and bloody clothes were removed. Two bullet wounds of around 1 cm each, with traces of blood and burns, were observed on the breastbone ( sternum ) and around 5 cm to the right, respectively. Two wounds were also observed on the back.

11 . All objects found were recorded in a special official note. The following “traces were preserved” ( fiksirani tragovi ) as stated in the report: (1) the guard room no. 4; (2) the entrance door of the dormitory where the conscript D.K. had committed suicide; (3) D.K. ’ s body; (4) an automatic assault rifle M-70B1 [1] , some distance away on the right from the door inside the dormitory, around 1,2 m behind the body; the fire selector was found in the position “burst fire” and 26 bullets were taken out of the receiver, while no visible damage was observed ; (5) one empty cartridge case 7,62mm found 0,5 metre from the rifle towards the body; (6) one unfired bullet 7,62mm found around 30 cm from traces 4 and 5; (7) another unfired bullet 7,62mm found immediately under the rifle stock and another empty cartridge case in the right dormitory ’ s angle, under the bin; (8) traces of blood and body tissue on the bed and bedside table 1 metre from the body; (9 and 10) two traces on the ceilings, apparently from the bullets, “a bit on the right, closer to the windows”. Apart from these traces, the team also noted a mark on the right wall, assuming that it had been a result of a bullet ricochet ing off the wall. The fired bullets were not found, but the crime scene technicians established that they had gone through the ceiling.

12 . The military investigating judge performed a paraffin test on D.K. ’ s hands. He ordered that the body, together with the paraffin samples, be transferred to the Military Medical Academy (“M.M.A.”; Vojno-medicinska akademija ) in Belgrade for an autopsy. He also ordered a technical examination of the rifle.

13 . Lastly, nothing relevant to clarify the incident was found in D.K. ’ s lockers.

(b) The first autopsy report and other investigating activities

14 . The autopsy of D.P. ’ s body was performed the following day (28 August) at 9 a.m. by doctor G.M.T. under the supervision of Colonel doctor I.M., the Head of the M.M.A. ’ s Institute of Forensic Medicine. The applicant was previously shown the body of his son. He claims that he noticed a certain black substance, like soil, in his son ’ s mouth, as well as that doctor I.M. allegedly commented that the applicant ’ s son had not committed suicide, but that he had clearly been a victim of knife-homicide (“ da su radili no ž evi ”).

15 . The autopsy report of an unspecified date concluded that D.K. ’ s death was violent and caused by heavy hae morrhaging resulting from ruptures ( iskrvavljenje iz rascepa ) of the heart, lungs, spleen, thoracic diaphragm and ruptured blood vessels of soft tissue along and around the channels of fire through the torso ( kanala prostreline trupa ), stemming from a projectile shot from a firearm ( nanesenih dejstvom projektila ispaljenih iz ručnog vatrenog oru ž ja ). Two bullet entry wounds were observed, one in the area of the right breast inside ( u unutrašnjoj polovini desnog dojkinog predela ), and the second, in the area of the thoracic breastbone ( u grudnja č inom predelu ). Bullet exit wounds were observed on the back, one in the middle and the other more on the left, under the left shoulder blade ( scrapula ).

16 . The forensic experts concluded that the bullets had been fired from direct contact ( apsolutni prislon ) from forward to backward, right to left, up to down.

17 . The report also noted a neck injury, as well as a haematoma and extensive lacerations in the forehead ( frontalis ) and backhead ( crown ) areas, and explained that they had been “inflicted with a blunt mechanical instrument ( nanete tupim mehaničkim oruÄ‘em )”, but its connection, if any, to the fatal outcome remained unaddressed. It also listed other pathological ‑ anatomical diagnoses, such as cerebral oedema and hemoperitoneum.

18 . It would appear that the toxicological analysis was done on 2 September 2004 by the M.M.A. ’ s Poison Control Centre-Department for toxicological chemistry.

19 . It would appear that the results of the toxicological analysis, paraffin test or ballistic test, if any, were not served on the applicant.

20 . According to the applicant, this ex officio military investigation into the death of the applicant ’ s son was never formally closed.

2. The applicant ’ s pursuit of a subsidiary prosecution as regards his son ’ s death (Ktn. br. 9/05 and Kri. br. 17/05)

21 . On an unspecified date, the applicant and the applicant ’ s successor A.K. filed a criminal complaint against unknown perpetrators, on the ground that there was a reasonable suspicion that certain unidentified individuals had killed D.K. (Ktn. br. 9/05).

22 . On 4 April 2005 the District Public Prosecutor ’ s Office in Leskovac (“DPPOL”) summarily dismissed the applicant ’ s criminal complaint on the ground that there were no elements of any crime prosecuted ex officio . By a letter of the same day the applicant was informed about that decision. He was further notified that he could pursue a subsidiary criminal prosecution within eight days of the date this decision had been served on him by filing a request for an investigation ( zahtev za sprovođenje istrage ).

23 . On 14 April 2005 the applicant lodged with the District Court in Leskovac a request for the institution of a formal preliminary judicial investigation ( zahtev za sprovođenje pojedinih istražnih radnji ). He requested the court to order the exhumation of the body and a fresh post mortem examination to correct the deficiencies in the first report, as well as to provide a ballistic test, the interrogation of the forensic experts, the names and the questioning of the high military officials mentioned in an article of the daily “Danas” of 11 April 2005 and other witnesses who might disclose the relevant facts surrounding the death of D.K. (Kri. br. 17/05). He asked the military prosecutor to carry out a further investigation with a view to clarifying the issues and determining with certainty whether his son had been killed or had committed suicide as alleged.

24 . On 15 May 2005 the investigating judge found this request to be imprecise and requested the applicant to amend it. In the meantime, he had also provided the relevant case-files of the Niš Military Court (Ki. br. 449/04), the Niš Military Prosecution Office (Ktn. br. 24/04) and the DPPOL (Ktr. br. 100/05).

25 . It would appear that the applicant complied with the investigating judge ’ s request by 27 May 2005. On 5 July 2005 he further amended his request and suggested additional steps to be taken.

26 . On an unspecified date, the investigating judge ordered the exhumation of the body and requested a commission of forensic experts from the Institute of Forensic Medicine of the Belgrade Faculty of Medicine to express their opinion on what could have caus ed D.K . ’ s injuries .

27 . The body was exhumed on 29 September 2005 and a second post mortem examination performed thereafter by forensic doctors T.A. and D.J. of the said Institute. In the forensic report, drawn up on 11 November 2005, the experts indicated that although the body had been in an advanced state of decomposition, it could be concluded that the death had been violent and caused by damage to the thoracic organs ( grudnih organa ) resulting from projectiles shot by a firearm. The forensic experts confirmed the earlier findings about the entry and exit bullet wounds and that the bullets had been fired from forward to backward, up to down and right to left.

28 . The applicant alleged that the forensic experts had been unable to pronounce themselves on any of the questions posed by the court and himself, to remedy the first autopsy report ’ s defects and to reach any conclusions as to whether the bullets had been fired on direct contact or close range.

29 . On 14 February 2006 the investigating judge refused to carry out the other acts sought by the applicant ( izrazio neslaganje sa zahtevom ) and referred the case to a three-judge criminal panel of the same court, in accordance with Article 243 § 7 of the Criminal Procedure Code.

30 . On 27 February 2006 the said panel upheld the investigating judge ’ s refusal.

31 . Following the applicant ’ s enquiry about the case and a submission to the Justice Ministry, on 15 May 2006 the Ministry informed him that all documents had been transferred to the State Public Prosecutors ’ Office with the request to take all necessary steps to comply with its commitments in a prompt and lawful manner. It also sent to the applicant a report drawn up by the President of the Leskovac District Court on 12 April 2006. The applicant learned from the report about the decisions of 14 February and 27 February 2006 (see paragraphs 29-30 above), as their copies had allegedly not been served on him or his representatives by that date.

32 . It would appear that the applicant thereafter filed another request with the District Court in Leskovac, seeking the institution of a formal judicial investigation, but never received any response in that respect.

3. The subsidiary prosecution of the forensic experts G.M.T and I.M.

33 . On an unspecified date, the applicant and his successor A.K. lodged a criminal complaint against the forensic experts G.M.T and I.M., who had drawn up the first autopsy report in 2004 (see paragraphs 15-17 above), with the District Public Prosecutor ’ s Office in Belgrade – Military Division (“DPPOB”). The complaint was lodged on the ground that there was a reasonable suspicion that they had committed a crime of “malfeasance in the discharge of their official duties” (“ nesavestan rad u službi ”). The complainants pointed out certain contradictions and shortcomings in the forensic report, including the impugned injuries inflicted by a mechanical object and the finding that the bullets had been shot from direct contact without any reliable forensic indicators for it. They proposed that numerous investigating activities be carried out.

34 . On 1 June 2005 the DPPOB rejected the criminal complaint on the ground that there were no elements of the alleged crime or any other crime prosecuted ex officio in the experts ’ acts. By a letter of 9 June 2005, the applicant was informed about that decision. He was further notified that he could pursue a subsidiary criminal prosecution within eight days of the date this decision had been served on him by filing a request for a judicial investigation ( zahtev za sprovođenje istrage ).

35 . On 23 June 2005 the applicant filed a request for investigation. The request was further amended on 20 July 2005. The request stated, inter alia , that the applicant had provided expert opinions which identified numerous deficiencies in the first autopsy report, as well as contradictions between certain findings and the conclusion about the gunshots from direct contact.

36 . On 18 April 2006 the investigating judge interviewed the suspects. Dr G.M.T invoked her privilege against self-incrimination and the right to remain silent. Doctor I.M. stated that he had been only supervising the autopsy done by his colleague and helping her with the photo ‑ documentation. As regards the conclusion on the “direct contact” shots, it meant that the firearm was in contact with the dressed body. The examination ( sondiranje) of the wounds had not been done as there were only two wounds which were well defined. In any event, the standard method that they had used confirmed their findings. Lastly, he explained that the injuries on the neck had not been deep. Dr G.M.T. had only described them and had not pronounced herself on their possible origin (cause), it being understood that it should be left to the investigating judge to make his own conclusions.

37 . It would appear that D.K. ’ s family members or their representatives were not present during the above questioning.

38 . On an unspecified date the investigating judge refused to open the investigation sought by the applicant ( izrazio neslaganje sa zahtevom ) on the ground that there was no reasonable suspicion that the suspects had committed the alleged crime. He added that the 2005 forensic report had endorsed the findings and conclusions of the suspects given in the 2004 autopsy report (see paragraphs 15-17 and 27 above). This decision was referred to a three-judge criminal panel.

39 . On 8 June 2006 the three-judge panel of the Military Division of the Belgrade District Court upheld the investigating judge ’ s findings, relying on the consistent findings of the two post mortem examinations in 2004 and 2005, as well as a certain “opinion”, which is apparently not available to the applicant and therefore to the Court, provided by the second (2005) team of forensic doctors. According to the panel, that opinion: (i) described a possible position of the deceased when shooting himself, which appeared as reliable (standing, slightly bent forward and down, falling on the back when shot, without any possibility to change the position); (ii) confirmed the 2004 findings about the entry and exit bullet wounds; (iii) found that two bullets had been shot one after the other in too short a period to enable them to determine their order; (iv) concluded that the shooting had occurred at close range of several centimetres, but that a ballistic expert would be able to make a more precise assessment; namely, the description of the clothing indicated that the deceased had been shot at close range from the body and at point-blank range from the clothing. As a conclusion, the panel found it to be irrelevant that the first autopsy report had not clarified the meaning of “direct contact” in relation to the body or clothing, in view of the second opinion and Dr I.M. ’ s clarification of the issue at the hearing held on 18 April 2006. The panel mentioned the finding of the first autopsy report about the injuries which had been inflicted by the mechanical object, but did not elaborate on it further.

40 . The applicant or his legal representatives were not called by the panel to appear before it. The decision was served on the applicant and was not served on the latter. The applicant was instructed that he could appeal against that decision within three days from the date on which the decision was served on him and he did so, reiterating his previous arguments. The applicant also claimed that he had not been aware that the forensic experts had ever pronounced themselves on the position of the body when shot.

41 . On 16 November 2006 the Supreme Court of Serbia rejected the applicant ’ s further appeal. In reaching that decision, by reference to the 2004 and 2005 forensic findings, it upheld the lower court ’ s reasoning as clear, conclusive and convincing. That decision was served on the applicant on 20 February 2007.

4. A fresh investigation

42 . In the beginning of 2011, the applicant ’ s successors again lodged a request for a judicial investigation with the Leskovac High Court (Kri.br. 3/11).

43 . On 21 May 2012 the investigating judge M.P. informed the applicant ’ s successors that the relevant rifle, with which his son had allegedly shot himself, had been disposed of ( otuđena ).

44 . On 11 June 2012 the competent investigating judge ordered a ballistic report, if possible, without the relevant rifle.

45 . On 10 October 2012 the experts of the National Crime-technical Centre of the Interior Ministry informed the investigating judge that they could not determine if the shots had been fired from close or point-blank range without the relevant rifle and the relevant clothes.

46 . The applicant ’ s successors thereafter filed a proposal that the court engage independent experts to assess the autopsy reports and determine the relevant range.

47 . It would appear that the investigation is still pending.

5. Civil proceedings against the State

48 . On an unspecified date in 2007, the applicant and his successors jointly brought a civil action against the Defence Ministry in the Leskovac Municipal Court. They sought pecuniary and non-pecuniary damage suffered as a result of D.K. ’ s loss of his life while doing mandatory military service.

49 . On 9 April 2009 the Leskovac Municipal Court established that D.K. had died while drafted by the army, in a situation it consider ed to be inherently dangerous , and that, therefore, the respondent State should compensate the plaintiffs on the basis of the State ’ s strict liability irrespective of fault ( objektivna odgovornost ) . In that respect, it awarded D.K. ’ s parents RSD 800,000 each (approximately EUR 8,500) and RSD 600,000 (EUR 6,400) to D.K. ’ s sister, on account of the pain and anguish suffered. It also awarded RSD 600,000 to the applicant in respect of pecuniary damage for the funeral-related and exhumation costs. Lastly, it ordered the respondent to pay the plaintiffs jointly RSD 338,000 for costs.

50 . The respondent appealed with regard to the established facts and applied law, alleging that the deceased conscript had committed an unpredictable suicide, given that he was drafted as a healthy person. It also claimed that D.K. had not been officially on guard duty at the time of the incident, but that he had carried out that duty and taken the firearm of his own initiative. Therefore, such an activity could not be considered as a dangerous one.

51 . On 28 October 2010 the Niš Appeals Court upheld the first-instance judgment on the damage, and ordered the respondent to pay RSD 127,300 for the costs. On the facts, it was stated that D.K. was on guard duty when he was found dead around 7 a.m. on 27 August 2004. Furthermore, the court noted that the scene of incident report stated that it had been drawn up concerning D.K. ’ s suicide, and finally, that the autopsy report concluded that D.K. ’ s death was violent and caused by projectiles shot from a firearm. As to the respondent ’ s responsibility, the court endorsed the reasoning of the first-instance judgment.

52 . On 12 May 2011 the Niš Appeals Court dismissed the respondent ’ s request for re-opening of the civil proceedings. On 2 February 2012 the Supreme Court of Serbia rejected the respondent ’ s appeal on points of law.

53 . In the meantime, on 25 January 2011 the First Belgrade Court of First Instance issued an enforcement order in respect of the applicant ’ s successors. The amount awarded to the applicant was to be paid to the applicant ’ s wife, his legal successor as determined by decisions of 6 July and 24 December 2010.

54 . On 10 February 2011 the respondent lodged an objection ( prigovor ), challenging the transfer of the applicant ’ s award to his wife, given that the former had died before the judgment had become final and enforceable.

55 . On 6 July 2012 the First Belgrade Court of First Instance reversed the enforcement order and rejected the enforcement request in respect of the amount which had been awarded to the applicant.

56 . On 29 August 2012 the applicant ’ s successors jointly lodged a constitutional appeal in that regard and it appears to be still pending before the Constitutional Court.

COMPLAINTS

THE LAW

58 . The applicant complained about the circumstances surrounding the death of his son and the authorities ’ alleged failure to conduct an adequate investigation into it.

59 . Being the “ master of the characterization” to be given in law to t he facts of any case before it (see, mutatis mutandis , Akdeniz v. Turkey , no. 25165/94, § 88, 31 May 2005 , and Mladenović v. Serbia , no. 1099/08 , §§ 34- 5, 22 May 2012 ), the Court examined the applicant ’ s complaints under Article 2 of the Convention. The Court considers that it cannot, on the basis of the case file, determine their admissibility and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaints concerning the circumstances surrounding the death of his son and the alleged inadequate investigation in that regard ;

Declares the remainder of the application inadmissible.

Stanley Naismith Guido Raimondi Registrar President

[1] The M70B1 is an assault rifle with a stamped receiver and fixed stock; overall length is 890 mm.