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CASE OF MILIĆ AND OTHERS v. CROATIA

Doc ref: 38766/15 • ECHR ID: 001-180317

Document date: January 25, 2018

  • Inbound citations: 4
  • Cited paragraphs: 5
  • Outbound citations: 30

CASE OF MILIĆ AND OTHERS v. CROATIA

Doc ref: 38766/15 • ECHR ID: 001-180317

Document date: January 25, 2018

Cited paragraphs only

FIRST SECTION

CASE OF MILIĆ AND OTHERS v. CROATIA

( Applicati on no. 38766/15 )

JUDGMENT

STRASBOURG

25 January 2018

FINAL

25/04/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Milić and Others v. Croatia ,

The European Court of Human Rights ( First Section ), sitting as a Chamber composed of:

Linos-Alexandre Sicilianos, President, Kristina Pardalos, Krzysztof Wojtyczek, Ksenija Turković, Armen Harutyunyan, Pauliine Koskelo, Jovan Ilievski, judges, and Abel Campos , Secti on Registrar ,

Having deliberated in private on 6 June and 1 9 December 2017,

Delivers the following judgment, which was adopted on th e last ‑ mentioned date:

PROCEDURE

1 . The case originated in an applicati on (no. 38766/15) against the Republic of Croatia lodged with the Court under Article 34 of the Conventi on for the Protecti on of Human Rights and Fundamental Freedoms (“the Convention”) by four Croatian nationals, Ms Milica Milić , Ms Vera Å umanovi ć , Ms Nada Jura Å¡ in and Mr Zoran Mili ć (“the applicants”), on 29 July 2015 .

2 . The applicants were represented by Mr L. Å uÅ¡ak, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, M s Å . Sta ž nik.

3 . The applicants alleged, in particular, that the procedural obligations incumbent on the respondent Government under Article 2 of the Conventi on had not been met .

4 . On 14 January 2016 the complaints concerning the procedural aspect of Articles 2 and 14 of the Conventi on were communicated to the Government and the remainder of the applicati on was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicants ’ particulars appear in the appendix to this judgment.

A . Background to the case

6 . During 1991 and 1992 Serbian paramilitary forces gained control of about a third of the territory of Croatia and proclaimed the “Serbian Autonomous Regi on of Krajina” ( Srpska autonomna oblast Krajina , hereinafter “Krajina”). At the beginning of August 1995 the Croatian authorities announced their intenti on to take military acti on with the aim of regaining control over Krajina. The operati on was codenamed “Storm” ( Oluja ) and took place from 4 to 7 August 1995. Before the military action, the vast majority of the populati on of Krajina fled Croatia. Most of them went to Bosnia and Herzegovina but some also went to Serbia. Some returned to Croatia after the war. The number of people who fled is estimated at between 100,000 and 150,000.

7 . On 5 November 1997 Croatia ratified the Convention.

B . The killing of the applicants ’ relative and the subsequent in vestigation

8 . The applicants and P.M. ( born in 1942 ) , who was the husband of one of the applicants and the father of the others, lived in Razboji Å¡ te, near the larger village of Krupa, on the territory of Krajina. During the night of 4 to 5 August 1995 a ll the family, save for P.M., fled Croatia. P.M. was killed d uring Operati on Storm on 5 August 1995 .

According to the applicants , P.M. was killed in the courtyard of his house in Razboji Å¡ te , although he was an unarmed civilian.

According to the Government , he was armed and was killed in a n exchange of fire with the Croatian Army in the broader area of Krupa . The villages of Razboji š te, Krupa and Ž egar and the settlement of Mili ć i are located near each other .

9 . On 11 October 1995 the police found the remains of an un identified pers on in Razboji š te and they were buried in Gra č ac C emetery under the number 434.

10 . On June 2002 exhumations were carried out at Gra č ac C emetery . The process was conducted under the auspices of the International Criminal Tribunal for the former Yugoslavia ( Međunarodni kazneni sud za bivšu Jugoslaviju ) and the County State Attorney ’ s Office in Zadar . B ody no. 434 was also dug up and an identity card was found i n the name of P.M. The remains were examined at the Institute for Forensic Medicine in Zagreb ( Zavod za sudsku medicinu i kriminalistiku ) and on 15 October 2002 an autopsy report was issued which concluded that the cause of death had been three wounds from shelling. On 24 November 2003 the third applicant identified the remains as those of her father , P.M.

11 . The police opened an in vestigati on into the circumstances of P.M. ’ s d eath a fter the applicants on 5 September 2005 brought a claim for damages with the State Attorney ’ s Office in connecti on with his killing ( see paragraph 20 below) .

12 . On 2 1 October 2005 the police interviewed Ž .M. , who said that P.M. had joined a village guard unit during the war . Ž .M. did not know who might have killed P.M.

13 . On 11 August 2015 the Zadar p olice received an anonymous letter stating that on 10 August 1995 two men, V.G. and M.B. , had killed twelve elderly people in the village of Ž egar in the “Mili ć a” cave , near Krupa .

14 . On 25 August 2015 the police interviewed O.M. and S.M., residents of Ž egar .

O.M. said that he had never heard of someone be i n g killed in the “Mili ć a” cave even thou gh he had lived all his life in the area. He also said that during O perati on Storm five pe ople f rom the settlement called Mili ći, part of the village of Žegar, had been killed, including P.M. They had all been members of the paramilitary forces and had been armed. He had heard that they all had perished in rocky areas of the village but did not know the cause and manner of their deaths.

S.M. had no informati on about the possible perpetrators of the alleged crime in question .

15 . On 26 August 2015 the Zadar police informed the Zadar County State Attorney ’ s Office that five persons had been killed in the settlement of Mili ć i during O perati on S torm, one of whom was P.M. , who had died on 5 August 1995.

16 . On 14 September 2015 the police interviewed V.G., a c aptain in the Croatian Army during Operati on Storm , who had been in command of the Zadar Military Police Third Company of the 72 nd Battalion, who said that he had never been to Ž egar and had never heard of any one being killed there. He had been i n Benkovac ( a town sit u ated some forty kilometres from Ž egar ) throughout Operati on Storm . He had also said that he could state with certainty that none of the members of his unit had committed any crimes , otherwise he would have known about it.

17 . On 16 September 2015 the police interviewed M.B., a Croatian soldier and member of the 72 nd Battali on during Operati on Storm . He also said that he had never been to Ž egar and had never heard of any one being killed there. H e had been near Obrovac ( a town situated some twenty kilometres from Ž egar ) during the military operation .

18 . On 1 October 2015 the Zadar County State Attorney ’ s Office closed the in vestigation .

19 . On 22 January 2016 the Zadar County State Attorney ’ s Office informed its counterpart in Split County that it had not been able to confirm the allegations made in the anonymous letter of 11 August 2015 as there was no indicati on that twelve elderly pe ople had been killed in the “Mili ć a” cave . However, five members of the Serbian paramilitary forces had been killed during O perati on Storm, including P.M. E nquir i es had therefore been stopped since the informati on given in the anonymous letter had proved to be unreliable.

C . Civil proceedings instituted by the applicants

20 . On 5 September 2005 the applicants submitted a claim for damages with the State Attorney ’ s Office in connecti on with the killing of P.M. The request was refused.

On 12 April 2006 the applicants brought a civil acti on against the State in the Zagreb Municipal Court, seeking compensati on in connecti on with P.M. ’ s death .

The claim was dismissed on 30 March 2010 on the grounds that it had n ot been established how P.M. had been killed and that the appl icants had not proved that his killing had amounted to a terrorist act for which the State w as liable . It had also not been established that he had been killed by members of the Croatian army or police in a r ea s where there had been no operations related to the war . In addition, the cl a im had become st at ute ‑ barred . During the proceedings i nformati on was obtained from the archives of the Ministry of Defence showing that the Croatian army had entered the area in questi on on 6 August 1995 , whereas P.M. had been killed on 5 August 1995. The first-instance court also accepted the statement of the witness O.M. , who said that the village of Žegar had been shelled on 5 August 1995.

The first-instance judgment was upheld by the Zagreb County Court on 21 September 2010.

On 10 June 2014 the Supreme Court upheld the lower courts ’ judgments in respect of the ruling that the applicants ’ claim had become statu t e-barred.

21 . A constitutional complaint lodged by the applicant was dismissed on 25 February 201 5 .

THE LAW

I. ALLEGED VIOLATI ON OF ARTICLE 2 OF THE CONVENTION

22 . The applicants complained that the authorities had not taken appropriate and adequate steps to investigate P.M. ’ s death and bring his killers to justice. They also submitted that P.M. had been killed because he was of Serbian ethnic origin and that the national authorities had failed to investigate that factor. They relied on Articles 2 and 14 of the Convention. The Court, being master of the characterisati on to be given in law to the facts of the case, will examine this complaint under Article 2 of the Conventi on alone which, in so far as relevant, reads as follows:

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

A. Admissibility

1. The parties ’ arguments

23 . The Government argued that the applicants had submitted their applicati on with the Court twenty years after their relative had died. There had been a period of inactivity in the investigat i on in questi on between 2005 and 2015 and the applicants had not demonstrated adequate interest in the progress of the investigati on but had instead remained passive. They had lodged their applicati on after the conclusi on of civil procee di ngs for damages before the national courts. However, such proceedings were of no relevance for the State ’ s obligati on under the procedural aspect of Article 2 of the Conventi on in the circumstances of the case at issue. Therefore, the applicati on had been submitted outside the six-month time-limit .

24 . The applicants contested th at argument and contended that the final decisi on relevant for the calculati on of the six-month time-limit was the Constitutional Court ’ s decisi on of 25 February 2015, adopted in the context of the civil proceedings for damages .

2. The Court ’ s assessment

(a) General principles

25 . As a rule, the six-month period runs from the date of the final decisi on in the process of exhausti on of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant ( see Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 259, ECHR 2014 (extracts), with further references).

26 . In cases of a continuing situation, the period starts to run afresh each day and it is in general only when that situati on ends that the six ‑ month period actually starts to run (ibid., § 261). However, where time is of the essence in resolving the issues in a case, there is a burden on the applicant to ensure that his or her claims are raised before the Court with the necessary expediti on to ensure that they may be properly, and fairly, resolved (ibid., § 262). This is particularly true with respect to complaints relating to any obligati on under the Conventi on to investigate certain events. As the passage of time leads to the deteriorati on of evidence, time has an effect not only on the fulfilment of the State ’ s obligati on to investigate but also on the meaningfulness and effectiveness of the Court ’ s own examinati on of the case. An applicant has to become active once it is clear that no effective investigati on will be provided, in other words once it becomes apparent that the respondent State will not fulfil its obligati on under the Conventi on (ibid., § 261).

27 . The Court has held in cases concerning the obligati on to investigate under Article 2 of the Conventi on that where a death has occurred, applicants ’ relatives are expected to take steps to keep track of the investigation ’ s progress, or lack thereof, and to lodge their applications with due expediti on once they are, or should have become, aware of the lack of any appropriate redress, including effective criminal investigati on ( see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90 , § 158, ECHR 2009, with further reference therein). In particular, as regards cases of unlawful or violent death, the Court has indicated that an applicant should bring such a case to the Court within a matter of months, or at most, depending on the circumstances, a few years after the events in questi on (ibid., § 162). Where there is an investigati on of sorts, even if plagued by problems, the Court accepts that applicants may reasonably wait for developments which could potentially resolve crucial factual or legal issues (ibid., §166). It is in the interests of not only the applicant but also the efficacy of the Conventi on system that the domestic authorities, who are best placed to do so, act to put right any alleged breaches of the Convention.

(b) Applicati on of these principles to the present case

28 . In a number of cases concerning ongoing investigations into the deaths of applicants ’ relatives, the Court has examined the period of time from which the applicant could or should have started doubting the effectiveness of a remedy ( see Şükran Aydın and Others v. Turkey (dec.), no. 46231/99, 26 May 2005; Bulut and Yavuz , cited above; Bayra m and Yıldırım , cited above; Kıniş v. Turkey (dec.), no. 13635/04, 28 June 2005; Elsanova v. Russia (dec.) , no. 57952/00, 15 November 2005; Frandeş v. Romania (dec.), no. 35802/05, 17 May 2011; Finozhenok v. Russia (dec.), no. 3025/06, 31 May 2011; Attalah v. France (dec.), no. 51987/07, 30 August 2011; Deari and Others v. the Former Yugoslav Republic of Macedonia (dec.), no. 54415/09, 6 March 2012; Gusar v. Moldova and Romania (dec.), no. 37204/02, 30 April 2013; Bogdanović v. Croatia (dec.), no. 722541/11, 18 March 2014; Orić v. Croatia , no. 50203/12, 13 May 2014; Gojević-Zrnić and Mančić v. Croatia (dec.) , no. 5676/13, 17 March 2015; Radičanin and Others v. Croatia (dec.), no. 75504/12; and Grubić v. Croatia (dec.), no. 56094/12, 9 June 2015).

29 . The Court notes that the applicants lodged their applicati on with the Court at the conclusi on of the civil proceedings against the State in which they had asked for compensati on in connecti on with P.M. ’ s death. The applicants alleged that P.M. had been killed by members of the Croatian army. In th e se circumstances, the State was under an obligati on to initiate and carry out an investigati on which fulfilled the procedural requirements of Article 2. Civil proceedings which lie at the initiative of the victim ’ s relatives would not satisfy the State ’ s obligati on in this regard (see , mutatis mutandis , Paul and Audrey Edwards v. the United Kingdom , no. 46477/99, § 74, ECHR 2002 ‑ II). The Court has repeatedly held that the procedural obligati on of the State under Article 2 to conduct a thorough, official, effective and prompt investigati on when individuals have been killed as a result of the use of force cannot be substituted by payment of damages. The Court confirmed that an acti on for damages, either to provide redress for the death or for the breach of official duty during the investigation, was not capable, without the benefit of the conclusions of a criminal investigation, of making any findings as to the identity of the perpetrators and still less of establishing their responsibility ( see Jelić v. Croatia , no. 57856/11 , § 64, 12 June 2014) . A s the Court has held on numerous occasions, since such proceedings are not relevant for the State ’ s procedural obligati on under Article 2 of the Convention , they can not affect the running of the six-month period in the present case (compare Narin v. Turkey , no. 18907/02, § 48, 15 December 2009; Bogdanović v. Croatia (dec.), no. 72254/11, § 38, 18 March 2014; Orić v. Croatia (dec.), no. 50203/12, § 33, 13 May 2014; Ivan č i ć and D ž elalija v. Croatia (dec.), no. 62916/13, § 33, 15 March 2016; and Treskavica v. Croatia , no. 32036/13 , § 45, 12 January 2016 ).

30 . It follows that the relevant domestic remedy for the applicants ’ complaint, which would have had the potential to offer adequate redress, was a criminal investigati on (compare to Narin , cited above, § 49 , and Bogdanovi ć , cited above, § 39).

31 . I t is further noted that P.M. ’ s remains were identified in 2003. T he police in vestigati on commenced in 2005 ( see paragraph 11 above). The applicants lodged their applicati on with the Court on 29 July 2015 , about twenty years after his death. The investigati on was still formally ongoing when the applicati on was lodged (contrast with Utsmiyeva and Others v. Russia (dec.), no. 31179/11, § 34, 26 August 2014, and Kukavica v. Croatia (dec.), no. 79768/12, § 27, 2 June 2015).

32 . The investigati on was at a standstill between November 2005 and 11 August 2015 ( see paragraphs 12 and 13 above). The questi on therefore arises whether the applicants should have concluded in th at period that the ineffectiveness of the investigati on required them to lodge their applicati on with the Court.

(i) Period before 11 August 2015

33 . The above-mentioned period of inactivity in the investigati on amount ed to some nine years and nine months. The Court considers that any lack of awareness on the part of the applicants that the investigati on had become ineffective , despite such a significant lull in the proceedings, was attributable to their own negligence (see, for example, Findik and Omer v. Turkey (decs.), nos. 33898/11 and 35798/11, § 15).

34 . The case at issue concerns an instance of violent death. In applying the six-month time-limit for lodging an applicati on in such instances the following periods between the last relevant procedural step on the part of the national authorities and lodging the applications with the Court have been considered too lengthy: in the above-cited cases of Radi č anin and Grubi ć it was over nine years ; in Aydin and Others that period was about seven years; in Bulut and Yavuz it was about six years, while in other cases it ranged from three and a half years to one year and eight months (in Gojevi ć ‑ Zrni ć and Man č i ć and Yildirim it was three and a half years; in Finozhenok it was three years; in Deari and Others it was two and a half years; in Elsanova it was two years; and in Gusar it was one year and eight months).

35 . The Court observes that the applicants , as the wife and children of the victim of the violations claimed, could be expected to display due diligence and take whatever initiative necessary to inform themselves about any progress in the investigati on of their husband ’ s/ fat her ’ s killing. The absence of any activity in the investigat i on of such a serious crime for such a significant length of time should have prompted them to draw the appropriate conclusions (see, for example, Açış v. Turkey , no. 7050/05, § 42, 1 February 2011).

36 . In view of the above, the Court finds that the applicants have not shown convincingly that advances of some sort were being made that justif ied their more than nine years of inactivity . The investigati on came to a standstill in November 2005 , well before the date of applicati on to the Court on 29 July 2015 (compare with Finozhenok , cited above). The Court finds that after the investigati on came to a standstill the applicants ought to have concluded long before the lodging of their application, and certainly more than six months before that time, that th e investigati on was in effect ive .

37 . In view of the foregoing , the Court finds that the part of the present applicati on which refers to the investigati on before 11 August 2015 must be rejected for failure to comply with the six-mont h time-limit set out in Article 35 §§ 1 of the Conventi on (compare Opa č i ć and Godi ć v. Croatia (dec.), no. 38882/13, § 30, 26 January 2016) .

( ii ) Period after 11 August 201 5

38 . As to the steps taken after 11 August 2015, t he Court reiterates that where informati on purportedly casting new light on the circumstances of a death comes into the public domain, a new obligati on to investigate the death may arise ( see Hackett v. the United Kingdom (dec.), no. 34698/04, 10 May 2005; Brecknell v. the United Kingdom , no. 32457/04, §§ 66-67, 27 November 2007; Williams v. the United Kingdom (dec.), no. 32567/06, 17 February 2009; Gasyak and Others v. Turkey , no. 27872/03, § 60, 13 October 2009; and Harris on and Others v. the United Kingdom (dec.), no. 44301/13, § 51, 25 March 2014). It cannot be the case that any asserti on or allegati on can trigger a fresh investigative obligati on under Article 2 of the Convention. Nonetheless, given the fundamental importance of this provision, the State authorities must be sensitive to any informati on or material which has the potential either to undermine the conclusions of an earlier investigati on or to allow an earlier inconclusive investigati on to be pursued further ( see Brecknell , cited above, § 70). As to the present case, the Court notes that in August 2015 the police received an anonymous letter giving the names of possible perpetrators. Th at certainly amounted to important fresh evidence. Further more , the Court notes that in August and September 2015 the Zadar police interviewed possible witnesses and compiled reports on actions that had been taken ( see paragraph s 16 and 17 above).

39 . In those circumstances, the complaint under the procedural aspect of Article 2 of the Conventi on concerning the period after A ugust 2015 has been lodged within the six-month time - limit.

(c) Conclusi on as to admissibility

40 . The Court notes that the complaint concerning the ineffectiveness of the investigati on in the period after 11 August 2015 is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties ’ submissions

41 . The applicants argued that the investigati on into the death of their husband and father had so far yielded few results. None of the perpetrators had been identified. There was no real will on the part of the authorities to carry out a thorough investigati on which would yield results.

42 . The Government maintained that the relevant domestic authorities had taken all the reasonable measures that were available, given the circumstances of the case. T he Croatian authorities had been confronted with a high death toll after Operati on Storm , both civilian and military. In all, 903 bodies had had to be buried. It had not been possible immediately to open investigations in respect of all the deceased and determine who had died during combat operations and wh o had died as a result of criminal offences. The Government also stated that it had not been possible simultaneously to carry out autopsies on all the bodies to determine the cause of death of each person .

43 . As regards the killing of P.M., the police had followed all the leads and interviewed all the possible witnesses. However, there w as no reliable in formati on on the possible perpetrators of the killing , whether he had been killed in combat or whether his killing had amounted to a war crime .

2. The Court ’ s assessment

(a) General principles

44 . The Court reiterates that Article 2 ranks as one of the most fundamental provisions in the Convention. It enshrines one of the basic values of the democratic societies making up the Council of Europe. The object and purpose of the Conventi on as an instrument for the protecti on of individual human beings require that Article 2 be interpreted and applied so as to make its safeguards practical and effective ( see Jeli ć , cited above, § 72 with further references to , among other authorities, Anguelova v. Bulgaria , no. 38361/97, § 109, ECHR 2002 ‑ IV).

45 . The obligati on to protect the right to life under Article 2 of the Convention, read in conjuncti on with the State ’ s general duty under Article 1 of the Conventi on to “secure to everyone within [its] jurisdicti on the rights and freedoms defined in [the] Convention”, also requires by implicati on that there should be some form of effective official investigati on when individuals have been killed as a result of the use of force ( see Armani Da Silva v. the United Kingdom [GC], no. 5878/08 , § 230, 30 Mar ch 2016 ) .

46 . The State must therefore ensure, by all means at its disposal, an adequate response – judicial or otherwise – so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished ( ibid. , § 230 ) .

47 . In order to be “effective” as this expressi on is to be understood in the context of Article 2 of the Convention, an investigati on must firstly be adequate. This means that it must be capable of leading to the establishment of the facts, a determinati on of whether the force used was or was not justified in the circumstances and of identifying and – if appropriate – punishing those responsible. This is not an obligati on of result, but of means. The authorities must take whatever reasonable steps they can to secure the 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 the clinical findings, including the cause of death. Moreover, where there has been a use of force by State agents, the investigati on must also be effective in the sense that it is capable of leading to a determinati on of whether the force used was or was not justified in the circumstances. Any deficiency in the investigati on which undermines its ability to establish the cause of death or the pers on responsible will risk falling foul of this standard ( ibid . , § 233) .

48 . In particular, the investigation ’ s conclusions must be based on a thorough, objective and impartial analysis of all the relevant elements. Failing to follow an obvious line of inquiry undermines to a decisive extent the investigation ’ s ability to establish the circumstances of the case and the identity of those responsible. Nevertheless, the nature and degree of scrutiny which satisfy the minimum threshold of the investigation ’ s effectiveness depend on the circumstances of the particular case. The nature and degree of scrutiny must be assessed on the basis of all relevant facts and with regard to the practical realities of investigati on work. Where a suspicious death has been inflicted at the hands of a State agent, particularly stringent scrutiny must be applied by the relevant domestic authorities to the ensuing investigati on ( ibid . , § 234).

49 . A requirement of promptness and reasonable expediti on is implicit in this context ( see Jeli ć , cited above, § 76; Yaşa v. Turkey , 2 September 1998, §§ 102-104, Reports 1998-VI; and Mahmut Kaya v. Turkey , no. 22535/93, §§ 106-107, ECHR 2003-III). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigati on in a particular situati on ( see Armani Da Silva , cited above, § 237) . However, w here events took place far in the past, due to the lapse of time, the level of urgency may have diminished; the immediacy of required investigative steps in the aftermath of an incident is likely to be absent ( see Brecknell v. the United Kingdom , no. 32457/04, § § 79-81, 27 November 2007). The standard of expediti on 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 when their memories are fresh and detailed ( see Emin and Others v . Cyprus , no. 59623/08 et al. (dec.) , 3 April 2012; and G ü rtekin and Others v. Cyprus , nos. 60441/13, 68206/13 and 68667/13, § 21, 11 March 2014; see also Palić v. Bosnia and Herzegovina , no. 4704/04, § 70, 15 February 2011 , concerning complex post-conflict situations).

(b) Applicati on of th o se principles to the present case

50 . The Court will assess only the effectiveness of the steps taken after 11 August 2015 ( see paragraphs 37 , 39 and 40 above). After receiv ing an anonymous letter giving the names of possible perpetrators, the police continued their in vestigation . However , given that twenty years had elapsed, the prospect s for establishing the truth had significantly diminished. At this juncture the Court reiterates that it has described the scope of the above ‑ mentioned obligati on to conduct an effective investigati on as an obligati on as to the means used , not the results achieved (see, for example, Shanaghan , cited above, § 90 , and the judgments referred to therein).

51 . As regards the adequacy of the steps taken by the Croatian authorities in connecti on with P.M. ’ s death , the Court is not persuaded by the applicants ’ submissi on that there have been significant oversights or omissions. The facts of the case show that all traceable witnesses were interviewed and the available evidence collected and reviewed. The Court notes that the police pursued every line of enquiry (contrast to Charalambous and Others v. Turkey (dec.), no. 46744/07, § 65, 3 April 2012).

52 . In this regard t he Court notes that the informati on that the police received in 2015 about the possible perpetrators was anonymous , which inevitably reduced the prospects of it being verifi ed . The police checked the informati on in the letter but it produced no concrete results. In particular, t he police interviewed two witnesses, O.M. and S.M., who had no informati on about possible perpetrators . T he other pe rsons mentioned in the letter as alleged perpetrators stated that the ir combat unit had not been in the village of Ž egar during Operati on Storm, but elsewhere ( see paragraphs 16 and 17 above) . Also, the investigating authorities established that , in fact, five members of the Serbian paramilitary forces had been killed and not twelve elderly individuals , as alleged in the letter. The authorities deemed that the informati on provided in th e letter w as unreliable and, since there were no further leads, concluded the investigation.

53 . Further more , the documents from the archives of the Ministry of Defence show ed that Croatian army units had entered the area in questi on on 6 August 1995 , wh ile P.M. had been killed on 5 August 1995 ( see paragraphs 8 and 20 above) .

54 . The applicants have not pointed to any other concrete avenues of enquiry that the police could have pursued. The fact that the investigati on did not succeed in identifying P.M. ’ s killers does not necessarily mean that it was ineffective. In the circumstances, the Court cannot impugn the authorities for any culpable disregard, discernible bad faith or lack of will (compare to Gürtekin , cited above, § 27).

55 . In conclusion, the Court finds that the national authorities complied with their procedural obligati on under Article 2 of the Convention. It follows that there has been no violati on of that provision.

FOR THESE REASONS , THE COURT ,

1. Declares , by a majority, the complaints concerning the ineffectiveness of the investigati on into the killing of P.M. in the period after 11 August 2015 admissible and the remainder of the applicati on inadmissible ;

2 . Holds , unanimously, that there has been no violati on of Article 2 of the Conventi on in its procedural aspect .

Done in English, and notified in writing on 25 January 2018 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel Campos Linos-Alexandre Sicilianos Registrar President

In accordance with Article 45 § 2 of the Conventi on and Rule 74 § 2 of the Rules of Court, the separate opini on of Judge Wojtyczek is annexed to this judgment.

L . A . S . A.C.

PARTLY DISSENTING OPINI ON OF JUDGE WOJTYCZEK

In my view, the applicati on in the instant case is inadmissible. The killings under investigati on occurred before the entry into force of the Conventi on in respect of Croatia. The Conventi on should not be applied retroactively to facts predating its entry into force in respect of the respondent State. I have explained my views on this issue in detail in my dissenting opinions appended to the judgments in Janowiec and Others v. Russia ( [GC], nos. 55508/07 and 29520/09 , ECHR 2013 ) and Mocanu and Others v. Romania ( [GC], nos. 10865/09 and 2 others, ECHR 2014) .

APPENDIX

LIST OF APPLICANTS

N o .

Firstname LASTNAME

Birth date

Place of residence

1.Milica MILIĆ

03/02/1945

Concord, United States of America

2.Nada JURAÅ IN

08/09/1968

Dobrinci, Serbia

3.Zoran MILIĆ

18/01/1975

Dobrinci, Serbia

4.Vera ŠUMAKOVIĆ

22/03/1966

Beograd, Serbia

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