Communicated on 15 April 2015

THIRD SECTION

Application no. 4078/15 Rabija FEJZIĆ and others against Serbia lodged on 24 December 2014

STATEMENT OF FACTS

The applicants, Ms Rabija Fejzi ć, Ms Esma Cogo, Ms Bejda Dizdarević, Mr Nedžib Dizdarević, Mr Omer Dizdarević, Ms Azra Jahić and Ms Muniba Torlak are nationals of Bosnia and Herzegovina who were born in 1961, 1978, 1955, 1984, 1979, 1972 and 1945, respectively. They live in different towns in Bosnia and Herzegovina and are all represented by T. Drobnjak, a lawyer practicing in Belgrade.

A. Relevant background

Following its declaration of independence from the former SFRY in March 1992, a brutal war broke out in Bosnia and Herzegovina. More than 100,000 people were killed and more than 2,000,000 others were displaced as a result of “ethnic cleansing” or generalised violence. The following local forces were the main parties to the conflict: the ARBH [1] (mostly made up of Bosniacs [2] and loyal to the central authorities in Sarajevo), the HVO [3] (mostly made up of Croats [4] ) and the VRS [5] (mostly made up of Serbs [6] ). The conflict ended in December 1995 when the General Framework Agreement for Peace (“the Dayton Agreement”) entered into force between Bosnia and Herzegovina, Croatia and the Federal Republic of Yugoslavia (succeeded by Serbia by 2006).

Žepa, a town in eastern Bosnia and Herzegovina, is situated some 12 kilometers from the border with Serbia. Before the war it had a population of less than 3,000 of whom the majority were Bosniacs. During the war, Žepa was one of three Bosniac enclaves in eastern Bosnia surrounded by the VRS [7] . In 1993 it was declared a “safe area” by the United Nations Security Council [8] .

In 1995, there were 6,500 to 8,000 people living in Žepa, of whom some two thirds were displaced persons from other parts of Bosnia and Herzegovina [9] .

On 12 July 1995 the VRS attacked the Žepa “safe area” and captured it by 25 July. In the days that followed, several hundred Bosniacs, predominantly able-bodied men who refused to surrender to VRS forces managed to cross the border and flee to Serbia [10] . The present applicants ’ relatives were among them.

B. The circumstances of the case

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

When Žepa was captured b y the VRS the applicants ’ relatives (Mr Abid Agić, the brother of Ms Rabija Fejzić, Mr Šećan Dizdarević, the son of Ms Bejda Dizdarević and brother of Mr Nedžib Dizdarević and Mr Omer Dizdarević, Mr Edem Torlak, the father of Ms Esma Cogo and the husband of Ms Muniba Torlak and Mr Meho Jahić, the husband of Ms Azra Jahić) crossed into Serbia from Bosnia and Herzegovina hoping that they would be able to find refuge in a third country. They were discovered by the border guard of the VJ [11] and taken into two detention camps. While the applicants claim that the men were notified of their prisoner-of-war status, it is not clear whether all of them were indeed members of ARBH or some of them were civilians. The first camp, Šljivovica, was situated in the municipality of Čajetina and the second, Mitrovo Polje, in the municipality of Aleksandrovac, both in Serbia. The Šljivovica detention camp was located in an abandoned workers ’ barracks and Mitrovo Polje in a former children recreational camp.

Both camps were guarded by the Serbian police force and none of the applicants were allowed to leave them. According to the applicants, during the transport to the camps and while interned in the camps their relatives were murdered or died as a result of torture and lack of medical assistance.

During its existence the camps were visited by representatives of the International Committee of the Red Cross and the State Commission for Missing Persons of Bosnia and Herzegovina, the latter compiled a report in which it found that the conditions of detention were disturbing.

Following the entry into force of the Dayton Agreement mentioned above, the UNHCR facilitated the transfer of the camp survivors into third countries and the camps were closed in April 1996.

On 6 September 2011 the Humanitarian Law Centre ( Fond za humanitarno pravo ), a Belgrade-based NGO, lodged a criminal complaint on behalf of the applicants with the Office of the War Crimes Prosecutor of Serbia against more than 50 persons for the alleged war crimes. In its criminal complaint the Humanitarian Law Centre submitted statements of the camps ’ detainees, medical documentation, documentation of the International Committee of the Red Cross and the State Commission for Missing Persons of Bosnia and Herzegovina and other evidence. Among the persons who were alleged to have taken part in the killings the Centre identified members of the State Security Agency of Serbia, police officers, and military servicemen of various ranks.

On 1 March 2013 the Office of the War Crimes Prosecutor notified the Humanitarian Law Centre that it did not find any grounds for criminal prosecution. On 8 April 2013 the applicants lodged a constitutional appeal before the Constitutional Court of Serbia claiming violations of Articles 2, 3 and 6 of the Convention. On 4 February 2014 the Constitutional Court rejected the applicants ’ constitutional appeal finding that the notification in question was not an act which was decisive for the applicants ’ human rights.

The decision of the Constitutional Court was delivered to the applicants ’ representative on 2 July 2014.

B. Relevant domestic law

1. Criminal Code of the Federal Republic of Yugoslavia

This Code ( published in Official Gazette of the SFRY No. 44/76, amendments published in Official Gazette nos. 36/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90, 54/90, and the Official Gazette of the FRY nos. 35/92, 16/93, 31/93, 37/93, and 24/94) was in force at the relevant time. The relevant provisions thereof read as follows:

Article 142 - War crime against the civilian population

“ Whoever in violation of rules of international law effective at the time of war, armed conflict or occupation, orders that civilian population be subject to killings, torture, inhuman treatment, biological experiments, immense suffering or violation of bodily integrity or health; dislocation or displacement or forcible conversion to another nationality or religion; forcible prostitution or rape; application of measures of intimidation and terror, taking hostages, imposing collective punishment, unlawful bringing in concentration camps and other illegal arrests and detention, deprivation of rights to fair and impartial trial; forcible service in the armed forces of enemy ’ s army or in its intelligence service or administration; forcible labour, starvation of the population, property confiscation, pillaging, illegal and self-willed destruction and stealing on large scale of a property that is not justified by military needs, taking an illegal and disproportionate contribution or requisition, devaluation of domestic currency or the unlawful issuance of currency, or who commits one of the foregoing acts, shall be punished by imprisonment for not less than five years or by the death penalty. ”

Article 144 - War crime against prisoners of war

“ Whoever, in violation of the rules of international law, orders murders, tortures or inhuman treatment of prisoners of war, including therein biological experiments, causing of great sufferings or serious injury to the bodily integrity or health, compulsive enlistment into the armed forces of an enemy power, or deprivation of the right to a fair and impartial trial, or who commits some of the foregoing acts, shall be punished by imprisonment for not less than five years or by the death penalty. ”

2. The War Crimes Act 2003

This Act (published in Official Gazett e of the Republic of Serbia no. 67/03, amendments published in Official Gazette nos. 135/04, 61/05, 101/07 and 104/09) entered into force on 9 July 2003. The War Crimes Prosecutor, the War Crimes Police Unit and the War Crimes Sections within the Belgrade Higher Court and the Belgrade Court of Appeal have been set up pursuant to this Act. They have jurisdiction over serious violations of international humanitarian law committed anywhere in the former Yugoslavia (see section 3 of this Act).

COMPLAINTS

The applicants complain under Articles 2, 6 and 13 of the Convention about the lack of effective investigation into the deaths of their relatives.

QUESTIONS TO THE PARTIES

1. Is the applicants ’ complaint, considered under the procedural aspect of Article 2, compatible with the provisions of the Convention, ratione temporis , in view of the fact that the deaths of the applicants ’ relatives had occurred before the respondent State ’ s ratification of the Convention (see Šilih v. Slovenia [GC], no. 71463/01, 9 April 2009; Marta Julari ć v. Croatia (dec.), no. 20106/06, 2 September 2010; and Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09 , ECHR 2013 )?

2. Having regard to the issue under the procedural aspect of Article 2, have the applicants complied with the six-month time-limit laid down in Article 35 § 1 of the Convention (see, mutatis mutandis , Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002; Bayram and Yıldırım v. Turkey (dec.), no. 38587/97, ECHR 2002 ‑ III; 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 , § 165, ECHR 2009; and Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08 , § 265, ECHR 2014, 17 September 2014 )?

3. Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?

4. Has there been a breach of Article 6 § 1 of the Convention?

5. Did the applicants have at their disposal an effective domestic remedy for their procedural complaint under Article 2, as required by Article 13 of the Convention?

6. The Government are requested to submit a copy of the entire file concerning the applicants ’ criminal complaint from the Office of the War Crimes Prosecutor of Serbia.

[1] Armija Republike Bosne i Hercegovine (the Army of the Republic of Bosnia and Herzegovina).

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

[3] Hrvatsko vijeće obrane (the Croatian Defence Council).

[4] Croats are an ethnic group whose members may be natives of Croatia or of other former component republics of the SFRY 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.

[5] Vojska Republike Srpske (the Army of the Republika Srpska).

[6] Serbs are an ethnic group whose members may be natives of Serbia or of other former component republics of the SFRY 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 confused with the term “Serbian”, which normally refers to nationals of Serbia.

[7] Srebrenica and Goražde being the other two.

[8] In 1993 the United Nations Security Council, acting under Chapter VII of the Charter, demanded that all the parties concerned treat Srebrenica , Sarajevo, Tuzla, Žepa, Goražde and Bihać, as well as their surroundings, as “safe areas” which should be free from armed attacks and any other hostile act (resolutions 819 of 16 April 1993 and 824 of 6 May 1993).

[9] See ICTY (International Criminal Tribunal for the Former Yugoslavia) judgment Popović et al. , IT-05-88 , §§ 667-670, 10 June 2010.

[10] Popović et al., cited above, §§ 731-738.

[11] Vojska Jugoslavije (The army of the Federal Republic of Yugoslavia).