Communicated on 15 April 2015

THIRD SECTION

Application no. 4159/15 Ahmet KAMENICA and others against Serbia lodged on 24 December 2014

STATEMENT OF FACTS

A list of the applicants is set out in the appendix. All the applicants are nationals of Bosnia and Herzegovina and ar e 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 Bosnia c enclaves in easte rn 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 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 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 to two detention camps. While the applicants claim that they 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.

According to the applicants, upon their discovery at the Serbian border, the army and the police used force against the applicants and transported them to the said camps. As many as 50 people were put in lorries which had the capacity for 15. As a result some of the applicants lost consciousness during the transport due to the heat and lack of oxygen and one person allegedly died.

The applicants were divided in groups and placed in the two camps. 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 time they spent in the camps they were regularly verbally abused, taken to mock executions, kicked and beaten with fists, batons, cables shovels and metal rods. Some of the applicants had burning cigarettes held against their skin, forced to drink the water mixed with motor oil and some were also sexually abused (notably, some of the applicants were forced to perform sexual acts on each other). The applicants who were suspected of being members of the ABIH suffered particularly harsh treatment and were forced to engage in mutual fights, look directly into the sun, move heavy rocks and were denied 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.

In the period January – April 1996 the UNHCR facilitated the transfer of the camps ’ detainees 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 torture 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.

On 13 June 2014 the Appeals Court in Belgrade acting upon the civil action for damages by two of the applicants, Enes Bogilović and Mušan Džebo , delivered a final judgement in civil proceedings in which it found that the said applicants had suffered a “heavy form of torture and inhuman treatment” and that the “applicants survived what was without a doubt the harshest suffering an individual [could] experience”. The court further described the actions of the guards towards the two applicants and other detainees as “conduct ... hardly worthy of an individual”.

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 Gazette 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 Article s 3, 6 and 13 of the Convention about the lack of effective investigation into their torture .

QUESTIONS TO THE PARTIES

1. Is the applicants ’ complaint under the procedural aspect of Article 3 compatible with the provisions of the Convention, ratione temporis , given that their alleged ill-treatment by the police dates back to 1995/1996 (see Stanimirović v. Serbia , no. 26088/06, § 28, 18 October 2011 and the authorities cited therein)?

2. Having regard to the above complaint under the procedural aspect of Article 3, have the applicants complied with the six-month time-limit laid down in Article 35 § 1 of the Convention (see Stanimirović , cited above, and the authorities cited therein)?

3. Having regard to the proce dural protection from torture (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), did the investigation in the present case by the domestic authorities meet the standards of Article 3 of the Convention?

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

5. Did the applicant s have at their disposal an effective domestic remedy for their procedural complaint under Article 3, as required by Article 13 of the Convention?

6. The Government are requested to submit a copy of the entire file concerning the applicant ’ s ill-treatment from the Office of the War Crimes Prosecutor of Serbia.

Appendix

[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).