Communicated on 9 April 2014

FIRST SECTION

Application no. 57812/13 Z and others against Croatia lodged on 22 August 2013

STATEMENT OF FACTS

The President of the Chamber acceded to the applicants ’ request not to have their names disclosed (Rule 47 § 3 of the Rules of Court), as well as to a request by the Government to grant confidentiality to the case (Rule 33 § 1 of the Rules of Court). They are all Croatian nationals and are represented before the Court by Holmes and Hills Solicitors, practicing in Braintree, the United Kingdom.

A. The circumstances of the case

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

On 23 November 1991 A , the first applicant ’ s husband and the second and third applicants ’ father, was abducted from a restaurant in X by four members of the Croatian army, driven to the bank of the river S where he was beaten with fists and metal implement and then killed.

The investigation into the killing of A w as opened on 24 November 1991 in the X County Court. And on 17 January 1992 four individuals, C ., D ., E . and F ., were indicted on charges of murder. The proceedings were conducted before the X Military Court.

On 25 September 1992 the Act on Amnesty from Criminal Prosecution and Proceedings in Respect of Criminal Offences Committed during the Armed Conflicts and the War against the Republic of Croatia ( Zakon o oprostu od krivičnog progona i postupka za krivična djela počinjena u oružanim sukobima i u ratu protiv Republike Hrvatske ) was enacted.

On 24 November 1992 the X Military Court terminated the proceedings pursuant to the General Amnesty Act.

On 1 July 1993 the State Attorney lodged a request for the protection of legality ( zahtjev za zaštitu zakonitosti ) with the Supreme Court, asking it to establish that the termination of proceedings was contrary to law. On 8 September 1993 the Supreme Court established that the request for the protection of legality was well-founded.

In 2002 the applicants obtained a copy of the above-mentioned decision of the Supreme Court.

On 28 August 2003 the first applicant lodged a request for investigation with the W State Attorney ’ s Office against the same four individuals, alleging that they had committed a war crime against the civilian population. This request was forwarded to the X State Attorney ’ s Office which dismissed it on 16 April 2010 on the basis that the proceedings in respect of the same facts had already been terminated.

On 27 April 2010 the first applicant lodged a fresh request for investigation with the X Count y Court. It was dismissed on 15 December 2010 on the ground that it concerned the same facts as the indictment from 1992 upon which the proceedings had been terminated.

The first applicant lodged an appeal with the Supreme Court which was dismissed on 4 October 2012. Her subsequent constitutional complaint was dismissed on 28 February 2013.

B. Relevant domestic law

The relevant part of the Act on Amnesty from Criminal Prosecution and Proceedings in Respect of Criminal Offences Committed during the Armed Conflicts and the War against the Republic of Croatia of 25 September 1992 (Official Gazette no. 58/1992, Zakon o oprostu od krivičnog progona i postupka z

a krivična djela počinjena u oružanim sukobima i u ratu protiv Republike Hrvatske ) reads as follows:

Section 1

“Criminal prosecution of perpetrators of criminal offences [committed] during the armed conflicts, the war against the Republic of Croatia or in connection with these conflicts or war, committed between 17 August 1990 and the day when this Act comes into force, shall be discontinued. In respect of these offences no criminal prosecution or criminal proceedings shall be instituted. Where criminal proceedings have been instituted, a court shall terminate them of its own motion. Where a person concerned by the amnesty ... has been detained, he or she shall be released.”

Section 2

“No amnesty under section 1 of this Act shall be granted to perpetrators of the criminal offences in respect of which the Republic of Croatia is obliged to prosecute under international law.”

Section 3

“A state attorney may lodge an appeal within twenty-four hours from the service of a decision under section 1 ... of this Act, where she or he considers that the decision contravenes section 2 of this Act.”

The relevant part of the amendments to the above Act of 6 June 1995 reads as follows:

“In section 1, paragraph 1 of the Act on Amnesty from Criminal Prosecution and Proceedings in Respect of Criminal Offences Committed during the Armed Conflicts and the War against the Republic of Croatia (Official Gazette no. 58/92) the words ‘ the day when this Act comes into force ’ are to be replaced by the words ‘ 10 May 1995 ’ .”

The relevant part of the General Amnesty Act of 24 September 1996 (Official Gazette no. 80/1996, Zakon o općem oprostu ) reads as follows:

Section 1

“This Act grants general amnesty from criminal prosecution and proceedings to the perpetrators of criminal offences committed during the aggression, armed rebellion or armed conflicts and in connection with the aggression, armed rebellion or armed conflicts in the Republic of Croatia.

No amnesty shall apply to the execution of final judgments in respect of perpetrators of the criminal offences under paragraph 1 of this section.

Amnesty from criminal prosecution and proceedings shall apply to offences committed between 17 August 1990 and 23 August 1996.”

Section 2

“No criminal prosecution or criminal proceedings shall be instituted against the perpetrators of the criminal offences under section 1 of this Act.

Where a criminal prosecution has already commenced it shall be discontinued and where criminal proceedings have been instituted a court shall issue a decision terminating the proceedings of its own motion.

Where a person granted amnesty under paragraph 1 of this section has been detained, he or she shall be released.”

Section 3

“No amnesty under section 1 of this Act shall be granted to perpetrators of the gravest breaches of humanitarian law, which have the character of war crimes, namely, the criminal offence of genocide under Article 119 of the Basic Criminal Code of the Republic of Croatia (Official Gazette no. 31/1993, consolidated text, nos. 35/1993, 108/1995, 16/1996 and 28/1996); war crimes against the civilian population under Article 120; war crimes against the wounded and sick under Article 121; war crimes against prisoners of war under Article 122; organising groups [with the purpose of committing] or aiding and abetting genocide and war crimes under Article 123; unlawful killing and wounding of the enemy under Article 124; unlawful taking of possessions from the dead or wounded on the battleground under Article 125; use of unlawful means of combat under Article 126; offences against negotiators under Article 127; cruel treatment of the wounded, sick and prisoners of war under Article 128; unjustified delay in repatriation of prisoners of war under Article 129; destruction of cultural and historical heritage under Article 130; inciting war of aggression under Article 131; abuse of international symbols under Article 132; racial and other discrimination under Article 133; establishing slavery and transferring slaves under Article 134; international terrorism under Article 135; putting at risk persons under international protection under Article 136; taking hostages under Article 137; and the criminal offence of terrorism under the provisions of international law.

No amnesty shall be granted to perpetrators of other criminal offences under the Basic Criminal Code of the Republic of Croatia (Official Gazette no. 31/1993, consolidated text, nos. 35/1993, 108/1995, 16/1996 and 28/1996) and the Criminal Code of the Republic of Croatia (Official Gazette no. 32/1993, consolidated text, nos. 38/1993, 28/1996 and 30/1996) which were not committed during the aggression, armed rebellion or armed conflicts and are not connected with the aggression, armed rebellion or armed conflicts in the Republic of Croatia.

... ”

Section 4

“A state attorney may lodge an appeal against a court decision under section 2 of this Act where a court has granted amnesty in favour of the perpetrators of criminal offences in respect of which this Act grants amnesty within the legal classification of the criminal offence by a state attorney.”

COMPLAINT

The applicants complain under the procedural aspect of Articles 2 and3 of the Convention about the inefficiency of the criminal law mechanisms as regards the killing of their respective husband and father .

QUESTION TO THE PARTIES

Having regard to the procedural protection of the right to life and the right no t to be ill-treated, was the manner in which the criminal law mechanisms have been applied in the present case by the domestic authorities in breach of Articles 2 and 3 of the Convention?

The Government are invited to submit copies of all case files and other documents concerning the killing of the applicants ’ relatives.