Published on 28 March 2022

SECOND SECTION

Application no. 16489/20 Petar MILOVANOVIĆ and Janko JAKOVLJEVIĆ against Serbia lodged on 12 March 2020 communicated on 10 March 2022

SUBJECT MATTER OF THE CASE

The application essentially concerns the respondent State’s alleged failure to carry out an adequate official investigation into the deaths of the applicants’ sons, namely D.M. and D.J..

The applicants’ sons, the two conscripts of the elite Topčider Guard Brigade of then Army of Serbia and Montenegro, who were found fatally shot, in disputed circumstances, while performing guard duties on 5 October 2004 at Karaš Military Barracks in Topčider (Belgrade). According to the investigation carried out by the military judicial authorities, the shooting incident was elucidated as “a murder and subsequent suicide by the murderer”. On 15 October 2005, the State Supreme Defence Council set up an Independent Commission of Experts to investigate the circumstances surrounding the conscripts’ deaths for examination of the circumstances. The domestic ad hoc commission, as well as a report by international FBI forensic ballistic experts, unequivocally excluded the officially presented conclusions of the military investigators , finding that the conscripts may have been killed by a third firearm at the scene after being unarmed.

Following the applicant’s constitutional appeal of October 2011, on 31 January 2013 the Constitutional Court of Serbia rendered a decision, finding a violation of the procedural aspect of the right to life on the ground of delayed and ineffective investigation into the death of the applicants’ sons. It further awarded each of the applicant 5,000 euros in respect of non-pecuniary damage and ordered the Belgrade High Public Prosecutor’s Office and the Belgrade High Court to take all measures to expedite and complete the preliminary investigation.

In 2016 the Government created a new fact-finding commission with the agenda to examine only this case, after the President had met the applicants. In 2018 and 2019 the competent High Public Prosecutor Office took the testimonies of several high-ranking State officials at the relevant time and other individuals and witnesses. The investigation is still pending without any conclusion.

The applicants complain under Articles 2 and 6 of the Convention that the domestic investigation into the circumstances of their sons’ death has been delayed, flawed and biased. They further complain under Article 13 of the Convention that they had no effective domestic remedy in respect of their complaint.

QUESTIONS TO THE PARTIES

1. Has the applicant complied with the six-month time-limit laid down in Article 35 § 1 of the Convention (see, mutatis mutandis , Varnava and Others v. Turkey [GC], nos. 16064/90 et seq., ECHR 2009; Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, §§ 258-269, ECHR 2014 (extracts); Melnichuk and Others v. Romania , nos. 35279/10 and 34782/10, §§ 76-84, 5 May 2015; Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002 and the cases cited therein; see also in this context, Mučibabić v. Serbia , no. 34661/07, §§ 102-113, 12 July 2016 , and Mladenović v. Serbia , no. 1099/08, §§ 39 and 47, 22 May 2012)?

2. In view of the decision of the Constitutional Court, may the applicant claim to be a victim of a violation of Article 2 of the Convention, within the meaning of Article 34 (see, mutatis mutandis , Mučibabić v. Serbia , cited above, §§ 114-120)?

3. Having regard to the procedural protection of the right to life ensured by Article 2 of the Convention, was the right to life of the applicants’ sons violated in the present case? In particular, was the investigation carried out in the present case by the domestic authorities in breach of that Article (see, as regards the State’s obligation to provide adequate, independent and transparent investigation, Salman v. Turkey [GC], no. 21986/93, § § 104-105, ECHR 2000-VII; Ramsahai and Others v. the Netherlands [GC], no. 52391/99, ECHR 2007 ‑ II; Tanrıkulu v. Turkey [GC], no. 23763/94, ECHR 1999-IV; Paul and Audrey Edwards v. the United Kingdom , no. 46477/99, ECHR 2002 ‑ II; and Salgın v. Turkey , no. 46748/99, §§ 85-90, 20 February 2007)? Does the official conclusions reached by the competent authorities constitute a “plausible explanation” for the deaths of the applicants’ sons and their injuries, within the meaning of the Court’s case-law (see Petrović v. Serbia , no. 40485/08, § § 88-96, 15 July 2014; see, also, Beker v. Turkey , no. 27866/03, §§ 41-42, 24 March 2009; Pankov v. Bulgaria , no. 12773/03, § 58, 7 October 2010; and Mosendz v. Ukraine , no. 52013/08, §§ 92-93, 17 January 2013)?

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

5. The Government are requested to provide documentary evidence in support of their answers to the issues above. They are, in any event, requested to provide copies of all the documents in the investigation case file, including evidence presented in a medium other than paper.