JOINT PARTLY DISSENTING OPINION OF JUDGE S BRATZA AND VEHABOVIĆ

We are unable to share the view of the majority of the Chamber that the applicant ’ s rights under Article 2 of the Convention were not violated in the present case. In our view, the procedural requirements of that Article were not complied with by the national authorities, who failed to carry out a prompt and effective investigation into the disappearance of the applicant ’ s husband.

The relevant procedural requirements of Article 2 are well-established in the Court ’ s case-law and are set out in the leading judgment of the Grand Chamber in the case of Varnava and Others v. Turkey , which is cited in the present judgment. National authorities are obliged to conduct an official investigation into an arguable claim that a person last seen in their custody subsequently disappeared in a life-threatening context. The investigation must be independent and effective, in the sense that it is capable of leading to the discovery of the whereabouts and fate of the person concerned and to the identification and punishment of those responsible; it must afford a sufficient element of public scrutiny, including being accessible to the victim ’ s family; and it must be carried out with reasonable promptness and expedition.

We accept that certain of these requirements were eventually fulfilled in the present case. In August 2009, the International Commission on Missing Persons established that one of the unidentified bodies from the mass grave in Vragolovi , which had been exhumed in November 2001 and re-interred in a nameless grave in Visoko in March 2002, was that of Mr Palić and, later in the same month, DNA tests confirmed the body to be his. In addition, the investigation ultimately led to the identification of persons suspected of having been responsible for the enforced disappearance of Mr Palić : a domestic arrest warrant was issued by the authorities of the Republika Srpska in February 2002 against Mr Pećanac , a security officer of the main staff of the VRS who had taken Mr Palić from Vanekov mlin prison; in April 2006, the report of the second ad hoc commission established that on capture Mr Palić had been handed over to Mr Tolimir , Assistant Commander for Intelligence and Security of the Main Staff of the VRS and that Mr Pećanac and his driver, Mr Mijatović , had taken Mr Palić from the prison on the night of 4-5 September 1995; in December 2006, international arrest warrants were issued against Mr Pećanac and Mr Mijatović by the Court of Bosnia and Herzegovina; and in December 2009 Mr Tolomir was charged before the ICTY with the murder of Mr Palić as part of a joint criminal enterprise.

These achievements, significant as they are, must however be seen against their factual and historical background. The identification of the body of Mr Palić occurred over fourteen years after his disappearance and some three years after the applicant had requested the respondent Government to examine the mortal remains discovered at the same site to determine if they were those of her husband. The international arrest warrants against two of those suspected of direct involvement in the disappearance were issued eleven and a half years after the disappearance and neither of the suspects has, as yet, been brought to justice, both having moved to Serbia where they currently live. These very substantial periods of delay would of themselves call into question whether the investigation satisfied the requirements of promptness in Article 2. These doubts are, in our view, strongly reinforced when seen in the context of the assessments made of the effectiveness of the investigation by the national tribunals and other official bodies of the respondent State.

It was in December 2000 that the Human Rights Chamber held that Mr Palić had been a victim of an enforced disappearance in breach of Articles 2, 3 and 5 of the Convention and ordered the Republika Srpska , inter alia , to carry out immediately a full investigation capable of exploring all the facts regarding the fate of Mr Palić , with a view to bringing the perpetrators to justice. Nearly a year elapsed before the authorities of the Entity, which had in the proceedings before the Chamber continued to deny any knowledge of the arrest of Mr Palić , eventually acknowledged in November 2001 that he had been held in Vanekov mlin , a military prison administered by the VRS forces and that he had been taken from that prison by Mr Pećanac . It took a further three months for a domestic arrest warrant to be issued against Mr Pećanac , who had by then settled in Serbia . In the subsequent months, the entire war-time personnel of Vanekov mlin , including the governor were interviewed. However, the questions put to the personnel of the prison were subsequently found by the Human Rights Commission to have been inappropriate and irrelevant in the context of the investigation, being questions of a general nature and not directed to the events of the relevant days when Mr Palić had been detained there.

These measures apart, it would appear that no other steps were taken to implement the decision of the Human Rights Chamber or to move the investigation forward for a further 3 years. In July 2005, the High Representative wrote to the Prime Minister of the Republika Srpska to complain that the applicant had never received any results of a satisfactory investigation, let alone her husband ’ s mortal remains. In September of that year, the Human Rights Commission, which had replaced the Human Rights Chamber, rendered a further decision in the case, holding that the judgment of 9 December 2000 had not yet been fully enforced and granting the Republika Srpska an additional three-months period in which to do so. This led to the interviewing of 18 people in connection with the case, including Mr Pećanac , by the authorities of the Republika Srpska and by those of Serbia , at the request of the Entity. However, on 16 January 2006 the Commission repeated that the core element of the decision of December 2000 had still not been complied with: Mr Palić had not been released if he was still alive and, if he had been killed, his mortal remains had not been made available and no prosecution had been brought. In a letter written three days later, the High Representative once again complained of the failure of the Republika Srpska to comply with the Chamber ’ s decision and required the establishment of a Government commission to implement the decision and assemble the facts necessary to provide the applicant with the information she had been denied.

An ad hoc commission was duly established on 25 January 2006. However, the independence of the commission is open to serious doubt, not least because it included among its members Mr Milorad Bukva , who had allegedly attended the meeting of 27 July 1995 at which Mr Palić sought to negotiate the terms of surrender with the VRS forces and, following which, he had disappeared. The first ad hoc commission adopted its report on 20 April 2006, in which it established that Mr Palić had been captured by the VRS forces and handed over to Mr Tolimir , that he had been held in Vanekov mlin and interrogated daily by security officers of the VRS and that he had been removed by Mr Pećanac from the prison on the night of 4-5 September 1995. Doubts were cast on the veracity of the account given by Mr Pećanac that Mr Palić had been taken to Han Pijesak and there handed over to Mr Jovo Marić , since the report established that Mr Marić had not been in Han Pijesak at that time.

The investigation carried out by the commission was not accepted as having sufficiently implemented the Chamber ’ s decision by the new High Representative, who, in a letter of 22 June 2006 to the Prime Minister of the Republika Srpska , deplored that to date the investigation had not yielded any tangible results and stated that he remained unconvinced that the Government of the Entity had exhausted its capacity or its cooperation with the international institutions to implement the Chamber ’ s decision. A second ad hoc commission was created in December 2006, six years after the Chamber ’ s decision, which in March 2007 established for the first time that Mr Palić had been buried in a mass grave in Rasadnik and that, since a search of that area had proved fruitless, his body might have been transferred to a secondary mass grave in Vragolovi , where nine unidentified bodies had been exhumed in November 2001. A further 18 months elapsed before one of the bodies from that mass grave was identified as that of Mr Palić .

In assessing the respondent State ’ s compliance with the procedural requirements of Article 2, the principal focus of the judgment has been on the question of the independence and promptness of the investigation. As to the requirement of independence, despite the doubts which are raised in paragraph 66 of the judgment, we are willing to accept that the State Prosecutor ’ s Office acted independently. However, the independence of the ad hoc commissions is open to serious doubt and we share the concern of the majority that the respondent Government have failed to respond to the allegation that one of the members of the commission played a role in the actual disappearance of the applicant ’ s husband. Where we cannot agree with the majority is in their view that it is not necessary to examine the question of the independence of the commissions since they had no influence on the conduct of the ongoing criminal investigation which was in their view the “key requirement” to ensure compliance with the procedural obligations under Article 2. This, in our view, is to place too narrow an interpretation on the requirements of that Article in the case of enforced disappearances, which are not confined to the conduct of criminal investigations but include other forms of investigation designed to establish the circumstances of the disappearance and the fate of the person concerned. The independence of the ad hoc commissions, which the judgment accepts played an important role in the establishment of the facts of the case, is, we consider, of evident importance in assessing the effectiveness of the investigation.

But it is on the requirement of promptness that we principally part company with the majority of the Chamber. The judgment acknowledges that there were “initial delays” in the investigation, the admission that Mr Palić had been held in a military prison and removed from there having only been made in November 2001 and the criminal investigation having only effectively started in late 2005. It is also acknowledged that, although the Court is only competent ratione temporis to examine the period after the ratification of the Convention by the respondent State on 12 July 2002, it is entitled to take into consideration the state of the case at that date. However, in concluding that the domestic criminal investigation could be considered to have been conducted with reasonable promptness and expedition, reliance is placed in the judgment on the fact that Article 2 must be interpreted in a way which does not impose an impossible or disproportionate burden on the national authorities. It is said that the situation in Bosnia and Herzegovina , notably in the 10 years following the war, was a complex one and that in a post-conflict situation in which many thousands had been killed or had disappeared and two million had been displaced, choices had inevitably to be made in terms of post-war priorities and resources. It is the view of the majority that it was only in 2005 that the domestic legal system should have become capable of dealing effectively with disappearances and that there had been no substantial period of inactivity post-2005 on the part of the national authorities in the present case.

We do not underestimate the immense problems which confronted the national authorities in the aftermath of a long and brutal war or the grave difficulties faced by the Entities in carrying out investigations into the disappearance of many thousands of persons. We accept, too, that what would amount to an impossible or disproportionate burden must be measured in the light of the particular facts and context, which in the present case differ in their nature and complexity from those examined by the Court in other cases, including that of Varnava and Others . However, as pointed out in that case (paragraph 191), even where there may be obstacles which prevent progress in an investigation in a particular situation, a prompt response by the authorities is vital in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts .In the present case, we are unable to ignore not only the serious delays which had occurred in the investigation in the years prior to 2006, which may well have prejudiced the possibility of bringing those responsible to justice, but the fact that the authorities remained virtually supine despite the clear findings and orders of the national tribunals which had been set up with the specific purpose of ensuring the effective protection of human rights. The case of Mr Palić was no ordinary case. His disappearance in the circumstances in which it had occurred was an incident of particular notoriety and the urgency and importance of its investigation (whether criminal or otherwise) was underlined by the repeated decisions of the Human Rights Chamber and Commission, as well as by the letters of the successive High Representatives. It may well be, as suggested in the judgment, that part of the explanation for the lack of activity was the reluctance of the former warring parties to work with the new institutions. But, while this may explain, it cannot justify, non-compliance with the orders of such institutions. Nor, in our view, can such non-compliance be justified by the need to make choices in terms of priorities or resources. We would, in any event, find it difficult to accept that the carrying out of a prompt and effective investigation into Mr. Palic ’ s disappearance could be said to have imposed an impossible or disproportionate burden on the national authorities, when the national tribunals of the respondent State itself considered this to be not only possible but essential.

In these circumstances, we would, unlike the majority, reject the Government ’ s preliminary objection that the applicant has lost her victim status. While the mortal remains of Mr Palić have eventually been identified and while the applicant has obtained a finding of a violation of Article 2 and received compensation in respect of the disappearance of her husband in the Human Rights Chamber, this does not affect the question whether the authorities effectively and promptly discharged their procedural obligations under that Article, reinforced by the decision of the Chamber itself, to investigate the disappearance and death of Mr Palić . In our view, they did not do so for the reasons given and consequently there has been a violation of that Article. This being so, we have not found it necessary to go on to consider additionally whether there has been a violation of Article 5 of the Convention.

As to the complaint under Article 3 of the Convention, while we have no doubt as to the suffering which was caused to the applicant by the lack of effectiveness of the investigation and the delay in providing her with official information as to the fate of her husband, we do not find that in all the circumstances Article 3 has been violated. In this regard we accept the conclusion and reasoning of the majority of the Chamber.

[1] 1. See the Press Release of the United Nations Working Group on Enforced or Involuntary Disappearances of 21 June 2010 on its visit to Bosnia and Herzegovina .

[2] 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 commonly used to denote citizens of Bosnia and Herzegovina irrespective of their ethnic origin.

[3] 3. 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).

[4] 4. See United Nations General Assembly resolution 47/133 of 18 December 1992.

[5] 5. Following the war in Bosnia and Herzegovina, the United Nations Security Council authorised the establishment of an international administrator for Bosnia and Herzegovina (High Representative) by an informal group of States actively involved in the peace process (Peace Implementation Council) as an enforcement measure under Chapter VII of the United Nations Charter ( see, for more detailed information, Beri ć and Others v. Bosnia and Herzegovina (dec.), nos. 36357/04 et al. , ECHR 2007 ‑ XII ).

[6] 6. A definition of the third category of joint criminal enterprise is set out in the ICTY judgment in the Tadić case , IT-94-1-A , § 204, 15 July 1999 : “ The third category concerns cases involving a common design to pursue one course of conduct where one of the perpetrators commits an act which, while outside the common design, was nevertheless a natural and foreseeable consequence of the effecting of that common purpose. An example of this would be a common, shared intention on the part of a group to forcibly remove members of one ethnicity from their town, village or region (to effect ‘ ethnic cleansing ’ ) with the consequence that, in the course of doing so, one or more of the victims is shot and killed. While murder may not have been explicitly acknowledged to be part of the common design, it was nevertheless foreseeable that the forcible removal of civilians at gunpoint might well result in the deaths of one or more of those civilians. Criminal responsibility may be imputed to all participants within the common enterprise where the risk of death occurring was both a predictable consequence of the execution of the common design and the accused was either reckless or indifferent to that risk. ”

[7] 7. The Convention entered into force on 23 December 2010 . Both Bosnia and Herzegovina and Serbia signed it on 6 February 2007, but they have not yet ratified it.

[8] 8. Human Rights Committee’s document CCPR/C/BIH/CO/1/Add.4 of 8 June 2010, § 21.