DISSENTING OPINION OF JUDGES GRIȚCO, TURKOVIĆ AND KJØLBRO

1. We regret that we are unable to agree with our colleagues in finding that there has been a violation of Article 2 of the Convention under its procedural aspect (see paragraphs 72 to 89 of the present judgment). We do not call into question the recapitulation of general principles guiding the Court ’ s jurisprudence concerning States ’ procedural obligations under Article 2 of the Convention in relation to an effective official investigation (see paragraphs 66 - 71 of the judgment). We also agree with the majority that in the context of war crimes the superior (command) responsibility is to be distinguished from the responsibility of their subordinates, and that the punishment of superiors for the failure to take necessary and reasonable measures to prevent or punish war crimes committed by their subordinates cannot exonerate the latter from their own criminal responsibility (see paragraph 76 of the judgment relying on Jelić v. Croatia , no. 57856/11, § 88, 12 June 2014 ). However, we differ in the application of those general principles to the factual circumstances of the present case.

2. The majority considered that the national authorities failed to carry out an effective investigation into the circumstances surrounding the killing of S.M. in two ways: firstly, by failing to confront the second applicant and S.N. (see paragraph 85 of the judgment) and secondly, by keeping the examination at the level of police inquiry (see paragraph 86 of the judgment). We find both arguments unconvincing, particularly because the nature and degree of scrutiny by domestic authorities conducting investigation must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work (see Armani da Silva v. U.K. [GC], no. 5878/08 § 234, 30 March 2016; Velcea and Mazăre v. Romania , no. 64301/01 , § 105, 1 December 2009; and Mustafa Tunç and Fecire Tunç [GC], no. 24014/05, § 175, 14 April 2015). Moreover, as the Court stressed in Mustafa Tunç and Fecire Tunç (§ 225), compliance with the procedural requirement of Article 2 is assessed on the basis of several essential parameters: the adequacy of the investigative measures, the promptness of the investigation, the involvement of the deceased person ’ s family and the independence of the investigation. These elements are inter-related and each of them, taken separately, does not amount to an end in itself. They are criteria which, taken jointly, enable the degree of effectiveness of the investigation to be assessed. It is in relation to this purpose of an effective investigation that any issues must be assessed.

3. Bearing that in mind, we find it important to note the following. Although the second applicant stated that he would be able to recognise Š. in person, in particular if he heard his voice (see paragraph 80 of the judgment) we find that confronting the second applicant with N.S. who was known as Š. could be of little, if any practical and/or evidential value in the present case for the three principal reasons. First, although, the second applicant stated that he would be able to recognise Š. because he had characteristic face, when he was shown eighteen photographs by the police, including the one of Š., he did not recognise him (see paragraph 79 of the judgment). Second, the second applicant gave contradictory statements in relation to Š. He was the only one of the five direct eyewitnesses to his father ’ s arrest (his mother, his brother and two neighbours) who initially claimed that Š. was not wearing balaclavas, that he saw his face and recognised him (see paragraphs 31 and 79 of the judgment). The other eye-witnesses stated that all four men who took S.M. away had covered faces (see paragraph 77 of the judgment). The second applicant himself, in his later statement, said that the soldiers who had taken his father away all had balaclavas over their faces (see paragraphs 35 and 79 of the judgment). Therefore, according to his own account he actually did not see the face of Š. on the day of the event. Thus, even if he recognised Š. on confrontation this would not necessarily confirm that Š. was among those who arrested his father. Third, even if the second applicant recognised Š. ’ s voice when confronted with him such recognition would have little evidentiary value since Š. was known to him independently of the critical event and owing to the passage of time. More than twenty years had passed since the event. In those circumstances, we consider that the police cannot be faulted with not having confronted the second applicant with S.N., and hold that the absence of such confrontation did not diminish the effectiveness of investigation. Moreover, evidence so obtained would have little, if any, credibility in the proceedings, which could then raise an issue of the accused ’ s right to a fair trial (see Laska and Lika v. Albania , nos. 12315/04 and 17605/04 , 20 April 2010).

4. Furthermore, we do not agree with the majority that the investigation of the circumstances surrounding the arrest and killing of S.M. by the national authorities remained at the level of police inquiry (see paragraph 86 of the judgment). This investigation was a part of a broader investigation of the war crimes committed in the Sisak area. On an unspecified date the official investigation was opened against Đ.B., V.M. and D.B. (see paragraph 38 of the judgment). The investigation covered the killing of S.M. There was nothing to prevent the investigating judge, the State Attorney or the courts from taking formal statements in relation to arrest and killing of S.M. from any of the witnesses. Indeed, some of the witnesses questioned by the police in relation to the arrest and killing of S.M. during the police inquiry, in particular the second applicant R.M. and the eye-witness I.D., were included as witnesses in V.M. ’ s trial and testifind in court. Their testimonies, as recorded in the judgment against V.M., corresponded to the statements which they had given previously to the police when they had been interviewed in relation to the killing of S.M. The crimes for which V.M. was convicted included the killing of S.M. (see paragraphs 6, 37 to 41 of the judgment).

5. During the police inquiry into the circumstances surrounding the arrest and killing of S.M., the police identified nineteen out of twenty-two members of the police forces (“Croatian army”) stationed in Novo Selo at the time of the critical event and scheduled interviews with all of them, including N.S. (known as Š). D.P. was the only one who refused to give statements to the police. At the time, he was employed by the military secret services, and according to R. he was advised by his superiors not to testify (see paragraph 86 of the judgment; cf. police report in the file). All other eighteen members of the Croatian army were interviewed and none of them had any concrete or direct knowledge of the possible perpetrators, beyond rumours (see paragraphs 19, 23, 26, and 29 of the judgment). The identity of B. remained uncertain (see paragraph 82 of the judgment). N.S. was identified as Š. When questioned, he confirmed that he was stationed in Novo Selo, but denied any involvement in the abduction and killing of S.M. There were no further leads concerning him (ibid.). The second applicant himself said that one of his friends had told him that he had seen his father in the Sisak detention centre about three weeks after S.M. had been arrested (see paragraph 32 of the judgment). The investigation could not confirm when exactly and under what circumstances S.M. had been killed. After questioning all the witnesses identified (more than twenty), apart from D.P., no leads emerged concerning any possible direct perpetrators. Under those circumstances, contrary to the majority (see paragraph 86 of the judgment), we believe that it was not unreasonable for the State Attorney to conclude that for the moment there was no need to investigate any further. Unlike the majority, we do not find that the failure to take a formal statement from D.P., in the context of all other investigative steps taken and the available evidence, so diminished the effectiveness of the investigation as to justify a finding of a procedural violation of Article 2 of the Convention. This is especially true in view of the fact that there is no statute of limitation for war crimes and crimes against humanity and that the investigation in the present case (as in any other case concerning war crimes in Croatia) has not, and could not have, been closed, such cases have to be regularly updated, and should any new leads be discovered, the investigation can be resumed at any time. In that connection we would emphasise that it is not the Court ’ s task to micro-manage the functioning of, and procedures applied in, criminal investigative and justice systems in Contracting States (see Armani da Silva , cited above, § 278).

6. Having regard to all the above considerations we do not find that there were any significant oversights or omissions in the investigation of the arrest and killing of S.M. The facts of the case show that the police followed up all the leads, updating the witness statements, looking for witnesses and tracking down as far as possible the names of potential suspects which had been mentioned by witnesses. All the traceable witnesses, totalling more than twenty, except for D.P., were interviewed (see, to the contrary effect Jelić , cited above, §§ 89-95), the available evidence was collected and reviewed (see, to the contrary effect, Charalambous and Others v. Turkey (dec.), no. 46744/07, § 65, 3 April 2012). Inevitably, given the lapse of more than twenty years since the events, some of the potential witnesses have died in the meantime (cf. Gürtekin and Others v. Cyprus (dec.), nos. 60441/13 etc., § 25, 11 March 2014). The fact that the investigation did not succeed in identifying the perpetrators of S.M. ’ s killing does not necessarily mean that it was ineffective. In the circumstances, the authorities cannot be impugned for any culpable disregard, discernible bad faith or lack of will (ibid., § 27). Indeed, as the Court has held on many occasions (see, for example Hugh Jordan v. the United Kingdom , no. 24746/94 , § 107, ECHR 2001-III, and Palić , cited above, § 65), the procedural obligation under Article 2 is an obligation not of result but of means. What is relevant is that the domestic authorities did all that could be reasonably expected of them in the circumstances of this particular case.

7. This leads us to conclude that the present case is not comparable to Jelić (in which three witnesses, some of whom had been eye-witnesses, stated that A.H. had personally shot and killed Vaso Jelić, cited above, § 89), but rather to the whole line of cases emphasising that Article 2 cannot be interpreted as imposing a requirement on the authorities to launch a prosecution irrespective of the evidence which is available. In the present case, we only have rumours about the possible persons involved in the arrest and killing of S.M. Bearing in mind the presumption of innocence, a prosecution on such a serious charge as involvement in war crimes should never be embarked upon lightly, irrespective of the standard of evidence required. The impact on a defendant who comes under the weight of the criminal justice system is considerable, being held up to public obloquy, with all the attendant repercussions on reputation, private, family and professional life. Given the presumption of innocence enshrined in Article 6 § 2 of the Convention, it can never be assumed that a particular person is so tainted with suspicion that the standard of evidence to be applied is an irrelevance. Rumour and gossip are a dangerous basis on which to base any steps that can potentially devastate a person ’ s life (cf. Palić v. Bosnia and Hercegovina , no. 4704/04, § 65, 15 February 2011, where the Court held that the investigation had been effective despite the fact that there had been no convictions; Gürtekin and Others , cited above, § 27; Mujkanović and Others v. Bosnia and Hercegovina (dec.), nos. 47063/08 et al., § 39, 3 June 2014; Fazlić and Others v. Bosnia and Hercegovina (dec.), nos. 66758/09 et al., § 37, 3 June 2014; Šeremet v. Bosnia and Hercegovina (dec.), no. 29620/05 , § 35, 8 July 2014; Muratspahić v. Bosnia and Herzegovina (dec.), no. 31865/06 , § 31, 2 September 2014; Demirović and Others v. Bosnia and Herzegovina (dec.), no. 35732/09 , § 32, 2 September 2014; Zuban and Hamidović v. Bosnia and Herzegovina (dec.), nos. 7175/06 and 8710/06 , § 32, 2 September 2014, and Žerajić and Gojković v. Bosnia and Herzegovina (dec.), no. 16503/08 et al., § 30, 13 November 2014).

8. The majority rightly emphasises the complexity and sensitivity of the case, concerning, as it does, thirty-four victims (see paragraphs 37-41 and 76 of the judgment); the overall situation in Croatia, a newly independent and post-war State which needed time to organise its apparatus and for its officials to gain experience (see paragraph 73 of the judgment, compare to Palić , cited above); the number of war crimes that are under prosecution, the practical realities of investigation work such as the passage of time or the large scope of investigation; and the significant efforts of the State Attorney ’ s office in prosecuting war crimes (see paragraph 74 of the judgment). In our view, however, the majority has not given sufficient weight to those circumstances in their concrete assessment of the present case. Finding a violation on the basis of two relatively minor alleged omissions in quite an extensive investigation effort covering a number of war crimes committed in the broader Sisak area, and in disregard of the overall context of the particular investigation (prioritising the establishment of the command responsibility, the investigation in the present case has not been closed and were any new leads to be discovered the investigation could be at any time resumed, the overall investigation into the crimes committed during the war in Croatia in the broader Sisak area, the intensity of the investigation in the present case (more than twenty witnesses interviewed) and the conviction of V.M.) imposes very heavy, and in our view excessive, burdens on the State when investigating massive war crimes (see in this context also Muratspahić , cited above, §§ 10, 28-35; Zuban and Hamidović , cited above, §§ 10, 30-36; Žerajić and Gojković , cited above, §§ 9, 29-34; and Demirović and Others , cited above §§ 10, 28-36).

9. The Court has already held that the procedural obligation under Article 2 must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities (see Osman v. the United Kingdom , 28 October 1998, § 116, Reports 1998 ‑ VIII; Palić , cited above, § 70; and Žerajić and Gojković , cited above, § 31). Consequently, having regard to the facts of the case, the Court ’ s case-law (see paragraph 6 above), the particular circumstances prevailing in Croatia in the post-war period, the large number of war crimes cases pending before the local courts and the large number of victims (see paragraphs 72-74 of the judgment), we do not find any reason to reach a different conclusion in the present case than in the cases raising similar issues, where the Court has found, in similar circumstances, that the investigation had not been shown to have infringed the minimum standard required under Article 2 (see paragraph 7 above).

10. In conclusion, we find no evidence in support of the applicants ’ allegations that the authorities did not properly investigate the fate of the deceased or that they are somehow shielding or protecting those responsible. The investigation has not been shown to have infringed the minimum standard required under Article 2. There has accordingly been no violation of Article 2 of the Convention in its procedural limb.