JOINT DISSENTING OPINION OF JUDGES MØSE AND TURKOVIĆ

1. We do not agree with our colleagues in finding that there has been a violation of Article 2 of the Convention in its procedural aspect (see paragraphs 62 to 74 of the present judgment).

2. T he present case, which is similar to that of Jelić v. Croatia (no. 57856/11, 12 June 2014), concerns the killing of a person of Serbian ethnic origin in the broader Sisak area in 1991. The investigation into the killings in these two cases, as well as thirty-two other killings in the area, led to the indictment of three individuals, of whom one died, one was acquitted and one ( V.M.) was convicted (see paragraph 31 of the judgment). V.M. was thus found guilty of war crimes against the civilian population in his capacity as Commander of the Police Forces in the broader area of Sisak and Banovina and as Deputy Head of the Sisak Police, in that he had allowed the killings of persons of Serbian origin and had failed to take adequate measures to prevent such killings (see paragraph 30 of the judgment). In the present case, as in Jelić, the direct perpetrators have not yet been brought to justice.

3. We certainly agree with the majority that in the context of war crimes the superior (command) responsibility is to be distinguished from the responsibility of subordinates, and that the punishment of superiors for 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 66 of the judgment relying on Jelić , cited above, § 88). However, the circumstances of the present case are very different from those of the Jelić case when it comes to the prosecution of possible direct perpetrators who are still alive.

4. In Jelić three witnesses had stated during the criminal investigation that A.H. had personally shot and killed Vaso Jelić. Some of them were direct eyewitnesses. A unanimous Chamber found that the authorities had failed to take appropriate steps in order to bring those responsible to justice (see Jelić , cited above, §§ 89-95) . In the present case, however, the police have followed numerous leads, updating witness statements, looking for witnesses and tracking down as far as possible the names of potential suspects which have been mentioned by witnesses. Inevitably, given that more than twenty years have elapsed since the events, some of the witnesses and two out of three potential suspects have died in the meantime (compare Gürtekin and Others v. Cyprus (dec.), nos. 60441/13 et al., § 25, 11 March 2014).

5. As regards the statements given to the police which could indicate the possible direct perpetrators, it should be emphasised that in August 1991 Vl.P., who was asked by soldiers to drive a coach to Sisak, said that Croatian soldiers V.H. and M.S. had apprehended the victim V.B. (see paragraph 8 of the judgment). In February 2003 D.M., another Croatian soldier, confirmed the presence of V.H. at the crime scene and also identified M.B. as the commander of the unit of the Croatian army whose members had been involved in the beating of V.B. (see paragraph 13 of the judgment). Several other Croatian soldiers confirmed that M.B. had indeed been in command (see paragraph 15 of the judgment). In January 2009 a Croatian soldier, S.Å ., told the police that he had heard that V.H. and M.S. had beaten V.B. (see paragraph 21 of the judgment).

6. These statements gave a certain indication that Croatian soldiers V.H., M.B. and M.S. could have been implicated in the beating of V.B. which soon led to his death. In this connection it is important to bear in mind that V.H. died in 1997 and M.B. died in 2002 (see paragraphs 10 and 12 of the judgment). Both passed away before October 2002.

7. As regards M.S., the only survivor of the three potential suspects, it is important to note that his implication was indicated by Vl.P. when he was interviewed by the police in 1991. However, when interviewed again by the police in 2003 Vl.P. could not name any of the persons present at the crime scene at the critical time (see paragraph 17 of the judgment). Vl.P. died in 2009 (see paragraph 23 of the judgment), while S.Å ., the only other witness implicating M.S. during his interview in 2009, had no direct knowledge about the beating of V.B. but had only later heard that M.S. and V.H. had beaten him (see paragraph 21 of the judgment). When interviewed in February 2003 M.S. denied any involvement in the killing of V.B. (see paragraph 16 of the judgment).

8. Thus, the police, after conducting a number of interviews, did not have any firm evidence, beyond the hearsay evidence of S.Š., about the direct involvement of M.S. in the beating of V.B. (see, in this regard, Gürtekin and Others, cited above, § 20). This leads us to conclude that the present case is not comparable to Jelić , but rather to the whole line of cases emphasising that Article 2 cannot be interpreted such as to impose a requirement on the authorities to initiate a prosecution irrespective of the evidence which is available. 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 and irrespective of the standard of evidence required. The impact on a defendant who thus comes under the weight of the criminal justice system is considerable, as he or she is held up to public obloquy, with all the attendant repercussions on his or her reputation and private, family and professional life. Reference is made to Palić v. Bosnia and Herzegovina (no. 4704/04 , § 65, 15 February 2011), where the Court held that the investigation had been effective, despite the fact that there had not been any convictions (see also Gürtekin and Others , cited above, § 27; Mujkanović and Others v. Bosnia and Herzegovina (dec.), nos. 47063/08 et al., § 39, 3 June 2014; Fazlić and Others v. Bosnia and Herzegovina (dec.), nos. 66758/09 et al., § 37, 3 June 2014; Šeremet v. Bosnia and Herzegovina (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 ).

9. Indeed, as the Court has held on many occasions (see 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 not an obligation of result, but one of means. What is relevant is that the domestic authorities have done all that could be reasonably expected of them in the circumstances of this particular case.

10. The majority rightly point out the complexity and sensitivity of the case concerning thirty-four victims (see paragraph 62 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 63 of the judgment, compare Palić , cited above); and the efforts of the State Attorney ’ s office in prosecuting war crimes (see paragraph 64 of the judgment). However, in our view they have not given sufficient weight to these circumstances in the concrete assessment of the present case.

11. It should also be pointed out that the domestic authorities have pursued a strategy of investigation and prosecution of war crimes committed in the period from 1991 to 1995 (see the document available on the website of the State Attorney ’ s Office entitled “Actions in Prosecution of War Crimes” [1] ). This public document, which the Government did not supply to the Court, sets out a systematic approach to solving the problem of the large number of pending war-crime cases. An order of priority was assigned to each case at national and regional levels, taking into consideration the seriousness of the offence, the number of victims and the degree of sensitivity, with the aim of systematically investigating the crimes in which the perpetrators had not been identified. Cases against those in command in the Sisak area were assigned national priority, and as a consequence V.M. was convicted. Meanwhile investigations into all war crimes have been continuing.

12. In so far as the applicants make reference to a lack of expedition, we agree with the majority that the Court should take into consideration only the inquiry which took place after 22 October 2002 (see paragraph 65 of the judgment). It should be reiterated, in this connection, that the standard of expedition in such historical cases is very different from the standard applicable in respect of recent incidents, where time is often of the essence in preserving vital evidence at a scene and questioning witnesses while their memories are fresh and detailed (see Varnava and Others v. Turkey , [GC], nos. 16064/90 et al., §§ 191 ‑ 92, 18 September 2009; Gürtekin and Others , cited above, §§ 21-22; Mujkanović and Others , cited above, § 41; Fazlić and Others , cited above, § 39; Å eremet , cited above, § 37; Muratspahić , cited above, § 33; Demirović and Others , cited above, § 34; Zuban and Hamidović , cited above, § 34; and Žerajić and Gojković , cited above , § 32 ). Nevertheless, many war criminals have already been brought to justice in Croatia. The prosecuting authorities, by 31 December 2012, had opened investigations in respect of a total of 3,436 alleged perpetrators and there had been 557 convictions (see paragraphs 38 and 64 of the judgment).

13. In our view the present case does not reveal any substantial period of inaction after 2002 on the part of the domestic authorities (see paragraphs 13-31 of the judgment), particularly in the light of the concurrent investigations conducted in relation to thirty-three other victims. During that period, the domestic authorities questioned more than 100 persons, issued indictments against three and finally convicted one of them. That being the case, the criminal investigation can be considered to have been conducted with reasonable promptness and expedition (compare for example Mujkanović , cited above).

14. As to the applicants ’ allegation that the Sisak Police did not satisfy the requirement of independence, we note that some of the perpetrators of the crimes at issue in the present application appear to have been highly ranked officials of the Sisak police force during the war and at the beginning of the country ’ s independence . However, we do not consider this factor sufficient in itself to conclude that the domestic criminal investigation was not independent at the material time. The fact that the efforts of that same police force resulted in the indictment of its former Deputy, who was subsequently convicted on the basis of the evidence collected by that same force (see paragraph 2 above), strongly indicates that the Sisak police had acted independently of its former heads, at least since 2002 (the time under consideration in this judgment).

15. 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 8 above), the special 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 62-64 of the judgment), we do not find any reason in the present case to reach a different conclusion from that reached in cases raising similar issues, where the Court has found that t he investigation had not been shown to have infringed the minimum standard required under Article 2 (see paragraphs 8 and 12 above).

16. There has accordingly been no violation of Article 2 of the Convention under its procedural limb.

[1] http://www.dorh.hr/fgs.axd?id=1342 (English version)