Case No.: CH/99/2150
Applicant: \or|o UNKOVIC
Respondent Party: Federation of Bosnia and Herzegovina
Date Delivered: 9 November 2001

DECISION ON ADMISSIBILITY AND MERITS

Factual Background

The applicant, a citizen of Bosnia and Herzegovina of Serb ethnic origin, is a pensioner living in Sarajevo. At the beginning of the war, the applicant's daughter and her husband and two children, all of Serb ethnic origin, were living in Konjic in the Federation. The applicant lost contact with his daughter and her family in the summer of 1992. Thereafter, the applicant heard rumours that his daughter's family had been killed, but he did not receive any official information to confirm such rumours. In January 1999, the applicant learned from the newspapers that two men had been arrested for killing his daughter's family in Konjic at the beginning of July 1992. The applicant complains that the authorities of the respondent Party wilfully withheld information from him from 1992 through 1999 concerning his daughter's fate and that this has caused him "mental suffering, pain and sorrow."

Admissibility

The Chamber found that the applicant had not exhausted domestic remedies with respect to his claim for pecuniary compensation for the missing property of his daughter's family, as he did not raise his property law claim in the criminal proceedings against the men charged with the murders and did not pursue civil proceedings against these men or against the Federation. The Chamber thus declared the part of the application concerning the claim for pecuniary compensation for the missing property of his daughter's family inadmissible.

However, the Chamber found that the same reasoning did not apply to the applicant's claim for non-pecuniary compensation for his mental suffering. Since the Chamber was not aware of, and the respondent Party had not pointed out, any provision in domestic law which would grant the applicant an effective domestic remedy from the Federation for the mental suffering damages he sought to recover in his application before the Chamber, the Chamber concluded that the applicant's claim for non-pecuniary compensation was admissible.

Thus the Chamber declared admissible the part of the application concerning the applicant's claims under Articles 3, 8, and 13 and his claim for non-pecuniary compensation insofar as these claims related to failures by the respondent Party that continued after 14 December 1995.

Merits

Article 3 of the Convention

The applicant claimed that he experienced mental suffering as a result of the uncertainty surrounding the fate of his daughter and her family. He did not learn the truth until more than seven years after the murders and until after stories and speculation concerning the murder appeared in local newspapers. Throughout the prolonged period of delay and numerous interruptions in the investigative and criminal proceedings, the applicant suffered from his apprehension, distress, and sorrow over the fate of his daughter and her family, including his two young grandsons. The Chamber found no reasonable justification for this suffering to have lasted as long as it did. Thus the Chamber concluded that the respondent Party violated the Article 3 right of the applicant to be free from inhuman or degrading treatment during the period of 14 December 1995 through 5 May 1999, when the applicant was recognised and allowed to participate as an injured party in the main criminal proceedings against the men who murdered his daughter's family.

Article 8 of the Convention

Noting that the applicant's claims under Article 3 and Article 8 were in essence the same and concern the failure of the respondent Party to timely investigate and inform the applicant about the fate of his daughter's family, and in view of its conclusion with respect to Article 3, the Chamber found it unnecessary to separately examine the case under Article 8.

Article 13 of the Convention

The Chamber found that in the context of a case filed by the relative as opposed to the actual victim of the crime, the right protected by Article 13 is included within the right protected by Article 3. Thus, taking into account its finding of a violation of the applicant's right protected by Article 3, the Chamber found no separate violation of Article 13.

Remedies

The Chamber ordered the respondent Party to pay to the applicant KM 10,000 by way of non-pecuniary compensation for his mental suffering.

Decision adopted 10 October 2001
Decision delivered 9 November 2001

DECISION ON REQUEST FOR REVIEW

As of 31 December 2001, the decision on request for review had not been decided.