Case No.: CH/99/3196
Applicant: Avdo and Esma PALIC
Respondent Party: Republika Srpska
Date Delivered: 11 January 2001

DECISION ON ADMISSIBILITY AND MERITS

Factual Background

The application was brought before the Chamber by Ms. Esma Palic in her own right and on behalf of her husband, Colonel Avdo Palic. The applicant's husband was a military commander of the Army of the Republic of Bosnia and Herzegovina in the Zepa enclave. In July 1995, when intensive fighting with Bosnian Serb forces was going on in that area, Colonel Palic was negotiating with the Bosnian Serb Army, on UN premises and under UN safety guarantees, about the evacuation of civilians. On 27 July 1995 Colonel Palic was forcibly taken away by Bosnian Serb forces in the presence of UN soldiers and monitors and taken in the direction of Bosnian Serb General Ratko Mladic's command position. As of the date of the Chamber's consideration, Colonel Palic was still registered as a missing person.

Admissibility

The Chamber found that there was strong circumstantial evidence that Colonel Palic was held in detention after 14 December 1995. Thus, insofar as an ongoing violation of his rights was claimed, the Chamber found that the application came within the competence of the Chamber ratione temporis. The Chamber noted that the applicant Ms. Palic filed, inter alia, a claim with the competent commission in the Republika Srpska, but never received any information on the whereabouts of her husband. No investigation was ever carried out in respect of the arrest and detention of Colonel Palic, and the Chamber found that a complaint to the Republika Srpska police would not have been effective. The Chamber therefore found that Ms. Palic did not have to report to the police authorities of the respondent Party what had happened to her husband, and that she had exhausted all effective domestic remedies. Thus the Chamber declared the application admissible.

Merits

Article 5 of the Convention

The Chamber found that the evidence before it confirmed beyond doubt that Colonel Palic was forcibly taken away by Bosnian Serb forces, prior to 14 December 1995, and subsequently detained, and that it must be assumed that Colonel Palic was either still kept in captivity or that he had been killed. Noting that the authorities of the respondent Party had failed to offer any credible and substantiated explanation for the whereabouts and fate of Colonel Palic and that no investigation was conducted when Ms. Palic presented credible indications that her husband was in detention and that she was concerned for his life, the Chamber found that the respondent Party had failed to discharge its responsibility to account for him and that it must be accepted that he had been held in unacknowledged detention in the complete absence of the safeguards contained in Article 5. Thus the respondent Party violated Colonel Palic's right to liberty and security of person under Article 5.

Article 2 of the Convention

The Chamber noted the total absence of action on the part of the respondent Party to investigate the fate of Colonel Palic and to make all relevant information about him, particularly as to whether he was still alive, available to Ms. Palic and to the Chamber. The Chamber also noted that, according to the European Court of Human Rights, the period of time which has elapsed since a person was placed in detention, although not decisive in itself, is a relevant factor to be taken into account in determining the likelihood that he or she has died. Taking into account that about five years had passed without information as to Colonel Palic's whereabouts or fate the Chamber concluded that the respondent Party had violated Colonel Palic's right to life as guaranteed under Article 2.

Article 3 of the Convention

Regarding Colonel Palic, the Chamber found that the facts surrounding his deprivation of liberty disclosed that he was a victim of enforced disappearance within the meaning of the UN Declaration on the Protection of All Persons from Enforced Disappearance, Article 1 of which holds that any act of enforced disappearance constitutes a violation of the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment. The Chamber found that this incommunicado detention and the suffering and fear of Colonel Palic that may safely be presumed to have been caused by it revealed inhuman and degrading treatment in violation of Article 3 in relation to Colonel Palic.

Regarding Ms. Palic, the Chamber noted that she had suffered uncertainty, doubt and apprehension for more than five years. Although she had filed an application with the competent commission of the respondent Party requesting the investigation of her husband's fate she had been left with the anguish of knowing that her husband was detained on 27 July 1995 and that there was a complete absence of official information as to his fate. No steps had been taken by the respondent Party to remedy these matters. Thus the Chamber found that the respondent Party was in breach of Article 3 in respect of Ms. Palic.

Article 8 of the Convention

The Chamber noted that Ms. Palic had shown that her husband was arrested by the respondent Party on 27 July 1995 and that he was apparently never released, and that she had, without any success, filed an application with the competent commission of the respondent Party and taken various other steps to get information from the respondent Party about the whereabouts of her husband. The Chamber therefore found that Ms. Palic had sufficiently substantiated that the respondent Party was arbitrarily withholding from her information, which must be in its possession, concerning the fate of her husband, including information concerning her husband's body, if he was no longer alive. Thus the respondent Party violated her right to respect for her family life under Article 8.

Remedies

The Chamber ordered the Republika Srpska to carry out immediately a full investigation capable of exploring all the facts regarding Colonel Palic's fate from the day when he was forcibly taken away with a view to bringing the perpetrators to justice; to release Colonel Palic, if still alive, or otherwise, to make available his mortal remains to Ms. Palic; to make all information and findings relating to the fate and whereabouts of Colonel Palic known to Ms. Palic; to pay to Ms. Palic KM 15,000 by way of compensation for her mental suffering; and to pay to Ms. Palic in respect of her husband, by way of compensation for non-pecuniary damage, KM 50,000, to be held by her for her husband or his heirs.

Dissenting/Concurring Opinions

Mr. Vitomir Popovic attached a dissenting opinion in which he argued that the Chamber should have declared the application inadmissible as incompatible ratione temporis and for failure to exhaust domestic remedies.

Decision adopted 9 December 2000
Decision delivered 11 January 2001

DECISION ON REQUEST FOR REVIEW

The respondent Party submitted a request for review. As for the respondent Party's argument that the Chamber went beyond the claims set out in the application by considering the application as having been submitted by Ms. Palic in her own right as well as on behalf of her husband, the Chamber found that nothing suggested that Ms. Palic did not wish to apply in her own name as well as in that of her husband. As for the argument that the application ought to have been declared inadmissible on the ground of non-compliance with the six-month rule, the Chamber considered that since the application complained of a continuing situation, this objection should be rejected. As for the respondent Party's disagreement with the award of monetary relief made in favour of the applicant, the Chamber found that it involved neither a serious issue affecting the interpretation of the Human Rights Agreement nor an issue of general importance. Thus the Chamber considered that the request did not meet the two conditions required for the Chamber to accept such a request pursuant to Rule 64(2), and decided to reject the request for review.

Decision adopted 8 March 2001