Case No.: CH/01/6979
Applicant: E.M. and Š.T.
Respondent Party: Federation of Bosnia and Herzegovina
Date Delivered: 8 March 2002

DECISION ON ADMISSIBILITY AND MERITS

Factual Background

The application was brought before the Chamber by E.M. in her own right and on behalf of her brother, Š.T. In July 1998, under the influence of alcohol, B.B. shot Š.T. in the head and killed him. On 21 October 1998, at the conclusion of the criminal trial for the killing of Š.T., the Municipal Court of Livno found that B.B. had committed the criminal offence of murder. However, because of reduced criminal accountability at the moment of the crime, due to the consumption of alcohol, the Court found that a sentence of imprisonment or other punishment was inappropriate. Instead, the Court issued a procedural decision ordering B.B. to undergo a security measure of mandatory psychiatric treatment in custody. After three months the order for psychiatric treatment in custody was changed to treatment at liberty. B.B. has been free ever since. The applicant initiated several unsuccessful legal proceedings requesting a reconsideration of the procedural decision of the first-instance court. The panel of judges, the public prosecutor, the defence counsel and the accused at the trial before the Municipal Court were all citizens of Bosnia and Herzegovina of Croat origin whereas the victim and his family were citizens of Bosnia and Herzegovina of Bosniak origin. The applicant E.M., Š.T.'s sister, alleged violations of her and the decedent's rights.

Admissibility

The respondent Party argued that the application should be declared inadmissible under the six-month rule (Article VIII(2)(a) of the Agreement) since more than two years had elapsed since the time of the decision of the Municipal Court until the filing of an application. The Chamber found that the six-month period began to run on 15 January 1999, the date on which the Cantonal Court refused the applicant's appeal, and was interrupted less than six months thereafter, on 17 June 1999, with the submissions of the applicant's first letter to the Chamber, in which she summarised her complaints. A provisional file was opened at that time. The fact that the formal application form was filled out and submitted much later (on 13 March 2001) did not negate the applicant's compliance with the six-month rule.

Since no other grounds of inadmissibility were raised, the Chamber declared the application admissible.

Merits

Article 2 of the Convention

The Chamber observed that Article 2 creates a positive obligation for the state not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. Taking into account the passive conduct of the prosecutor during B.B.'s trial, the Chamber noted that the criminal proceedings failed to adequately deter B.B. from the crime, since the perpetrator probably expected no sanction to follow. The Chamber concluded that this failure to deter was a breach of the state's obligation to protect life in violation of Article 2. The Chamber found this breach to be a violation of both the decedent's and the applicant's rights.

Discrimination

The Chamber found the respondent Party to have discriminated against the decedent in the enjoyment of his right to life, to equal treatment before the tribunals and to protection of the State against violence as protected by Article 5 (a) and (b) of the CERD. In addition, the respondent Party was found to have discriminated against the applicant in the enjoyment of her right as protected by Article 5 (a) of CERD, the respondent Party thereby being in violation of Article I of the Human Rights Agreement and E.M.'s rights under Article 2 of the Convention to a proper investigation and fair trial in regard to her brother's death.

Article 13 of the Convention

The Chamber had decided that the case primarily raised issues under Article 2 of the Convention. In light of the findings it had made in respect of that Article, and also in respect to the findings made in regard to discrimination, the Chamber did not consider it necessary to examine the applicant's claims under Article 13.
Remedies
The only remedy requested by the applicant was the retrial of B.B. In balancing the opposite interests of the applicant (the conduct of a fair trial) and B.B. (not to be tried again), the Chamber noted that a retrial of the decedent's murderer could have been ordered. It however, declined to make the order, taking into account, inter alia, the length of time that had elapsed between the applicant's initial letter to the Chamber on 17 June 1999 and the submission of the formal application on 13 March 2001.

Decision adopted 8 February 2002
Decision delivered 8 March 2002