|
Case
No.: CH/99/2150
Applicant: Djordjo UNKOVIĆ
Respondent Party: Federation of Bosnia and Herzegovina
Date Delivered: 9 November 2001 (decision on
admissibility and merits);
10 May 2002 (decision on review)
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 (the "Golubovic family"), 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 complained 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." He also claimed compensation for
personal property allegedly stolen by the perpetrators at the
time of the killings.
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 of the Convention 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 murders 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, by failing to timely investigate and inform
the applicant about the fate of his daughter's family,
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 of the Convention 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 of the Convention. 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
The respondent Party's primary challenge to the decision
appeared to be that it was "unmanageable" and unfair because,
since the murderers of the Golubovic family were prosecuted
and sentenced, the respondent Party did not in any way
contribute to the suffering of the applicant. Moreover, the
respondent Party complained that the application was
inadmissible ratione temporis, as the murder of the Golubovic
family took place on 10 July 1992. The plenary Chamber decided
to review the decision of the Second Panel in its entirety and
agreed with the reasoning of the First Panel, which
recommended that the request for review be granted. The First
Panel considered that the request for review raised
significant issues concerning the admissibility of the
application and the application of the emerging body of
international case-law that recognises the claims of family
members under Article 3 of the Convention to be free from
inhuman treatment as a result of their inability to obtain
information from competent authorities about the whereabouts
and fate of a loved one who disappeared under life-threatening
circumstances. The First Panel also noted that this was an
issue affecting many citizens of Bosnia and Herzegovina.
Decision adopted 10 January 2002
DECISION ON REVIEW
Admissibility
Insofar as the applicant's claims related to failures by the
respondent Party that continued after 14 December 1995, the
Chamber found itself competent ratione temporis to review the
application. Claims of the violation of the right to peaceful
enjoyment of possessions with regard to the lost personal
property of the Golubovic family, allegedly stolen in July
1992 in connection with their murder, are clearly outside the
Chamber's competence ratione temporis.
The Chamber interpreted one of the applicant's claims to be
that the respondent Party violated his right to participate in
the criminal proceedings against the men charged with
murdering the Golubovic family and also violated his right to
have such proceedings resolved in a timely and thorough
manner. Domestic law provides the applicant with the right to
participate in criminal proceedings as an injured party.
However, this right under domestic law falls outside the scope
of the protections of Article 6 of the Convention applicable
to criminal proceedings and therefore the applicant's claim
under Article 6 in this respect was found incompatible ratione
materiae and declared inadmissible.
In finding the applicant's compensation claim, in respect of
moral damage, admissible, the Chamber noted that Article
VIII(2)(a) of the Human Rights Agreement requires the
applicant to exhaust domestic remedies with respect to the
alleged violations but not with respect to compensation for
these violations."
The Chamber declared the application admissible with regard to
Articles 3, 8, and 13 of the Convention.
Merits
Article 3 of the Convention
Reviewing the case-law of the European Court of Human Rights,
the Chamber noted the special factors that have to be
considered with respect to an applicant family member claiming
an Article 3 violation for inhuman treatment due to lack of
official information on the whereabouts of a loved one, as
well as the special factors that have to be taken into
consideration with respect to the respondent Party. The
Chamber noted that it was obvious that the applicant had
suffered greatly from his apprehension, distress, and sorrow
over the fate of his daughter and her family; however, taking
all of the relevant factors into account, in particular the
successful completion of the main criminal trial against the
murderers of the Golubovic family, as well as the difficult
post-war circumstances in Bosnia and Herzegovina, the Chamber
concluded that the actions of the respondent Party toward the
applicant do not rise to the level of severe ill-treatment
necessary to be considered "inhuman or degrading treatment"
within the meaning of Article 3.
Article 8 of the Convention
Taking into account the relevant case-law of the European
Court of Human Rights as well as its own decisions, the
Chamber considered that information concerning the fate and
whereabouts of a family member falls within the ambit of "the
right to respect for private and family life". When such
information exists within the possession or control of the
respondent Party and the respondent Party arbitrarily and
without justification refuses to disclose it to the family
member, upon his or her request, properly submitted to a
competent organ of the respondent Party or the Red Cross, then
the respondent Party has failed to fulfil its positive
obligation to secure the family member's right. Recognising
that there was a long delay and many procedural obstacles
before all the relevant information was made known, but noting
that all relevant information was eventually disclosed to the
applicant during the criminal trial, the Chamber concluded
that the respondent Party fulfilled its positive obligation to
secure respect for the applicant's rights protected by Article
8.
Article 13 of the Convention
The Chamber noted that the authorities of the Federation of
Bosnia and Herzegovina did conduct an investigation and
criminal proceedings into the killing of the Golubovic family
and that the applicant was afforded the opportunity to
participate in the criminal proceedings as an injured party.
During the trial all relevant information was eventually
disclosed. The Chamber therefore decided that there had been
no violation of Article 13.
Remedies
Since the Chamber found no violation of the applicant's rights
protected by the Convention, the Chamber considered that no
issue arose with respect to remedies.
Decision adopted 6 May 2002
Decision delivered 10 May 2002.
|
