Bosnia and Herzegovina must investigate cases of enforced disappearance

Prutina, Zlatarac, Kozica, Čekić v. Bosnia and Herzegovina (1917, 1918 and 1925/2009, and 1953/2010)

Summary

In March 2013, the Human Rights Committee was asked to consider whether Bosnia and Herzegovina had violated its obligations under the International Covenant on Civil and Political Rights in its failure to conduct prompt, impartial and effective investigations into the fate of victims of enforced disappearance and bring the perpetrators to justice.

The communication was submitted by twelve citizens of Bosnia and Herzegovina on behalf of both themselves and their missing relatives under the Optional Protocol to the Covenant.

Background

On 16 August 2005, the authors of the communication reported the kidnapping of their missing relatives on 16 June 1992 by members of the Bosnian Serb Army to local police. On 9 September 2005, the authors filed a criminal complaint with the Sarajevo District Prosecutor against unidentified members of the Bosnian Serb Army.

On 26 September 2005, the authors submitted an application to the Human Rights Commission of the Bosnia and Herzegovina Constitutional Court, claiming a violation of the prohibition against torture and the right to respect for private and family life under articles 3 and 8 respectively of the European Convention on Human Rights (the Convention). Though the authors had received a pension and social assistance after the courts had declared their relatives presumed dead, the authors did not consider this adequate compensation for the loss of their relatives and the trauma that they had suffered. The authors also claimed that no prompt, impartial and effective investigation had been carried out into their relatives’ disappearance.

On 23 February 2006, the Constitutional Court found a violation of articles 3 and 8 of the Convention and the corresponding constitutional provisions. The Court ordered the Council of Ministers, the Government of the Federation of Bosnia and Herzegovina, the Republika Srpska and the Brčko District to release all information in their possession relating to the fate or whereabouts of the authors’ missing relatives. The Court also ordered that the State agencies envisaged by the Law on Missing Persons 2004 be made operational. On 18 November 2006, the Constitutional Court held that its decision had not been fully enforced. Though the Republika Srpska had released all information in its possession, the other State parties had not. The State agencies were also not yet operational.

On 15 December 2006, the State Court of Bosnia and Herzegovina sentenced a member of the Bosnian Serb Army, Dragan Damjanovic, to 20 years imprisonment for crimes against humanity. These crimes related to the same events that surrounded the kidnapping of the authors’ missing relatives. However, Damjanovic was neither summoned nor convicted for the enforced disappearance of the authors’ missing relatives.

The authors initially submitted their communications to the Committee separately between 24 July and 3 December 2009. On 28 March 2013, the Committee decided to join the authors’ communications in view of their substantial factual and legal similarity in accordance with Rule 94(2) of the Committee’s Rules of Procedure.

The authors claimed that Bosnia and Herzegovina had violated its obligation to provide the authors with an effective remedy under article 2(3) of the Covenant, with respect to the violation of their right not to be subjected to torture or cruel or degrading treatment under article 7 of the Covenant. Two of the authors alleged that Bosnia and Herzegovina had also breached its obligation to afford them special protection as minors under article 24(1) of the Covenant.

In addition to claiming in respect of their own rights, the authors also claimed the same violation of article 2(3) in relation to Bosnia and Herzegovina’s violation of their relatives’ rights to life, freedom from torture and cruel or degrading treatment, and liberty (under articles 6, 7 and 9 of the Covenant respectively).

The Committee’s decision

As Bosnia and Herzegovina had not challenged the admissibility of the authors’ communication, the Committee simply noted that the complaint had been sufficiently substantiated, that the same matter was not being examined under another procedure of international investigation or settlement, and that the authors had exhausted all available domestic remedies. Accordingly, the Committee declared the authors’ complaint to be admissible under the Optional Protocol.

On the merits, the Committee considered that the obligation to investigate allegations of enforced disappearance and bring the perpetrators to justice was an obligation of means, not of result. The obligation should not be interpreted in a way that imposes an impossible or disproportionate burden on authorities. Whilst acknowledging the gravity of the disappearances and the suffering of the authors, the fact that the fate or whereabouts of their missing relatives had not yet been determined and the perpetrators not yet brought to justice was not in itself sufficient to find a breach of article 2(3). However, the Committee noted the authors’ uncontested claim that certain important steps, such as the identification of human remains, had been taken by the authorities since proceedings were brought before the Committee but not communicated to the authors. The Committee considered that information relating to this investigation should have been made promptly accessible to the authors. In addition, the Committee considered that the State’s requirement that families of disappeared persons have the family member declared dead to be eligible for compensation, whilst the investigation is still ongoing, constituted a breach of article 2(3) of the Covenant.

On this basis, the Committee found Bosnia and Herzegovina to have breached article 2(3) of the Covenant, read in conjunction with articles 6, 7 and 9, with regard to both the authors and their disappeared relatives. The Committee further considered that Bosnia and Herzegovina had not adequately taken into account the status of the two authors that were minors at the time of their relatives’ kidnapping and had failed to offer them the necessary special protection required by article 24(1) of the Covenant.

The Committee therefore concluded that Bosnia and Herzegovina was under an obligation, in accordance with article 2(3) of the Covenant, to provide the authors with an effective remedy. Specifically, the Committee recommended that Bosnia and Herzegovina take steps to:

(a) continue its efforts to establish the fate or whereabouts of the authors’ relatives;

(b) continue its efforts to bring to justice those responsible for the disappearance of the authors’ relatives and to do so by the end of 2015, as required by the National War Crimes Strategy;

(c) abolish the obligation for family members to declare their missing relatives dead to benefit from social allowances or any other forms of compensation; and

(d) ensure that the authors receive adequate compensation.

The Committee also observed that Bosnia and Herzegovina was under an obligation to prevent similar violations in the future and, in particular, to ensure that investigations into allegations of enforced disappearance are made accessible to the families of missing persons.

Bosnia and Herzegovina must now submit its written response within six months of the Committee’s decision, including any information on the action taken in light of the Committee’s recommendations, and ensure that the Committee’s decision is published widely.

Sam Hunter Jones is an international lawyer, based in Paris.