Cases concerning the war in Bosnia and Herzegovina
II. RELEVANT INTERNATIONAL AND DOMESTIC LAW A. Relevant international law 1. Missing persons 32. Armed conflicts often lead to the disappearance of hundreds or even thousands of people. Pursuant to Articles 32-34 of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977, families have the right to be informed of the fate of missing relatives; the parties to a conflict must search for persons reported missing by an adverse party and facilitate enquiries made by members of families dispersed as a result of the conflict so as to help them restore contact with one another and try to bring them together again; and lists showing the exact location and markings of the graves, together with particulars of the dead interred therein, must be exchanged. The International Committee of the Red Cross (ICRC), with the assistance of its Central Tracing Agency, has long experience in searching for soldiers and combatants who go missing during military operations (“missing in action”) and for civilians who are reported missing as a consequence of armed conflict. 2. Enforced disappearance 33. This is a much narrower concept. A recent definition of “enforced disappearance” is set out in Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance of 20 December 2006 [7] : “For the purposes of this Convention, ‘ enforced disappearance ’ is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorisation, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.” 34. The widespread or systematic practice of enforced disappearance is described as a crime against humanity in Article 7 of the Rome Statute of the International Criminal Court of 17 July 1998. 3. Mutual assistance between Bosnia and Herzegovina and Serbia 35. The Agreement between Bosnia and Herzegovina and Serbia on Mutual Assistance in Civil and Criminal Matters ( published in Official Gazette of Bosnia and Herzegovina, International Treaty Series, no. 11/05 of 8 December 2005, amendments published in Official Gazette no. 8/10 of 29 July 2010 ) entered into force on 9 February 2006. Under Article 39 thereof, when a citizen or resident of one Contracting State is suspected of having committed an offence in the territory of the other Contracting State, the latter may request the former to take proceedings in the case. While such a request is pending, the requesting State may not prosecute the suspected person for the same offence. Moreover, a person in respect of whom a final criminal judgment has been rendered in the requested State may not be prosecuted for the same offence in the requesting State if he or she has been acquitted or if the sanction imposed has been enforced or the subject of a pardon or amnesty (Article 41 of the Agreement). Lastly, when one State intends to request the transfer of proceedings, it may also request the other State to provisionally arrest the suspected person (Article 40a of the Agreement). B. Relevant domestic law 1. Bosnia and Herzegovina (a) Criminal legislation 36. The 2003 Criminal Code (published in Official Gazette of Bosnia and Herzegovina nos. 3/03 of 10 February 2003 and 37/03 of 22 November 2003, amendments published in Official Gazette nos. 32/03 of 28 October 2003, 54/04 of 8 December 2004, 61/04 of 29 December 2004, 30/05 of 17 May 2005, 53/06 of 13 July 2006, 55/06 of 18 July 2006, 32/07 of 30 April 2007 and 8/10 of 2 February 2010) entered into force on 1 March 2003. The relevant part of Article 172 of the Code provides as follows: “1. Whoever, as part of a widespread or systematic attack directed against any civilian population, with knowledge of such an attack perpetrates any of the following acts: ... i ) enforced disappearance of persons; ... shall be punished by imprisonment for a term not less than ten years or long-term imprisonment. 2. For the purpose of paragraph 1 of this Article the following terms shall have the following meanings: ... h) Enforced disappearance of persons means the arrest, detention or abduction of persons by, or with the authorisation, support or acquiescence of, a State or a political organisation, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with an aim of removing them from the protection of the law for a prolonged period of time. ... ” Furthermore, in accordance with Article 239 of the Code, non-enforcement of a decision of the Human Rights Chamber is an offence: “An official of the State, the Entities or the Brčko District who refuses to enforce a final and enforceable decision of the Constitutional Court of Bosnia and Herzegovina, the Court of Bosnia and Herzegovina, the Human Rights Chamber or the European Court of Human Rights, or who prevents the enforcement of any such decision, or who frustrates the enforcement of any such decision in some other way, shall be punished by imprisonment for a term between six months and five years.” 37. The 2003 Code of Criminal Procedure (published in Official Gazette of Bosnia and Herzegovina nos. 3/03 of 10 February 2003 and 36/03 of 21 November 2003, amendments published in Official Gazette nos. 32/03 of 28 October 2003, 26/04 of 7 June 2004, 63/04 of 31 December 2004, 13/05 of 9 March 2005, 48/05 of 19 July 2005, 46/06 of 19 June 2006, 76/06 of 25 September 2006, 29/07 of 17 April 2007, 32/07 of 30 April 2007, 53/07 of 16 July 2007, 76/07 of 15 October 2007, 15/08 of 25 February 2008, 58/08 of 21 July 2008, 12/09 of 10 February 2009, 16/09 of 24 February 2009 and 93/09 of 1 December 2009) entered into force on 1 March 2003. Article 247 of the Code reads as follows: “ An accused may never be tried in absentia. ” (b) War Crimes Sections within the Court of Bosnia and Herzegovina 38. War Crimes Sections of the Criminal and Appellate Divisions of the Court of Bosnia and Herzegovina have been set up pursuant to the Court of Bosnia and Herzegovina Act 200 0 (a consolidated version thereof published in Official Gazette of Bosnia and Herzegovina no. 49/09 of 22 June 2009, amendments published in Official Gazette nos. 74/09 of 21 September 2009 and 97/09 of 15 December 2009). ( c ) Declaration of presumed death 39. Any person or body demonstrating a legitimate interest may lodge a request for a declaration of presumed death with respect to those who went missing during the 1992-95 war as from the expiry of the waiting period, which is one year from the cessation of the hostilities ( the Non-Contentious Procedure Act 1989, published in Official Gazette of the Socialist Republic of Bosnia and Herzegovina no. 10/89 of 23 March 1989, which was in force in the Federation of Bosnia and Herzegovina until 28 January 1998 and in the Republika Srpska until 15 May 2009; the Non-Contentious Procedure Act 1998, published in Official Gazette of the Federation of Bosnia and Herzegovina no. 2/98 of 20 January 1998, amendments published in Official Gazette nos. 39/04 of 24 July 2004 and 73/05 of 28 December 2005; and the Non-Contentious Procedure Act 2009, published in Official Gazette of the Republika Srpska no. 36/09 of 7 May 2009). Pursuant to section 27(1) of the Missing Persons Act 2004, a declaration of presumed death will automatically be issued with respect to all those recorded as missing in the Central Records (see paragraph 40 below). ( d ) Missing Persons Act 2004 40. The Missing Persons Act 2004 (published in Official Gazette of Bosnia and Herzegovina no. 50/04 of 9 November 2004) entered into force on 17 November 2004. It provides, in so far as relevant, as follows: Article 3 (The right to know) “ Families of missing persons have the right to know the fate of their missing family members and relatives, their place of (temporary) residence, or if dead, the circumstances and cause of death and location of burial, if such location is known, and to receive the mortal remains. ” Article 9 (Termination of status) “ The status of missing person is terminated on the date of identification, and the process of tracing the missing person is concluded. In the event that a missing person is proclaimed dead, but the mortal remains have not been found, the process of tracing shall not be terminated. ” The Missing Persons Institute and, within that Institute, the Central Records have been set up as domestic institutions pursuant to that Act. The Missing Persons Fund, although envisaged, has not yet been set up. 2. Serbia (a) War Crimes Act 2003 41. The War Crimes Act 2003 (published in Official Gazette of the Republic of Serbia no. 67/03, amendments published in Official Gazette nos. 135/04, 61/05, 101/07 and 104/09) entered into force on 9 July 2003. The War Crimes Prosecutor, the War Crimes Police Unit and the War Crimes Sections within the Belgrade Higher Court and the Belgrade Court of Appeal have been set up pursuant to this Act. They have jurisdiction over serious violations of international humanitarian law committed anywhere in the former Yugoslavia (see section 3 of this Act). A number of persons have been convicted in Serbia for war crimes committed during the 1992-95 war in Bosnia and Herzegovina. As an example, at the request of Bosnia and Herzegovina, the Serbian authorities have taken proceedings and convicted Mr Nenad Malić of war crimes committed against Bosniacs in Stari Majdan in 1992 and sentenced him to 13 years ’ imprisonment. As another example, they have recently convicted Mr Slobodan Medić, Mr Branislav Medić, Mr Pero Petrašević and Mr Aleksandar Medić of war crimes committed against Bosniacs in Trnovo in 1995 and sentenced them to 20, 15, 13 and 5 years ’ imprisonment respectively. (b) Mutual Assistance in Criminal Matters Act 2009 42. The Mutual Assistance in Criminal Matters Act 2009 (published in Official Gazette of the Republic of Serbia no. 20/09) entered into force on 27 March 2009. Under section 16 of this Act, Serbian citizens may not be extradited. This Act repealed the corresponding provision of the Code of Criminal Procedure 2001 (published in Official Gazette of the Federal Republic of Yugoslavia no. 70/01, amendments published in Official Gazette of the Federal Republic of Yugoslavia no. 68/02 and Official Gazette of the Republic of Serbia nos. 58/04, 85/05, 115/05, 49/07, 20/09 and 72/09) which was in force between 28 March 2002 and 27 March 2009. THE LAW 43. The applicant complained, on behalf of her husband, that Bosnia and Herzegovina had failed to fulfil its procedural obligation to investigate the disappearance and death of her husband. This complaint falls to be examined under Articles 2 and 5 of the Convention. Article 2 of the Convention provides : “1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” Article 5 of the Convention provides: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” She further complained, under various Articles of the Convention, about the authorities ’ reactions to her quest for information. This complaint falls to be examined under Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” I. ADMISSIBILITY A. Compatibility ratione temporis 44. The Government claimed that the Court lacked temporal jurisdiction to deal with this case, given that Mr Palić had disappeared and died before the ratification of the Convention by Bosnia and Herzegovina on 12 July 2002. 45. The applicant disagreed, relying on the concept of a “ continuing situation ” (she referred, among other authorities, to Cyprus v. Turkey [GC], no. 25781/94, §§ 136, 150 and 158, ECHR 2001 ‑ IV). 46. It is beyond dispute that in accordance with the general rules of international law (see, in particular, Article 28 of the Vienna Convention on the Law of Treaties of 23 May 1969) the provisions of the Convention do not bind a Contracting Party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the Convention with respect to that Party (see Blečić v. Croatia [GC], no. 59532/00, § 70, ECHR 2006 ‑ III ). That being said, the Court has held that the procedural obligation arising from a disappearance will generally remain as long as the whereabouts and fate of the person are unaccounted for and it is thus of a continuing nature (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § § 147 -49, ECHR 2009 ‑ ... ). Furthermore, that obligation does not come to an end even on discovery of the body or the presumption of death. This only casts light on one aspect of the fate of the missing person and the obligation to account for the disappearance and death, as well as to identify and prosecute any perpetrator of unlawful acts in that connection, will generally remain ( ibid ., § 145). 47. The Court thus rejects the Government ’ s objection under this head. B. Six-month rule 48. Although the respondent Government did not raise any objection under this head, this issue calls for the Court ’ s consideration proprio motu. 49. While it is true that the six-month time-limit does not apply as such to continuing situations, the Court has held that, where disappearances are concerned, applicants cannot wait indefinitely before coming to Strasbourg (see Varnava and Others, cited above, § 161). Indeed, with the lapse of time, memories of witnesses fade, witnesses may die or become untraceable, evidence deteriorates or ceases to exist, and the prospects that any effective investigation can be undertaken will increasingly diminish; and the Court ’ s own examination and judgment may be deprived of meaningfulness and effectiveness. Applicants must therefore make proof of a certain amount of diligence and initiative and introduce their complaints without undue delay. The following passage from the Varnava and Others judgment ( § 16 5 ) indicates what this involves: “ Nonetheless, the Court considers that applications can be rejected as out of time in disappearance cases where there has been excessive or unexplained delay on the part of applicants once they have, or should have, become aware that no investigation has been instigated or that the investigation has lapsed into inaction or become ineffective and, in any of those eventualities, there is no immediate, realistic prospect of an effective investigation being provided in the future. Where there are initiatives being pursued in regard to a disappearance situation, applicants may reasonably await developments which could resolve crucial factual or legal issues. Indeed, as long as there is some meaningful contact between families and authorities concerning complaints and requests for information, or some indication, or realistic possibility, of progress in investigative measures, considerations of undue delay will not generally arise. However, where there has been a considerable lapse of time, and there have been significant delays and lulls in investigative activity, there will come a moment when the relatives must realise that no effective investigation has been, or will be provided. When this stage is reached will depend, unavoidably, on the circumstances of the particular case. ” 50. The Court went on to conclude that by the end of 1990 it must have become apparent that the mechanisms set up to deal with disappearances in Cyprus no longer offered any realistic hope of progress in either finding bodies or accounting for the fate of the missing persons in the near future (see Varnava and Others, cited above, § 170). It has since rejected as out of time a number of cases because there was no evidence of any activity post-1990 which could have provided to the applicants some indication, or realistic possibility, of progress in investigative measures in relation to the disappearance of their relatives (see Orphanou and Others v. Turkey ( dec .), nos. 43422/04 et al. , 1 December 2009; Karefyllides and Others v. Turkey ( dec .), no. 45503/99, 1 December 2009; and Charalambous and Others v. Turkey ( dec .), nos. 46744/07 et al ., 1 June 2010 ). 51. The situation in Bosnia and Herzegovina is different. While it is true that the domestic authorities made slow progress in the years immediately after the war, they have since made significant efforts to locate and identify persons missing as a consequence of the war and combat the impunity. To start with, Bosnia and Herzegovina has carried out comprehensive vetting of the appointment of police and judiciary: the United Nations Mission vetted approximately 24,000 police officers between 1999 and 2002 and the High Judicial and Prosecutorial Councils screened the appointments of approximately 1,000 judges and prosecutors between 2002 and 2004. Secondly, the domestic Missing Persons Institute was set up pursuant to the Missing Persons Act 2004 (see paragraph 40 above). It has so far carried out many exhumations and identifications; for example, in seven months of 2009 the Missing Persons Institute identified 883 persons [8]. Thirdly, the creation of the Court of Bosnia and Herzegovina in 2002 and its War Crimes Sections in 2005 gave new impetus to domestic prosecutions of war crimes. That court has so far sentenced more than 40 people. Moreover, the number of convictions by the Entity and District courts, which retain jurisdiction over less sensitive cases, has considerably increased. Fourthly, in December 2008 the domestic authorities adopted the National War Crimes Strategy which provides a systematic approach to solving the problem of the large number of war crimes cases. It defines the time - frames, capacities, criteria and mechanisms for managing those cases, standardisation of court practices, issues of regional cooperation, protection and support to victims and witnesses, as well as financial aspects, and supervision over the implementation of the Strategy. One of its objectives is to process the most complex and top priority cases within seven years (that is, by the end of 2015) and other war crimes cases within fifteen years (that is, by the end of 2023), a not unreasonable period of time considering the numbers involved. Lastly, domestic authorities contribute to the successful work of the international bodies set up to deal with disappearances and other serious violations of international humanitarian law committed in Bosnia and Herzegovina (see paragraphs 7 - 8 above). 52. In view of the above and having regard to the initiatives pursued in this particular case at the relevant time, the applicant could still realistically expect that an effective investigation would be carried out when she lodged her application in 2004. Accordingly, she acted with reasonable expedition for the purposes of the six-month rule. C. Exhaustion of domestic remedies 53. The Government objected that the applicant had failed to exhaust domestic remedies by failing to seize the Constitutional Court of Bosnia and Herzegovina. 54. The applicant did not respond to this objection. 55. The Court has held that when an appeal before the Human Rights Chamber has been pursued, the applicant is not required to pursue an appeal before the Constitutional Court of Bosnia and Herzegovina concerning the same matter (see Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005 ‑ XII ). There is no reason to depart from that jurisprudence. 56. Accordingly, this objection of the Government is also rejected. D. Victim status 57. The Government maintained that the decision of the Human Rights Chamber in this case had been implemented, namely the mortal remains of Mr Palić had been identified, a full investigation had been carried out and all information had been communicated to the applicant. Since the applicant had obtained an acknowledgment of a breach of her human rights from the domestic authorities and appropriate and sufficient redress (see paragraph 14 above), the Government contended that she had lost victim status. 58. The applicant disagreed. 59. The Court considers that this objection goes to the very heart of the questions whether the authorities discharged their procedural obligation to investigate the disappearance and death of Mr Palić, as required by Articles 2 and 5 of the Convention, and whether their reactions to the applicant ’ s quest for information amounted to a breach of Article 3 of the Convention (see paragraph 43 above). It would thus be more appropriately examined at the merits stage. E. Conclusion 60. Since the application is neither manifestly ill-founded within the meaning of Article 35 § 3 of the Convention nor inadmissible on any other grounds, the Court declares the application admissible and, in accordance with its decision to apply Article 29 § 1 of the Convention (see paragraph 5 above), it will immediately consider its merits. II. MERITS A. Article 2 of the Convention 61. The applicant criticised the investigation into the disappearance and death of her husband. First of all, she complained of the ineffectiveness of the investigation and about its pace, relying on the findings of the Human Rights Commission (see paragraph 18 above). Secondly, she argued that the ad hoc commissions were not independent. In particular, she alleged that one of their members, Mr Bukva, had attended the notorious meeting of 27 July 1995 (see paragraphs 11 and 21 above). Thirdly, she claimed that one of the main suspects, Mr Pećanac, had received some information concerning this case from the State Prosecutor ’ s Office. Fourthly, she submitted that the ICTY proceedings against Mr Tolimir could not absolve the respondent State of its procedural obligation under Article 2, in particular because Mr Tolimir had not been charged as a direct perpetrator (see paragraph 30 above). Lastly, she argued that Serbia should extradite Mr Pećanac and Mr Mijatović to Bosnia and Herzegovina and she referred in this connection to the case of Mr Veselin Vlahović who had been extradited from Spain to Bosnia and Herzegovina to stand trial on war crimes charges. 62. The Government denied the applicant ’ s claims and maintained that the investigation had complied with all the requirements of Article 2. 63. The Court reiterates that Article 2 requires the authorities to conduct an official investigation into an arguable claim that a person, who was last seen in their custody, subsequently disappeared in a life-threatening context. The investigation must be independent and effective in the sense that it is capable of leading to the identification and punishment of those responsible, afford a sufficient element of public scrutiny, including being accessible to the victim ’ s family, and carried out with reasonable promptness and expedition (see Varnava and Others, cited above, § 191 ). 64. In the present case, the Court first needs to examine whether the investigation could be regarded as effective. It notes that notwithstanding initial delays (see paragraph 70 below) the investigation finally led to the identification of the mortal remains of Mr Palić. Given that almost 30,000 people went missing as a result of the war in Bosnia and Herzegovina (see paragraph 6 above), this is in itself a significant achievement. The procedural obligation under Article 2 nevertheless did not come to an end with the discovery of the body (see paragraph 46 above) and the Court will next examine whether the investigation made it possible to establish the identity of the persons responsible for the disappearance and death of Mr Palić and whether those persons were eventually brought to justice. 65. The Court notes that between October 2005 and December 2006 the domestic authorities took various investigative steps which led to international arrest warrants being issued against Mr Pećanac and Mr Mijatović on suspicion of having committed an enforced disappearance as a crime against humanity (see paragraph 25 above). The investigation, it is true, has been at a standstill ever since because the main suspects live in Serbia and, as Serbian citizens, cannot be extradited (see paragraph 42 above), but Bosnia and Herzegovina cannot be held liable for that. Bosnia and Herzegovina could have requested Serbia to take proceedings in this case (see paragraph 35 above). However, the Court considers that it is not necessary to examine whether there was an obligation under the Convention to do so (see, in that connection, Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § § 330-31, ECHR 2004 ‑ VII ) given that the applicant could have reported this case herself to the Serbia ’ s War Crimes Prosecutor who has jurisdiction over serious violations of international humanitarian law committed anywhere in the former Yugoslavia (see paragraph 41 above). Moreover, it is open to the applicant to lodge an application against Serbia if she considers that she is the victim of a breach by Serbia of her Convention rights. The applicant also referred to the case of Mr Vlahović (see paragraph 61 above). However, Mr Vlahović is not a Spanish citizen and there were accordingly no obstacles to his extradition. In these circumstances, the Court finds that the domestic criminal investigation was effective in the sense that it was capable of leading to the identification and punishment of those responsible for the disappearance and death of Mr Palić, notwithstanding the fact that there have not yet been any convictions in this connection. The procedural obligation under Article 2 is indeed not an obligation of result, but of means (see, among many authorities, Hugh Jordan v. the United Kingdom, no. 24746/94, § 107, ECHR 2001 ‑ III ). 66. The Court further notes that the respondent State arrested Mr Tolimir at the request of the ICTY and that it cooperates with the ICTY in this regard. The trial against Mr Tolimir is, however, still pending and, more importantly, he was not charged as a direct perpetrator (see paragraph 30 above). It is therefore uncertain to what extent the trial against Mr Tolimir will contribute to the identification and punishment of those directly responsible for the killing of Mr Palić. 67. As regards the requirement of independence, the Court sees no reason to doubt that the State Prosecutor ’ s Office acted independently. The applicant alleged that information had leaked from the domestic criminal investigation to Mr Pećanac, but there is no proof that Mr Pećanac obtained the impugned information from the State Prosecutor ’ s Office. It is equally possible that he could have obtained this information from anyone on the ad hoc commissions or from any other source. In any event, since it transpires from the material in the case file that the relevant authorities were instantly warned of the possibility of a leak and that necessary measures were taken, the Court does not consider this factor sufficient in itself to conclude that the domestic criminal investigation is not independent. 68. Turning to the ad hoc commissions, the Court acknowledges their important contribution to the establishment of the facts of this difficult and troubling case. That being said, it is of great concern that one of the members of the ad hoc commissions allegedly played a role, no matter how minor, in the actual disappearance of the applicant ’ s husband (see paragraph 61 above). While there is no proof that Mr Bukva had indeed attended the impugned meeting, it is regrettable that the respondent Government did not respond to these allegations. Nevertheless, given that in the circumstances of this case an effective and independent criminal investigation was the key requirement to ensure the respondent State ’ s compliance with the procedural obligation under Article 2 (see Öneryıldız v. Turkey [GC], no. 48939/99, § 93, ECHR 2004 ‑ XII, and contrast Branko Tomašić and Others v. Croatia, no. 46598/06, § 64, ECHR 2009 ‑ ... ) and the commissions had no influence on the conduct of the ongoing criminal investigation, it is not necessary to examine the question of their independence (see McKerr v. the United Kingdom, no. 28883/95, § 156, ECHR 2001 ‑ III). 69. There is no indication that the criminal investigation is not open to public scrutiny and/or that it is insufficiently accessible to the applicant. 70. As to the requirement of promptness, the Court has not overlooked that the Republika Srpska authorities acknowledged that Mr Palić had been held in a military prison administered by the VRS forces, one of the predecessors of the present Armed Forces of Bosnia and Herzegovina, and identified the officer who had taken Mr Palić from that prison only in November 2001. Some steps were then taken in early 2002, but the criminal investigation effectively started only in late 2005. It is nevertheless the case that the Court is only competent ratione temporis to look at the period after the ratification of the Convention by Bosnia and Herzegovina (that is, after 12 July 2002), while taking into consideration the state of the case at that date. It should also be reiterated that the obligations under Article 2 must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities (see, although in a different context, Osman v. the United Kingdom, 28 October 1998, § 116, Reports of Judgments and Decisions 1998 ‑ VIII). The Court takes into account the complex situation in Bosnia and Herzegovina, notably in the first ten years following the war. In such a post-conflict situation, what amounts to an impossible and/or disproportionate burden must be measured by the very particular facts and context. In this connection, the Court notes that more than 100,000 people were killed, almost 30,000 people went missing and more than two million people were displaced during the war in Bosnia and Herzegovina. Inevitably choices had to be made in terms of post-war priorities and resources. Furthermore, after a long and brutal war, Bosnia and Herzegovina underwent fundamental overhaul of its internal structure and political system: Entities and Cantons were set up pursuant to the Dayton Peace Agreement, power-sharing arrangements were introduced in order to ensure effective equality between the “constituent peoples” in the post-conflict society (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, ECHR 2009 ‑ ... ), new institutions had to be created and the existing ones had to be restructured. Some reluctance on the part of the former warring parties to work with those new institutions could be expected in the post-war period, as evidenced in the present case. While it is difficult to pinpoint when exactly this process ended, the Court considers that the domestic legal system should have become capable of dealing effectively with disappearances and other serious violations of international humanitarian law by 2005, following comprehensive vetting of the appointment of police and judiciary and the establishment of the War Crimes Sections within the Court of Bosnia and Herzegovina (see paragraph 51 above). All this considered and since there has been no substantial period of inactivity post-2005 on the part of the domestic authorities in the present case, the Court concludes that, in the circumstances obtaining at the material time, the domestic criminal investigation can be considered to have been conducted with reasonable promptness and expedition. 71. In brief, the domestic authorities eventually identified the mortal remains of Mr Palić and carried out an independent and effective criminal investigation into his disappearance and death. There has been no substantial period of inactivity after 2005 on the part of the domestic authorities. Furthermore, the applicant received substantial compensation in connection with her husband ’ s disappearance (although for the period 1995-2000, see paragraph 14 above ). The Court concludes that, taking into account the special circumstances prevailing in Bosnia and Herzegovina up until 2005 and indeed the particular circumstances of the present case, there has been no violation of Article 2 of the Convention. B. Article 3 of the Convention 72. The applicant further argued that the authorities had, for many years, refused to engage, acknowledge or assist in her efforts to find out what had happened to her husband. She relied on Article 3 of the Convention. 73. The Government contested that argument. 74. The phenomenon of disappearances imposes a particular burden on the relatives of missing persons who are kept in ignorance of the fate of their loved ones and suffer the anguish of uncertainty. The Court ’ s case-law therefore recognised from very early on that the situation of the relatives may disclose inhuman and degrading treatment contrary to Article 3. The essence of the violation is not that there has been a serious human rights violation concerning the missing person; it lies in the authorities ’ reactions and attitudes to the situation when it has been brought to their attention. Other relevant factors include the proximity of the family tie, the particular circumstances of the relationship, the extent to which the family member witnessed the events in question, and the involvement of the family member in the attempts to obtain information about the disappeared person. The finding of such a violation is not limited to cases where the respondent State has been held responsible for the disappearance, but can arise where the failure of the authorities to respond to the quest for information by the relatives or the obstacles placed in their way, leaving them to bear the brunt of the efforts to uncover any facts, may be regarded as disclosing a flagrant, continuous and callous disregard of an obligation to account for the whereabouts and fate of a missing person (see Varnava and Others, cited above, § 200, and the authorities cited therein). 75. In the present case, the Court notes that the applicant obtained first official information about the fate of her husband more than five years after his disappearance. The domestic Human Rights Chamber held that Mr Palić had indeed been a victim of an enforced disappearance and found numerous violations of the Convention in this connection. Furthermore, the applicant received compensation for non-pecuniary damage (see paragraph 14 above). Some weight must also be attached to the fact that the mortal remains of Mr Palić were eventually identified and that an independent and effective criminal investigation was eventually carried out, although with some delays. Therefore, while there is no doubt that the applicant suffered and continues to suffer because of this case, the Court finds that the authorities ’ reactions cannot be categorised as inhuman and degrading treatment. 76. Accordingly, there has been no violation of Article 3 of the Convention. C. Article 5 of the Convention 77. Lastly, the applicant invited the Court to find a violation of Article 5 of the Convention for the reasons outlined in paragraph 61 above. 78. The Government maintained that the investigation had complied also with the requirements of Article 5 of the Convention. 79. The Court reiterates that Article 5 requires the authorities to conduct a prompt and effective investigation into an arguable claim that a person has been taken into custody and has not been seen since (see Kurt v. Turkey, 25 May 1998, § 124, Reports of Judgments and Decisions 1998 ‑ III; Cyprus v. Turkey, cited above, § 147; and Varnava and Others, cited above, § 208 ). 80. For the detailed reasons outlined in paragraphs 64 - 71 above in the context of Article 2, the Court finds that there has been no violation of Article 5 of the Convention. D. Conclusion on the Government ’ s preliminary objection 81. The Court finds that in the light of its conclusion under Articles 2, 3 and 5 it is not necessary to decide on the Government ’ s challenge to the applicant ’ s victim status (see paragraphs 57 - 59 above).
The Court held that there had been no violation of Article 2 (right to life), 3 (prohibition of inhuman or degrading treatment) or 5 (right to liberty and security) of the Convention. It found that the application was admissible, as the disappearance of the applicant’s husband had not been accounted for by 12 July 2002, the date when Bosnia and Herzegovina ratified the Convention. It further observed that despite the initial delays, the investigation had finally identified the remains of the applicant’s husband. That had been a significant achievement in itself, given that more than 30,000 people had gone missing during the war in Bosnia and Herzegovina. The prosecution authorities had been independent, and although there had been some concern in relation to one of the members of one of the ad hoc investigative commissions that had not influenced the conduct of the ongoing criminal investigation. In addition, after a long and brutal war, Bosnia and Herzegovina had had to make choices in terms of priorities and resources.