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Third Section Decision THIRD SECTION DECISION Application no. 65542/12 STICHTING MOTHERS OF SREBRENICA AND OTHERS against the Netherlands 2 STICHTING MOTHERS OF SREBRENICA AND OTHERS v. THE NETHERLANDS DECISION Table of Contents THIRD SECTION ......................................................................................... 1 DECISION ..................................................................................................... 1 Application no. 65542/12 STICHTING MOTHERS OF SREBRENICA AND OTHERS against the Netherlands ........................................................ 1 THE FACTS .................................................................................................. 4 A. Background to the case .................................................................... 4 1. The breakup of the Socialist Federative Republic of Yugoslavia . 4 2. The war in Bosnia and Herzegovina ............................................. 5 3. The Srebrenica massacre .............................................................. 6 4. Reports relating to the Srebrenica massacre ................................ 7 (a) The report of the Secretary General of the United Nations ..... 8 (b) The report of the NIOD Institute for War, Holocaust and Genocide Studies ........................................................................... 9 (c) The French parliamentary enquiry ........................................ 10 (d) The Netherlands parliamentary enquiry ................................ 10 (e) The report of the Republika Srpska Government “Commission for Investigation of the Events in and around Srebrenica between 10th and 19th July 1995” ............................... 11 5. Decisions and judgments relating to the Srebrenica massacre .. 11 (a) The International Criminal Tribunal for the Former Yugoslavia ................................................................................... 11 (b) The Human Rights Chamber for Bosnia and Herzegovina ... 12 (c) The International Court of Justice ......................................... 12 B. The domestic proceedings .............................................................. 14 1. Initiation of the main proceedings .............................................. 14 2. The incident of procedure ........................................................... 15 (a) Argument before the Regional Court .................................... 15 (b) The judgment of the Regional Court ..................................... 15 (c) Argument before the Court of Appeal ................................... 17 (d) The judgment of the Court of Appeal ................................... 18 (e) Argument before the Supreme Court..................................... 21 i. The applicants’ appeal on points of law .............................. 21 α. The summons ...................................................................... 21 β. The explanatory memorandum ........................................... 22 ii. The advisory opinion .......................................................... 22 (f) The judgment of the Supreme Court ...................................... 23 3. Resumption of the main proceedings .......................................... 26 C. Relevant domestic law ................................................................... 26 1. The Constitution for the Kingdom of the Netherlands ................ 26 2. The Act containing General Provisions on the Legislation of the Kingdom ........................................................................................... 26 3. The Code of Civil Procedure ...................................................... 27 4. The Judiciary (Organisation) Act ............................................... 27 STICHTING MOTHERS OF SREBRENICA AND OTHERS v. THE NETHERLANDS 3 DECISION 5. The Bailiffs Act 2001 ................................................................... 27 6. Relevant domestic case-law ........................................................ 28 (a) The Udruženje Građana “Žene Srebrenice” case ................ 28 (b) The Mustafić and Nuhanović cases ....................................... 28 COMPLAINTS ............................................................................................ 29 THE LAW .................................................................................................... 30 A. Standing of the applicant Stichting Mothers of Srebrenica ........... 30 B. Alleged violation of Article 6 of the Convention ........................... 31 1. Applicability of Article 6 ............................................................. 31 2. The immunity of the United Nations ........................................... 31 (a) The applicants’ submissions .................................................. 31 (b) The Court’s assessment ......................................................... 34 i. Scope of the case before the Court ...................................... 34 ii. Applicable principles .......................................................... 35 iii. Application of the above principles ................................... 37 α. The nature of the immunity enjoyed by the United Nations .................................................................................................. 37 β. The nature of the applicants’ claim ..................................... 41 γ. The absence of any alternative jurisdiction ......................... 42 δ. Link with the claim against the Netherlands State .............. 43 ε. Conclusion ........................................................................... 44 3. The Supreme Court’s refusal to seek a preliminary ruling from the Court of Justice of the European Union .................................... 44 C. Alleged violation of Article 13 of the Convention ......................... 45 D. The Court’s decision ...................................................................... 45 4 STICHTING MOTHERS OF SREBRENICA AND OTHERS v. THE NETHERLANDS DECISION The European Court of Human Rights (Third Section), sitting on 11 June 2013 as a Chamber composed of: Josep Casadevall, President, Alvina Gyulumyan, Corneliu Bîrsan, Ján Šikuta, Luis López Guerra, Nona Tsotsoria, Johannes Silvis, judges, and Marialena Tsirli, Deputy Section Registrar, Having regard to the above application lodged with the European Court of Human Rights on 8 October 2012 (received at the Registry on 11 October 2012), Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court, Having regard to the decision to grant anonymity to two applicants under Rule 47 § 3 of the Rules of Court, Having deliberated, decides as follows: THE FACTS 1. Stichting Mothers of Srebrenica is a foundation (stichting) under Netherlands law. It was created with a view to taking proceedings on behalf of relatives of persons killed in and around Srebrenica, Bosnia and Herzegovina, in the course of the events of July 1995 described below. 2. The other applicants are individual surviving relatives of persons killed. They also state that they are victims in their own right of violations of their human rights that occurred in the course of the events of July 1995. A list of the applicants is set out in the appendix. 3. The applicants were represented by Mr A. Hagedorn, Mr M.R. Gerritsen and Mr J. Staab, lawyers practising in Amsterdam. 4. The facts of the case, as submitted by the applicants and as apparent from public documents, may be summarised as follows. A. Background to the case 1. The breakup of the Socialist Federative Republic of Yugoslavia 5. The Socialist Federative Republic of Yugoslavia (SFRY) was made up of six republics, Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia and Slovenia. Slovenia and Croatia declared their independence from the SFRY on 25 June 1991 following referenda held earlier. Thereupon the Presidency of the SFRY ordered the JNA STICHTING MOTHERS OF SREBRENICA AND OTHERS v. THE NETHERLANDS 5 DECISION (Jugoslovenska Narodna Armija/Југословенска народна армија, or Yugoslav People’s Army) into action with a view to reasserting the control of the federal government. 6. Other component republics of the SFRY followed Slovenia and Croatia in declaring independence. Eventually only Serbia and Montenegro were left to constitute the SFRY’s successor state, the Federal Republic of Yugoslavia (FRY). Hostilities ensued, largely along ethnic lines, as groups who were ethnic minorities within particular republics and whose members felt difficulty identifying with the emerging independent states sought to unite territory that they inhabited with that of republics with which they perceived an ethnic bond. 7. By its Resolution 743 (1992) of 21 February 1992, the Security Council of the United Nations set up a United Nations Protection Force (UNPROFOR) intended to be “an interim arrangement to create the conditions of peace and security required for the negotiation of an overall settlement of the Yugoslav crisis”. Although UNPROFOR’s mandate was originally for twelve months, it was extended; UNPROFOR (later renamed UNPF, the name UNPROFOR coming to refer only to the operation in Bosnia and Herzegovina) continued in operation until late December 1995. Troop-contributing nations included the Netherlands. 2. The war in Bosnia and Herzegovina 8. Bosnia and Herzegovina declared independence on 6 March 1992 as the Republic of Bosnia and Herzegovina. Thereupon war broke out, the warring factions being defined largely according to the country’s pre-existing ethnic divisions. The
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