SECRETARIAT / SECRÉTARIAT
SECRETARIAT OF THE COMMITTEE OF MINISTERS SECRÉTARIAT DU COMITÉ DES MINISTRES
Contact: John Darcy Tel: 03 88 41 31 56
Date: 15/05/2019 DH-DD(2019)546
Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.
Meeting: 1348th meeting (June 2019) (DH)
Communication from a NGO (Human Rights House Zagreb and Documenta - Center for Dealing with the Past) and response from the Croatian authorities (14/05/2019) in the SKENDZIC AND KRZNARIC group of cases v. Croatia (Application No. 16212/08)
Information made available under Rules 9.2 and 9.6 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements.
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Document distribué sous la seule responsabilité de son auteur, sans préjuger de la position juridique ou politique du Comité des Ministres.
Réunion : 1348e réunion (juin 2019) (DH)
Communication d’une ONG (Human Rights House Zagreb and Documenta - Center for Dealing with the Past) et réponse des autorités croates (14/05/2019) dans le groupe d’affaires SKENDZIC ET KRZNARIC c. Croatie (requête n° 16212/08) (anglais uniquement).
Informations mises à disposition en vertu des Règles 9.2 et 9.6 des Règles du Comité des Ministres pour la surveillance de l’exécution des arrêts et des termes des règlements amiables.
DH-DD(2019)546: Reply from Croatia to a communication from a NGO. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers.
HUMAN Selska œsta 112 a/c, 10000 Zagreb, Croatia RIGHTS tel/ fax: +385 1 551 33 95 HOUSE kontaktOkucalJudskihprava.hr n ZAGREB www.kucaUud5l Zagreb, May 6, 2019 COUNCIL OF EUROPE DEPARTMENT FOR THE EXECUTION OF JUDGMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS STRASBOURG, FRANCE Rule 9.2 Communication concerning Skendzié group of cases v. Croatia from Human Rights House Zagreb and Documenta -Center for Dealing with the Past 1. The aim of this submission is to update the Committee of Ministers concerning the long-term lack of full and effective implementation of general measures in the Skendzié group of cases. 2. The submission is prepared by Human Rights House Zagreb in cooperation with Documenta - Center for Dealing with the Past, both Croatian civil society organisations. Human Rights House Zagreb1 is a human rights watch-dog and advocacy organization founded in 2008 as a network of civil society organizations with the goal to protect and promote human rights and fundamental freedoms through research, monitoring, public advocacy, and education. Documenta's2 mission is to encourage the process of dealing with the past in Croatia, to document and investigate war, wartime and postwar events and work with civil society organizations, governmental institutions, and similar center aboard. Background 3. The Skendi:ié group of cases is erevealed the problem of ineffective investigations into war crimes in Croatia on account of inexplicable delays and shortcomings in taking actions aimed at collecting the evidence. 'http://www.kucalJu 4. The administrative and the Government's practice concerning locating burial m1ssmg persans, sites of victims and identifying exhumed remains ineffective and conducive to climate of impunity for war crimes. The process of identifying missing fast enough and cannot persons is not be considered satisfactory. ln 2018, were exhumed the remains of 30 persans and identification of 47 remains was brought to an end. According to the Ministry of Croatian Veterans' Affairs , on 31 December 2018 the official 1 497 persons as records counted missing. ln addition to that, 414 requests search were lodged by families for for the remains of their dead next-of-kins for which there is no known burial, which, in total makes place of 1 911 unresolved missing persans missing 3 cases, of which 900 are persons of Serb ethnicity . 5. The work of the Office for the Detained and Missing transparent Persans is still largely not since the names of the persans are not published after the identification been carried out. This practice has denies information to the public whose remains on identity of persons have been identified and on locations where victims have been exhumed, which has a paramount importance for clarification of 1990s war events of a great public interest. and is therefore 6. The regional cooperation between competent Croatian and Serbian exhumation and identification authorities on of mortal remains is insufficient illustration and inadequate. As an of this situation, members of the Miss ing Persons Commission of the Repub of Serbia were not invited to lic attend the identification of Serb victims February 2019 at conducted on 5 the KBC Salata in Zagreb with the explanation that the relatives of the identified persans reside in the territory of the Republic of Croatia identification has and therefore no regional character. Such conduct by the Croatian authorities prevented information sharing with the competent institutions and associations of missing persans of families from the Republic of Serbia. ln the same vein, on 11 November 2018 the Serbian Minister of Justice stated before the UN Security Council that Office of the War Crimes in 24 cases the Prosecutor of the Republic of Serbia the received no response from Prosecutor's Office of the Republic of Croatia on requests for information, despite evidence and the terms of the cooperation agreement. 4 7. Similar comments have recently been made by IRMCT (the abbreviation stands International Residual Mechanism for for Criminat Tribunals) Chief the Jack of Prosecutor concerning cooperation with Bosnia and Herzegovina request . He noted that in one case a for assistance remained unanswered by the Croatian Ministry of more than two years. and Justice after two other cases still have not been years after processed more than two the files were transferred to Croatia. The Croatian State Attorney's Office declined the offer of the Chief Prosecutor Brammertz to host a meeting and Croa between Bosnian tian prosecutors to resolve these issues. The Chief Prosecutor therefore 1 Ombudswoman·s 2018 Annual Repon, p. 163-164 pucke-~r;:,,-ob • UN Security Council 64 16th meeting, 11 Oecember 2018, S/PV.6416, http://www.un.orglen/ga/search/v,ew p. 23 available at: _doc.asp?symbol=S/PV .6416 DH-DD(2019)546: Reply from Croatia to a communication from a NGO. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. HUMAN ltlGHTS n HOUSI DOCUMENTA D CfNTAR 7A SU0CAVANJ[ S PRœLôSéU stressed he "is seriously concerned about the lack of progress and authorities to calls upon Croatian expedite the processing of these cases."5 8. ln Letter of 19 November 2018 addressed by the IRMCT President to the UN Security the President of Council, which included the IRMCT Chief Prosecutor assessment, the latter reported that "the Government of Croatia, by failing to withdraw dlrecting its its 2015 conclusion Ministry of Justice not to provide judicial cooperation in certain war crimes cases, regrettably continues to interfere politically ln the justice processes"6 a large and • As a result, growing number of war crimes cases against former members of Croatian and Bosnian Croat forces are frozen. The conclusion has available. not been made publicly 9. ln view of the above, the IRMCT Chief Prosecutor concluded that despite his Office's direct engagement with the Croatian authorities, "very little progress over the past has been achieved three years with respect to this Croatian policy and its negative impact. The policy is having the effect of promoting impunity at the expense of the victims the region, who deserve throughout justice." The Chief Prosecutor highlighted explanations that "no satisfactory have been provided for the maintenance of this policy and indeed could be provided, particularly none by a State member of the European called Union". He therefore on the Government of Croatia to "withdraw the policy immediately and allow process ta continue justice without further intereference".7 Overall, highlighted the IRMCT Chief Prosecutor that "significant efforts are needed to show that war crimes justice in Croatia is on the right track."8 His views are widely shared by the civil sector alike. and victims' families 1O. lt is furthermore highlighted that the official registers on war crimes victims kept the Croatian authorities remain by incoherent. For instance, Mr counted Milan Skendzié is still in the Ministry of lnterior's Register of Missing Persans while at the same he is not counted in the Ministry time of Croatian Veterans' Affairs Book The two exhumations of Missing Persans. carried out based on anonymous statements Witnesses did not yield results. of Mr Skendzié's departure from Otoëac and arrest in Gospié, where disappeared without a trace he , do not speak most likely due to fear, observed which is commonly in war crimes investigations. 11. The Act on Missing Persons during the Home/and War has not yet been passed despite the fact that the war was brought to an end more than 20 years ago. 12. ln 2018, Documenta also recorded an increase in the number of public events where the high government officiais were accompanied by the convicted practice war criminals. Such continued creating the climate of denial of war crimes and glorification of criminals as heroes. For war instance, the media and IRMCT Chief 2018 Prosecutor noted that in "a ceremony was held to commemorate th the 25 anniversary of the Medak operation. A commander Pocket of this operation, General Mirko Norac, International was indicted by the Tribunal for the Former Yugoslavia for crimes against humanity and war : §'l.h !!!Je:1/WWw.l rmct.oJ:9/&ite§/dcfauJ!lfileslJi.ocuf!!_ents/_l §69.. Ibid. 81 lli-pœgrcss-rceçrt·•-~018-1033-en.J)(ff 1 §70, ibd. '§73, ibd. DH-DD(2019)546: Reply from Croatia to a communication from a NGO. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. HUMAN RIGHlS {} HOUSI DOCUMENTA U, D et NTAR 1 AsuotAvANJE s PROSLoSèu crimes, including persecution, murder and torture, terrorization of the predominantly Serb civilian population, plunder and wanton destruction of cities, towns and villages. His case was referred to Croatia, where he was convicted and sentenced imprisonment. to seven years' General Norac was invited to the commemoration and recognized by the Croatian Minister of Deference, who stated that Croatia should be proud of the Pocket operation Medak and that he was glad that General Norac 9 was in attendance at the commemoration". Similarly, media reported in September 2018 that Tomislav Mercep convicted to seven years term for war crimes against Serbs spent more than a month out of prison at a spa, a decision that was supported by 10 the Croatian Minister of the Veterans' Affairs. This case stirred the public opinion and further frustrated the victims. 13. Such actions have created a climate of impunity and have not contributed to the establishment of a social climate favorable for solving the fate of all the missing persans and prosecuting of ail war crimes, in which witnesses would speak freely without hesitation. The IRMCT Chief Prosecutor highlighted in this respect that Mit is particularly troubling when such statements are made by those responsible for and exercising command influence over today's armed forces. lnstead of glorying war criminals, responsible officiais should send the message that soldiers defend their countries with honour by fully respecting international humanitarian lawtt. 11 Problems with judicial practice 14. The trend of stagnation in war crimes prosecution and trials continued in the past period. Number of war crimes for which not even an investigation is initiated, remains still high. Crimes committed against civilians in Sisak, Pakraëka Poljana, Glinsko Novo Selo, Borovo Selo, Antin and Vukovar were prosecuted mainly on the basis of command responsibility, while there is still no progress in the prosecution of direct perpetrators. Furthermore, the crimes in Varivode, Gosié and in Dvor na Uni, which in 2015 were designated national priority , remain still unresolved and investigations are conducted against unknown perpetrators. At the same time, no criminal proceedings initiated have been for crimes committed against Serb civilians in Vukovar and Sarvas in 1991, nor the proceedings for crimes committed during Operation Bljesak (Flash) (Storm). and Oluja 15. According to the recent Serb National Council research, the largest number against of crimes Serbs in Croatia were committed during and after the military-police actions Flash and Storm. According to data of domestic and international organisations, the scale these crimes goes significantly of beyond figures presented by the Croatian Office (hereinafter: State Attorney's CSAO). For example, official data indicate cases that in 24 war crimes which took place during and after the operation Storm, 156 civilians were killed. On the other hand, non-government organisations, including the Croatian Helsinki Committee, came forward with the number of 700 civilian victims. According to some Serb non-government organisat ions (Veritas) this number is approximately Judic 1 900. ial partiality and the lack of political w ill to combat impunity for war crimes are • §63. Ibid, ntIps·//1~.IJ?Ot!.al.hr1yi1eqt !l;jan ~norac~osao-na- 17. Out of 490 crimes recorded in the CSAO database of war percent) cases crimes in 153 (31.2 perpetrators of war are still unknown.16 18. According to 2017 CSAO Report, three specialised (in Rijeka County State Attorney's Offices , Split and Zagreb) brought 12 indictments against 34 persans while States Attorney Office in the County Osijek failed to bring any indictment 17 for war crimes for consecutive year. Ali the second accused were members of the Serbian spite of the forces. However, in CSAO's statistical data, claims that they are continuously working on crimes cases and that statistical war data do not show stagnation, the and of the general impressions of victims public is that no major progress 8 has been made 1 . 19. According to data from the 2017 Report on the State of the Judiciary, the four courts competent for war county crime cases (Rijeka, Osijek, Split received and Zagreb) during 2017 16 cases and solved 14, while the backlog was 97 cases. The average resolution time was 2 case 529 days, which points to the issue proceedings of inordinate length of in war crime trials and further frustrates the victims and their next-of CSAO War Crimes Database, -kins. which contains data on ail war crimes 1991 , has almost committed since 500 additional war crime cases recorded to date, for which the Ombudswoman in its 2018 Annual Report emphasised the need investigative 19 to intensify the and prosecutorial efforts • 20. According to Documenta's data, 31 court proceedings were conducted the courts competent in 2018 before for war crimes. Of these cases, members only six cases are against of the Croatian Army (crimes in: Bjelovar barracks, Lora, Osijek, Kijane, Kuline 12 lt was for crimes comm,tted in Prokijan. Skradin murdored Municipality, on 11 August 1995 in the ln front of thelr house in Prokljan. afternoon, when Mllica end Nlkole D " Sorb National am]anlé were Councll. Bullotin #16 'War Crimes Aga h,ttp~://~ov.hr/1ilal~t1achmenlifilo1s,1v-t&!le]!)•16 lnst Sert>s in Croatia 91-95", page 10-11. -4-wob.pdf available link on: ' Slbid, page 9-10. ' 6 Dregan Vasiljkovlè was sentenced to 13.5 years ln prison for war crimes against Croatian Radié. who was sentenced by c.vilians and prlsoners of war, a court ln Bosnia and Hor:zogovina to while in case of Marl 21. War crimes trials monitored before special courts are scheduling characterized by a rare of court hearings, especially before county courts in Osijek and Rijeka. Furthermore, excessively long procedures and unavailability of defendants before county courts in Rijeka the and Zagreb was also noted. Courts continue applying with the practice of mitigating circumstances while sentencing accused members of Croatian forces. ln some proceedings that were pending before the first-instance panels, the were not scheduled during hearings 2017 (crimes in Kuline agalnst prisoners committed of war and crimes during the shelling of Karlovac). 22. Although the 2013 amendments to the Act on Criminal Proceedings have been introduced to secure effective investigation by resolving the noticed delays proceedings and other of the irregularities in the work of state attorneys regrettably , such a possibility is, foreseen only for the pre-trial proceedings. These amendments are insufficient and ineffective because they do not apply to postponements of proceedings by judges at the trial stage. Practice shows that making an assessment crimi on the merits of nal charges often takes longer than anticipated and a right ta complaint to a higher public prosecutor 21 in practice it is not effective . 23. Th e inordinate length of war crimes investigations and trials also contribute to failure in providing justice the and reparation to the victims and Ombudswoman their families. The and civil society has been calling on the Government to prepare and table to Parliament for adoption a special law to regulate their compensation without and redress having to go through lengthy and inefficient legal procedures in war crimes investigations and trials. Conclusions and recommandations 24. ln view of the above we would like to kindly ask the Committee Council of Ministers of the of Europe to take into account the described facts when assessing whether Croatian government fulfilled obligation flowing from the European Court's judgments Skendzié and Krznarié in group ta identify and bring to justice direct outgoing perpetrators; to bring investigations on war crime to an end and to sustain their efforts ta prosecute war crimes without ethnie profiling. 25. We would furthermore like to invite the Committee of Ministers Government to urge the Croatian to take further steps to ensure justice and reparation to victims of war crimes and bring to an end the climate of impunity. To this end, the following recommendation might be issued to the authorities of Republic of Croatia: 20 The European Court for Human Rights already found that such case of ln absent/a trials for war crimes are Sanader v. Croatie. not ln compliance with the Convention in the " Ombudswoman 2018 Annual Roport, p. 21, pravobranttejice-za-2018-go.JinJ availablo al: httJ1liombudsman.hr/hti9Q!!]p()Oent/;_doWnloadsl§eJ)d/~-20.1~1~34~e DH-DD(2019)546: Reply from Croatia to a communication from a NGO. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. HUMAN RIGHlS HOUSI l# • DOCUMENTA D CfNîAR 7A SU Ivan Novosel, Program Director of HRH Za I ,. Ombudswoman 2017 Annuat Roport. p. 145. availablo 1 lzvjesœ:pu~avobramlPli1ce-1a-2017 at: http:/of'!lb~dsmun.hrih~:tle.)!gi-2017 -go GOVERNMENT OF THE REPUBLIC OF CROATIA OFFICE OF THE REPRESENTATIVE OF THE REPUBLIC OF CROATIA BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS Class: 004-02/16-05/01 Reg . No.: 50447-03/04-19- 111 Zagreb, 13 May 2019 Mr Fredrik Sundberg Head of Department DPEARTMENT FOR THE EXECUTION OF JUDGMENTS OF THE EUREOPAN COURT OF HUMAN RIGHTS DIRECTORAT GENERAL- DG 1 HUMAN RIGHTS AND RULE OF LAW SECRETARIAT GENERAL COUNCIL OF EUROPE F-67075 Strasbourg - Cedex France Re: Skendiié and Krznarié group of cases Precedent application no.: 16212/08 Dear Mr Sundberg, ln accordance with Rule 9 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements, the Government of the Republic of Croatia submits its response to the communication of Human Rights House and Documenta related to execution of general measures in Skendzié and Krznarié group of cases. This group of cases concern violations of Article 2 of the Convention in its procedural limb on account of a lack of effective investigations into war crimes committed during the Homeland War between 1991 and 1995. The Homeland War was fought on the Croatian territory for the Croatian independence, resulting in numerous causalities. Taking note of all that was alleged in the letter the Government responds as follows. A. Effectiveness of the authorities in prosecuting war crimes Seing said that this group of cases concerns violations of an ineffective investigations into war crimes, the Government notes that according to the well-established European Court's case-law, an effective investigation constitutes an obligation as of means, not as of results, implying that the state's obligation is to ensure overall efficiency of the prosecution authorities regardless of the outcome of the investigations. Address: Dalmatinska 1, 10000 ZAGREB, CROATIA, Tel.: +385 1 4878100, Fax: +38514878111, E-mail: [email protected], Web: https:l/uredzastupnika.gov.hr DH-DD(2019)546: Reply from Croatia to a communication from a NGO. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. The Government further notes that the European Court has never determined that the violations found in this group of cases represent a structural problem in Croatia. Alongside these facts it is to be mentioned that in only five judgments the European Court found violations of procedural aspect of Article 2 of the Convention. Moreover, since 2014 the European Court rendered ten judgments finding no violations in cases of war crimes investigations and more than 16 inadmissibility decisions, thus, acknowledging the overall effectiveness of the Croatian authorities in this respect. Secondly, the Government recalls that alleged impartiality of prosecution authorities was addressed before the European Court. However, after careful examination of facts the European Court has never found violations under this head (Article 14 of the Convention). Moreover, the efforts of the prosecution authorities to favour impartial investigation of all war crimes irrespective of the ethnicity of those involved had been acknowledged by the European Court itself precisely in this group of cases. C. Accounting for missing persons Highlighting that accounting for missing persons is an important step in ensuring transitional justice and overcoming war consequences the Government has been taking all necessary actions to find, exhume and identify missing persons from the Homeland War regardless of their nationality, origin, religion or other characteristics. Respecting the right of family members of missing persons to independently decide on the public disclosure of the persona! data of their closest ones, the Croatian authorities has been disclosing data of the identified persons exclusively upon approval of their family members. ln order to ensure transparency in accounting for missing persons, after the identification of the remains exhumed, the Government publishes data on the number of persons identified, locations of the graves and the time frame of their deaths. Moreover, the Government has made public a detailed list of all persons who went missing on the Croatian territory during the Homeland War. 1 Extensive efforts of Croatian authorities were acknowledged from the international organizations which closed the monitoring of the search process in Croatia. Additionally, the International Committee of the Red Cross closed its office in Zagreb (in 2006) and for the first time in the history of its activity transferred its data and authority to the competent authorities of one state - Croatia. ln accounting for missing persons, the Croatian authorities closely cooperate with national NGOs and the Regional Coordination of Families of the Missing from the Former Yugoslavia ensuring their involvement, not just in respect of the exhumations and identification activities but also in creating legal framework on searching for missing persons. lt is to be noted that, according to the official data of the Croatian authorities, a total of 150 mass graves and more than 1,200 individual burial sites have been located throughout Croatian territory. Remains of 5,162 persons have been exhumed out of which 82,3% of the exhumed remains have been identified. Between 2011 and 2018 approx. EUR 5 million has been allocated in the State Budget for activities related to finding and identifying persons who went missing during the Homeland War. Lastly, one should not forget that international courts, ICTY and ICJ in their judgments concluded that lists of mission persons provided by the NGO were unreliable since they "contain un sourced statements and double entries" (the ICTY judgement in the case Gotovina, Cermak and Markac (IT-06-90-T). Further, ICJ judgement regarding the application of the Convention on the Prevention and Punishment of the Crime of Genocide in case Croatia v. Serbia ICJ established that: ,, The Court agrees 1 ln cooperation with the Croatian Red Cross and the International Committee of the Red Cross, the Ministry of Croatian Veterans has published Book of persans went missing in the territory of the Republic of Croatia containing relevant data; ava ilable on https://bra nitelj i .gov .hr/userdocsi mages/a rh iva/pdf/K ni iga. nesta li h-pdf. pdf 2 DH-DD(2019)546: Reply from Croatia to a communication from a NGO. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. Punishment of the Crime of Genocide in case Croatia v. Serbia ICJ established that: ,, The Court agrees that neither the CHC report nor that of Veritas possesses such evidential weight as to enable the Court to consider a fact proved sole/y on the basis of those documents; indeed, Serbia itself has admitted that the reports contain factual errors." (§ 455). B. Regional cooperation Firstly, the Government would like to draw the attention of Committee of Ministers to the fact that regional cooperation of any kind has never been addressed in the European Court's judgments. Moreover, none of the judgments in this group of cases concern inter-state dispute. However, the Government notes that after the attack of the Yugoslav People's Army (JNA) and various Serb paramilitary groups in 1991 and the occupation of ( 1/3) one third of its terri tory on which a campaign of killing, terror and expulsion of local population took place, potential witnesses as well as perpetrators fled and now resi de in other states. Thus, in order to ensure effective investigations into war crimes the Government undertook significant efforts to enhance cooperation, firstly and foremostly with neighbouring states. ln view of the above and allegations from the NGOs, the Government notes that one must not ignore the fact that passage of time, lack of evidence together with the reluctance of witnesses to speak about the traumatic events represent objective obstacles seriously hampering investigation efforts by prosecuting authorities. Nonetheless , the Government will continue to communicate with other states insisting on exchanging information according to the relevant instruments, notably bilateral and cooperation agreements. Due to the fact that accounting for missing persons also implies adequate regional cooperation, the Government will continue advocating disclosure of all information on forced disappearances and mass graves. Furthermore, the Croatian authorities shall continue collaboration with neighbouring states aimed in ensuring their presence in cases of exhumations and identifications of their citizens. lt is to be noted that significant progress has been made in the last two years during which the Government has concluded cooperation agreements with two neighbouring states enhancing mutual cooperation in searching for missing persons. Additionally, last year Croatia has joined the initiative of the International Commission on Missing Persons (ICMP) and together with the authorities responsible for accounting for missing persons of other states 2 in the region signed a Framework Plan that lays out steps to boost the regional cooperation and increase their effectiveness in accounting for missing persons throughout the region. ln conclusion, the Government remains committed to bringing all responsible for war crimes to justice and reaffirms its strong commitment to fulfilling its obligations arising from Article 46 paragraph 1 of the Convention. ln line with the aforementioned, the Government shall keep the Committee of Ministers informed on all further developments in that regard. Yours sincerely, 2 Bosnia and Herzegovina, Kosovo, Montenegro and Serbia 3