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‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Thursday, 22 September 2016

ECtHR: no obligation to prosecute Dutch peacekeepers for their conduct at Srebrenica


In its decision in the case of Mustafić-Mujić and Others v. the Netherlands the European Court of Human Rights has unanimously declared the application inadmissible. The applicants, relatives of men killed in the Srebrenica massacre of July 1995, imputed criminal responsibility to three Netherlands servicemen who were members of the UN peacekeeping force. They complained that the Netherlands authorities had wrongly refused to investigate and prosecute the servicemen for allegedly sending their relatives to their probable death by ordering them to leave the safety of the UN peacekeepers’ compound after the Bosnian Serb forces had overrun Srebrenica and its environs.

The Court found that the Netherlands authorities had sufficiently investigated the incident and given proper consideration to the applicants’ request for prosecutions. In relation to the investigation, the Court held that there had been extensive and repeated investigations by national and international authorities. There was no lingering uncertainty as regards the nature and degree of involvement of the three servicemen and it was therefore impossible to conclude that the investigations had been ineffective or inadequate. In relation to the decision not to prosecute – taken on the basis that it was unlikely that any prosecution would lead to a conviction – the Court rejected the applicants’ complaints that that decision had been biased, inconsistent, excessive or unjustified by the facts.

The Court’s assessment
102. The Court points out in the first place that the procedural obligations arising from Article 2 of the Convention weigh on the respondent Party as a whole, not on any particular domestic authority alone, be it a prosecutor or a court (see, mutatis mutandis, Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 319, ECHR 2004‑VII). In order to decide whether those obligations have been met, this Court must therefore consider the aggregate of investigatory measures undertaken and not merely the way their results have been dealt with by the authority that has taken the final decision in the case.

103. The present case differs from most previous cases which the Court has had to consider under the procedural aspect of Article 2 in that the information that has become available over the years is unusually expansive and detailed and includes material gleaned from official sources both international and domestic.
104. At the international level, information on the Srebrenica massacre has been compiled into a report by the Secretary General of the United Nations (see paragraphs 81-83 above) and extensive findings of fact are contained in judgments of the ICTY (see paragraphs 85-89 above). That is not all: the Court notes that the trial of General Mladić is still in progress and the appeal of Mr Radovan Karadžić is currently being heard.
105. Fact-finding at the domestic level has included the debriefing of all returning Dutchbat personnel who had witnessed the fall of the Srebrenica enclave and its aftermath (see paragraphs 60-66 above); a parliamentary enquiry (see paragraph 73-80 above); an extensive and detailed report by the NIOD Institute for War, Holocaust and Genocide Studies (admitted by the applicants to be “the most complete overview of the events in Srebrenica”; see paragraphs 67-70 above); and civil proceedings brought by the applicants which involved the taking of evidence both in documentary form and through the hearing of witnesses (see paragraphs 49-56 above). It is worth pointing out that the NIOD Institute report mentions Mr Rizo Mustafić, Mr Ibro Nuhanović and Mr Muhamed Nuhanović by name and describes the events that led to their departure from the compound (see paragraph 70 above).
106. The composite result of all these investigations is that specific and detailed official records now exist reflecting the circumstances in which Mr Rizo Mustafić, Mr Ibro Nuhanović and Mr Muhamed Nuhanović fell into the hands of the VRS and there is no lingering uncertainty as regards the nature and degree of involvement of Lieutenant Colonel Karremans, Major Franken and Warrant Officer Oosterveen respectively. It is therefore not possible for the Court to find that the investigations were ineffective or inadequate.
107. The Court observes in the second place that the purpose of Article 2 is to secure the right to life. It is for this reason and this reason only that Parties to the Convention are required to put in place criminal sanctions against offences against the person and enforce them (see Mustafa Tunç and Fecire Tunç v. Turkey, cited above, § 171). No provision of the Convention confers any right to “private revenge” (see, mutatis mutandis, Perez v. France [GC], no. 47287/99, § 70, ECHR 2004‑I, and Öneryıldız v. Turkey [GC], no. 48939/99, § 147, ECHR 2004‑XII). The right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently (Branko Tomašić and Others v. Croatia, no. 46598/06, § 64, 15 January 2009).
108. Furthermore, as recalled in Armani Da Silva v. the United Kingdom [GC], no. 5878/08, ECHR 2016:
“259. To date, the Court has not faulted a prosecutorial decision which flowed from an investigation which was in all other respects Article 2 compliant. In fact, it has shown deference to Contracting States both in organising their prosecutorial systems and in taking individual prosecutorial decisions. In [Kolevi v. Bulgaria, no. 1108/02, § 208, 5 November 2009], the Court made it clear that
‘[it] is not oblivious to the fact that a variety of State prosecution systems and divergent procedural rules for conducting criminal investigations may be compatible with the Convention, which does not contemplate any particular model in this respect ... Independence and impartiality in cases involving high-ranking prosecutors or other officials may be secured by different means, such as investigation and prosecution by a separate body outside the prosecution system, special guarantees for independent decision-making despite hierarchical dependence, public scrutiny, judicial control or other measures. It is not the Court’s task to determine which system best meets the requirements of the Convention. The system chosen by the member State concerned must however guarantee, in law and in practice, the investigation’s independence and objectivity in all circumstances and regardless of whether those involved are public figures.’
260. Likewise, in Brecknell v. the United Kingdom, no. 32457/04, § 81, 27 November 2007, although the Court held that the initial investigative response lacked the requisite independence (and was therefore in breach of the procedural limb of Article 2), it found no grounds on which to criticise a decision not to prosecute where it was not ‘apparent that any prosecution would have any prospect of success’ and where it could not ‘impugn the authorities for any culpable disregard, discernible bad faith or lack of will’. In Brecknell the application was lodged nearly three decades after the death in issue; nevertheless, it clearly demonstrates the Court’s reluctance to interfere with a prosecutorial decision taken in good faith following an otherwise effective investigation.
261. That being said, the Court has, on occasion, accepted that ‘institutional deficiencies’ in the criminal justice or prosecutorial system may breach Article 2 of the Convention. In Kolevi (cited above, § 209) the Court found that such deficiencies in the prosecutorial system resulted in the absence of sufficient guarantees for an independent investigation into offences potentially committed by the Chief Public Prosecutor. In particular it found that the centralised structure of the prosecutorial system made it ‘practically impossible to conduct an independent investigation into circumstances implicating [the Chief Public Prosecutor]’. Although there was no such obstacle to an effective investigation in the present case, the applicant has argued that there were other obstacles preventing any meaningful prosecutions. If such obstacles existed, they could enable life-endangering offences to go unpunished and, as such, give rise to the appearance of State tolerance of – or collusion in – unlawful acts. Consequently, it will be necessary for the Court to consider each of the applicant’s submissions in turn in order to determine whether there were any ‘institutional deficiencies’ giving rise to a procedural breach of Article 2 of the Convention.”
109. In the third place, and with particular reference to the series of conflicts that engulfed the former Yugoslavia after 1991, the Court reiterates that the respondent State’s procedural obligation under Article 2 can be discharged through its contribution to the work of the ICTY, given that the ICTY has primacy over national courts and can take over national investigations and proceedings at any stage in the interest of international justice (see Articles 9 and 10 of the Statute of the ICTY, paragraph 84 above; see also Fazlić and Others v. Bosnia and Herzegovina (dec.), nos. 66758/09, 66762/09, 7965/10, 9149/10 and 12451/10, § 36, 3 June 2014; Zuban and Hamidović v. Bosnia and Herzegovina (dec.), nos. 7175/06 and 8710/06, § 31, 2 September 2014; Muratspahić v. Bosnia and Herzegovina (dec.), no. 31865/06, § 30, 2 September 2014; and Demirović and Others v. Bosnia and Herzegovina (dec.), no. 35732/09, § 31, 2 September 2014). It is significant in this respect that the ICTY Trial Chamber has heard Lieutenant Colonel Karremans and Major Franken as witnesses in the Krstić case. The Court notes that the ICTY Prosecutor has not proceeded against them as suspects.
(b) The applicants’ complaints
110. Against the background thus drawn, the Court will now consider the separate complaints about the Court of Appeal’s proceedings and decision in the order in which the applicants have synthesised them. Their synthesis may be paraphrased in the following terms:
(a) the Military Chamber of the Court of Appeal could not, in the circumstances, be deemed independent given the presence of a military judge;
(b) the Military Chamber of the Court of Appeal applied a different legal framework to accessory crimes, as distinct from the principal crime, whereas the relevant test was whether the responsibility of the state agents concerned was triggered;
(c) the Military Chamber of the Court of Appeal had found several shortcomings in the decision-making of the Public Prosecution Service, noting that it had not submitted the opinion of the reflection chamber and that it could have undertaken further investigations, but had not attached any consequences to these failings on the ground that further investigation would not lead to new findings;
(d) the Military Chamber of the Court of Appeal had overstretched its competence under Article 12 of the Code of Criminal Procedure by not limiting itself to the question whether a prosecution should be ordered but giving what amounted to a ruling on their guilt;
(e) the Military Chamber of the Court of Appeal had misrepresented some of the facts and arguments, finding in particular that Lieutenant Colonel Karremans, Major Franken and Warrant Officer Oosterveen had not been aware of the extent of the killings whereas in fact they had and accepting their defence of force majeure.
(i) The military member of the Military Chamber of the Arnhem Court of Appeal
111. The applicants submitted that the independence and impartiality of the Military Chamber of the Court of Appeal were tainted by the presence of a serving military officer in its midst.
112. In Jaloud v. the Netherlands [GC], no. 47708/08, § 196, ECHR 2014, the Court dismissed a similar complaint in the following terms:
“... [T]he Court has had regard to the composition of the Military Chamber as a whole. It sits as a three-member chamber composed of two civilian members of the Arnhem Court of Appeal and one military member. The military member is a senior officer qualified for judicial office; he is promoted to titular flag, general or air rank if he does not already hold that substantive rank (...). In his judicial role he is not subject to military authority and discipline; his functional independence and impartiality are the same as those of civilian judges (...). That being so, the Court is prepared to accept that the Military Chamber offers guarantees sufficient for the purposes of Article 2 of the Convention.”
113. Minor changes in the applicable legislation notwithstanding, identical considerations apply in the present case (see paragraphs 92-94 above).
114. The applicants have not offered any evidence to support their insinuation that the Military Chamber of the Court of Appeal was biased.
(ii) The test applied by the Military Chamber of the Court of Appeal
115. The applicants submit that the Military Chamber of the Court of Appeal applied a different legal framework to accessory crimes, as distinct from the principal crime, whereas the relevant test was whether the responsibility of the state agents concerned was triggered.
116. The Court notes that Lieutenant Colonel Karremans, Major Franken and Warrant Officer Oosterveen are not themselves accused of having taken the lives of Mr Rizo Mustafić, Mr Ibro Nuhanović and Mr Muhamed Nuhanović. Indeed, it is beyond dispute that the applicants’ relations were put to death by the VRS or by their paramilitary henchmen. Nor is it the applicants’ case that the three defendants handed the three men over to the VRS intending them to be killed. Rather, the applicants’ argument is that the defendants were aware of the fate that awaited the three men outside the compound at Potočari but nonetheless made them leave. It is for this reason, in the applicants’ submission, that the three defendants are to be seen as complicit in genocide, war crimes or common murder and it is on this ground that their prosecution ought to have been ordered.
117. An examination of the Court of Appeal’s decision shows that there was no misapplication of the applicable standards. It is beyond dispute that Lieutenant Colonel Karremans, Major Franken and Warrant Officer Oosterveen themselves had no hand in the killing of Mr Rizo Mustafić, Mr Ibro Nuhanović and Mr Muhamed Nuhanović. Furthermore, Article 2 does not entail the right to have third parties prosecuted – or convicted – for a criminal offence; the Court’s task, having regard to the proceedings as a whole, is to review whether and to what extent the domestic authorities submitted the case to the careful scrutiny required by Article 2 of the Convention (see Armani Da Silva v. the United Kingdom, cited above, § 275).
(iii) The decision-making process of the Public Prosecution Service
118. The applicants argue that although the Court of Appeal found that the Public Prosecution Service could have undertaken further investigations but did not, it did not attach any consequences to this finding; in particular, it did not order any further investigative measures. It is apparent from the application that the applicants would have wished to give evidence as witnesses themselves and Lieutenant Colonel Karremans, Major Franken and Warrant Officer Oosterveen to have been heard as suspects.
119. The Court has already referred above to the sheer quantity of information available to the Court of Appeal. It included statements made by the applicants themselves and numerous other witnesses in the parallel civil proceedings and by Mr Hasan Nuhanović in the written press; moreover, the applicants were at liberty to adduce what additional facts they liked in their complaints to the public prosecutor and the Court of Appeal. The details of the involvement of Lieutenant Colonel Karremans, Major Franken and Warrant Officer Oosterveen were already well known; the applicants have not pointed to any additional benefit that hearing them as suspects – which anyway would have entitled them to the right of silence – would have brought.
120. The applicants’ assertion that the reflection chamber appointed in the present case recommended prosecuting Lieutenant Colonel Karremans, Major Franken and Warrant Officer Oosterveen cannot be verified. The applicants’ sole source of information is a journalist’s report in the media in which no details are given nor any source named.
121. Reflection chambers are informal structures convoked from time to time when a public prosecutor is presented with a particularly difficult case; their advice is not made public (see paragraph 95 above). The Court of Appeal expressed the view that it would have been helpful for it to have been supplied with the reflection chamber’s advisory opinion. The fact is, however, that it was not; and so the Court of Appeal, an independent and impartial tribunal charged with reviewing the public prosecutor’s decision not to bring a prosecution, responded by undertaking its own detailed assessment of the case, which it substituted for that of both the reflection chamber and the public prosecutor (see paragraph 7.4 of the Court of Appeal’s decision, paragraph 48 above).
(iv) The Court of Appeal’s allegedly ruling on the substance of the case
122. The applicants submitted that the decision of the Court of Appeal, instead of being limited to whether or not to order a prosecution, was in effect an acquittal. They argued that Article 12 of the Code of Criminal Procedure required the Court of Appeal to apply a double test: firstly, whether there was sufficient prima facie evidence against the persons concerned; and secondly, whether there were sufficient public policy reasons to bring a prosecution.
123. As a matter of domestic law, the test is in fact broader than the applicants suggest: in particular, it is not limited to whether there is enough prima facie evidence to proceed. As relevant to the case, Article 12i of the Code of Criminal Procedure provides that the Court of Appeal shall order the prosecution to be brought or pursued in respect of the fact to which the complaint relates if the Court of Appeal finds that a prosecution ought to have been brought or pursued to a conclusion (see paragraph 90 above). At all events, whether under domestic law or under Article 2 of the Convention, it cannot be that the Court of Appeal is required to order a prosecution if, as in the present case, it takes the considered view that application of the appropriate criminal legislation to the known facts will not result in a conviction.
(v) The Court of Appeal’s alleged misrepresentation of facts and arguments
124. The applicants dispute the Court of Appeal’s findings, firstly, that Lieutenant Colonel Karremans, Major Franken and Warrant Officer Oosterveen had been unaware of the extent of the imminent massacre and, secondly, that they were entitled to the defence of force majeure. In their submission the latter finding, in particular, flies in the face of the findings of the civil courts.
125. Mindful of the subsidiary nature of its role, the Court normally declines to substitute its own findings of fact for those of the domestic courts unless there are cogent reasons to do so (Mustafa Tunç and Fecire Tunç, cited above, § 182). In the present case, it finds none.
126. Turning to the facts, the Court observes that the Court of Appeal found it established – referring to the judgment of the Trial Chamber of the ICTY in the Krstić case – that there were a limited number of “opportunistic killings” in Potočari, but that “murder on a large scale” took place elsewhere, and more importantly, commenced only after Mr Rizo Mustafić, Mr Ibro Nuhanović and Mr Muhamed Nuhanović had left the compound (see paragraph 13.4 of the decision, paragraph 48 above).
127. The finding construed by the applicants as acceptance of a defence of “force majeure” appears in the decision obiter dictum (see paragraphs 13.5-13.5.5 of the decision, paragraph 48 above). After describing the efforts the VRS went to in order to identify potential victims (and some were found hiding among the wounded), it dismisses as unrealistic the suggestion that Mr Muhamed Nuhanović would have been “safe there as long as the UN flag was raised”.
128. The judgments of the civil courts do not incline the Court to call these findings into question. Firstly, the civil proceedings outlined above involved different parties, namely the applicants as plaintiffs and the State as defendant (i.e. not Lieutenant Colonel Karremans, Major Franken and Warrant Officer Oosterveen); secondly, and leaving aside the fact that the Court of Appeal in the civil proceedings applied the law of the Republic of Bosnia and Herzegovina, a different legal test applies to the State’s liability in tort for tortious acts of its subordinates (see paragraph 90 above) than to the criminal responsibility of the individual.
129. Finally, regard must be had to the vast amount of information examined by the Court of Appeal, which moreover the applicants could – and did – place in context in proceedings of a type found in previous cases to offer appropriate guarantees (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 354, ECHR 2007‑II, and Jaloud v. the Netherlands [GC], no. 47708/08, § 224, ECHR 2014).
130. It follows that the Court cannot find that there was any misrepresentation of facts or arguments by the Military Chamber of the Court of Appeal.
(c) Conclusion
131. Having regard to the proceedings as a whole, “it cannot be said that the domestic authorities have failed to discharge the procedural obligation under Article 2 of the Convention to conduct an effective investigation ... which was capable of leading to the establishment of the facts, ... and of identifying and – if appropriate – punishing those responsible” (see Armani Da Silva, cited above, § 286). The application is accordingly manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.

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