A Casualty of Formalism: The Application of the Six-Month Rule in Kamenica and Others v. Serbia

By Corina Heri, PhD candidate at the University of Zürich / Visiting Scholar at Ghent University

On 27 October 2016, the Court published the Third Section’s decision in Kamenica and Others v. Serbia. That case concerns the alleged ill-treatment of 67 persons who fled Bosnia and Herzegovina during the conflict that broke out there in 1992 and who were subsequently interned in a Serbian detention camp. The Third Section applied the six-month rule to the case, finding that it had been brought out of time. Its decision raises questions about the strictness of the six-month rule and the application of a statute of limitations to grievous alleged violations of Article 3 ECHR. Granted, the application of a rigid time limit for bringing applications to Strasbourg fosters certainty and ensures that the proceedings before the Court take place within a useful time frame. However, decisions such as this one indicate that, in certain types of cases – here, a particularly grievous one that stood to be investigated in a post-conflict scenario – the Court’s emphasis of a strict time limit can seem decidedly formalistic.

The Facts of the Case

The Kamenica and Others case concerns applications brought by 67 persons who alleged that they had suffered torture and other grievous ill-treatment at the hands of the Serbian authorities during the brutal conflict that broke out after Bosnia and Herzegovina declared its independence from the former Socialist Federal Republic of Yugoslavia in March 1992. During that war, the applicants fled Bosnia and Herzegovina by crossing the border into Serbia, but were captured by the army of the Federal Republic of Yugoslavia and taken to two detention camps, where they were all informed, though there were civilians among them, that they would be held as prisoners of war. In these camps, they claim to have faced atrocious detention conditions, including sexual abuse and physical ill-treatment such as beatings with cables, shovels and batons, being forced to stare into the sun and to fight with each other, and the infliction of cigarette burns (§ 11). In this respect, the State Commission for Missing Persons of Bosnia and Herzegovina compiled a report finding that the detention conditions were “disturbing”. The Ministry of the Interior disputed these claims, arguing that the quality of the lodgings in the second camp was comparable to “hotel accommodation” (§ 14).

In 2011, an NGO filed a complaint on behalf of the applicants with the Office of the War Crimes Prosecutor of Serbia. That Office notified the NGO, in March 2013, that there were no grounds to initiate a criminal investigation given that the imputed acts could not be considered war crimes or other crimes falling under its jurisdiction. The applicants lodged a constitutional appeal, which was rejected in February 2014 given that the Office’s notification did not constitute a “decisive” act vis-à-vis the applicants’ human rights (§ 15).

There were no other criminal law avenues open to the applicants at this point. The domestic law provides that there is no statute of limitations for war crimes; however, the acts in question here were not considered to fall under that heading and the conflict as a whole was considered an internal armed conflict; therefore, a statute of limitations of applied and had, in fact, already elapsed. In June 2014, however, the Belgrade Court of Appeal did, in response to a civil action for damages brought by two of the applicants, award non-pecuniary damage and find that they had suffered “intensive torture and inhumane treatment” and that the “applicants survived what was without a doubt the harshest suffering an individual [could] experience”.

The Third Section’s Decision

Before the Court, the applicants argued that the authorities had failed to meet their procedural obligations under Articles 3, 6 and 13 ECHR. The Court decided to examine all of these claims under Article 3, and then turned to Article 35 § 1 ECHR, which states that the Court may only examine applications “within a period of six months from the date on which the final [domestic] decision was taken”. In this case, it held that the purpose of this rule is to “promote security of the law and to protect the authorities and other persons concerned from being under any uncertainty for a prolonged period of time” and to “ensure that it is possible to ascertain the facts of a case before that possibility fades away” (§ 47).

To evaluate their compliance with the six-month rule, the Third Section recalled, by analogy, the applicants’ obligation under Article 2 ECHR to keep track of how the domestic investigation into their case is progressing and to diligently apply to the Court once it becomes clear or should have become clear that no effective domestic investigation is taking place (§ 49). The Court also noted that sixteen years had elapsed between the applicants’ ill-treatment and their criminal complaint with the Office of the War Crimes Prosecutor. At this point, the statute of limitations for all but war crimes had elapsed (§ 50). In 2010 at the latest, it should also have been evident to the applicants, given the consistent practice of this Office, that it considered the war in Bosnia and Herzegovina to be an internal armed conflict to which Serbia was not a party.

The Third Section therefore found, by a majority, that when they submitted their criminal complaint in 2011, the applicants should have known that it would not lead to a criminal prosecution. They had therefore failed to comply with the six-month time limit, and the case was declared inadmissible.

Comment

The ECHR entered into force for Serbia in 2004, and the applicants complained about facts that occurred in 1995 and 1996. The ECHR is not retroactive, of course, but this fact alone does not mean that the applicants’ claims are inadmissible. Under certain circumstances the Court can nonetheless examine whether States can be held accountable under ‘detachable’ procedural obligations that continue into a time that does fall under the Court’s jurisdiction.[1] These obligations can persist even in the transitional justice context.[2] However, the Court did not get to this step in its examination, and this is not a decision concerning the Court’s ratione temporis jurisdiction. Instead, the Third Section focused on whether the applicants had exercised due diligence in bringing their complaint to Strasbourg within the six-month time limit, and found that their application was inadmissible given their supposed failure to do so.

This decision is particularly interesting in light of the Court’s previous case-law concerning the application of a statute of limitations to charges of torture and ill-treatment by State agents. In this regard, the Court held in its 2015 Cestaro v. Italy judgment that

criminal proceedings ought not to be discontinued on account of a limitation period, and also that amnesties and pardons should not be tolerated in such cases. Furthermore, the manner in which the limitation period is applied must be compatible with the requirements of the Convention. It is therefore difficult to accept inflexible limitation periods admitting of no exceptions (§ 208).

This finding has been made in a range of other judgments, as well, notably including Mocanu v. Romania (§ 326). The CPT, too, has required States to ensure that the crime of torture is never subject to a statute of limitations. “[S]tatutes of limitations, amnesties and immunities” have also been listed as specific impediments to the right to effective redress for acts of torture by the CAT, which has held in its General Comment No. 3 that

On account of the continuous nature of the effects of torture, statutes of limitations should not be applicable as these deprive victims of the redress, compensation, and rehabilitation due to them. For many victims, passage of time does not attenuate the harm and in some cases the harm may increase as a result of post-traumatic stress that requires medical, psychological and social support, which is often inaccessible to those whom have not received redress. States parties shall ensure that all victims of torture or ill-treatment, regardless of when the violation occurred or whether it was carried out by or with the acquiescence of a former regime, are able to access their rights to remedy and to obtain redress…

In addition, the Court has also found that the six-month period relevant for Article 35 § 1 begins anew every day while a continuing violation of the Convention has not been remedied (Varnava v. Turkey, § 159).

The present decision is difficult to reconcile with the above. Here, the application of the statute of limitations under domestic law and the classification of the armed conflict in question as an internal one, along with the six-month rule, combined to lead to a result in which the applicants have no possibilities to ensure that their torturers are criminally prosecuted. Given the severity of the ill-treatment alleged here and the psychological effects of torture on its victims, the emphasis placed by the majority of the Third Section on protecting the perpetrators and the authorities from uncertainty by means of a strict application of time limits here seems rather one-sided. The Third Section’s decision, by focusing exclusively on the obligation of the applicants to pursue the proceedings with due diligence, effectively privatizes the responsibility for the absence of proceedings in this case, and does nothing to take into account the circumstances or grievousness of the case.

 

[1] This is the case, for example, in disappearance cases. For more on this, see my previous arguments on the Janowiec and Others v. Russia case (Heri Corina, ‘Enforced Disappearance and the European Court of Human Rights’ ratione temporis Jurisdiction: A Discussion of Temporal Elements in Janowiec and Others v. Russia’, 12(4) Journal of International Criminal Law (2014), 735-750).

[2] Compare Eva Brems, ‘Transitional Justice in the Case Law of the European Court of Human Rights’, 5 International Journal of Transitional Justice (2011), 282-303, 287, referring to Sandru and Others v. Romania, no. 22465/03, Judgment of 8 December 2009.

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