ĐAKOVIC v. Serbia

On January 20, 2026, the European Court of Human Rights (hereinafter: the Court) issued and on February 17 of the same year announced the verdict in the caseDjakovic against Serbia, number 30749/22.

The verdict was unanimousbroughtseven-member Council.

THE CIRCUMSTANCES CASES

The applicant (hereinafter: the applicant), Mr. Vilko Đaković, is a Croatian citizen born in 1957 and lives in Lovas, Republic of Croatia.

The applicant's father, P.Đ., was killed on October 10, 1991, during the occupation of Lovas.

• Proceedings in the case of the High Court in Belgrade K.Po2. 1/2014

On December 28, 2007, the Prosecutor's Office for War Crimes indicted 14 persons for war crimes against the civilian population under Article 142 of the Criminal Code of the Federal Republic of Yugoslavia. (hereinafter: CC FRY). The indictment also referred to war crimes committed in October 1991 in Lovas. Four persons were accused, among other things, of murdering the applicant's father.

The indictment was amended on December 28, 2011, so that the charges against three of the four persons were dismissed in the part related to the murder of the applicant's father, and Z.K., at that time the commander of the local police station, remained accused of the aforementioned crime. He was charged for his role in organizing and participating in the attack on the village of Lovas and its civilian population that took place on October 10, 1991 in the morning hours. There were allegations that he acted on the orders of the commander of the Yugoslav People's Army (hereinafter: JNA) when he directed the specific attack.

The acting deputy prosecutor for war crimes stated, in an official note, that certain actions and omissions of D.L., the JNA commander who ordered the attack on the village, who was not among the accused, caused "serious concern" regarding his criminal responsibility. However, it was considered that the issue should be resolved in a possible new procedure.

On June 20, 2019, the High Court in Belgrade issued a verdict that, among other things, convicted Z.K. for war crimes committed in the village of Lovas, establishing that Z.K. acted on the orders of D.L. while leading the attack during which seven civilians were killed, including the applicant's father. On November 20, 2020, the Appellate Court in Belgrade issued a verdict in which, among other things, it changed the first-instance verdict and Z.K. acquitted of criminal liability.

• Criminal report of the applicant

On November 2, 2016, the applicant, through the Humanitarian Law Fund (hereinafter: HLC), submitted a criminal complaint to the War Crimes Prosecutor's Office against D.L. due to the criminal act of war crime against the civilian population from Article 142, paragraph 1 of the CC FRY.

In a letter dated December 20, 2016, the War Crimes Prosecution informed the HLC that the pre-investigation procedure is ongoing and that the allegations from the criminal complaint are being checked.

On several occasions, the HLC sent urgent calls to the Prosecutor's Office for various crimes, as well as inquiries about the stage of the proceedings. In a letter dated March 1, 2017, the Prosecutor's Office for War Crimes informed the HLC that actions have been taken to collect information from the competent state authorities, after which a decision on further action will be taken.

On October 25, 2018, HLC submitted a complaint about the work of the deputy prosecutor in the case of Kt. 6/16, in which it was stated that the prosecutor's office did not undertake appropriate investigative actions in order to determine the truth of the allegations from the criminal complaint.

The War Crimes Prosecutor's Office rejected the complaint as unfounded on November 5, 2018.

On November 8, 2018, the HLC sent a complaint to the Republic Public Prosecutor's Office regarding the handling of the case of Kt. 6/16.

On November 22, 2018, the Deputy Public Prosecutor of the Republic informed the HLC that, after an inspection of the case files, it was determined that the complaint was unfounded and that there were no omissions in the work of the acting Deputy Prosecutor.

Upon receipt of the aforementioned response, the applicant submitted a constitutional complaint to the Constitutional Court on December 3, 2018, against the acts and inaction of the War Crimes Prosecutor's Office in the case of Kt. 6/16, due to the violation of the right to life, the right to inviolability of physical and mental integrity and the right to a fair trial. In the constitutional appeal, it was stated that the Prosecutor's Office for War Crimes, in a period of two years from the filing of the criminal report, did not take any action in accordance with the applicant's right to an effective investigation. Also, in the constitutional appeal, it was stated that about the applicant's objections to the work of the deputy prosecutor in the case of Kt. 6/16 was not decided by a decision, but by an act in the form of a letter, which is not in accordance with the law.

On March 30, 2022, by decision Už-13756/2018, the Constitutional Court rejected the applicant's constitutional appeal.

In the explanation of the decision of the Constitutional Court, it is stated that the acts of the prosecution from November 5 and 22, 2018 are not acts that decided on the rights and obligations of the applicant, as a result of which they cannot be the subject of a constitutional appeal in the sense of Article 170 of the Constitution. Regarding the allegation that in the case of Kt. 6/16 The Prosecutor's Office for War Crimes did not take any procedural action, the Constitutional Court determined that the allegations were untrue.

• Proceedings before the High Court in Belgrade in the case K.Po2. 9/2022

On September 12, 2022, the War Crimes Prosecution filed a lawsuit against D.L. filed an indictment (Kto. 7/22) for war crimes against the civilian population under Article 142 of the CC FRY in connection with war crimes in the village of Lovas.

The proceedings before the High Court in Belgrade are ongoing.

COMPLAINTS OF THE APPLICANT AND THE PROCEDURE BEFORE THE COURT

The applicant submitted an application to the Court on June 17, 2022.

In the petition, among other things, he complained about the violation of the right to life from Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention), due to the failure to conduct an effective investigation into the death of his father.

THE DECISION THE COURT

• Permissibility

The court rejected the Government's objection that the applicantabused the right to submit a petition because the Court was not informed that after the submission of the petition, the War Crimes Prosecution filed an indictment against D.L., among other things, for the murder of the applicant's father, as well as because he did not inform the Court that he refused to testify in the criminal proceedings.

Namely, although the Court found unconvincing the applicant's explanation that he was not informed about the further course of the procedure (since he was called twice during 2024 to testify in that procedure), it took the position that there is no indication that he intended to mislead the Court on any issue central to the case at hand or that his application was knowingly based on false information (bearing in mind that the applicant's complaints essentially relate to the alleged ineffectiveness of the ongoing investigation 34 years after his father's death). Furthermore, the applicant's refusal to testify in the domestic proceedings was deemed irrelevant by the Court, because that behavior did not occur in connection with relations with the Court.

It's the court its jurisdictionratione temporis, consideredproprio motu, and in this regard, among other things, reminded that the temporal jurisdiction of the Court in relation to the procedural obligations of the investigation in connection with Article 2 of the Convention is strictly limited to procedural actions that were carried out or should have been carried out in the period after the entry into force of the Convention in relation to the defendant state, but also that there may also be extraordinary situations which, although they do not meet the standard of "substantial connection", require that proportionate and effective protection be provided for the guarantees and fundamental values ​​of the Convention.

Based on the above, and the fact that the event in question was processed at the domestic level as a war crime against the civilian population (the gravity of which is greater than that of other criminal acts), the Court assessed that this case meets the "test of the value of the Convention" and that it has jurisdictionratione temporis, although more than 12 years and four months passed from the death of the applicant's father to the entry into force of the Convention in relation to the Republic of Serbia, since all investigative actions were carried out from 2007 onwards, i.e. after the entry into force of the Convention.

• Foundation

Although the Court was aware that the applicant, both in the constitutional appeal and in the petition, concentrated on the investigation that was conducted following his criminal complaint before the War Crimes Prosecutor's Office starting in 2016, it decided to take into account the criminal proceedings that were conducted before the High Court in Belgrade in case K.Po2 1/2014 and all actions that preceded it.

In the sense of the above, the Court is noted that there was a significant delay between the murder of P.Đ. and conducting any investigation, that is, that no official actions were taken before the entry into force of the Convention.

The court further noted that the War Crimes Prosecution first initiated criminal proceedings in 2007, and the second time in 2016 (following the applicant's criminal report) and that the proceedings are still ongoing (K.Po2. 9/2022).

More precisely, the proceedings were initiated by the War Crimes Prosecutor's Office for the first time on November 28, 2007, i.e. 16 years after the murder and 3 years and 8 months after the entry into force of the Convention, and lasted 13 years at two levels of jurisdiction, and none of the originally accused four persons was convicted of the murder of the applicant's father.

Regarding the second criminal procedure, the Court noted that more than 9 years have passed since the filing of the criminal report and that the procedure is still ongoing in the first instance.

The court assessed that the total duration of the investigation, which includes the proceedings before the Prosecutor's Office for War Crimes and the court proceedings that followed, does not meet the requirement of urgency.

In light of the above, the Court concluded that the investigation into the murder of the applicant's father did not meet the standards of effectiveness required by Article 2 of the Convention.

As a result of the above, the Court determined that there was a violation of the right to life in its procedural part.

FAIRLY SATISFACTION (Article 41 of the Convention)

The court obliged the Republic of Serbia to pay the applicant the amount of 12,000 euros in compensation for non-material damages, and to pay him the amount of 1,730 euros in the name of costs and expenses.