Restriction of human rights and fundamental freedoms

Any action on the part of State bodies or private persons, which conduct may be attributed to the State, resulting in the death of a person who has been subjected to such action, shall be considered as restriction of the right to life. An important case of restriction of the mentioned right is the imposition of the death penalty as referred to in paragraph 1 of this article. Other circumstances, to be treated separately, in which the State may deprive a person of life are regulated by paragraph 2.

A violation of the right to life may be presumed also in the cases of the disappearance of a person, which may be attributed to the State even if not unambiguously established that the mentioned person was deprived of life at the hands of the government.⁶¹⁸ On that occasion a conclusion on the existence of a violation of the right to life is based on the presumption which, on the basis of different circumstances and information, has become so concrete as to be sufficient to establish the existence of a violation of the right under Article 2 of the ECHR. This includes a permanent failure on the part of the government to invest efforts in order to clarify the circumstances of disappearance and the fate of the person gone missing.⁶¹⁹

The ECHR and additional protocols thereto do not provide for protection against one’s disappearance. Therefore, with the definition of the notion “disappearance” the Human Rights Chamber links a – legally non-binding – declaration of the General Assembly of the UN of 18 December 1992 (A/RES/47/133) on the protection of all persons against disappearance. According to the mentioned declaration, any act bringing about one’s disappearance shall constitute a violation of the right to life, or a serious threat to the mentioned right (Article 1). According to the preamble of the mentioned declaration, the following are considered to be causes of one’s disappearance: deprivation of freedom, arrest or taking away a person against his/her will, or some other form of deprivation of freedom by officials of the governmental authority/power (both vertically and horizontally), or by organised groups or private persons acting on behalf of the State, with its direct or indirect support, with its consent or tolerance, with refusals to disclose the fate or whereabouts of the person concerned, or to confess that the person was deprived of freedom, thereby depriving the person concerned of all protection guaranteed by the right to life.⁶²⁰ Assessing the question whether there is a violation of Article 2 of the ECHR as a result of causing the disappearance, shall depend on the circumstances of each individual case, and particularly – owing to the lack of direct evidence – on the existence of sufficient indications relying on circumstantial evidence, which on the basis of necessary standards for presentation of evidence allow for a conclusion to be made that the death of a person concerned occurred at the time of his/her detention.⁶²¹ Therefore, indications are particularly significant, for this type of “procedural and investigative repression” is characterised by the very attempt to prevent divulging any information on kidnapping or the whereabouts of the victim or the fate thereof.⁶²² The significant criterion for the presumption of death is the period which elapsed from the moment of the deprivation of freedom. The longer one goes without obtaining any new information about the arrested person, the greater the probability of the person being deceased.⁶²³

In Case No. CH/99/3196, on the basis of the statements of witnesses who confirmed that Colonel Palić had been arrested by the RS Army, that the arrest took place after 14 December 1995, and owing to the lack of any credible and essential explanation and failure to show the minimum eagerness for clarification, the Human Rights Chamber came to presume that Colonel Palić had passed away.⁶²⁴

Restriction of human rights and fundamental freedoms, by way of failing to act in order to protect them, is questioned also in cases where the State fails to conduct a procedure against a perpetrator of a criminal act of a premeditated murder and to, possibly, ensure that a just penalty be effected. This does not concern solely the victim of a criminal act, but also his/her family.⁶²⁵

In the mentioned case one of the municipal courts in Canton 10 evaluated the perpetrator of a criminal act of premeditated murder as mentally incompetent without sufficiently establishing the facts of the case or the reasoning, and ordered him to undergo compulsory psychiatric treatment, following which, he was rather quickly discharged as a healthy person. The Supreme Court of FBiH, indeed, established significant violations of the procedure, but was unable to quash the judgment to the detriment of the defendant. In this case the Human Rights Chamber considered that the Federation of BiH was responsible, on the one hand, because the perpetrator, given the political situation and the distribution of the population in that part of the country, could have assumed that he would not be prosecuted for his act. Therefore, the Federation of BiH failed to act preventively with regards to the commission of the act.⁶²⁶ On the other hand, the municipal court with its suspicious decision of ordering the treatment (thereby ruling out the existence of the defendant’s responsibility), and the State Prosecutor’s Office by failing to appeal against the mentioned decision, denied the victim’s right to life.⁶²⁷