Enforced disappearance of Edin Mahmuljin in June 1992

In November 2009, TRIAL submitted an application to theEuropean Court of Human Rights concerning the enforced disappearance of Edin Mahmuljin that occurred in June 1992, on behalf of Ismeta Mahmuljin and Muharem Mahmuljin, respectively mother and father of Edin Mahmuljin.

Almost one month after the takeover of the city of Prijedor (29-30 April 1992), the Serb army attacked the nearby town of Kozarac. On 24 May 1992 Ismeta Mahmuljin, together with her son Edin Mahmuljin, her daughter in law Saida Mahmuljin and her grandson Alen Mahmuljin (then 3-year old), fled to the forest of Kozara to seek refuge. Two days later, they decided to separate: while Edin Mahmuljin remained in the woods with other men, the rest of the family returned to Kozarac, where they were taken by the Serb army and transferred to the concentration camp of Trnopolje, from which they were freed about one month later. According to the testimony of other men who had remained in the Kozara forest together with Edin Mahmuljin, on 24 June 1992 the group was captured by members of the Serb army in a region between Bosanska Dubica and Bosanska Gradiška, in a place known as Sjeverovci. Some men were taken to the concentration camp of Omarska; while some others, including Edin Mahmuljin, were taken to an unknown destination. This is the last time that Edin Mahmuljin was seen alive and his fate and whereabouts remain unknown since then.

More than 17 years after the events, no ex officio, prompt, impartial, thorough and independent investigation has been undertaken by BiH authorities in order to locate Edin Mahmuljin or his mortal remains or to identify, prosecute and sanction those responsible. Ismeta Mahmuljin and Muharem Mahmuljin have taken numerous steps to obtain information about their son, through domestic authorities and national institutions (in particular, the police in Sanski Most, the Commission on Missing Persons of the Federation of BiH and the Red Cross of Republika Srpska) as well as through international organizations (International Committee of the Red Cross). These initiatives have so far proved vain.

On 16 July 2007 the Constitutional Court of BiH, seized by several relatives of victims of enforced disappearance from Prijedor and the surrounding area, declared a violation by BiH of the right not to be subjected to torture and inhuman and degrading treatment and the right to respect for private and family life of the families of disappeared persons. Accordingly, the Court ordered the competent domestic institutions to disclose all available information on the fate and whereabouts of the disappeared persons, including Edin Mahmuljin. So far, the Council of Ministers of BiH, the government of the Republika Srpska, the government of the Federation of BiH and the government of the Brčko District of BiH failed to enforce the decision of the Constitutional Court and Mrs. Ismeta Mahmuljin and Muharem Mahmuljin have not received any information about their son from the mentioned authorities.

Consequently, Ismeta Mahmuljin and Muharem Mahmuljin request the European Court of Human Rights:

to find that Edin Mahmuljin is victim of a violation of the procedural aspects of Articles 2 (right to life), 3 (prohibition of torture and inhuman treatments) and 5 (right to liberty and security), in conjunction with Articles 1 (obligation to respect human rights) and 13 (right to an effective remedy) of the European Convention on Human Rights, due to the ongoing failure of BiH authorities to conduct an ex officio, prompt, impartial, independent and thorough investigation on his arbitrary detention and subsequent enforced disappearance, in order to establish his fate and whereabouts, as well as to identify those responsible for these crimes and to prosecute, judge and sanction them;

to find that Ismeta Mahmuljin and Muharem Mahmuljin are themselves victims of a violation by BiH of Article 3 (prohibition of torture or inhuman or degrading treatment) in conjunction with Articles 1 (obligation to respect human rights), 8 (right to respect for private and family life) and 13 (right to an effective remedy) of the Convention, because of the severe mental distress and anguish caused by Edin Mahmuljin’s enforced disappearance and the ongoing lack of information about the cause and circumstances of Edin Mahmuljin’s disappearance as well as on the progress and results of the investigations carried out by BiH authorities;

to request BiH to order independent investigations as a matter of urgency with a view to locating Edin Mahmuljin and, if necessary, exhuming, identifying, respecting and returning his mortal remains;

to request BiH, pursuant to Article 41 and Article 46.2 of the Convention, to indentify, indict, judge before the competent civil authorities and sanction those responsible of the arbitrary deprivation of liberty and subsequent enforced disappearance of Edin Mahmuljin, as well as the abettors and possible accessories after the facts; and to ensure that Ismeta Mahmuljin and Muharem Mahmuljin have full access and capacity to act at all stages and in all instances of the said investigations and proceedings, in accordance with domestic law and the provisions of the European Convention;

to request BiH to publish the results of the investigations and the proceedings, so that BiH society is able to know the judicial determination of the facts and those responsible in this case;

to request BiH, pursuant to Article 41 and Article 46.2 of the Convention, to grant to Ismeta Mahmuljin and to Muharem Mahmuljin adequate pecuniary compensation, covering both material and non-pecuniary damages;

to request BiH, pursuant to Article 41 and Article 46.2 of the Convention, to ensure that the measures adopted in favour of Ismeta Mahmuljin and Muharem Mahmuljin provide them with integral reparation that comprises restitution, rehabilitation, satisfaction (including restoration of dignity and reputation), and guarantees of non-repetition;

to request BiH to publish, in English and in Bosanski, relevant excerpts of the Court’s judgment (including the establishment of the facts, the findings of the Court and, if any, the attached opinions) in the Official Gazette and in another newspaper with widespread national circulation;

Procedure

After a preliminary examination of the admissibility of the application, on 28 September 2012 it was communicated to the Government of BiH.

In January 2013, REDRESS and the OMCT submitted to the ECHR an amicus curiae brief in relation with the present case to shed light on the link between enforced disappearance and the prohibition of torture and other ill-treatment as well as the relationship between the continuing nature of enforced disappearance and the content of effective remedy and reparation for relatives of those who have “been disappeared”.

In January 2013 the Government of Bosnia and Herzegovina submitted its reply, challenging the admissibility and the merits of the case. On 25 March 2013, on behalf of the applicants, TRIAL submitted its pleadings to the European Court of Human Rights challenging in detail the arguments put forward by the respondent State and highlighting a number of mistakes and contraddictions contained in its submission to the European Court. The latter transmitted a copy of TRIAL’s reply to the Government, fixing 13 May 2013 as the deadline for comments they may wish to make.

On 3 June 2014 the European Court issued a decision, finding that in this case Bosnian authorities did all that could be reasonably expected given the special circumstances prevailing in the country up until 2005 and the large number of war crimes pending before local courts. The Court noted that “it is evident that not all of the direct perpetrators of the many crimes committed within the context of the ethnic cleansing of the Prijedor area have been punished”. Nevertheless, it valued the fact that the International Criminal Tribunal for the Former Yugoslavia and the State Court have convicted respectively 16 and 7 persons in connection with crimes committed in the area.

The General Context

It is estimated that between 100,000 and 200,000 persons died as a consequence of the conflict (1992-1995) in BiH and that between 25,000 and 30,000 were victims of enforced disappearance. Between 10,000 and 13,000 people remain disappeared to date.

The enforced disappearance of Edin Mahmuljin occurred as a part of the “ethnic cleansing” operations perpetrated by the Serb army in the context of the military attack of Prijedor and the surrounding area.

To date no one has been convicted, prosecuted and sanctioned for the arbitrary deprivation of liberty and subsequent enforced disappearance of Edin Mahmuljin, thus fostering an overall climate of impunity. Up to this day, the family of Edin Mahmuljin still has not received any information on the fate and whereabouts of their loved one.