THIRD SECTION
DECISION
Application no. 40410/07
Milijan KOSTIĆ
against Serbia
The European Court of Human Rights (Third Section), sitting on 25 March 2025 as a Chamber composed of:
Ioannis Ktistakis, President,
Peeter Roosma,
Darian Pavli,
Oddný Mjöll Arnardóttir,
Diana Kovatcheva,
Úna Ní Raifeartaigh,
Mateja Đurović, judges,
and Milan Blaško, Section Registrar,
Having regard to the above application lodged on 1 September 2007,
Having regard to the notification provided to the Court in 2013 of Ms Anđa Kostić and Ms Maja Kostić’s intention to pursue the application following the death of the applicant in 2010;
Having regard to the decision of 17 September 2013 to give notice to the Serbian Government (“the Government”) of the applicant’s complaints concerning the circumstances surrounding the death of his son and the alleged inadequacy of the ensuing investigation, and to declare the remainder of the application inadmissible;
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant;
Having deliberated, decides as follows:
INTRODUCTION
1. The present application essentially concerns, under Article 2 of the Convention, the death of the late applicant’s son Mr Dragan Kostić (“D.K.”) while he was on compulsory military service, and the ensuing investigation into the circumstances of his death, which was recorded as a suicide.
THE FACTS
2. The applicant, Mr Milijan Kostić, was a Serbian national who was born in 1950 and lived in Požega. He was represented before the Court by Mr P. Savić, a lawyer practising in Belgrade. Following the applicant’s death in May 2010, his widow and daughter, Ms Anđa Kostić and Ms Maja Kostić respectively, expressed their wish to pursue the present application in the applicant’s stead and continued to instruct the same counsel. For reasons of convenience, the term “the applicant” will continue to be employed in reference to late Mr Kostić, while Ms Anđa Kostić and Ms Maja Kostić, who are now to be regarded as such (see paragraph 113 below), will be referred to as “the applicant’s successors” and/or by their names, as appropriate. All names, dates of birth, places of residence and relationship to both deceased (D.K. and the applicant) are given in the annex to this decision.
3. The Serbian Government (“the Government”) were represented initially by their Agent, Ms V. Rodić, and most recently by Ms Z. Jadrijević Mladar, one of her subsequent successors in that office.
4. The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows.
5. D.K. was born on 26 December 1981 and died on 27 August 2004 at the military barracks in Leskovac, where he had been carrying out his compulsory military service since 1 March 2004 as a conscript in the army of the then State Union of Serbia and Montenegro.
6. Military records showed that on the night before the incident D.K. was on night guard duty in guard room no. 4 (VP 4796/6) on the second floor of building 23 at the Jablanica military barracks in Leskovac (VP 3878) from 11 p.m. to 1 a.m. and from 5 a.m. to 7 a.m. At around 7 a.m. D.K. was found in a nearby conscripts’ dormitory, ten metres away down the corridor, with two gunshot wounds to his chest. The same day, at around 3 p.m., the applicant and his family were informed that earlier that day D.K. had taken his own life.
7. Previously, on 24 August 2004, D.K. had undergone a routine psychological examination and had been found capable of acting as a duty guard. It was his seventh weekly guard duty since his conscription.
1. The initial inquiry immediately following the incident (Kr. 96/04)
(a) The inspection of the scene of the incident and related collection of evidence
8. On the same date an on-duty investigating judge of the Niš Military Court, Captain (kapetan) I.D. (hereinafter “the military investigating judge”) drew up a scene of incident report “regarding the suicide of D.K.” (“zapisnik o uviđaju ... povodom samoubistva D.K.”) as follows (see paragraphs 9-15 below).
9. On 27 August 2004 at 7.15 a.m. the military investigating judge had received a report by telephone from Senior Corporal (stariji vodnik) P.Z., of the Leskovac Military Police (VP 8070/3) that a conscript had, according to the initial information, most probably took his own life at around 7 a.m. at the military barracks. The military investigating judge ordered that the scene of the incident be secured until his arrival. Following his arrival, the Leskovac military police stood guard.
10. Between 9 a.m. and 11.45 a.m, an inspection of D.K.’s body and the scene was conducted by a military inspection team which consisted of the military investigating judge, the Niš military prosecutor Colonel (pukovnik) S.R., the crime scene technicians Senior Corporals P.Z. and LJ.T. of the Leskovac Military Police, Colonel R.N. in respect of VP 7357 Leskovac and Captain (first class) (kapetan prve klase) Z.V. in respect of VP 4796/6 Leskovac.
11. The body was found around two metres from the entrance of the conscripts’ dormitory, prone on the ground, with its arms underneath it. In the course of the inspection, Major S.J. (VP 3878) explained that he had been in his office, which was in a nearby corridor, when he had heard two gunshots. When he reached the dormitory he saw D.K. lying on the floor and convulsing. A Warrant Officer, B.C., who was also at the scene, turned D.K. on to his side to prevent suffocation, while the Major ran out to give the alert. On his return, D.K. was showing no signs of life and he was left in the position in which he was then found by the inspection team.
12. The body was then turned on its back. The damaged and bloody clothes were removed. Two bullet wounds of around 1 cm each, with traces of blood and burns, were observed on the breastbone (sternum) and around 5 cm to the right, respectively. Two irregularly shaped wounds with traces of blood were also observed on the back.
13. The “preserved evidence” (fiksirani tragovi) was recorded in the report as follows:
(1) the guard room no. 4;
(2) the entrance door of the dormitory where “the conscript D.K. had committed suicide”;
(3) D.K.’s body, which had been found around 2 m from the entrance door;
(4) an M-70B1 automatic assault rifle[1], found some distance to the right of the internal dormitory door, around 1.2 m behind the body; the fire selector was found in the “burst-fire” position and 26 bullets were taken out of the receiver, while no visible damage was observed;
(5) one empty 7.62 mm cartridge case found 0.5 m from the rifle, between it and the body;
(6) one unfired 7.62 mm bullet found around 30 cm from items 4 and 5;
(7) another unfired 7.62 mm bullet found immediately under the rifle stock and another empty cartridge case in the right hand corner of the dormitory, to the right of the door and behind the bin;
(8) traces of blood and body tissue on the bed and bedside table 1 m right from the body;
(9 and 10) two marks on the ceilings, apparently from bullets, “a bit to the right, closer to the windows”.
Apart from those marks, the team also noted a mark on the right wall, which they assumed was the result of a bullet ricocheting off the wall upwards towards the ceiling. The fired bullets were not found, but the crime scene technicians concluded that they must have gone through the dormitory ceiling. They were apparently not looked for.
14. The military investigating judge also performed a paraffin test on D.K.’s hands and slid a cloth through the rifle barrel in order to enable identification of traces of gunpowder.
15. Referring to the incident as “suicide”, the military investigating judge ordered the transfer of the body, together with the paraffin samples, to the Military Medical Academy (“M.M.A.”; Vojno-medicinska akademija) in Belgrade and further ordered to perform:
(a) an autopsy with a special focus on the trajectory of the bullets to determine, inter alia, the cause of death, the presence of any injuries on the body and, if there were any injuries, when they had been sustained;
(b) a toxicological and chemical analysis of the body; and
(c) a technical examination of the rifle and the paraffin samples.
16. In a note dated 28 August 2004, the investigating judge stated that after the inspection of the scene he had ordered the technicians to check D.K.’s clothes and lockers “as regards his suicide”. Nothing relevant to the incident was found in D.K.’s lockers. His mobile telephone had been found and the calls received and missed and numbers dialled were all noted.
17. The military police officers also took written statements from a number of the conscripts and officers “on the self-inflicted wounding” and apparently, also, about money that had been stolen from D.K. the night before the incident.
(b) The first autopsy report of 2004 and other forensic evidence
18. The autopsy was performed on 28 August 2004, that is on the following day, at 9 a.m. by Doctor G.M.T. under the supervision of Colonel Dr I.M., the Head of the M.M.A.’s Institute of Forensic Medicine. The applicant had previously been shown the body of his son. He claimed that he had noticed a certain black substance, like soil, in his son’s mouth, and that Dr I.M. had commented that the applicant’s son did not take his own life but had clearly been the victim of a knife attack (“da su radili noževi”). Dr I.M. denied ever making any such comment.
19. The autopsy report concluded that D.K. had died violently by suicide (Mors violenta. Suicidium.) and his death had been caused by heavy blood loss resulting from ruptures (iskrvavljenje iz rascepa) of the heart, lungs, spleen, thoracic diaphragm and the blood vessels of the soft tissue along and around the trajectory of the gunshots through the torso (kanala prostreline trupa), caused by a projectile from a handheld firearm (nanesenih dejstvom projektila ispaljenih iz ručnog vatrenog oružja). Two bullet entry wounds were observed, one inside the area of the right breast (u unutrašnjoj polovini desnog dojkinog predela), and the second in the area of the breastbone (u grudnjačinom predelu). Bullet exit wounds were observed on the back, one in the middle and the other more to the left, under the left shoulder blade.
20. The forensic experts concluded that the bullets had been fired at point blank range (apsolutni prislon), from front to back, right to left and from above downwards.
21. The report also noted, under point 7, a number of linear and arc-shaped scars [skin] neck injury, as well as a haematoma and extensive lacerations in parallel arcs over an area of 2 cm x 1.3 cm on his forehead (frontalis; desna čeona kvrga) and 2 cm x 1.5 cm on the back of his head (lower third of the occiput on the left hand side; zadnja trećina temenog predela sa leve strane), and explained that they had been “inflicted with a blunt mechanical object” (nanete tupim mehaničkim oruđem). Their connection, if any, to the fatal outcome remained unaddressed.
22. The report also listed other pathological anatomical diagnoses, such as cerebral oedema and hemoperitoneum, as well as grazed skin, dry, solid and dark red, on the upper leg (ogoljena koža na natkolenici).
23. The toxicological analysis carried out on 2 September 2004 by the Department for Toxicology at the M.M.A.’s Poison Control Centre found no traces of any significant substance.
24. On 3 September 2004 D.K.’s parents visited the Jablanica barracks where they encountered the officers and, according to those officers, exchanged strong words with them.
2. Further investigating activities taken by the military investigating bodies (Ktn no. 49/04, Ktn no. 24/04 and Ki no. 449/04)
25. A formal preliminary judicial investigation against person or persons unknown (predlog za sprovođenje pojedinih istražnih radnji protiv NN lica) in respect of the offences of incitement to suicide and assisting in suicide under Article 51 of the Criminal Code was instituted.
26. On 6 October 2004 the Niš Military Prosecutor Office (hereinafter “military prosecutor”; [N.T.]) applied to the Niš Military Court and several other authorities to carry out certain investigative steps as follows.
(a) Questioning of the witnesses
27. Between 13 and 28 October 2004, the military investigating judge [I.D.] obtained the autopsy report and questioned a number of potential witnesses in order to reconstruct D.K.’s movements and behaviour during his military service and the period preceding his death.
28. D.K.’s fellow conscripts from the military base described him as a very calm and reserved person, responsible and a good conscript who had no problems with any other conscript or officer. The troop psychologist described him as a person of above-average IQ, emotionally stable with no record of any psychiatric disorder or any reported problems in his private life or with carrying out his military service. She also affirmed that he had successfully performed guard duty seven times before the incident, after she had assessed him as being capable of doing so.
29. The forensic medical expert G.M.T. who performed the autopsy (see paragraphs 19-22 above) stated that she could have described the incident as a classic suicide. She clarified that the high number of linear and arc-shaped scars on the neck (see paragraph 21 above) were only superficial and did not indicate any internal damage. She suggested that the injuries could have been caused by fingernails, if someone had tried to turn D.K. over in order to administer first aid or to ensure that his tongue was clear of his airways to avoid suffocation.
30. On 15 October, the military investigating judge also informed the applicant’s lawyer about the steps that had been taken and invited him to visit him in order to fix a date to interview D.K.’s family. Thereafter, on 28 October, D.K.’s parents testified that D.K. had been a successful man and a wonderful child who had had no particular problems while he had been growing up in a loving atmosphere. They denied that D.K. had suffered from any psychological problems or that there were any such problems in the family. D.K. had spent the weekend before the incident at home, had gone with his family to the well-known trumpet orchestra festival at Guča and had appeared happy the whole weekend. As regards military service, they explained that more recently he had been on the phone to them crying, but had not wanted to give them any details. Because of that, they had paid a visit to the barracks in July 2004. During the meeting at the barracks or later on during the day, as he had had the afternoon off, D.K. had denied that there was any particular problem. However, they had observed that he had expressed a wish to stay out as long as possible to avoid returning when a particular superior was on duty. D.K.’s mother also questioned the seriousness of the investigation given that the bullets had not been found nor had there been any ballistics examination, and she wondered why they had not been given access to D.K.’s military reports, his locker or his phone.
(b) Paraffin samples
31. On 14 October 2004, the military investigating judge asked the Belgrade military police (VP 2834) to trace the paraffin samples which had been transferred with the body (see paragraph 15 above) and report to him, referring to the various concerns voiced by the parents and the fact that he had received no information on any analysis in the meantime.
32. Two weeks later, the Institute of Forensic Medicine in Niš (Zavod za sudsku medicinu Niš) established the presence of gunpowder particles in the paraffin swabs taken from D.K.’s hands. Traces of nitrates (nitriti) were also found on the cloth which had been pulled through the barrel of the rifle.
(c) Forensic psychological and psychiatric post-mortem review and social analysis report
33. On the order of the military prosecutor, on 19 October 2004 the M.M.A.’s Mental Health and Military Psychology Institute conducted a forensic psychological and psychiatric post-mortem review of “the conscript’s suicide” to determine, inter alia, whether D.K. had suffered from any psychiatric disorders in the past and what his psychological condition had been during the period preceding the incident.
34. According to the report, during the first months of his conscription D.K. had apparently had no problems adapting, had performed his military tasks in a correct and responsible manner, but had been somewhat aloof and uninvolved. No signs of unhappiness, unfitness or maladjustment had been observed, nor any kind of pre-suicidal symptoms which should have alerted the domestic authorities to the possibility that he might take his own life. Having regard to his behaviour, his family situation and his parents’ reports about his medical history, the experts were of the opinion that he had had a biological or social predisposition to anxiety and depression and a passive-dependent personality, which could have led him to take his own life after several frustrating incidents. More “as a reason for his state of mind than as the direct cause of his suicide”, they recorded that “he had come back from spending the weekend with his family, somebody had stolen his money, he was on shift from 5-7 a.m., the dormitory was empty and there were other circumstances which together could give rise to dissociated thinking and inadequate emotional reactions from a person who was predisposed to anxiety and depression”. Such a person copes successfully only in well controlled and less demanding circumstances. If such a person is exposed to highly demanding tasks or serious frustrations and conflicts, such as the theft of money, frequent and protracted patrol guard duties, or reprimands from a superior officer or from her or his mother, she or he may react impulsively and oversensitively, turning aggression inwards into herself or himself.
35. No responsibility on the part of the army was identified in the report. However, it also made a number of recommendations of preventive measures aimed at the effective prevention of suicide by conscripts and at protecting them from the dangers inherent in military life:
(a) having more rigid requirements in assessing individual conscripts as fit for army service;
(b) more seriously examining requests to postpone the commencement of compulsory military service: in the present case, both the conscript and his family had asked to defer it, without providing any reason, which indicated that he might have had some problems in his family or was not psychologically fit to join the army;
(c) paying closer attention to conscripts who had previously been declared unsuitable for admission to the military high school, such as D.K.;
(d) paying attention to “the phenomenon of fatigue” which is observed with conscripts who have multiple tasks or are exposed to frequent shifts on duty. This is a particularly difficult problem where there are insufficient numbers of conscripts in the unit for those duties. Therefore attention should be directed towards the physical strain on the individual and a more adequate shift schedule should be found than the current one, which can lead to disruption to sleep patterns and exhaustion, in turn producing anxiety, irritability, tensions and inadequate reactions with unpredictable consequences.
36. The military investigating judge returned the case file to the Niš Military Prosecutor Office on 29 October 2004.
37. Following a request from the prosecutor, the Požega Social Care Centre also drafted a social analysis report about D.K. and sent it to the military prosecutor on 23 November 2004.
(d) Additional investigating steps sought by the military prosecutor
38. On 3 November 2004 the applicant’s lawyer V. asked the military prosecutor to take statements from the conscripts and superior officers about the events that had preceded the disputed incident. His further request to the military investigating judge [I.D.] to recuse himself because of the appearance of bias was declined on 11 November 2004. The applicant submitted that the judge had organised press conferences in which he had insisted that D.K. had taken his own life and he had explicitly refused to take any evidence which did not collaborate that version, while also persistently pursuing inquiries about psychological problems within the family instead of inquiring about the facts of the present case. An appeal to the Supreme Military Court was rejected on 29 November 2004 as inadmissible because such a request could be lodged only by the parties [namely the prosecutor and the defendant] or the defendant’s representative.
39. On 9 November 2004 the military prosecutor [N.T.] requested a set of new steps in the investigation, in particular:
(i) that if any bullets were to be found in the ceiling, they should be taken for ballistic examination in order to determine whether they belonged to the cartridges found next to the body and whether they had been fired from the rifle found behind D.K.’s body (see paragraph 13 above) so as to determine the position (međusobnog položaja) of the body and the rifle at the moment of fire from looking at the trajectory of the bullet. Also, a ballistics expert should be asked for an opinion as to how the weapon was fired – whether consciously and willingly (svesno i voljno) or negligently or accidentally (nehatno-zadesno);
(ii) that the forensic medical experts should be asked for further clarification of how and when the [non-ballistic] injury which had been present on the body (as described in paragraph 21 above) occurred (o mehanizmu nastanka i starosti);
(iii) that certain superior officers from the same barracks as D.K. (komandira odeljenja i komandira voda) should be interviewed about D.K.’s behaviour and how had he been treated by the other conscripts and officers (see paragraph 47 below).
40. On 10 November 2004 the military investigating judge refused to carry out the additional investigating steps sought by the prosecutor (izrazio neslaganje sa dopunom zahteva za preduzimanje sprovođenje pojedinih istražnih radnji). He found it unnecessary to request a ballistics examination, as the response could be given by a psychological, not a ballistics, expert. He also considered it unnecessary to trouble the forensic medical experts about the insignificant injuries and the other witnesses, as the facts surrounding the death of D.K. had been sufficiently established by the autopsy reports (see paragraphs 19-20 above) and by the statements previously taken from the witnesses. He referred the case to a three-judge criminal panel of the same court, in accordance with Article 243 § 7 of the Criminal Procedure Code.
41. On 16 November 2004 the three-judge panel accepted in part the prosecutor’s application for a ballistics examination. In particular, the panel ordered:
(i) a search for the bullets in the attic above the dormitory, to determine whether they had been fired from the rifle M-70B1 (numbered 151913), which had been found next to D.K.’s body (see paragraph 13 (points 3 and 4) above);
(ii) a ballistics examination of the spent cartridges to determine whether they had been fired from the same rifle (see paragraph 13 (points 5-7) above) (da li su izašle iz ležišta metka označene puške); and
(iii) a determination of the position of the body when the shot was fired and of the position of the rifle as discernible from the trajectory of the bullet and the traces on the ceiling (see paragraph 13 (points 9 and 10) above).
The panel declined at that moment to order the remaining steps in the investigation proposed by the military prosecutor.
(i) An attempt of ballistic examination and reconstruction of the incident
42. A reconstruction of the incident took place on 23 November 2004 in presence of the military investigating judge [I.D.], the military prosecutor [N.T.], D.K.’s parents and their two lawyers, and the ballistics expert A.R. from the National Criminal Technical Centre of the Interior Ministry. It was established, as stated at the subsequent report, that:
(i) the ceiling was made of concrete above a reed ceiling and that the bullets could not have passed through it;
(ii) the bullets were also not found in the lower part of the ceiling which was constructed from reeds;
(iii) the ballistics expert had tried to hold a reconstruction of the incident, simulating the possible positions of D.K.’s body.
43. The military investigating judge terminated the reconstruction following a comment by the ballistics expert that the projectiles could have broken up and that, even if they had been found, they would not have been suitable for a ballistics examination.
44. On 25 November 2004 the ballistics expert performed a ballistics examination and provided a brief report. He reported that the spent cartridge cases that had been preserved were identical to examples of bullets fired from the rifle M-70B1 (numbered 151913), so it could be concluded that they had also been fired from that rifle. Further, in view of the “preserved traces” (see paragraph 13 above) and the data collected during the reconstruction, D.K. could have been “at the location” and “in one of the bent crouching positions”, while the trajectory of the projectiles could have been as shown on the photographs taken during the reconstruction of the incident. No photographs have been filed with the Court.
45. Five days later, on 30 November 2004, the investigating judge asked the military police (VP 2834) to transfer the rifle M-70B1 from the Criminal Technical Centre in Belgrade (see paragraph 42 above) to Leskovac VP 4796. Later it transpired that the rifle had been misplaced and then disposed of to a private company in 2009 (see paragraphs 81-83 below).
(ii) Supplementary report by the forensic medical expert and additional questioning of witnesses
46. The military prosecutor [S.R.] also requested D.K.’s health and military records, the guard duty schedule and diary, and clarification of whether the bullets found at the scene of the incident (see paragraph 13 above) had belonged to the Jablanica barracks’ ammunition. The military police replied immediately in the affirmative to the question about the bullets, and explained that the requested files that the prosecutor had asked for had been sent to Belgrade together with D.K.’s body.
47. On 1 December 2004, Senior Corporal P.Z. (see paragraph 9 above) took additional witness statements from military officers N.K. and D.R. from the same barracks as D.K. They both stated that D.K. had been particularly calm and reserved, but that they had never heard that he had had any problems with anyone or that he had been bullied.
48. On 6 December 2004 the military prosecutor asked the forensic medical experts to clarify:
(i) how old the [non-ballistic] injuries which had been present on the body (as described in paragraph 21 above) were;
(ii) whether those injuries had occurred while D.K. was alive or after his death (zaživotno ili nakon smrti) and, if before his death, then how long before; and
(iii) how serious the injuries were, and whether and to what extent they could have caused the death of D.K.
49. On 13 December 2004 Colonel Dr I.M., who supervised the first autopsy (see paragraph 19-22 above) provided a supplementary report on the head injuries, those injuries being to the right frontal eminence and the rear third of the left occiput:
(i) emphasising that the report spoke of injuries not wounds (ozlede, ne rane);
(ii) saying that the size and appearance of the injuries suggested that they had been caused by light blows from a blunt mechanical object to the skin of the areas of the head indicated;
(iii) saying a “blunt object” did not mean a special object, and that the injury could have been caused actively, by a blow, or passively, by a fall (aktivnim dejstvom – udarcem, ili pasivnim dejstvom – padom). The injuries to the frontal eminence (isturenost dela glave) could have been caused by D.K. hitting his head on the door, parts of the furniture or the floor.
Dr I.M. concluded that the injuries were light physical injuries sustained while D.K. was alive, and that they could not have had a fatal outcome. He lastly emphasised that this was the first time that he had had to comment on something that was not of any particular importance in causing a death.
3. Closing of military investigation and transfer of competence of military judiciary to the civil courts
50. In the meantime, on 30 November 2004, the family’s lawyer, N., was informed by certain Mayor R.M. that there would be a transfer of jurisdiction from the federal martial courts to the civilian judiciary and that they could be taking over the prosecution before the ordinary courts after 31 December 2004 (see paragraph 109 below).
51. The applicant was apparently not informed about the further steps in the investigation, apart from the forensic medical expert’s statements.
52. On an unspecified date soon after, the applicant and the applicant’s wife filed a criminal complaint against unknown perpetrators, on the grounds that there was a reasonable suspicion that certain unidentified individuals had unlawfully killed their son D.K.
53. On 4 April 2005 the District Public Prosecutor’s Office in Leskovac (“DPPOL”) summarily dismissed the criminal complaint on the grounds that it did not disclose the elements of a crime that that office would prosecute on their own motion. By a letter of the same day, the applicant was notified of that decision and of his right to pursue a subsidiary criminal prosecution within eight days of the date of service of the decision.
54. On 14 April 2005 the applicant submitted a request to the District Court in Leskovac, seeking the initiation of specific preliminary investigative measures (zahtev za sprovođenje pojedinih istražnih radnji). He asked the court to order the exhumation of the body and a further autopsy to correct the deficiencies of the first autopsy report (see paragraphs 19-22 above), and, in particular, to determine whether the bullet entry and exit wounds corresponded to the damage to the clothes, to the trajectory of the projectiles and the description at the first autopsy report, as well as to enlighten the injuries on D.K.’s neck and head. He further insisted that the forensic experts should be further questioned, that a more adequate ballistics examination should be performed, and that the names should be provided of the high-ranking military officers referred to in an article in the daily Danas of 11 April 2005 and of other witnesses who might disclose relevant facts surrounding the death of D.K. He asked a further investigation to be carried out with a view to clarifying the issues and determining with certainty whether his son had been killed or had taken his own life as alleged.
55. On 27 May and 5 July 2005, the applicant complied with the direction of the investigating judge to give further details of his application in several respects, including explaining why the exhumation of D.K.’s body and a ballistics examination were necessary, and to provide a copy of the above-mentioned daily’s article. In the meantime the judge obtained the case files from the previous investigation.
(a) Second autopsy report of 2005
56. On 29 September 2005, the body was exhumed and a second autopsy was performed by a panel consisting of forensic doctors T.A. and D.J. of the Institute of Forensic Medicine of the Belgrade Faculty of Medicine, whose role was to give an independent opinion on what could have caused D.K.’s injuries. In the forensic report, drawn up on 11 November 2005, the experts concluded that although the body had been in an advanced state of decomposition and putrefaction, it appeared that the death had been violent and had been caused by damage to the thoracic organs (grudnih organa) resulting from projectiles shot from a firearm.
57. The forensic experts confirmed the earlier findings about the bullet entry and exit wounds and that the bullets had been fired from in front of D.K., from above him downwards and from the right to the left side (see paragraph 20 above). The two bullets had been shot one after the other and the injuries appeared to have been sustained with such a short interval that it made it impossible to determine their order.
58. Having regard to the case file, the collected traces of evidence and the documentation from the reconstruction of the incident (see paragraphs 42-44 above), the only position of the body consistent with the trajectory of the projectiles was an upright position, with D.K. leaning somewhat forwards or downwards with straight or slightly bent legs. Given the characteristics of the wounds and the tissue around them, it could be concluded that the bullets had been fired from a close range of a few centimetres, although a more precise distance could have been determined by a ballistics examination and test-firing similar shots. On the other hand, the description of the damage to the clothes indicated that the rifle had been directly in contact with the clothes. The experts concluded that there was no forensic evidence that ruled out the possibility that the victim might have sustained his injuries by self-harming.
(b) Refusal to further investigate
59. On 14 and 27 February 2006, the investigating judge and a three-judge criminal panel of the same court respectively refused to direct the other action sought by the applicant (izrazio neslaganje sa zahtevom), holding that the circumstances of D.K.’s death had been sufficiently disclosed, referring mostly to the above-mentioned findings about the causes of the fatal injuries, the position of the body and the fact that the fire selector on the rifle had been found in the “burst-fire” position (see paragraph 13(4) above).
60. Following an enquiry from the applicant about the case and a submission by him to the Ministry of Justice, on 15 May 2006 the Ministry informed him that all submissions had been transferred to the State Public Prosecutors’ Office with a request that it take all necessary steps to carry out its duties in a prompt and appropriate manner. It also sent to the applicant a report that had been drawn up by the President of the Leskovac District Court on 12 April 2006. The applicant allegedly learned of the decisions of 14 February and 27 February 2006 from that report, as allegedly neither he nor his representatives had been served with them previously. The Government and the Constitutional Court’s decision stated, however, that the later decision had been served on the applicant on 10 March, and on his wife and one of their legal representatives, V.B., on 13 March 2006.
61. It would appear that the applicant then filed another application with the District Court in Leskovac, seeking the institution of a formal judicial investigation, but never received a response.
62. On an unspecified date, the applicant, together with his wife, lodged a criminal complaint against the forensic experts G.M.T. and I.M., who had drawn up the first official autopsy report in 2004 (see paragraphs 18-22 above), with the Military Division of the District Public Prosecutor’s Office in Belgrade (“DPPOB”). The grounds for the complaint were that there was a reasonable suspicion that they had committed the crime of “malfeasance in the discharge of their official duties” (“nesavestan rad u službi”). The complainants pointed out certain contradictions and shortcomings in the forensic report, including the unclarified injuries reportedly inflicted by a blunt mechanical object and the finding that the bullets had been shot from point blank range (see paragraphs 21-22 above) without any reliable forensic evidence for that finding. They proposed that numerous investigative steps should be taken.
63. The applicant was informed by a letter of 9 June 2005 that the DPPOB had rejected the criminal complaint on 1 June 2005 on the grounds that there was no evidence that the experts had committed any crime that that office would prosecute. He was further notified that he could pursue a subsidiary criminal prosecution within eight days of receipt of that letter by filing an application for a judicial investigation (zahtev za sprovođenje istrage).
64. On 23 June 2005 the applicant filed an application for an investigation, which he amended on 20 July 2005. The application stated, inter alia, that the applicant had provided expert opinions which identified numerous deficiencies in the first autopsy report, as well as contradictions between certain findings of fact and the conclusion that D.K. had been shot at point blank range.
65. On 18 April 2006 the investigating judge interviewed the suspects. Dr G.M.T. claimed privilege against self-incrimination and the right to remain silent. Dr I.M. stated that he had been only supervising the autopsy his colleague had been doing and helping her with the photographic documentation. The conclusion that the shots had been made in “direct contact” with the body meant that the firearm had been in contact with the clothed body. They had not carried out a sophisticated examination (sondiranje) of the wounds because they had observed two well-defined wounds. They said, however, that the standard method that they had used had confirmed their findings. Lastly, he explained that the injuries on the neck had not been deep, and that Dr G.M.T. had only described them and had not given her view on what might have caused them because it was understood that it should be left to the investigating judge to draw his own conclusions.
66. It would appear that none of the applicant, his family members or their representatives was present during that questioning.
67. The investigating judge refused to open the investigation sought by the applicant (izrazio neslaganje sa zahtevom) on the grounds that there was no reasonable suspicion that the suspects had committed the alleged crime. He added that the 2005 forensic report had endorsed the findings and conclusions of the suspects in the 2004 autopsy report (see paragraphs 19-22 and 56-58 above).
68. On 8 June 2006 a three-judge panel of the Military Division of the Belgrade District Court upheld the investigating judge’s findings, relying on the consistent findings of the two autopsy reports of 2004 and 2005 about the entry and exit bullet wounds and accepting the description of D.K.’s position in which he could have shot himself as credible (see paragraph 57-58 above). As a conclusion, the panel found it to be irrelevant that the first autopsy report had not clarified whether the “direct contact” had been with the body or the clothing, in view of the second opinion and Dr I.M.’s clarification of the issue at the hearing of 18 April 2006 (see paragraph 65 above). The panel mentioned the finding of the first autopsy report about the injuries which had been inflicted by a mechanical object, but did not elaborate on it.
69. Neither the applicant nor his legal representatives were called to appear before the panel. Its decision was served on the applicant and was not served on his representatives. The applicant was informed that he could appeal against that decision within three days from the date on which the decision was served on him and he did so, reiterating his previous arguments and seeking the annulment of the above court’s decisions.
70. On 16 November 2006 the Supreme Court of Serbia rejected the applicant’s further appeal, upholding the lower court’s reasoning as clear, conclusive and convincing. That decision was served on the applicant’s representative on 22 April 2007.
71. Following a civil action brought jointly by the applicant and his wife and daughter in 2007 against the Defence Ministry, by 28 October 2010 the civil courts of Leskovac had established at two levels that D.K. had died while on compulsory military service, in a situation they found to be inherently dangerous. On the facts, the courts took into account that
(i) D.K. had been on guard duty when he was found dead around 7 a.m. on 27 August 2004;
(ii) the scene of incident report stated that it had been drawn up concerning “D.K.’s suicide”; and
(iii) the autopsy report had concluded that D.K.’s death was violent and caused by projectiles shot from a firearm.
The courts concluded that the Defence Ministry should therefore compensate the plaintiffs on the basis of strict liability (objektivna odgovornost) and awarded
(i) D.K.’s parents RSD 800,000 each (approximately EUR 8,500 each) and RSD 600,000 (EUR 6,400) to D.K.’s sister, on account of the pain and anguish suffered;
(ii) RSD 600,000 to the applicant in respect of pecuniary damage for the funeral-related and exhumation costs; and
(iii) RSD 338,000 jointly for costs (to be paid from State funds).
72. On 25 January 2011 the First Belgrade Court of First Instance ordered the enforcement of the judgment.
73. According to the Government’s submission of 27 January 2025, the compensation awarded to Ms Anđa Kostic and Ms Maja Kostic was paid in full to them on 2 March 2011, together with default interest, namely a total of RSD 4,222,760.35 (approximately EUR 44,500, calculated at the exchange rate applicable on the date of settlement at the relevant time). The applicant’s successors confirmed this information.
74. On 6 July 2012, the First Belgrade Court of First Instance refused to transfer the applicant’s award to his wife, Ms Anđa Kostić, as his legal successor, as he had died before the judgment had become final and enforceable.
75. On 30 January 2014, the Constitutional Court found, inter alia, a violation of Ms. Anđa Kostić’s right to a fair trial, quashed the decision of 6 July 2012 and ordered a fresh consideration (Už-1001/2012).
76. On 25 March 2014, following the Constitutional Court’s decision, the First Belgrade Court of First Instance allowed the enforcement of the applicant’s award to his wife, Ms Anđa Kostić.
77. On 4 February 2025, the applicant’s representative informed the Court that the applicant’s award had been paid to Ms Anđa Kostić on an unspecified date “after the decision of the Constitutional Court”.
78. In the meantime, on 13 January 2011, the then applicant’s lawyer on behalf of the applicant and his wife, again lodged an application for a judicial investigation of D.K.’s death with the Leskovac High Court. He alleged, inter alia, that, without a ballistic test, the forensic experts had been unable to give an opinion on any of the questions put by the court and himself which had been needed to remedy the defects in the first official report or to reach any conclusions as to whether the bullets had been fired at point blank or close range (direktni ili relativni prislon).
79. On 9 February 2011 an investigating judge declined to make directions for the actions sought (izrazio neslaganje sa zahtevom), holding that the circumstances of D.K.’s death had been fully established and there were no judicial or medical reasons for excluding self-harm (samopovređivanje).
80. On 10 February 2011 the criminal panel of the Leskovac High Court quashed the judge’s decision (odbilo neslaganje istažnog sudije,) and directed that a ballistics test should be performed as that appeared logical, acceptable and justified (celishodno, prihvatljivo i logično).
81. There were unsuccessful attempts to locate the assault rifle M-70B1 151913 (see paragraph 13 above) between 18 October 2011 and 30 April 2012, when the court was informed by the investigating judge that the original rifle had been disposed of (otuđena) with the ammunition to a private company, “J.”, in 2009, and had been disassembled at some point. The applicant’s successors’ lawyer was informed on 21 May 2012 that the rifle had gone missing and asked to inform the judge within 8 days whether the applicant’s successors would continue to pursue their application for authorisation of a ballistics test or whether it would be withdrawn. They informed the judge that they had wished to pursue that application.
82. The Government’s submissions and the decision of the Constitutional Court (see under F below) say that the “contaminated” rifle was found at the J. company’s premises on 14 June 2012.
83. On 16 July 2012 the investigating judge made an official note (službena beleška) that the Niš military police unit (3162/3) had handed over the rifle, an empty charger and a cloth which had been used for cleaning the rifle, which had originally been found in a used condition by the company J., which had disassembled it and cleaned all its parts and put it back together before giving it in.
84. Following the court’s direction of June 2012 to carry out a ballistics test, if possible, without the original rifle or uniform, on 10 October 2012 the experts of the National Criminal-Technical Centre of the Interior Ministry (Niš Unit) informed the investigating judge that they could not determine whether the shooting had been carried out at point blank range, at close range, or at relatively close or long range without the rifle and uniform.
85. The applicant’s successors then filed a proposal that the court engage independent experts to assess the autopsy reports and determine the range, if possible.
86. The parties have not submitted any additional documents about the outcome of the proceedings, nor can that information be seen in the decision of the Constitutional Court of April 2023. The Government claimed in their observations that the investigation had been closed as no other proposals had been submitted by the applicant.
87. On 29 November 2012 the applicant’s successors filed a criminal complaint with the Leskovac High Court against unknown persons for preventing and obstructing collection of evidence (sprečavanje i ometanje dokazivanja) under Article 336 § 4 in conjunction with § 2 of the Criminal Code. The applicant’s successors alleged that unknown persons from the Army had disposed of the M-70B1 rifle which had been used to kill D.K. on 27 August 2004, as well as that unknown persons from the Army had destroyed the uniform that D.K. had been wearing that day.
88. Following initial exchange with Leskovac regular police, on 14 December 2012 the court ultimately sent an order to the Niš Land Army Command military police unit (1097), together with the official note of 16 July 2012 (see paragraph 83 above), to take all measures necessary to identify the perpetrator of the reported crime and to collect all relevant information and evidence which could be useful to facilitate the criminal proceedings.
89. Following a brief information of 26 December 2012, on 8 March 2013 the relevant military police unit VP 3162/12 (hereinafter “the military police”) informed the LBPPO that they had been informed by Dr I.M., the director (načelnik) of the M.M.A.’s Institute of Forensic Medicine, that the uniform had not been kept in his Institute following the first autopsy (see paragraph 18 above), but handed over for the purpose of the fresh investigation to the Institute of Forensic Medicine of the Belgrade Faculty of Medicine when the body was exhumed for the second autopsy in 2005 (see paragraph 56 above).
90. On 27 May 2013, the Criminal Technical Centre of the Ministry of the Interior, which had carried out and reported on the reconstruction of the incident (see paragraphs 42-44 above), clarified that they had not performed any tests on the uniform, nor had it ever been sent to them.
91. Following an order to further inquire, on 11 June 2013 the military police submitted a new report, referring to a fresh statement by Dr I.M. that the uniform had been taken off D.K.’s body during the autopsy in 2004 and photographed in detail, and had then been dried and packed away. However, he could not testify when or to whom it had been given for the purposes of the further autopsy in 2005; nor was there any written traces of its being sent off. On 26 June 2013, the LBPPO gave the applicant’s representative all the information so far received.
92. On 26 September 2013 the State Agent’s Office informed the LBPPO of the Court’s decision of 17 September 2013, giving notice of the application to the Government, and asked, in order to prepare the State’s defence, for a report about the measures that had been taken by then.
93. Between 18 September 2013 and 18 November 2014, the LBPPO gave the military police orders on six occasions to continue with the investigation to clarify the facts of the alleged crime and to keep them informed about the evidence collected.
94. On 18 August 2004, the military police informed the LBPPO that the uniform had not been delivered to the forensic experts who had performed the exhumation and second autopsy. They had examined only the clothes in which D.K. had been buried and had made their comments about the uniform on the basis of the description of it in the first autopsy report.
95. The military police’s report of 9 December 2014 stated that the police had interviewed everyone who could have dealt with the uniform and found out that: (i) the uniform had arrived at the M.M.A.’s Institute together with the body; (ii) Dr I.M. had taken the photographs of the uniform; (iii) Dr G.M.T. had dried the uniform following the autopsy; (iv) the uniform had been packed up and put into storage in the Institute’s repository; (v) it could not be determined who had been in charge of storing the uniform, as Dr I.M., who usually gave instructions, could not remember whom he had authorised to deal with it; (vi) it was usually the forensic assistants who packed up and sent on evidence, always following instructions from Dr I.M. or someone standing in for him; (vii) S.S., who had assisted at that particular autopsy, testified that he might have dealt with the uniform, but could not remember whether he had actually done so or not; (viii) there was no trace of any written instructions (or receipt for the uniform) although it was mandatory to keep records of what happened to evidence unless it was handed to the family or sent with the body to the chapel for the cremation; (ix) the forensic medical examiners might have been in contact with the uniform on 5 November 2004, when Dr G.M.T. had asked an assistant, M.B., to prepare it for handover to D.K.’s parents, but M.B. did not know whether that had happened or not; and (x) Dr I.M. had previously assumed that the uniform had been dispatched to the Institute (see paragraph above), given the detailed attention to it in the second autopsy report, but he had been mistaken.
96. The military police concluded that:
(i) the request for the initial and subsequent autopsies had not specified what to do with the uniform afterwards;
(ii) there was no systematic procedure for preserving evidence following an autopsy, such as a time-limit during which it must be dealt with, a location at which it must be kept, or procedures for handing it over to a third party or body that would be authorised to deal with it, but in practice written documents were produced “case by case”;
(iii) there was no written record of where the uniform had been put, in breach of the requirement to keep written records;
(iv) it was assumed that the uniform had been destroyed given that no written record existed; and
(v) the room where physical evidence was preserved was not secured, everyone from the Institute had access to it and no record was kept on who entered or took objects in or out.
97. On 16 December 2014 the LBPPO rejected the criminal complaint as the alleged crime was statute barred for prosecution. The Constitutional Court found that the LBPPO had recorded that the misplaced rifle had been found and delivered to the Leskovac High Court in July 2012 (see paragraph 83 above). The uniform had been misplaced, after having been examined, described and photographed in the course of the first autopsy. There was no written record of its having been preserved as evidence and it could be assumed that it had been destroyed, albeit there was also no written documentation of its destruction either. Given that the prescribed sanction for the crime was 6 months to 5 years, and that it could have been committed at the latest by 5 November 2004, when the forensic staff had last had custody of the uniform, the LBPPO concluded that the limitation period for prosecution had been exceeded.
98. On 26 December 2014 the Leskovac High Prosecutor Office upheld that decision.
99. On 28 January 2015 the applicant’s successors lodged a constitutional complaint, referring to Article 24 § 1 of the Constitution (see paragraph 108 below). They complained that the authorities had failed to carry out an adequate, independent and diligent investigation and provide a plausible explanation of the circumstances surrounding D.K.’s death, with the intention of concealing the truth about D.K.’s death and the State’s involvement in it. They emphasised various deficiencies of the investigation, including their losing the rifle and uniform, their failure to examine the injuries inflicted by a “blunt mechanical object”, the lack of a ballistics test or response to the main issue of whether the shot wounds had been inflicted from point blank range or from a relatively close distance, and the malfeasance of the forensic medical examiners in giving contradictory conclusions. They asked the court to revoke the latest decisions of the LBPPO (see paragraphs 97-98 above), return the case for a fresh investigation and award each of them EUR 10,000 for non-pecuniary damage in respect of the breach of the State’s procedural obligations.
100. In its comprehensive decision of 27 April 2023, the Constitutional Court found that the State authorities had discharged their obligations under the procedural limb of Article 24 of the Constitution, but had breached the substantive obligation to protect D.K.’s life while he was under their control.
101. As regards its jurisdiction ratione temporis, the Constitutional Court clarified that a constitutional appeal could be brought only in respect of decisions rendered and acts that occurred following the date when the Constitution came into force, which was 8 November 2006. As regards procedural obligations, while referring to the Court’s case-law (see Šilih v. Slovenia [GC], no. 71463/01, §§ 159 and 162, 9 April 2009), it acknowledged that the State’s procedural obligations had also evolved into a separate and autonomous duty, capable of binding the State regardless of whether the death had taken place before or after the entry into force of the Constitution, and referred to the “genuine connection” test. While noting that a number of investigative steps had been taken after 2011, the Constitutional Court accepted that it had jurisdiction ratione temporis in respect of the applicant’s complaint about the ineffective investigation. However, although D.K.’s death in 2004, as a triggering event for proceedings, had taken place before the critical date in 2006, the court notably did not pronounce on the issue of whether it had jurisdiction ratione temporis in respect of the substantive limb of the right to life, but went on to examine that issue on the merits.
102. The court held firstly that the military courts and prosecutors, which were independent from the Army of Serbia and Montenegro and from D.K.’s superiors in the Jablanica barracks both in practice and as regards the chain of command, had themselves initiated an investigation and carried out the necessary procedures promptly. Their investigation had lasted only seven months and one week (i.e. from 27 August 2004 to 4 April 2005), while the subsequent investigation requested by D.K.’s relatives had taken ten and a half months (i.e. from 14 April 2005 to 27 February 2006), showing how prompt and independent the original investigation had been. Setting out in some detail the facts described above, the court held that the State authorities had taken all reasonable possible investigative and procedural steps to establish the facts surrounding the death of D.K. and that all the evidence that had been collected indicated that the conscript had taken his own life, without there having previously been signs of suicidal ideation and without anyone inciting him or aiding him in taking his own life. The court dismissed the applicant’s arguments that the State’s authorities had intentionally failed to carry out an effective investigation in order to conceal the truth and, on the contrary, it concluded that the investigation had fully met the requirements of diligence, impartiality, thoroughness and effectiveness laid down in Article 24 of the Constitution (see paragraph 108 below).
103. As regards the later investigation carried out between 2011 and 2014 (see paragraphs 78-98 above), the court found that the public prosecutor had done everything that could have reasonably been expected from him during the investigation.
104. While acknowledging a number of deficiencies in the investigation, in particular the failures to adequately preserve the uniform and to make a ballistics examination possible, the court held that these omissions were not of such a crucial character as to make the whole investigation inadequate or to jeopardise the possibility of the authorities’ providing a plausible explanation of the circumstances surrounding D.K.’s death. In particular, the forensic medical examiners had described the state of the uniform in their autopsy reports. The results of both the initial and the subsequent autopsies had confirmed, in the description of the wounds, that the distance from which D.K. had been shot corresponded to the characteristics of a suicide and that there was nothing which would realistically lead to any idea that a ballistics examination would conclude otherwise (see paragraphs 20 and 58 above).
105. Lastly, while accepting suicide as plausible, the Constitutional Court found a violation of the substantive aspect of the right to life (materijalni aspect prava na život), in particular the positive obligations of the State to effectively protect the life of the applicant’s son. It referred principally to the findings and recommendations of the post-mortem psychological review (see paragraphs 33-35 above) and identified the following signs that the authorities should have provided D.K. with expert help, which they had failed to do:
(i) the fact that D.K. had lost a substantial amount of weight, namely 4kg;
(ii) his seclusion and desire for isolation;
(iii) his refusal to communicate with his parents by telephone; and
(iv) the fact that the night before the incident he had reported a problem – that he thought someone had stolen money from him.
106. Moreover, the court recommended that, given the danger inherent in patrol duties, including access to weapons and exposure to extended periods of fatigue and sleep deprivation, the authorities should have made a careful assessment of whether even conscripts who were generally fit for military tasks were realistically capable of performing this particular duty. In view of the above findings, it was clear that D.K. had not been ready or fit enough to perform this onerous duty, which presented a serious risk to his life. While the very reasonable recommendations of the team of experts concerned general preventive measures (see paragraph 35 above) which could have been expected to have been implemented before the suicide, they were derived from an analysis of the tragic circumstances of this specific case. The team of experts undoubtedly acknowledged that the principal cause of D.K.’s suicide had been a number of omissions. Had the recommended measures been applied and implemented at the appropriate time, the D.K. incident would not have occurred. The State authorities were therefore to be held responsible for not paying sufficient attention to protecting D.K. against self-harm or to the prevention of suicide in the military barracks in general, resulting in D.K. taking his own life.
107. Apart from that finding of a violation, the court made no further recommendations, but awarded each of the applicant’s successors EUR 5,000 for non-pecuniary damage.
RELEVANT LEGAL FRAMEWORK
108. Article 24 of the Constitution of Serbia (Ustav Republike Srbije, published in the Official Gazette of the Republic of Serbia – OG RS – no. 98⁄06), which came into force in October 2006 provides as follows:
“Human life is inviolable. There shall be no death penalty in the Republic of Serbia. Cloning of human beings shall be prohibited.”
109. Aiming at the implementation of the Constitutional Charter of the State Union of Serbia and Montenegro (Ustavna povelja državne zajednice Srbija i Crna Gora; published in the Official Gazette of Serbia and Montenegro - OG SCG - no. 1/03) and accordingly of the State Union Act on the transfer of competence of military justice to the authorities of the State members (Zakon o prenošenju nadležnosti Vojnih sudova na organe država članica, OG SCG, no. 55/2004), in December 2024 the Serbian National Assembly adopted the Law on Assumption of Jurisdiction of Military Courts, Military Prosecution and Judge Advocate General (Zakon o preuzimanju nadležnosti vojnih sudova, vojnih tužilaštava i vojnog pravobranilaštva, OG RS no. 137/04). The military courts have been abolished and the competence of military justice has been transferred to the civilian judiciary of each member state. Specialised military departments have been created in the regular district courts (Belgrade, Novi Sad and Niš), as well as within the then Supreme Court of Serbia. Similar transfer measures were undertaken for the prosecution system. The Military Court Act (Zakon o vojnim sudovima, published in the Official Gazette of the Federal Republic of Yugoslavia - OG FRY – nos. 11/95, 1/96, 74/99, 3/2002 and 37/2002) and Military Prosecution Act (Zakon o vojnom tužiocu, OG FRY, nos. 11/95, 1/96 and 3/2002) have been replaced and repealed as of 31 December 2004 by the general laws on the organisation of the courts, on judges and on public prosecutors. Lastly, the effective transfer of cases was to be carried out on the basis of specific subsidiary regulation.
COMPLAINTS
110. The applicant complained, under Articles 2 and 6 of the Convention, about the circumstances surrounding the death of his son and the authorities’ alleged failure to conduct an adequate investigation into it with the intention of concealing the involvement of military personnel.
THE LAW
111. Having regard to the nature of the above complaints and regardless of the difference in the nature of the interests protected by Articles 2 and 6 of the Convention, the Court, being the “master of the characterisation” to be given in law to the facts of any case before it (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 114, 20 March 2018), considers that the complaints raised by the applicant and his successors fall to be examined solely from the perspective of Article 2 of the Convention (see, for example, Beker v. Turkey, no. 27866/03, §§ 41-42, 24 March 2009; Iorga v. Moldova, no. 12219/05, § 20, 23 March 2010; Mučibabić v. Serbia, no. 34661/07, § 89, 12 July 2016; and Malik Babayev v. Azerbaijan, no. 30500/11, § 60, 1 June 2017). In this context the Court also notes that it gave notice to the Government of this part of the application under that Article, the relevant part of which provides:
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
...”
112. The Court notes at the outset that it was undisputed between the parties that the applicant had locus standi to file an application in respect of the alleged violation of his son’s right to life, protected under Article 2 of the Convention. In this regard, the Court has consistently accepted that close family members, including siblings, of a person whose death is alleged to engage the responsibility of the State may bring complaints to it, as indirect victims, alleging violations of Article 2 in relation to the circumstances of his or her death and subsequent investigations (see, for example, in respect of the victim’s parents, Tsalikidis and Others v. Greece, no. 73974/14, § 64, 16 November 2017, with further references, and Kekelashvili v. Georgia (dec.), no. 35861/11, § 40, 17 November 2020, with further reference therein) or has standing to continue the proceedings initiated by a victim who passed away afterwards (see, for example, Igor Shevchenko v. Ukraine, no. 22737/04, §§ 34-36, 12 January 2012).
113. Furthermore, in various cases in which an applicant as an indirect victim has died in the course of Convention proceedings, like in the present case, the Court has taken into account statements from the applicant’s heirs or close family members expressing a wish to pursue the application, or the existence of a legitimate interest claimed by another person wishing to do so (see, among other authorities, Hristozov and Others v. Bulgaria, nos. 47039/11 and 358/12, §§ 68-75, ECHR 2012 (extracts)). The Court notes proprio motu that the applicant’s wife and daughter, who stated their intention to pursue the present case (see paragraph 2 above), have the requisite standing to continue these proceedings in the applicant’s stead and moreover appear to be personally affected by the alleged violation of Article 2 of the Convention (see, mutatis mutandis, Khojoyan Fabris and Parziale v. Italy, no. 41603/13, §§ 37-41, 19 March 2020; Vardazaryan v. Azerbaijan, no. 62161/14, §§ 30‑32, 4 November 2021; and Traskunova v. Russia, no. 21648/11, § 58, 30 August 2022).
(a) The parties’ submissions
114. The Government contended that the applicant had failed to comply with the six-month time limit. According to their argument, the time limit commenced on 10 March 2006, when the applicant was served with the District Court’s final decision of 27 February 2006, which constituted a final dismissal of the applicant’s motion to investigate the case (see paragraphs 59-60 above). Accordingly, he should have filed the application within six months of that date, since by 1 September 2007, when it in fact was lodged, he ought to have known that the State had no intention of pursuing further investigations into his son’s death.
115. The applicant invited the Court to dismiss the objection, arguing that the investigation, though ineffective, had been ongoing even at the time of the submission of his observations and that his application should be considered to have been submitted within the time-limit.
(b) The Court’s assessment
116. The general principles governing the application of the six-month time limit under Article 35 § 1 of the Convention, as in force at the relevant time, were reaffirmed in the Grand Chamber judgment Mocanu and Others v. Romania ([GC], nos. 10865/09 and 2 others, §§ 258-69, ECHR 2014).
117. Turning to the present case, the Court cannot accept the Government’s argument that the District Court’s decision of 27 February 2006 constituted the final decision for the purposes of Article 35 § 1 of the Convention.
118. While the District Court ultimately decided not to pursue further investigation and informed the applicant of this on 10 March 2006, the subsidiary prosecution of forensic experts proceeded concurrently and continued until 22 April 2007, when the applicant was notified of the Supreme Court’s final decision not to investigate further (see paragraph 70 above). He lodged his application with the Court less than six months later, on 1 September 2007. As the applicant had assumed the role of a subsidiary prosecutor, this prosecution became an integral part of the case and must therefore be considered in assessing compliance with the six-month rule (see Mladenović v. Serbia, no. 1099/08, § 39, 22 May 2012, and Petrović v. Serbia, no. 40485/08, § 60, 15 July 2014).
119. In view of the above, the Court considers that the Government’s objection concerning the timeliness of the application must be dismissed.
(a) The Government
120. Referring to Caraher v. the United Kingdom (dec.), no. 24520/94, ECHR 2000‑I and Cataldo v. Italy (dec.), no. 45656/99, 3 June 2004, the Government firstly submitted that the applicant and his successors could no longer claim to be the victim of any violation of the rights relied on in respect of the death of D.K. since the Leskovac Basic Court had established the objective responsibility of the State authorities for his death and had, in that connection, awarded adequate and sufficient compensation to his family members (see paragraph 71 above).
121. The Government further listed a number of investigative steps that had been taken immediately after the incident (see paragraphs 9-23 above) and argued that subsequently a vast amount of relevant evidence had been collected. A detailed and effective investigation had been carried out into D.K.’s death, which demonstrated that he had taken his own life. As to the applicant’s argument that the death had been investigated only as a suicide (see paragraph 127 below), the Government asserted that the relevant authorities could only investigate the incident if it had been classified as “assisting suicide”. No evidence had been obtained in the course of the investigation to prompt the authorities to believe that there was any reason to treat events in any other way.
122. The Government claimed that the range from which a person had been shot was not the only evidence that could show whether the death was a suicide or there had been a homicide, as there are many homicide cases in which the victim is “finished off” by wounds inflicted at point blank range, as well as cases of suicide in which the wounds are inflicted from a relatively small distance. Nor did the answer lie in the potential results of a second ballistics examination if it could have been carried out, but in the accumulation of evidence obtained during the investigation. In any event, the autopsy reports gave the answer to this question - the findings of the second autopsy report by the Institute for Forensic Medicine did not contradict the finding of the first autopsy report. D.K.’s parents had been present at the exhumation. Their lawyer had been invited, but had been prevented by his detention for reasons unrelated to this case. Allegations of a conspiracy involving the lawyer were pointlessly oriented at creating a sensation, and not supported by the facts.
123. The Government also strongly opposed the applicant’s claim that the rifle was key evidence and had been “contaminated” to conceal that evidence. It had been disposed of only after all the authorities had concluded that there had been no crime.
124. They insisted that, as had been determined by various investigating authorities, no criminal act had been committed in any respect. They asserted that there had been nothing in the present case which could have led the domestic authorities to assume that D.K. would take his own life, as he had never shown any such intention. Taking into account the unpredictability of human behaviour, an disproportionate and impossible burden would be imposed on the authorities if they were to bear the responsibility for D.K.’s self-harm when there had been no signs of or information regarding his psychological state.
125. The Government concluded that the investigation had been thorough and effective and that the authorities had provided a plausible, satisfactory and convincing explanation of the events leading to D.K.’s suicide.
(b) The applicant
126. Тhe applicant complained that the Serbian authorities had not discharged their obligations under the procedural limb of Article 2 of the Convention, as the domestic investigation into D.K.’s death, which had been recorded as a suicide, had been flawed and biased. The applicant and his successors emphasised various deficiencies and inaccuracies in the investigation that had been already raised before the domestic courts and Constitutional Court and were summarized earlier (see paragraphs 62 and 99 above), complaining in particular that no convincing explanation nor reliable and firm forensic indication had been provided as to the point blank or relative range of shooting as the key response to the cause of death of D.K. (see paragraphs 20 and 58 above). In addition, they had been deprived of access at many stages of the investigation, as well as to documents such as the results of the toxicology analysis, paraffin tests and ballistics tests.
127. The applicant contested the conclusion that D.K. had taken his own life and argued that the State authorities had failed to provide a plausible, sufficient and convincing explanation for the death. The death had been investigated only on the presumption that it was suicide and all the investigative measures had been aimed at confirming that hypothesis. The applicant’s allegations that the victim had died as a direct result of either unlawful killing by members of the armed forces and/or that his suicide was driven by previous psychological ill-treatment by his superior officers because he had witnessed certain disputed events, had not been considered, as the relevant authorities had ignored any evidence which had not supported the official version of events without any good reason for it.
128. Furthermore, the applicant’s successors perceived the decision of the Constitutional Court as a “second killing” of their son and brother and as a “mockery of justice”. The court had “attempted to hide the shocking omissions” of the investigating authorities, including the failure to conduct a ballistics examination which would have answered the question as to the range from which D.K. had been shot, and the question of how vital evidence, such as the uniform D.K. had been wearing and his rifle had been destroyed or sold, the rifle only being discovered much later and only because of pressure from the public and the media. In the applicant’s successors’ opinion, the Constitutional Court’s decision was a “brutal setback” and diverged from that court’s jurisprudence in terms of achieved high standard of protection for human rights, which had been to find a violation of the procedural aspect of Article 24 of the Constitution (see paragraph 108 above) in cases where there had been less serious failures in an investigation.
129. The applicant disagreed that the compensation awarded by the civil court and also by the Constitutional Court constituted appropriate and sufficient redress. Moreover, the decision of the Constitutional Court was aimed at preventing a favourable decision by the Court. The applicant invited the Court to thwart that attempt.
(a) General principles concerning the victim status of an applicant, as applicable to the present case
130. It is the Court’s settled case-law that where the national authorities have found a violation and their decision constitutes appropriate and sufficient redress, the party concerned can no longer claim to be a victim within the meaning of Article 34 of the Convention (see, among other authorities, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 179-81, ECHR 2006‑V, and Kołaczyk and Kwiatkowski v. Poland (dec.), no. 34215/11, § 40, 22 October 2013). As to the redress which is appropriate and sufficient in order to remedy a breach of a Convention right at national level, the Court has generally considered this to be dependent on all the circumstances of the case, with particular regard to the nature of the right alleged to have been breached (see Gäfgen v. Germany [GC], no. 22978/05, § 116, ECHR 2010), the reasons given for the decision (see Jensen v. Denmark (dec.), no. 48470/99, ECHR 2001‑X) and the persistence of the unfavourable consequences for the person concerned after that decision (see Freimanis and Līdums v. Latvia, nos. 73443/01 and 74860/01, § 68, 9 February 2006). Only when those conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Cocchiarella v. Italy [GC], no. 64886/01, § 71, ECHR 2006‑V, and Cataldo, cited above).
131. Firstly, in the context of Article 2 of the Convention, the Court reiterates that the duty to investigate, which has been implied in varying contexts under the Convention, may differ, both in content and in terms of its underlying rationale, depending on the particular situation that has triggered it (see, for example, Banks and Others v. the United Kingdom (dec.), no. 21387/05, 6 February 2007). Likewise, the applicant’s ability to claim to be a victim will depend on the redress which the domestic remedy will have given him or her (see, for example, Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 49, 20 December 2007 and the cases cited therein).
132. The Court reiterates that independently of the issue of whether a financial payment can have an impact on the substantive aspect of Article 2, it is a matter of established case-law that, in cases where it is alleged that death was intentionally inflicted or occurred following an assault or ill-treatment, an award of compensation cannot absolve the Contracting States from their obligation to conduct an investigation capable of leading to the identification and punishment of those responsible (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 130, 14 April 2015, and the authorities cited therein). This is so because, if the authorities could confine their reaction to incidents of wilful ill-treatment by, inter alia, State agents to the mere payment of compensation, while not doing enough to prosecute and punish those responsible, it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity, and the legal prohibition on taking life, despite its fundamental importance, would be ineffective in practice (ibid. § 130).
133. However, as the Government have pointed out, where there has been no intentional taking of life, an award of damages through civil or administrative proceedings may offer appropriate redress (ibid § 131).
134. Moreover, notwithstanding the absence of any argument on the part of the Government regarding the impact of the decision of the Constitutional Court on the applicant’s victim status (see paragraph 120 above), the Court is not prevented from examining this issue of its own motion, since it concerns a matter that falls under its own jurisdiction (see, for example, Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 27, ECHR 2009, and Jakovljević v. Serbia (dec.), no. 5158/12, § 29, 13 October 2020). The Court reiterates that in assessing whether an applicant can claim to be a genuine victim of an alleged violation, account should be taken not only of the formal position at the time when the application was lodged with the Court, but of all the circumstances of the case in question, including any developments prior to the date of the examination of the case by the Court (see Rooman v. Belgium [GC], no. 18052/11, § 128, 31 January 2019). This is one of the reasons for the suspension in the Court examining the present case: the parties’ observations indicated that the applicant’s successors had lodged two constitutional appeals in 2012 (see paragraph 75 above) and 2015 (see paragraph 99 above), of which the latter was determined by the Constitutional Court in April 2023 (see paragraphs 100-107 above). That being said, a constitutional appeal remains, in principle, a remedy to be exhausted, within the meaning of Article 35 § 1 of the Convention, only in respect of applications introduced as of 7 August 2008 (see Vinčić and Others v. Serbia, nos. 44698/06 et seq., § 51, 1 December 2009), whilst in respect of all applications lodged earlier, such as the application at hand, any redress provided by the Constitutional Court must be assessed through the prism of whether the applicant can still be considered to be a victim within the meaning of Article 34 (see Vidaković v. Serbia (dec.), no. 16231/07, 24 May 2011, Jovanović v. Serbia, no. 32299/08, §§ 34-35, 2 October 2012 and Mučibabić, cited above, §§ 116-120; see, for the relevant principles as regards victim status in the context of unintentional death, albeit in the context of a detainee and medical negligence, Kekelashvili, cited above, §§ 41-55, with further reference therein).
(b) General principles concerning the State’s obligations established in the Court’s case-law in the context of Article 2 of the Convention, as applicable to the present case
135. The present case concerns the applicant’s son, D.K., who was a conscript performing his compulsory military service when he was found with gunshot wounds in his military barracks, under the care and in area within the exclusive control and responsibility of the State’s military authorities. He died some minutes later.
136. The Court reiterates that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also a positive duty to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998‑III), which, inter alia, involve having in place an effective independent judicial system capable of promptly establishing the facts, holding accountable those at fault and providing appropriate redress to the victims (or their next-of kin). The Court has also emphasised that, as with persons in custody, conscripts undergoing compulsory military service or servicemen are within the exclusive control of the authorities of the State, who are under a duty to protect them from other individuals or self-harm (see Beker, cited above, §§ 41-42; Mosendz v. Ukraine, no. 52013/08, § 92, 17 January 2013; Perevedentsevy v. Russia, no. 39583/05, § 93, 24 April 2014, and Tikhonova v. Russia, no. 13596/05, § 68, 30 April 2014). In the context of fatalities in military barracks and/or during compulsory military service, the comprehensive general principles under Article 2 of the Convention as regards the content of the State’s positive substantive obligation to care for those at risk of suicide, including to take preventive operational measures to protect them from self-harm or harm by other individuals, and the scope of the positive procedural obligation to carry out an effective investigation and account for any deaths, are summarised in Malik Babayev, cited above, §§ 64-68 (substantive limb) and 79-81 (procedural limb); Boychenko v. Russia, no. 8663/08, §§ 76-80 (substantive limb) and 81-84 (procedural limb), 12 October 2021, and most recently Varyan v. Armenia, no. 48998/14, §§ 87-95 (substantive limb) and 96-100 (procedural limb), 4 June 2024).
137. In the light of the above-mentioned principles and given that that D.K.’s life had been lost during compulsory military service, in circumstances potentially engaging the responsibility of the State, Article 2 entailed a duty for the respondent State to ensure, by all means at its disposal, an adequate investigative response, judicial or otherwise (see paragraphs 132‑133 above). The requirement that the key facts and true circumstances of the death, which lied wholly, or in large part, within the exclusive knowledge of the military authorities, be promptly brought to public scrutiny and that the procedures provide for effective accountability can be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody or in the army, strong presumptions of fact will arise in respect of injuries and death occurring during that detention or service (see Nana Muradyan v. Armenia, no. 69517/11, § 123, 5 April 2022). Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Beker, cited above, § 41, and Nana Muradyan, cited above, § 123) - i.e. whether D.K. had been murdered or had taken his own life - in order to eliminate any suspicions surrounding it. As master of its own procedure and its own rules, the Court has complete freedom in assessing not only the admissibility and relevance but also the probative value of each item of evidence before it (see, for example, Carter v. Russia, no. 20914/07, § 97, 21 September 2021, with further references). In assessing evidence, the Court adopts the standard of proof “beyond reasonable doubt”. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (see Tanlı v. Turkey, no. 26129/95, § 109, ECHR 2001-III (extracts)). Though the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Klaas v. Germany, 22 September 1993, §§ 29-30, Series A no. 269).
138. Accordingly, the mere fact that the Serbian authorities had been informed of D.K.’s death gave rise ipso facto to an obligation under Article 2 of the Convention to act with exemplary diligence and to carry out, of their own motion, an effective and impartial official investigation to promptly collect evidence and ascertain the circumstances in which the shooting and non-ballistic injuries had taken place (see, mutatis mutandis, as original reference, Ergi v. Turkey, 28 July 1998, § 82, Reports 1998-IV; and Ilhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000-VII; see, concerning the suicide of conscripts, Malek Babayev, cited above, § 79; Hasan Çalışkan and Others v. Turkey, no. 13094/02, § 49, 27 May 2008, and Abdullah Yılmaz v. Turkey, no. 21899/02, § 58, 17 June 2008; see concerning contractual military servicemen, Beker, cited above, §§ 41-43; Boychenko, cited above, §§ 82 and 97; Sergey Shevchenko v. Ukraine, no. 32478/02, §§ 54-57, 4 April 2006; Hovhannisyan and Nazaryan v. Armenia, nos. 2169/12 and 29887/14, 8 November 2022; Durdu v. Turkey, no. 30677/10, §§ 69-74, 3 September 2013; and Yasemin Doğan v. Turkey, no. 40860/04, §§ 60-63, 6 September 2016). The State authorities must have made all reasonable efforts, including by having in place the necessary resources, to ensure that on-site and other relevant evidence is collected promptly and with sufficient thoroughness to secure the evidence and to eliminate or minimise any risk of omissions that may later undermine the possibility of establishing liability and of holding the person(s) responsible accountable (see Boychenko, cited above, § 97).
139. Depending on the findings, the investigation should have further ascertained any shortcomings in the operation of the regulatory system and examined whether the State officials or authorities had been in any way involved or accountable for deaths occurring under their responsibility, irrespective of whether the alleged perpetrators were State agents or unknown, or when the harm was self-inflicted (see Beker, cited above, §§ 41-50).
140. Although the question of whether an investigation, in respect of its nature and degree of scrutiny, has been sufficiently effective must be assessed on the basis of all the relevant facts and with regard to the practical realities of investigation work, it should be emphasised that the duty to investigate attracts particularly stringent scrutiny where a suspicious death has occurred while the victim was in the hands of the State authorities (see, for example, Velikova v. Bulgaria, no. 41488/98, §§ 80 and 82, ECHR 2000‑VI), including where the victim was under the responsibility of the military authorities and was found dead in military barracks. The investigation must in any event fulfil the requirements set out in the Court’s well-established case-law (see Mustafa Tunç and Fecire Tunç, cited above, §§ 169-82, 14 April 2015, and references cited in paragraph 138 above; see also, in general context, Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 101 and 103, ECHR 1999-IV; Salman v. Turkey [GC], no 21986/93, § 105, ECHR 2000‑VII; Tanlı, cited above, § 149; Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, §§ 69 and 74, ECHR 2002-II).
(c) Application of the above-summarised principles in the present case, including as regards the victim status of the applicant and his successors
141. The Court observes that it is not disputed between the parties that D.K.’s death was caused by the gunshot injuries. In their explanation for the death, the Government relied on the outcome of the official investigation, which reported that D.K. had unexpectedly taken his own life, shooting himself twice while on guard duty (see paragraph 121 above). On the other hand, the applicant contested the official conclusion of suicide (see paragraph 127 above), complaining that the authorities had failed to take several crucial investigatory steps, with the intention of concealing military involvement, either because his son’s death had been the unlawful killing by the members of the military forces of an unwanted witness of certain disputed events, or because the suicide had been caused by previous issues with his superiors.
142. The Court notes that it does not appear that any of the above-mentioned hypotheses was manifestly implausible on the facts at least in the initial stages of the investigation (compare and contrast Panovy v. Russia (dec.), no. 21024/08, § 44, 1 December 2012, where there was nothing to indicate, nor the applicants ever claimed, that the victim’s death had resulted from an intentional act). Therefore, the Court considers that, in order to establish whether the State authorities have adequately discharged their obligation to account for D.K.’s death and injuries under Article 2 of the Convention, it must first have regard to the procedural limb of the applicant’s complaint, namely the effectiveness of the investigation carried out by the authorities and the conclusions reached by them (compare Beker, cited above, § 43; Sergey Shevchenko, cited above, §§ 54-57; Pankov v. Bulgaria, no. 12773/03, § 58, 7 October 2010; and Vardanyan and Khalafyan v. Armenia, no. 2265/12, 8 November 2022), and then turn to the substantive limb and the question of whether the State can be held responsible for the death (see, mutatis mutandis, Ohanjanyan v. Armenia, no. 70665/11, § 139, 25 April 2023).
143. Given that both the criminal and civil remedies were available to the applicant, the Court will examine whether those remedies, as are provided for in law and applied in practice, could – taken together – be said to have constituted legal avenues capable of promptly establishing the facts, holding accountable those at fault, if any, and providing appropriate redress to the victim (see Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 169, 25 June 2019, and Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 214, 19 December 2017).
(i) Procedural limb
(α) Civil proceedings
144. Firstly, as regards the Government’s objection concerning the loss of victim status (see paragraph 120 above), in the absence of sufficient reasons to the contrary, the Court will not depart from its case-law that the civil proceedings alone could not address the substance of the applicant’s procedural complaint to the Court (see Petrović, cited above, § 81), nor could constitute an adequate and sufficient redress to ensure the State’s compliance with its procedural obligation that would deprive the applicant of the status of the victim in this regard (compare and contrast Panovy, cited above). The very limited findings and conclusion in the civil proceedings, brought moreover on the applicant’s initiative, relied only on the scene of incident report that had been drawn up concerning “D.K.’s suicide” and the conclusion in the autopsy report that D.K.’s death was caused by projectiles shot from a firearm. The payment of compensation for pecuniary and non-pecuniary damage for the death of D.K. was based of the strict tortious liability of the State in the civil proceedings (objektivna odgovornost), a non-fault based civil remedy, based only on the fact that D.K. died while he was performing compulsory military service, in an inherently dangerous situation (see paragraph 71 above). The civil proceedings were obviously unable to establish the facts of the incident with any accuracy or, if appropriate, to make any meaningful findings as to the degree of liability of any State officials implicated in the incident, as required by Article 2, with or without the benefit of the conclusions of a criminal investigation (see, as the original authority, Tanrıkulu, cited above, § 79, and Kaya v. Turkey, 19 February 1998, § 105, Reports 1998-I; see, also, mutatis mutandis, Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-21, 24 February 2005, and Estamirov and Others v. Russia, no. 60272/00, §§ 77-78, 12 October 2006, about civil litigation as inappropriate redress for violations of both substantive and procedural obligation, albeit in the context of effectiveness of domestic remedies in cases of fatal assault).
(β) Criminal proceeding
145. A criminal investigation is in principle and at least in theory capable of establishing the facts and identifying and punishing the perpetrators, if any (compare with a pre-investigation inquiry in Petrović, cited above). In the present case, the military judicial authorities commenced the inspection of the scene of the incident promptly less than two hours after the incident had allegedly occurred; the first on-site incident report was made that same day. The team undertook a number of measures, including the collection of evidence from the incident scene, paraffin samples and witness statements. The judge also ordered an autopsy and biological and chemical tests, and technical examination of the rifle and paraffin samples (see paragraphs 8-17 above).
146. An autopsy was performed on the day following the death by a forensic panel from the M.M.A. (contrast Tepe v. Turkey, no. 27244/95, § 181, 9 May 2003). It is true that the autopsy report did not specify the time of death, but in the circumstances of the case that does not seem to have been crucial for the elucidation of the facts (contrast Velikova v. Bulgaria, cited above, § 79). The autopsy report clearly identified the cause of death and specified that it had been instantaneous and violent, from gunshots that had been fired “from direct contact from front to back, right to left, from above downwards”. It also featured a description, albeit a brief one, of the other injuries sustained by D.K. (contrast Salman, cited above § 106).
147. Following those initial investigating steps, the military prosecutor opened a preliminary investigation on 6 October 2004 in respect of the crime of assisting or inciting suicide (see paragraphs 25-26 above). While it indeed appears that the prosecutor only pursued inquiries on the presumption that the death was a suicide, the Government clarified that it had been the only way to collect evidence in this context (see paragraph 121 above). Indeed, the prosecutor continued collecting evidence, such as testimony, the results of paraffin test which confirmed the presence of powder particles on the rifle and D.K.’s hands, and the post-mortem psychological and psychiatric examination of D.K.’s suicide (see paragraphs 27-37 above).
148. The psychological report had further clarified certain issues as regards D.K.’s mental state and pointed out a number of shortcomings in the operating system which dealt with conscripts’ guard duties and psychological testing and had made recommendations for the improvement of operations in order to prevent or minimise conscripts’ suicides (see paragraph 35 above).
149. Moreover, after the case was reheard, the military prosecutor had obtained clarification on uncertainties concerning the injuries on D.K.’s neck which, according to the forensic medical examiners, appeared to have been insignificant, and certainly not fatal (see paragraphs 48-49 above), and further ordered the reconstruction of the incident on 23 November 2004 (see paragraphs 42-44 above). The reconstruction revealed that the ballistics evidence had been dealt with hastily, but also came to the conclusion that the bullets from the spent cartridge cases could have been fired from D.K.’s rifle. It also discussed what position D.K. could have taken up in order to harm himself. The last step was the prosecutor’s order to the military police to have the rifle returned from Belgrade (see paragraph 45 above), and he told the applicants that jurisdiction in this type of matter had been transferred to the civil court (see paragraphs 50-51 above). No decision to close the investigation or report of its conclusions has been filed with the Court, nor does one appear in the Constitutional Court’s presentation of facts. The Government asserted, however, that the prosecutor had decided not to investigate further.
150. Where a State has a mechanism for the review of prosecutors’ decisions not to investigate, such as the procedure for subsidiary prosecution in Serbia, the Court will take it into account and examine whether such a review could have rectified the shortcomings in the earlier investigation and met the requirements of the procedural limb of Article 2 (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, §§ 351-55, ECHR 2007‑II, and Petrović, §§ 93-96, both cited above). In the course of the subsidiary prosecution, at the insistence of the applicant, the authorities ordered an exhumation and a second autopsy, which was performed by two forensic experts from a civilian forensic institute (see paragraphs 56-58 above). It confirmed the findings of the first autopsy (see, mutatis mutandis, Dölek v. Turkey, no. 39541/98, § 77, 2 October 2007). The Court notes that when the applicant and his successors challenged the experts’ conclusions domestically or before the Court, they did not give rigorous details of their objections to the findings of the forensic reports or the basis of their theory that D.K. had been killed. In any event, their pleadings did not in itself invalidate the autopsy’s findings or effectiveness. The Court finds that the authorities took reasonable steps to investigate D.K.’s death and gave due consideration to the applicant’s requests for specific actions to be taken (contrast Velikova, cited above, §§ 79 and 83).
151. The failure to bring charges against anyone does not detract from the effectiveness of the investigation. In any event, the obligation to investigate is not one of result, but of means only (see, as a recent authority, Babat and Others v. Turkey, no. 44936/04, § 39, 12 January 2010, with further references) and Article 2 does not entail the right to have third parties prosecuted or sentenced for a criminal offence (see Öneryıldız v. Turkey [GC], no. 48939/99, § 96, ECHR 2004‑XII). The fact that the investigation ultimately accepted the State hypothesis has no bearing on this issue, since the obligation to investigate is specifically intended to refute or confirm one theory or another. The military prosecuting authorities gave satisfactory reasons for their decisions to discontinue both military and subsidiary investigations and there were no exceptional circumstances in the present case still requiring a criminal investigation to be pursued, such as where a life was lost or put at risk because of the conduct of a public authority going beyond an error of judgment or carelessness (see Vovk and Bogdanov v. Russia, no. 15613/10, §§ 64-66, 11 February 2020).
152. As to the promptness of the investigation, the Court observes that it started immediately and proceeded at a satisfactory pace throughout 2004, finishing in 2005 when the Prosecutor’s Office decided to discontinue it. In view of the significant number of steps taken by the authorities during that period, the Court finds that they may be regarded as having proceeded with reasonable expedition. It is true that there was subsequently a gap of about five years between the initial subsidiary pursuit of the prosecution and the further investigation initiated by the applicant’s successors. However, that further investigation, which dealt with a separate matter, cannot be described as a continuation of the criminal investigation, which had already shed ample light on the circumstances surrounding D.K’s death (contrast Nikolova and Velichkova, cited above, §§ 15 and 59). The obligation to collect evidence ought to apply until such time as the nature of any liability is clarified and the authorities are satisfied that there are no grounds for conducting or continuing a criminal investigation (see Nicolae Virgiliu Tănase, cited above, § 162). Therefore, it cannot be argued that the misplaced uniform or rifle, after the authorities had already decided to close the investigation as no grounds for any liability had been found, are such shortcomings in themselves which may give rise to a presumption that the State was responsible for any fault in this context.
(γ) Conclusion as to the procedural obligation to investigate
153. The Court considers that the criminal investigation in the present case made it possible to establish the circumstances of the applicant’s son’s death. Accordingly, the applicant’s complaint under the procedural limb of Article 2 of the Convention is manifestly ill-founded and should be dismissed under Article 35 §§ 3 (a) and 4 of the Convention.
(ii) Substantive limb
(α) Obligation to account for D.K’s death and injuries
154. The applicant indeed contested the official conclusion of suicide (see paragraphs 126-129 above), complaining that the authorities had failed to take several crucial investigatory steps, with the intention of concealing military involvement, because his son’s death had been the unlawful killing by the members of the military forces of an unwanted witness of certain disputed events. At the same time, the applicant and his successors seemingly did not rule out the possibility that D.K. had taken his own life (see paragraph 127 above), arguing, however, that his suicide was caused by previous psychological ill-treatment by his superior officers because he had witnessed certain disputed events. However, while such allegations have to be supported by appropriate evidence (see, mutatis mutandis, Habimi and Others v. Serbia, no. 19072/08, § 91, 3 June 2014, albeit in the context of Article 3), the applicant’s allegations remained vague and undeveloped, aside from a pure reference to a statement and a newspaper article where allusions had been made to the possibility that D.K. had witnessed certain events and had been ill-treated or murdered in that regards (see paragraph 54 above).
155. The applicant and his successors could be forgiven for questioning the official version and thinking that the investigation might be covering up a more sinister explanation (see Beker, cited above, § 52), the investigation carried out by the Serbian authorities themselves having also not thoroughly examined the applicant’s hypothesis. However, while loss of life occurring in military barracks might create a presumption of facts which should be rebutted (see references cited in paragraph 137 above), the Court finds no sufficient elements in the available material in the case file to achieve the evidentiary level of proof required under Article 2 – that of “beyond reasonable doubt” (see, among other authorities, Cennet Ayhan and Mehmet Salih Ayhan v. Turkey, no. 41964/98, § 79, 27 June 2006) – to support the applicant’s allegations about the involvement of the State authorities in the death of his son. Such conclusion would be purely speculative and remains within the realm of hypothesis (see, mutatis mutandis, Ataman v. Turkey, no. 46252/99, §§ 46-53, 27 April 2006; Durdu, cited above, §§ 59-61; Babat and Others, cited above, §§ 36-38; Varyan, cited above, § 104; Nana Muradyan, cited above, § 123; and Muradyan v. Armenia, no. 11275/07, §§ 130-31, 24 November 2016).
156. Accordingly, given that the Court sees no cogent evidence calling into question the establishment of facts made by the national authorities and contradicting the official conclusion that the applicant’s son took his own life, or making it prima facie untenable (contrast Beker, cited above, §§ 45-54, and Lapshin v. Azerbaijan, no. 13527/18, §§ 110-20, 20 May 2021), it must proceed on the basis that the authorities discharged the burden of proof which rested on them with the finding that the applicant’s son had taken his own life.
157. The applicant’s complaint on this ground is therefore manifestly ill-founded and should be dismissed under Article 35 §§ 3 (a) and 4 of the Convention.
158. It remains to be determined whether the authorities were nonetheless responsible for D.K.’s death in any respect (see, mutatis mutandis, Demiray v. Turkey, no. 27308/95, § 45, ECHR 2000‑XII).
(β) Obligation to protect from other individuals
159. In view of the foregoing considerations, the Court also observes no tangible evidence that the applicant’s son had been subjected to physical and/or verbal violence by superior military officers or other conscripts before he had taken his own life, which could have alerted the authorities to take preventive operational measures to protect him from the harm of others from bullying or hazing in that context (compare Abdullah Yılmaz, cited above, §§ 7-10, and Seyfi Karan v. Turkey (dec.), no. 20192/04, 23 February 2010).
160. It follows that the applicant’s complaint on that account is equally manifestly ill-founded and should be also dismissed under Article 35 §§ 3 (a) and 4 of the Convention.
(γ) Obligation to put in place a regulatory framework and to take preventive operational measures to protect conscripts from self-harm
161. In considering the remaining question, the Court would principally examine whether the authorities knew or ought to have known at the time of a real and immediate risk that D.K. would take his own life, and, if so, whether they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk from materialising (see, in general, Keenan v. the United Kingdom, no. 27229/95, §§ 89 and 93, ECHR 2001-III; Şahinkuşu v. Turkey, no. 38287/06, § 58, 21 June 2016; and Kurt v. Austria [GC], no. 62903/15, § 158, 15 June 2021). Nothing in the case file indicates that either prior to being conscripted into the army or while undergoing his military service, D.K. had suffered from mental troubles or psychological illness, which should have alerted the domestic authorities to the possibility that he might take his own life. In that connection, the Court also distinguishes the present case from those in which it was established in domestic proceedings that conscripts who took their own lives (i) had been suffering from psychological illness or had not been psychologically stable; or (ii) had had a history of suicide in their family (see, among many other authorities, Kılınç and Others v. Turkey, no. 40145/98, §§ 44-46, 7 June 2005; Ataman v. Turkey, no. 46252/99, § 58, 27 April 2006; Perevedentsevy, cited above, § 98; Tikhonova, cited above, §§ 72-75; and Abdullatif Arslan and Zerife Arslan v. Turkey, no. 40862/08, §§ 34-37, 21 July 2015).
162. The Court further reiterates that, under the subsidiarity principle, it falls first to national authorities to redress any violation of the Convention. Where the national authorities have acknowledged, either expressly or in substance, the alleged infringements, and if necessary, provided adequate and sufficient redress in respect of the facts complained of, the subsidiary nature of the protective mechanism of the Convention precludes examination of an application or a complaint, as the party concerned can no longer claim to be a victim within the meaning of Article 34 of the Convention in relation thereto (see, among other authorities, Cocchiarella, cited above, § 71; Dubjaková v. Slovakia (dec.), no. 67299/01, 19 October 2004, and Albayrak v. Turkey, no. 38406/97, § 32, 31 January 2008).
163. The Court observes that in its decision of 27 April 2023 (see paragraphs 100-107 above), the Constitutional Court established facts of the present case and held that the State authorities had failed in their substantive obligation on account of a breach of their positive duty to protect D.K.’s life, as a military conscript, while he was under their authority (see paragraph 105 above). Referring to the post-mortem psychiatric and psychological report, the court indicated that he had probably been in a state of depression and physical and mental exhaustion after being repeatedly posted on guard duty before his death and that he took his own life as a result of a series of events which had taken place a few weeks prior to the incident.
164. Moreover, the State’s response was not limited merely to acknowledging the violation and awarding compensation - EUR 5,000 to each of the applicant’s successors in respect of non-pecuniary damage (see paragraph 107 above). The Constitutional Court also identified certain shortcomings in the State authorities’ protection of D.K. and recommended a number of general measures which should be taken to prevent or minimise the risk of such future incidents (see paragraphs 106 and 35 above). The scope of and reasoning given for the decision of the Constitutional Court appear to be rather wide and comprehensive (contrast Mučibabić, cited above, §§ 116-20). Therefore, the Court is ready to accept that the Constitutional Court, in its judgment, in addition of providing the relevant factual circumstances surrounding D.K.’s treatment and death, also thereby acknowledged that the State authorities had failed to comply with the substantive obligation to protect him from self-harm, and, effectively, satisfied the first condition laid down in the Court’s case law.
165. In this particular context, the Court observes that none of the above-mentioned remedies in the criminal or civil context have questioned or led to potential personal liability of the military personnel in respect of D.K.’s treatment preceding his death or his alleged suicide per se. However, considering their own course of action, the Court observes that the applicant or his successors have never raised this issue domestically or before the Court. Moreover, they had designated the Ministry as the sole respondent in the relevant civil proceedings, requesting only monetary compensation, and without trying to bring a wider list of potential defendants from the military milieu into the loop (see paragraph 71 above). The Court therefore does not find it unacceptable that the civil court determined the civil liability of the Defence Ministry, without examining any potential personal liability, being guided by one of the fundamental principles of procedure under domestic law ne eat iudex ultra et extra petita partium (“not beyond the request”) (see Radomilja and Others, cited above, § 109, 20 March 2018). Accordingly, the Court will further assess the adequacy of redress obtained by the applicant and his successors only in so far as the monetary compensation is concerned (see, mutatis mutandis, Kekelashvili, cited above, § 50).
166. As regards the second condition laid down in the Court’s case law, the Court would emphasise the importance of a reasonable amount of compensation being awarded in the domestic system for the remedy in question to afford a sufficient and adequate redress to deprive applicants of victim status. Whether the amount awarded may be regarded as such, however, falls to be assessed in the light of all the circumstances of the case. Even compensation which is lower than the amount the Court would itself award under Article 41 of the Convention could be considered reasonable, provided that the decision of the domestic courts was consistent with the legal tradition and standard of living in the country concerned and was speedy, reasoned and executed quickly (see, in general, Cocchiarella, cited above, § 80; see, in respect of Article 2, Mučibabić, cited above, § 119, and Nana Muradyan, cited above, § 110). Moreover, in determining whether the domestic redress could be considered “equitable”, the Court has earlier accepted that responsibility in respect of the award of compensation may be shared cumulatively between several authorities (see, mutatis mutandis, Tümkaya and Others v. Turkey [Committee], no. 11915/12, § 51, 5 March 2019).
167. Quite apart from the fact that the amount awarded by the Constitutional Court is only slightly below the sums awarded by the Court in respect of comparable violations of Article 2 (see, for example, Petković v. Serbia (dec.), no. 31169/08, 6 December 2011; Petrović v. Serbia, cited above, § 105; Mučibabić, cited above, § 140, albeit in the context of a failure to comply with the procedural obligations arising out of Article 2 of the Convention), the Court must also have regard to the outcome of the civil proceedings, in which the respondent’s Defence Ministry was found liable to pay the applicant and his successors the non-pecuniary damage on account of the pain and anguish suffered because of the death of their son and brother (see paragraph 71 above; compare and contrast Petrović, cited above, §§ 43-44, 80-81 and 105), as well as pecuniary damage on account of funeral and other costs. The Court notes that the total amount paid by the Defence Ministry, including overall compensation and cost amounts to approximately EUR 44,500 (see paragraph 73 above).
168. The Court accepts in any event that the sums awarded to the applicant and his successors in the two sets of domestic proceedings satisfied the second condition laid down in the Court’s case law (see Kekelashvili, cited above, §§ 51-53, with further references). Lastly, the Court considers that the delay in overall payment of the sums awarded to the applicant’s successors was not, in the present case, such as to jeopardise the appropriateness of the remedy offered.
169. The foregoing considerations are sufficient in the circumstances of the present case, regrettable as they may be, for the Court to find that, the redress provided by the Constitutional Court, in conjunction with the compensation awarded by the civil courts, has been sufficient and adequate in respect of the remaining part of the complaint under the substantive limb of Article 2 of the Convention and that the matter has been rectified through the domestic legal system (compare and contrast Kekelashvili, cited above, § 54, and Makharadze and Sikharulidze v. Georgia, no. 35254/07, §§ 87-89, 22 November 2011). Therefore, the applicant’s successors are no longer victims, within the meaning of Article 34 of the Convention, of the alleged violation of the State’s substantive obligation under Article 2 of the Convention to put in place a regulatory framework and to take preventive operational measures to protect D.K. from self-harm.
170. Accordingly, this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Done in English and notified in writing on 24 April 2025.
Milan Blaško Ioannis Ktistakis
Registrar President
APPENDIX
Application no. | Applicant’s name | Applicant’s successors Year of birth Place of residence Relationship to deceased applicant Milijan KOSTIĆ Relationship to deceased Dragan KOSTIĆ |
40410/07 | Milijan KOSTIĆ 2010 | Anđa KOSTIĆ 1951 Požega Widow Mother
Maja KOSTIĆ 1986 Požega Daughter Sister |
[1] The M70B1 is an assault rifle with a stamped receiver and fixed stock; its overall length is 890 mm. The rifle in the present case was registered under the number 151913.