Milijan Kostic v. Serbia

European Court of Human Rights (hereinafter: the Court) is 25. March 2025. brought, and 24. April announced a decision in the case in the same year Milijan Kostić against Serbia, No. 40410/07.

The decision is donelo seven-member.

Circumstances Case

Dragan Kostić (D.X.), the Son of the Applicant, was born on 26. December 1981, and was passed away by 27. August 2004. in the barracks in Leskovac, where he served a military service.

Dana 27. August 2004 years D.X. was found in the recruits for recruits near the guard room in which he performed the Nightear the "Jablanica" barracks in Leskovac, with two shot wounds in the breast area. The applicant and his family informed the same day that D.X. confiscated my life.

A few days before D.X. was subjected to psychological examination, which it was determined that he was able to act in the capacity of the guards on duty. This was his seventh week guard since the beginning of military service.

The on-duty investigating judge of the Military Court in Nis made a record of the investigation on the situation on the occasion of suicide D.X. The investigation of the body is executed D.X. and the incident places, and the marked traces were recorded. The bullets were not found. The test of the paraffin glove on the hands D.X was passed and the cloth was pulled through the rifle tube to allow for the identification of gunpowder marks. The incident is characterized as suicide, and an autopsy, toxicological and chemical body analysis, technical inspection of the assault guns and samples of paraffin gloves, as well as clothing and locker checkers d.x.

The autopsy was performed next day at the Institute of Forensic Medicine at MMA. It was stated that D.X violently deducted himself with suicide life, as well as that the bullets were fired from absolute proximity. A large number of scars on the neck was also stated, as well as injuries in the front area and on the back of the head, which were nonated "blunt mechanical weapons". The potential relationship with fatal outcome remained unresolved.

Поднет је предлог за спровођење појединих истражних радњи против N.N. Faces for criminal offenses guidance on suicide and assisting in suicide. The investigating judge listened to witnesses, requested and received a report on the analysis of paraffin gloves, and has passed the social expertise order D.X. and for forensic psychological and psychiatricpost-mortem The expertise of "Complaints' suicide" in order to determine, among other things, is D.X. In the past, he suffered from any psychiatric disorders and what his psychic situation was in the period preceding the incident. In the psychological and psychiatric find, it was not established the responsibility of the army for "suicide" recruits, but was given to preventive measures for the effective prevention of suicides of military taxpayers and their protection from the danger of special life in the military.

The military prosecutor then requested the implementation of additional investigative actions. The investigating judge expressed a disagreement with the request of the prosecutor, but it took a request for bullets in the attorney above the dormitory to determine the ballistic examination of the cells to determine whether they had left the bullet-marked rifles and determination The position of the body when the shot shot is fired and the position of the shooting of the bullet and traces on the ceiling. On 23. November 2004 the reconstruction of the event was performed, during which bullets were not found. Two days later, the ballistic expertise was performed and the finding of a possible position was prepared D.X. and the path of the projectile.

The investigating judge is 30. November 2004. demanded that the rifle in question was transferred from the criminal and technical center in Belgrade to Leskovac. It turned out that the rifle was lost, and then the private company was headed. Years.

Additional autopsy report was made 13. December 2004. years and referred to head injuries. It was pointed out that there were light bodily injuries, as well as that they could arise as active effect (a blow), as well as passive (fall).

After 31. December 2004. The competence was transferred to civil courts from federal military courts. Soon the applicant and his wife submitted a criminal complaint against unknown executors, based on the established doubt that N.N. faces unlawfully deprived their son D.X. The District Public Prosecutor's Office is 4. April 2005. rejected a criminal complaint, pointing out that the elements of the crime would not be elements of official duty in it. The applicant was informed at the same time that she could take prosecution.

The applicant is 14. April 2005. submitted a request to the District Court in Leskovac request for the implementation of individual investigative actions. Body D.X. It was exhumed on 29. September 2005. years and the second autopsy was performed at the Institute of Judicial Medicine, Faculty of Medicine in Belgrade. Forensic finding of 11. November 2005, he gave the same conclusions about the occasion of death D.X. as well as earlier. The investigating judge and the three-member are 14. and 27. February 2006. expressed disagreement with further applicants' requests, considering the circumstances of D.X. were disclosed enough.

The applicant submitted a criminal complaint against the expert with his wife who made the first official report on autopsy in 2004., based on the reasonable doubt that they committed a criminal offense "unsupported work in the service". The District Public Prosecutor's Office in Belgrade is 1. June 2005. rejected the criminal complaint on the lack of evidence that experts committed any criminal offense to be prosecuted. The applicant was informed of the possibility of taking criminal prosecution.

On 23. June 2005 The applicant filed, and 20. July of the same year amended the request for investigation. The suspects were heard 18. April 2006 years. The investigating judge is 8. June 2006. He expressed disagreement with the applicant's request for investigation by the criminal out-of-law, which made a solution that there was no place to implement investigation. This solution was confirmed by the Supreme Court 16. November 2006.

During 2007. the applicant, his wife and daughter filed a civil lawsuit against the Ministry of Defense. Their lawsuit was adopted and the Ministry of Defense was fully obliged to compensate prosecutors on the basis of objective responsibility, because D.X. He passed away during military service, in a situation that was dangerous in itself. Parents D.X. The amount of 800,000 dinars was awarded, and the sisters of 600,000 dinars, another 600,000 dinars in the name of material damage to cover the costs of burial and exhumation and another 338,000 dinars on the costs. On 25. January 2011, a decision on the execution of the verdict and 2. The Applicant was made in the total amount of 4,222,760.35 dinars (about EUR 44,500 euros per then valid exchange rate). As the applicant passed away before the law and execution of the judgment, the competent court refused to transfer his part to his wife as a legal successor. After the decision of the Constitutional Court of 25. March 2015 year, the amount awarded to the applicant was paid to his wife.

In the meantime, 13. January 2011, a new request for investigation was submitted on death D.X. Higher court in Leskovac, In which, among other things, the aboveThat forensics, in the absence of ballistic test, were not able to give an opinion in any of the questions that were asked, which were needed to eliminate the shortcomings of the first official report or any conclusions of whether the bullets were fired with direct or relative prislon. Dana 10. February 2011 The order was adopted on the implementation of ballistic expertise. The "contaminated" rifle was found found in the company "J." 14. June 2012. year, as well as that the same company has dismantled all parts of the rifle and cleared all its parts and compose before handover. Ballistic expertise was attempted without the original rifle or uniform, but it did not bring new information. The applicant has not filed any other proposal for investigative actions.

The successorians of the applicant - his wife and daughter - submitted on 29. November 2012. years criminal complaint against N.N. faces due to preventing and disturbing proof. They claimed they were n.n. The persons who have postponed the relevant rifle, as well as that NN. The persons who destroyed the army destroyed the uniform by D.X. wore that day. One of the experts who participated in the first autopsy claimed to have a new investigation for the Faculty of Judicial Medical Institute when the body was executed in 2005. years, but he was not presented to those needs, nor were written traces of her handover. The District Public Prosecutor's Office in Leskovac rejected the criminal complaint 16. December 2014. years, as obsolescence of criminal prosecution for the crime subject, which the decision was confirmed 26. December of the same year by a higher public prosecutor's office in Leskovac.

On 28. January 2015. The founder's successor was filed by the constitutional court, independent and effective investigation, and that they had a convincing explanation of deaths regarding death d.x., with intent to conceal the truth about his death and involvement of the state. With its decision, the Constitutional Court from 27. April 2023. found that state bodies performed their process obligations, but that they injured the material obligation to protect the rights to life D.X.

The Constitutional Court stated that there was a number of deficiencies, but these omissions were crucial to make the entire investigation inadequate or endanger the possibility that the competent authorities provide a convincing explanation related to the circumstances of death D.X. In terms of material obligation, the Constitutional Court recommended that the authorities carefully assess whether even recruits who are generally capable of military tasks are realistically capable of performing concrete duties of guards.

The Constitutional Court has awarded each of the endeavors of 5,000 EUR per name of intangible damage.

The government is 12. June 2023. informed the Court that the Constitutional Court adopted the constitutional complaint of the endeavor and proposed, among other things, that the application is unacceptable due to the victim status of the victim.

Complaints Applicant and Before Court Procedures

The applicant submitted to the Suda 1. In September 2007. years.

In the representations, he complained about the injury from Art. 2. and 6. Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention), emphasizing that the competent state authorities did not conduct an effective investigation into the death of its son with the intention of concealing the involvement of members of the army. The Court decided to consider complaints exclusively from the aspect of the right to life referred to in Article 2. Convention.

The court and daughter inherited Court informed the 2013. years on the intention to continue with the treatment of the representation, after the death of the applicant in 2010. Years.

The Government submitted to the court of Defense 24. January 2014. years and response to the request for fair satisfaction 17. April of the same year.

Decision Court

• Preliminary questions

The court found that the successors of the applicant have legitimacy to continue participating in the procedure instead of the applicant, as well as that they appear to be affected by an alleged violation of Article 2. Convention.

The court also found that the application was timely, as the deadline for its submission (in the subject period for six months) accounted for April 2007., when the applicant was informed of the final decision of the Supreme Court on non-implementation of further investigation.

• Article 2 Convention

The Court pointed out that, in cases where death is intentionally caused or performed after the attack or abuse, the sake of compensation cannot release the state from the obligation to conduct an investigation that may lead to identification and punishment responsible.

Since the application was submitted before 7. August 2008, since the Court found that the Constitutional Appeal was an effective remedy that needed to be exhausted in terms of Article 35. Paragraph 1. of the Convention (Vinčić et al. against Serbian, No. 44698/06et seq., paragraph 51, from 1. December 2009), Compensation provided by the Constitutional Court must be appreciated through the prism whether the applicant can still be considered a victim in terms of Article 34. Convention.

1. Process aspect

The Court found that the fee was paid to the name of material and intangible damage due to death D.X. It was based on a strict and objective responsibility of the state, without determining the guilt, and that the civil proceedings were not able to lead to any significant findings regarding the responsibility of any state official, as required by Article 2. Convention.

However, within the criminal proceedings, the Court found that the authorities took reasonable steps to investigate D.X., and that they consider the applicant's demands to take concrete actions with due care. The Court also pointed out that the obligation to conduct an investigation is not an obligation of results, but only funds. Finally, the Court concluded that the criminal investigation has enabled the determination of the circumstances of the death of the applicant.

Accordingly, the Court found that the complaint was the applicant according to the procedural aspect of Article 2. The Convention is obviously unfounded, and rejected it in accordance with Article 35. St. 3 (a) and 4. Convention.

2. Material aspect

The Court pointed out that the applicant and his heirs did not seemingly excluded the possibility that D.X. I took my life confiscated, and that they were allegations of potential mental abuse by his superiors, who would lead to suicide, other unclear and undiscriminated. The Court not noticed any convincing evidence that requires facts by domestic bodies, and continued consideration based on that the authorities fulfilled the obligation of the burden of prove that was on the finding that D.X. confiscated my life. Consequently, the Court is a complaint about the obligation of the state to determine the responsibility for death and injuries D.X. assessed as manifestly unfounded, and rejected in accordance with Article 35. St. 3 (a) and 4. Convention.

The court did not notice any tangible evidence that D.X. He was exposed to physical and / or verbal violence by superior military officers or other recruits, which would warn the authorities to take preventive measures to protect him from injury from other persons. Accordingly, the Court declared the complaint in this regard clearly unfounded and rejected in accordance with Article 35. St. 3 (a) and 4. Convention.

Considering the obligation of the state and take preventive operational measures for the protection of military taxpayers from self-harm, the Court stated that the status of the victim has existed if two conditions are met - the recognition of alleged violations of the Convention by national authorities; and providing, as needed, adequate and sufficient compensation in terms of the fact that is complaining.

The Court stated that the Constitutional Court concluded in his decision that state bodies did not meet their obligation to protect life D.X. as a military taxpayer while under their supervision. The response of the state was not limited to the recognition of violations and allow the compensation - the Constitutional Court also identified certain shortcomings in terms of protection D.X. by the state bodies, and recommended a number of general measures that should be taken to prevent or reduce the risk of repeated incidents as possible.

The Court also found that the amounts were given in civil proceedings and the procedure before the Constitutional Court and his successors satisfied the second condition for the victim status in accordance with the principle of subsidiary nature of the Protection Mechanism of the Convention. The compensation provided in these procedures, as the court concluded, was sufficient and adequate, and the matter was corrected within the domestic legal system.

In accordance with the above, the Court concluded that the successors of the applicant could no longer consider victims in terms of Article 34. Convention, and this part of the application rated the application asRatione Materiae incompatible with the provisions of Article 35 st. 3 (a) of the Convention, and rejected him in accordance with Article 35. Paragraph 4 of the Convention.