Communicated on 8 September 2014
FIRST SECTION
Application no. 53794/12
Ivica BRKIĆ and others
against Croatia
lodged on 31 July 2012
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
On an unspecified date the applicants brought a civil action in the Zadar Municipal Court for damages against the State caused by the killing of their mother, K.-J.B., born in 1935. They alleged that their mother had been killed in village Z.G. by firearms in front of her house, on 11 March 1992, when that village was occupied by Serbian para-military forces. She had been killed solely owning to her Croatian ethnic origin. Therefore, her death had been motivated by ethnic hatred and had no connection with any military or war activity which was also evident from the fact that she had not carried on her any arms or could have given any resistance. On the same day four other persons of Croatian ethnic origin had been killed in the same village. Such an act amounted to an act of terrorism under the Liability Act (see below).
On 5 January 2007 the claim was dismissed. The Municipal Court held that about a third of the Croatian territory had been occupied and that the civilians killed on those territories were mostly of Croat ethnic origin, as was the applicants’ mother. It further held that the killing of the applicants’ mother was war damage within the meaning of the Act on the Assessment of War Damage for which the Republic of Croatia was not liable. The Croatian State had had no control over the occupied territories and the applicants’ mother had been killed by one S.M., a member of Serbian para-military forces, during armed conflict between these forces and Croatian Army.
This judgment was upheld by the Zadar County Court on 10 September 2009 and the Supreme Court on 12 April 2011. The relevant part of the latter judgment reads:
“... even though the damage was caused by violence with the elements of terror as one of its essential elements, it does not amount to a terrorist act within the meaning of section 1 of the Liability Act, but was caused by war activity of the enemy military or para-military forces with the aim of provoking fear in and displacement of civilian population and has characteristics of war damage for which the Republic of Croatia is not liable”
The applicants’ subsequent constitutional complaint was dismissed on 19 January 2012.
B. Relevant domestic law and practice
The 2003 Liability Act
(a) Relevant provisions
The relevant part of the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette of the Republic of Croatia no. 117/2003) of 23 July 2003 – “the 2003 Liability Act”), which entered into force on 31 July 2003, provides as follows:
Section 1
“(1) This Act regulates liability for damage caused by acts of terrorism or other acts of violence committed with the aim of seriously disturbing public order by provoking fear or stirring up feelings of insecurity in citizens ...
(2) A terrorist act within the meaning of this Act is especially an act of violence committed for political reasons [motives] with a view to stirring up fear, terror or feelings of personal insecurity in citizens.”
Section 2
“The Republic of Croatia shall be liable for the damage referred to in section 1 of this Act ...”
Section 7(1)
“The victim shall have the right to compensation [in the form of damages] for damage resulting from death, bodily injury or impairment of health.”
(b) Supreme Court’s practice
In its decision no. Rev 1310/10-2 of 18 January 2012 the Supreme Court held, in so far as relevant, as follows:
“It has been established that on ... 1995 in village V. the parents of the plaintiffs ... had been killed from firearms in the courtyard of their house and that on the same day nine persons had been killed in village V.
The lower courts dismissed the claim holding that the plaintiffs had failed to prove that their parents had been killed with the aim of seriously disturbing public order by provoking fear or stirring up feeling of insecurity in citizens, and that therefore the conditions for the State liability under the Liability Act had not been meet.
Section 1 of the Liability Act regulates liability for damage caused by acts of terrorism or other acts of violence committed with the aim of seriously disturbing public order by provoking fear or stirring up feelings of insecurity in citizens, or owing to demonstrations and other forms of mass expression of attitudes in public places, while paragraph 2 of the same section provides that a terrorist act within the meaning of this Act is especially an act of violence committed for political motives with a view to stirring up fear, terror or feelings of personal insecurity in citizens.
Under section 2 of the Liability Act the Republic of Croatia is liable for damage under section 1 of the Liability Act according to the principle of social solidarity, equal bearing of a public burden, and just and quick recompensing. Section 3 of the same Act provides that the obligation to compensate damage exists irrespective of whether the person who caused damage has been identified, criminally prosecuted or found guilty.
Given the established circumstances of the event at issue this court considers that the death of the plaintiffs’ parents was caused by an act of terrorism, that is to say an act of violence committed for political reasons with the purpose to provoke fear, terror and the feeling of personal insecurity in citizens.
It has been established that on the same day nine persons (among which the plaintiffs’ parents) had been killed in the same village, all elder persons of Serbian ethnic origin; that the killings were committed in the courtyards or houses of the victims, in the period after the military action “Storm” had been competed, at the territory of the former United Nations’ Sector South.
...
Therefore, it is without doubt that, given the broader context of circumstances and events in which the damage was caused (the time and place, manner and means, purpose and the victims’ age) that the killing of the plaintiffs’ parents in the concrete situation caused in citizens the feelings of fear, terror and personal insecurity, and that therefore such an act amounted to a terrorist act, as the cause of the damage.
The Republic of Croatia (the defendant) is liable for the damage caused by an act of terrorism under the Liability Act, and therefore in this case there is the liability of the defendant.
...”
The Act on the Assessment of War Damage
The relevant part of that Act (Zakon o utvrđivanju ratne štete, Official Gazette nos. 61/1991 and 70/1991) reads:
Section 1
“[This Act provides for] the setting up and the activities of the State, municipal and special commissions for listing and assessment of war damage caused [at the territory] of the Republic of Croatia, to its natural and legal persons, and in connection with enemy activities and war operations led against [the Republic of Croatia], in the period from 15 August 1990 until the termination [of the said activities].”
Section 2
“War damage within the meaning of this Act, is pecuniary and non-pecuniary damage, direct and indirect damage, and in particular:
1. damage caused to bodily integrity, life and health of persons, freedom or dignity;
...
War damage, within the meaning of this Act, is damage caused by enemy, illegal formations, legal bodies of the Republic of Croatia, as well as allies of the said formations and bodies, when it was indirectly or directly caused in the period mentioned in section 1 of this Act.”
COMPLAINTS
The applicants complain that they were not able to obtain damage in connection with the killing of their mother.
They also complain that they were discriminated against as regards the findings of the national courts in respect of their claim for damages on the basis of the victim’s ethnic origin and her place of residence.
QUESTIONS TO THE PARTIES
1. Was the applicants’ claim for damages in connection with the death of their mother “sufficiently established” to attract applicability of Article 1 of Protocol No. 1 to the Convention? If so, did the refusal by the national courts to grant their claim amount to an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? If so, was that interference in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1; necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties? In particular, did that interference impose an excessive individual burden on the applicants?
2. Have the applicants suffered discrimination in the enjoyment of their Convention rights on the ground of the victim’s Croat ethnic origin or her place of residence, contrary to Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1
3. Have the applicants been discriminated against on the basis of the victim’s Croat ethnic origin or her place of residence, contrary to Article 1 of Protocol No. 12?
Appendix
Ivica BRKIĆ born on 12/04/1972 is a Croatian national who was born in 1972, lives in Zemunik Gornji and represented by Z.ZRILIĆ
Davorka TKALIĆ born on 12/04/1972 is a Croatian national who was born in 1972, lives in Zemunik Gornji and represented by Z.ZRILIĆ
Željka VIDIĆ born on 16/10/1968 is a Croatian national who was born in 1968, lives in Zemunik Gornji and represented by Z.ZRILIĆ
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