CASE OF TRESKAVICA v. CROATIA

SECOND SECTION

CASE OF TRESKAVICA v. CROATIA

(Application no. 32036/13)

JUDGMENT

STRASBOURG

12 January 2016

FINAL

12/04/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Treskavica v. Croatia,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Işıl Karakaş, President,
Nebojša Vučinić,
Helen Keller,
Ksenija Turković,
Egidijus Kūris,
Robert Spano,
Stéphanie Mourou-Vikström, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 8 December 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 32036/13) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Croatian nationals, Ms Draginja Treskavica (“the first applicant”), Ms Nataša Treskavica (“the second applicant”) and Ms Valentina Treskavica (“the third applicant”), on 18 April 2013.

2. The applicants were represented by Mr H. Alajbeg, a lawyer practising in Split. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3. The applicants alleged, in particular, that the investigation into the death of their respective husband and father, J.T., had not been effective and had not taken into account that he had been killed only because of his Serbian ethnic origin.

4. On 10 April 2014 the complaints under the procedural aspect of Articles 2 and 14 of the Convention as well as the complaints under Article 6 § 1 and Article 13 of the Convention were communicated to the Government, and the remainder of the application was declared inadmissible.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1943, 1975 and 1969, respectively, and live in London, the United Kingdom.

A. Background to the case

6. During 1991 and 1992 Serbian paramilitary forces gained control of about a third of the territory of Croatia and proclaimed the “Serbian Autonomous Region of Krajina” (Srpska autonomna oblast Krajina, hereinafter “Krajina”). At the beginning of August 1995 the Croatian authorities announced their intention to take military action with the aim of regaining control over Krajina. The operation was codenamed “Storm” (Oluja) and took place from 4 to 7 August 1995. Before the military action, the vast majority of the population of Krajina fled Croatia. Most of them went to Bosnia and Herzegovina, and also to Serbia. Some returned to Croatia after the war. The number of people who fled is estimated at between 100,000 and 150,000.

7. On 5 November 1997 Croatia ratified the Convention.

B. The killing of the applicants’ relative and the subsequent inquiry

8. The documents submitted by the parties reveal the following facts.

9. The applicants lived in Knin, within the territory of Krajina. During Operation Storm the town of Knin was shelled by the Croatian army. During the shelling the applicants hid in the basement of their building. J.T. was found dead near a petrol station in Knin after one of the shelling attacks. It appears that he was buried at a cemetery in Knin.

10. On 25 April 2001, during the exhumations at the “New Cemetery” (Novo groblje) in Knin, the first applicant approached the police and said that her husband, J.T., had been buried at that cemetery. The Šibenik-Knin Police Department, Knin Police Station (Policijska uprava šibensko-kninska, Policijska postaja Knin), then interviewed the first applicant about the circumstances of the death of her husband. She stated that her husband had died on 5 August 1995 near a petrol station in Knin. Given that Knin had been under artillery attack, the first applicant assumed that her husband had been killed by a shell. She further stated that she had seen her husband’s dead body lying on the pavement near the above-mentioned petrol station. She gave a detailed description of his appearance and of the clothes he had been wearing. Members of the Croatian army appeared at the crime scene and took the first applicant to a UNPROFOR (United Nations Protection Force) camp in Knin. She had obtained no further knowledge of the whereabouts of her husband’s body. She assumed that he was buried at a cemetery in Knin.

11. A number of remains were exhumed during May and June 2001 at the cemetery in Knin. The process was conducted under the auspices of the International Criminal Tribunal for the former Yugoslavia (Međunarodni kazneni sud za bivšu Jugoslaviju) and the County State Attorney’s Office in Šibenik (Županijsko državno odvjetništvo u Šibeniku). After they were exhumed, the remains were examined at the Institute for Forensic Medicine in Zagreb (Zavod za sudsku medicinu i kriminalistiku) but J.T.’s remains were not identified at that time. On 20 June 2001 the International Criminal Tribunal for the former Yugoslavia issued an autopsy report which concluded that the probable cause of the death for the remains which were only in 2010 identified as being those of J.T., was a gunshot to the neck.

12. On 26 November 2001 the Knin Police Station submitted to the Šibenik-Knin Criminal Police Department (Odjel kriminalističke policije, Policijska uprava šibensko-kninska) its official notes of the interviews which it had conducted with the families of the people killed during and after Operation Storm. The above-mentioned interview with the first applicant was also submitted.

13. On 28 November 2003 the Institute for Forensic Medicine in Zagreb extracted a genotype from J.T.’s remains and compared it with DNA samples from its database. However, they failed to find a match and could not establish the identity of the remains.

14. After the applicants on 26 February 2007 filed with the State Attorney’s Office a claim for damages in connection with the killing of J.T. (see paragraph 25 below), the Knin police opened an inquiry into the circumstances of his death.

15. On 5 December 2007 the Knin Police Station interviewed M.T., who stated that the first applicant had told her about the events in Knin during Operation Storm and the death of her husband, J.T. She had no further useful information.

16. On 13 February 2008 the Šibenik-Knin Criminal Police Department interviewed Lj.M. She described the events of 5 August 1995 as follows. During the artillery attack on Knin she and her family had hidden in a basement. After the attack they had left the basement. The Croatian army had led the civilians to a furniture shop, from where they had been taken to the barracks known as “southern camp” (južni logor). The first and the second applicants had also been in this group of civilians. As they had been passing through Knin, the witness had seen the dead body of J.T. He had been dressed in civilian clothes and had had no visible injuries. Lj.M indicated that she had no recollection of seeing J.T. wearing the military uniform of the Republic of Serbian Krajina (RSK: Republika Srpska Krajina). Lj.M’s statement was confirmed by her mother-in-law, Z.M.

17. On 19 February 2008 the Šibenik-Knin Criminal Police Department interviewed I.M., a neighbour of the Treskavica family. She stated that J.T. had not been a member of the army or the police of the Republic of Serbian Krajina and that she had never seen him wearing a military uniform. During Operation Storm her family and the Treskavica family had been hiding in the basement of their residential building. J.T. had occasionally come to the basement, but he had not been present all the time. The last time that I.M. had seen him alive had been on 5 August 1995, between 10 and 11 a.m. After they had all left the basement, she had seen the dead body of J.T. lying on the street. She had no further information.

18. On 20 February 2008 the Šibenik-Knin Criminal Police Department informed the County State Attorney’s Office in Šibenik that the case had not yet been registered and that it had failed to determine whether J.T. had been a member of the army or the police of the Republic of Serbian Krajina. The police indicated that they had conducted interviews with Lj.M. and I.M. However, it was not possible to conduct an interview with the first applicant, since she resided in England. The police indicated that J.T. had most likely been buried at the cemetery in Knin. His remains had been exhumed and transferred to the Institute for Forensic Medicine in Zagreb, where they were still being identified.

19. On 13 November 2009 P.T., J.T.’s brother, provided information about J.T.’s ante-mortem physical features to the Red Cross of Serbia (Crveni Krst Srbije) in order that his post-mortem remains might be identified. On the same day P.T. requested that a search be undertaken for the post-mortem remains of J.T.

20. On 14 February 2010 family members provided blood. After a DNA analysis was conducted, the Institute for Forensic Medicine in Zagreb issued a report dated 16 April 2010, which stated that the post-mortem remains were those of J.T.

21. On 24 May 2010 the family of J.T. was invited to the final identification of the post-mortem remains. On 16 June 2010 the first applicant confirmed the preliminary identification of the remains.

22. On 8 July 2010 the Šibenik-Knin Criminal Police Department submitted a list of missing persons to the Knin Police Station, together with a request for an inquiry into their disappearance and for interviews to be conducted with their families and neighbours. J.T. was listed as one of those missing persons.

23. On 19 July 2010 the remains of J.T. were buried at the local cemetery in Knin, in accordance with the wishes of the applicants.

24. On 10 August 2010 the Knin Police Station issued an official note about the inquiry into J.T.’s disappearance. After interviewing the first applicant, the police determined that J.T. had died on 5 August 1995 and had been buried on 19 July 2010 at the cemetery in Markovac. On 6 September 2010 the Knin Police Station notified the Šibenik-Knin Criminal Police Department of those findings.

25. On 7 July 2014 the Ministry of War Veterans (Ministarstvo branitelja) replied to a request of the War Crimes Department of the Ministry of the Interior (Ministarstvo unutarnjih poslova, Služba ratnih zločina) concerning the case of J.T. The Ministry of the Interior notified the police of the exhumation and identification of J.T.’s remains.

C. Civil proceedings

26. On 26 February 2007 the applicants submitted a claim for damages with the State Attorney’s Office in respect of the death of J.T. The request was refused.

27. On 14 June 2007 the applicants brought a civil action against the State in the Knin Municipal Court (Općinski sud u Kninu), seeking damages in respect of the death of J.T. under the 2003 Liability Act.

28. On 17 December 2008 the municipal court dismissed the claim on the ground that there was “no evidence that J.T.’s death had been a result of terror or violence aimed at gravely disturbing public order.” That judgment was upheld by the Šibenik County Court (Županijski sud u Šibeniku) on 1 March 2010 and by the Supreme Court (Vrhovni sud Republike Hrvatske) on 21 February 2012.

29. The applicants’ subsequent constitutional complaint was dismissed on 3 October 2012 by the Constitutional Court (Ustavni sud Republike Hrvatske).

II. RELEVANT DOMESTIC LAW

30. The relevant provisions 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 in particular 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 damage referred to in section 1 of this Act ...”

Section 3

“The obligation to compensate damage under this Act exists irrespective of whether the perpetrator has been identified, criminally prosecuted or found guilty.”

Section 7

“The victim shall have the right to compensation for damage resulting from death, bodily injury or impairment of health”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

31. The applicants complained that the authorities had not taken appropriate and adequate steps to investigate the death of J.T. and to bring the perpetrators to justice. They also claimed that J.T. had been killed because of his Serbian ethnic origin and that the national authorities had failed to investigate that factor. They relied on Articles 2, 13 and 14 of the Convention. The Court, being master of the characterisation to be given in law to the facts of the case, will examine this complaint under the procedural aspect of Article 2 of the Convention which, in so far as relevant, reads as follows:

“1. Everyone’s right to life shall be protected by law. ...

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

A. Admissibility

1. The parties’ submissions

32. The Government argued that the applicants had failed to exhaust all available domestic remedies. They contended that the applicants could have lodged a complaint against the individual police officers or State Attorney’s Office employees who had been in charge of the investigation into the death of J.T. Such a complaint could have led to the institution of disciplinary proceedings. As regards protection against unlawfulness in the conduct of the domestic authorities, the Government pointed out that the applicant could have sought damages from the State. They argued that such a combination of remedies had been found effective by the Court in the case of D.J. v. Croatia (no. 42418/10, 24 July 2012).

33. The Government further argued that the applicants had not complied with the six-month time-limit. They maintained that the applicants had addressed themselves to the State authorities in connection with the death of J.T. only twice: in 2001, when the bodies at the Knin cemetery had been exhumed (see paragraph 9 above); and in February 2007 in connection with their claim for damages (see paragraph 25 above). However, on neither occasion had they lodged a criminal complaint or a request for the identification of J.T.’s body. In their appeal of 24 December 2008 against the first-instance judgment, the applicants had expressed the view that the relevant authorities had done nothing to identify the perpetrators of J.T.’s death. Therefore, they had at that time already formed the opinion that the investigation was ineffective. Nevertheless, they had lodged their application with the Court only in 2013.

34. The applicants replied that they had not been in a position to take any action before 2010, when the body of J.T. had been identified.

2. The Court’s assessment

(a) Exhaustion of domestic remedies

35. The Court has already addressed the same objections regarding the exhaustion of domestic remedies in other cases against Croatia and rejected them (see Jelić v. Croatia, no. 57856/11, §§ 59-67, 12 June 2014). The Court sees no reason to depart from that view in the present case.

36. It follows that the Government’s objection must be dismissed.

(b) Compliance with the six-month rule

37. The Court reiterates that the purpose of the six-month rule is to promote legal certainty and to ensure that cases raising issues under the Convention are dealt with within a reasonable period of time. Furthermore, it is also meant to protect the authorities and other parties concerned from being left in a state of uncertainty for a prolonged period of time (see Bayram and Yıldırım v. Turkey (dec.), no. 38587/97, ECHR 2002‑III, and Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002).

38. Where no remedies are available or are judged to be ineffective, the six-month time-limit in principle runs from the date of the act complained of (see Hazar and Others v. Turkey (dec.), no. 62566/00, 10 January 2002). However, special considerations may apply in exceptional cases in which an applicant avails himself of, or relies on, an apparently existing remedy and only subsequently becomes aware of circumstances which render such a remedy ineffective; in such a case it is appropriate to take the start of the six-month period as the date on which he or she first became aware or ought to have become aware of those circumstances rendering the remedy ineffective (see Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001).

39. In a number of cases concerning ongoing investigations into the deaths of applicants’ relatives, the Court has examined the period of time from which the applicant could or should have started doubting the effectiveness of a remedy (see Şükran Aydın and Others v. Turkey (dec.), no. 46231/99, 26 May 2005; Bulut and Yavuz, cited above; Bayram and Yıldırım, cited above; Kıniş v. Turkey (dec.), no. 13635/04, 28 June 2005; Elsanova v. Russia (dec.) no. 57952/00, 15 November 2005; Frandeş v. Romania (dec.), no. 35802/05, 17 May 2011; Finozhenok v. Russia (dec.), no. 3025/06, 31 May 2011; Attalah v. France (dec.), no. 51987/07, 30 August 2011; Deari and Others v. the Former Yugoslav Republic of Macedonia (dec.), no. 54415/09, 6 March 2012; Gusar v. Moldova and Romania (dec.), no. 37204/02, 30 April 2013; Bogdanović v. Croatia (dec.), no. 722541/11, 18 March 2014; Orić v. Croatia, no. 50203/12, 13 May 2014; Gojević-Zrnić and Mančić v. Croatia (dec)., no. 5676/13, 17 March 2015; Radičanin and Others v. Croatia (dec.), no. 75504/12; and Grubić v. Croatia (dec.), no. 56094/12, 9 June 2015).

 40. Consequently, where a death has occurred, the victim’s relatives are expected to take steps to keep track of the investigation’s progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any effective criminal investigation (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 158, 18 September 2009). On the same basis, where time is of the essence in resolving the issues in a case, there is a burden on applicants to ensure that their claims are raised before the Court with the necessary expedition to ensure that they may be properly, and fairly, resolved (ibid. § 160).

41. The Court has refrained from indicating any specific period for establishing the point at which an investigation has become ineffective for the purposes of assessing when the six-month period should start to run; the determination of such a period by the Court has depended on the circumstances of each case and other factors, such as the diligence and interest displayed by the applicants, as well as the adequacy of the investigation in question. In this connection, in the above-cited Varnava and Others judgment the Court noted that where the lack of progress or ineffectiveness of an investigation was readily apparent, the requirements of expedition might require an applicant to bring such a case before the Court within a matter of months, or at most, depending on the circumstances, a very few years after the events in question. This is particularly pertinent in cases of unlawful death, where there is generally a precise point in time at which the death is known to have occurred and some basic facts are in the public domain; thus, the lack of progress or ineffectiveness of an investigation will generally be more readily apparent (see Varnava and Others, cited above, § 162).

42. In the present case, the Court notes that the investigation commenced in February 2007 (see paragraph 14 above). The remains belonging to J.T. were identified in April 2010 and the applicants were informed of it in May 2010. The applicants lodged their application with the Court on 18 August 2013, nineteen years after the date of J.T.’s death. The investigation was formally pending at the time at which the application was lodged (contrast with Utsmiyeva and Others v. Russia (dec.), no. 31179/11, § 34, 26 August 2014, and Kukavica v. Croatia (dec.), no. 79768/12, § 27, 2 June 2015).

43. The Court further observes that between February 2007 and May 2010 there were no significant periods of inactivity in the investigation (see paragraphs 14-21 above). The investigation has, however, remained at a standstill since May 2010 (see paragraphs 22-25 above).

44. The question therefore arises whether the applicants should have concluded in the period after May 2010 and before August 2013 (when the present application was lodged with the Court) that the ineffectiveness of the investigation required them to lodge their application with the Court before the latter date. The Court notes that this period of inactivity in the investigation amounts to some three years and three months.

45. The Court notes that the applicants lodged their application with the Court at the conclusion of the civil proceedings in which they had sought damages in connection with the death of their respective husband and father, J.T. However, the Court notes that these proceedings are not, in the circumstances of the present case, relevant to the State’s procedural obligation under Article 2 of the Convention, and therefore do not affect the running of the six-month period (compare to Narin v. Turkey, no. 18907/02, § 48, 15 December 2009; Orić, cited above, § 33; Gojević-Zrnić and Mančić, cited above, § 26; and Grubić, cited above, § 21).

46. As to the present case, the Court observes that it concerns the investigation into the killing of J.T., which was classified as a war crime. The Government argued that the Croatian authorities had been confronted by a high death toll (both civilian and military) and that it was not possible to immediately open investigations in respect of each of the deceased (see paragraph 55 below). The large number of victims certainly affected the progress of each individual investigation. Indeed, it took fifteen years for J.T.’s remains to be exhumed and identified.

47. The Court further reiterates that where information purportedly casting new light on the circumstances of a death comes into the public domain, a new obligation to investigate the death may arise (see Hackett v. the United Kingdom (dec.), no. 34698/04, 10 May 2005; Brecknell v. the United Kingdom, no. 32457/04, §§ 66-67, 27 November 2007; Williams v. the United Kingdom (dec.), no. 32567/06, 17 February 2009; Gasyak and Others v. Turkey, no. 27872/03, § 60, 13 October 2009; and Harrison and Others v. the United Kingdom (dec.), no 44301/13, § 51, 25 March 2014). It cannot be the case that any assertion or allegation can trigger a fresh investigative obligation under Article 2 of the Convention. Nonetheless, given the fundamental importance of this provision, the State authorities must be sensitive to any information or material which has the potential either to undermine the conclusions of an earlier investigation or to allow an earlier inconclusive investigation to be pursued further (see Brecknell, cited above, § 70). As to the present case, the Court notes that in May 2010 the body of J.T. was finally identified. This certainly amounted to important fresh evidence. Further, the Court notes that in July 2010 the Šibenik-Knin Criminal Police Department submitted a list of missing persons to the Knin Police Station, together with a request for an inquiry into their disappearance and for interviews to be conducted with their families and neighbours; J.T. was listed as one of those missing persons (see paragraph 22 above).

48. In such circumstances, where the State authorities were occupied with a large number of individual investigations into the deaths of numerous persons who had been killed during the war in Croatia and where the progress of some of those individual investigations was rather slow, and where a new fact – namely the identification of the victim – could have arguably led to the discovery of further leads, it cannot be said that the period of some three years and three months of no apparent progress in the investigation appears to constitute an excessive delay in respect of lodging the present application with the Court.

49. It follows that the applicants complied with the six-month time-limit.

(c) Conclusion as to admissibility

50. The Court finds that the complaint under the procedural aspect of Article 2 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

51. The applicants argued that the Government and the authorities which had discovered the body of J.T. had buried him in a mass grave at the Knin cemetery, without trying to elucidate the circumstances surrounding his death. The autopsy had only been carried out fourteen years later.

52. The applicants further stated that even after the war had ended, the authorities had failed to take action to reveal the circumstances surrounding the death of J.T.

53. The Government argued that there had been no violation of the procedural aspect of Article 2 in the present case. They maintained that the relevant domestic authorities had taken all reasonable measures that were available, given the circumstances of the case.

54. After Operation Storm, the Croatian authorities had been confronted by a high death toll, both civilian and military. It was not possible to immediately open investigations in respect of all the deceased and determine which of them had died during combat operations (as direct and/or collateral casualties) and which had died as a result of criminal offences. The Government also stated that it had not been possible simultaneously to carry out autopsies on all bodies to determine the cause of each death. They pointed out that even today, despite the more advanced technical and financial resources available, the simultaneous exhumation, identification, autopsy and reburial of such a large number of victims was still not possible.

55. The death of J.T. had occurred in circumstances the complexity of which had significantly delayed the opening of the investigation procedure. Several circumstances had hampered the promptness and expeditiousness of the authorities and presented obstacles to the progress of the investigation. Firstly, most of the witnesses either had had no knowledge of what had happened to those killed or had not been willing to testify. Secondly, the local police stations had become fully operational only at the beginning of 1996. At that stage, the primary task of the police had been to maintain the security of the territory and to protect people and property. Thirdly, there had been a lack of qualified staff, equipment and vehicles to cover the area and to respond to the high number of criminal offences committed after Operation Storm. Fourthly, the presence of weapons, mines and other explosive devices on the ground had further prevented prompt investigation.

56. With regard to the identification of the remains of J.T., the Government stated that a preliminary identification had been almost impossible in 1995. No documents had been found on the body that could have been used to identify him. An identification and DNA analysis could not have been carried out without a comparable DNA sample provided by a close relative. Only on 14 February 2010 had the applicants provided DNA samples.

57. Furthermore, the Government stated that before the first applicant had addressed the police officers in 2001, the Croatian authorities had had no knowledge of the death of J.T. Moreover, when the first applicant had addressed the police officers, she had not described J.T.’s death as the result of a criminal offence, but as a war casualty.

58. The Government pointed out that the investigating bodies had exhumed J.T.’s body and carried out an autopsy on the remains. Furthermore, the relevant authorities had immediately started collecting data and investigating the circumstances of his death. They had also conducted interviews with persons who might have had useful information about the circumstances surrounding his death.

2. The Court’s assessment

(a) General principles

59. The Court has already ruled that the obligation to protect life under Article 2 of the Convention, read in conjunction with a State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by either State officials or private individuals (see, for example, Branko Tomašić and Others v. Croatia, no. 46598/06, § 62, 15 January 2009).

60. The investigation must be effective in the sense that it is capable of leading to the identification and punishment of those responsible (see Oğur v. Turkey [GC], no. 21594/93, § 88, ECHR 1999‑III). In particular, the authorities must take the steps reasonably available to them to secure evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injuries and an objective analysis of clinical findings, including the cause of death (for an example of a case concerning autopsies, see Salman v. Turkey [GC], no. 21986/93, § 106, ECHR 2000-VII; for an example of a case concerning witnesses, see Tanrıkulu v. Turkey [GC], no. 23763/94, ECHR 1999-IV, § 109; and for an example of a case concerning forensic evidence, see Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible may risk falling short of this standard.

61. There must be a degree of public scrutiny of the investigation or its results sufficient to ensure accountability in practice, as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Shanaghan v. the United Kingdom, no. 37715/97, §§ 91-92, 4 May 2001).

62. Even where events took place far in the past, it is possible that new developments occur such that a fresh obligation to investigate arises, for example, newly discovered evidence comes to light (Brecknell, cited above, §§ 73‑75; Hackett, cited above; Gasyak and Others, cited above). The scope of the fresh obligation to investigate will vary according to the nature of the purported new evidence or information. It may be restricted to verifying the reliability of the new evidence. The authorities can legitimately take into account the prospects of launching a new prosecution at such a late stage. Due to the lapse of time, the level of urgency may have diminished; the immediacy of required investigative steps in the aftermath of an incident is likely to be absent (e.g. Brecknell, cited above, §§ 79-81). The standard of expedition in such historical cases is much different from the standard applicable in recent incidents where time is often of the essence in preserving vital evidence at a scene and questioning witnesses when their memories are fresh and detailed (see Palić v. Bosnia and Herzegovina, no. 4704/04, § 70, 15 February 2011 concerning complex post-conflict situations; Emin and Others v. Cyprus (dec.), no. 59623/08 et al., 3 April 2012; and Gürtekin and Others v. Cyprus (dec.), nos. 60441/13 et al., § 21, 11 March 2014; and Nikolić v. Croatia, no. 5096/12, § 42, 29 January 2015).

(b) Application of these principles to the present case

63. As regards the present case, the Court notes that the relevant authorities learned of J.T.’s death only in April 2001, when the first applicant notified the Knin police of it. However, only in 2007 – when the applicants addressed the State Attorney’s Office with their claim for damages against the State – did the authorities learn that the applicants deemed that his death might have been the result of a criminal offence. The police opened an inquiry, but given that almost twelve years had elapsed, the prospect of establishing the truth had significantly diminished. Furthermore, it appears that J.T. was killed during the shelling of Knin in August 1995 by the Croatian army and that the majority of persons who remained in Knin had been hiding in shelters such as basements of buildings, as had the applicants. According to the statement of the applicants’ neighbour I.M., J.T. had come to the shelter in the basement of their building only on occasions. Given these circumstances, it appears that there were no direct eyewitnesses to the killing of J.T.

64. At this juncture the Court reiterates that it has qualified the scope of the above-mentioned obligation to conduct an effective investigation as an obligation as to means, not as to results (see, for example, Shanaghan, cited above, § 90 and the judgments referred to therein). The Court notes that the police took statements from the first applicant (see paragraphs 10 and 24 above) and other witnesses (see paragraphs 15-17 above). None of them had any relevant knowledge of the circumstances in which J.T. had been shot in the neck. No other leads have been discovered.

65. The Court further notes that following the identification of J.T.’s remains in 2010, the Šibenik-Knin Criminal Police Department asked the Knin Police Station for an inquiry into the disappearance of a number of persons, including J.T., and for interviews to be conducted with their families and neighbours. However, given that the possible witnesses to J.T.’s killing had already been interviewed and those interviews had yielded no results, the Court accepts that the identification of J.T.’s remains does not appear as a factor which would have prompted the witnesses interviewed to reveal any new relevant evidence.

66. As regards the adequacy of the steps taken by the Croatian authorities in connection with the death of J.T., the Court is not persuaded by the applicants’ submission that there have been significant oversights or omissions. The facts of the case show that all traceable witnesses were interviewed and the available evidence collected and reviewed. The Court notes that the police pursued every line of enquiry (contrast to Charalambous and Others v. Turkey (dec.), no. 46744/07, § 65, 3 April 2012). The applicants have not pointed to any other concrete avenues of enquiry that the police could have pursued. The fact that the investigation did not succeed in identifying the perpetrators of J.T.’s death does not necessarily mean that the investigation was ineffective. In the circumstances, the Court cannot impugn the authorities for any culpable disregard, discernible bad faith or lack of will (compare to Gürtekin, cited above, § 27).

67. In conclusion, the Court finds that the national authorities complied with their procedural obligation under Article 2 of the Convention. It follows that there has been no violation of that provision.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

68. The applicants further complained, relying on Article 13 of the Convention, that the civil proceedings could not be considered an effective remedy in their attempt to obtain damages from the State. The Court, being master of the characterisation to be given in law to the facts of the case, considers that the complaint concerns the applicants’ right of access to a court, as guaranteed under Article 6 § 1 of the Convention. The relevant part of Article 6 § 1 of the Convention reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A. The parties’ submissions

69. The applicants argued that the ineffectiveness of the civil proceedings had been due to the fact that their claim for damages had been dismissed on the ground that they had not proved that their relative had been killed by members of the Croatian army or that his death had not been “war-related”.

70. The Government argued that the applicants had been able to bring their civil claim at several judicial instances before a regular civil court, where their claim had been decided on the merits.

B. The Court’s assessment

71. Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. That provision embodies the “right to a court”, of which one aspect is the right of access – that is to say, the right to institute proceedings before a court in civil matters. The “right to a court” is not absolute. By its very nature it calls for regulation by the State. Contracting States enjoy a certain degree of discretion in that respect but the ultimate decision as to the observance of the Convention’s requirements rests with the Court (see Golder v. the United Kingdom, 21 January 1975, §§ 34 in fine and 35-36, Series A no. 18, and Z and Others v. the United Kingdom [GC], no. 29392/95, §§ 91‑93, ECHR 2001-V).

72. Furthermore, it is in the first place for the national authorities, and notably the courts, to interpret domestic law. The Court’s role is limited to that of verifying compatibility with the Convention of the effects of such interpretation. Furthermore, the Court must make its assessment in each case in the light of the particular features of the proceedings in question and by reference to the object and purpose of Article 6 § 1 (see, mutatis mutandis, Miragall Escolano and Others v. Spain, nos. 38366/97, 38688/97, 40777/98, 40843/98, 41015/98, 41400/98, 41446/98, 41484/98, 41487/98 and 41509/98, § 36, ECHR 2000 I).

73. Croatian law undoubtedly afforded the applicants the possibility of bringing judicial proceedings. They availed themselves of that possibility by bringing a civil action against the State in the Knin Municipal Court (see paragraph 26 above), seeking compensation for the damage they had allegedly sustained on account of the death of J.T. After their claim was dismissed by the first-instance court, they appealed to the Šibenik County Court, and subsequently to the Supreme Court.

74. The national courts examined the applicants’ claim on the merits and found that the circumstances of the death of their relative remained unknown. They concluded that the applicants had failed to prove that J.T.’s death had been the “result of an act of terror or violence aimed at gravely disturbing public order”, as required under the 2003 Liability Act (see paragraph 30 above). On those grounds the applicants’ claim was dismissed.

75. It appears that the applicants are essentially dissatisfied with the outcome of the case and the burden of proof placed on them.

76. However, under Article 19 of the Convention, the duty of the Court is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, inter alia, Tamminen v. Finland, no. 40847/98, § 38, 15 June 2004).

77. Therefore, the Court will not in principle intervene unless decisions reached by domestic courts appear arbitrary or manifestly unreasonable, and provided that the proceedings as a whole were fair, as required by Article 6 § 1 (see Khamidov v. Russia, no. 72118/01, § 170, 15 November 2007, and Anđelković v. Serbia, no. 1401/08, § 24, 9 April 2013).

78. In the Court’s view, it is a normal feature of civil proceedings that the plaintiff must prove his or her claim. Since the national courts found that the applicants had not satisfied the burden of proof, their conclusions when dismissing the applicants’ claim do not appear arbitrary or manifestly unreasonable.

79. It follows that this complaint is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning Article 2 admissible and the remainder of the application inadmissible;

2. Holds that there has been no violation of Article 2 of the Convention.

Done in English, and notified in writing on 12 January 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stanley NaismithIşıl Karakaş
RegistrarPresident

 

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