FIRST SECTION
DECISION
Application no. 5676/13
GOJEVIĆ-ZRNIĆ and MANČIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 17 March 2015 as a Chamber composed of:
Elisabeth Steiner, President,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 31 December 2012,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The first applicant, Mr Mijo Gojević-Zrnić was born in 1954 and lives in Knin, Croatia. The second applicant, Mr Stipan Gojević-Zrnić was born in 1949 and lives in Šibenik, Croatia. The third applicant, Ms Marija Mančić was born in 1952 and lives in Augsburg, Germany. They are all Croatian nationals and represented by Mr H. Alajbeg, a lawyer practicing in Split.
2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
3. The President of the Section decided to grant the Government’s request for confidentiality of the case file documents (Rule 33 of the Rules of Court).
The circumstances of the case
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. On 30 January 1993 the applicants’ mother, P.G.Z., was killed in the village of K. in Croatia, then occupied by Serbian paramilitary forces.
6. The Croatian authorities regained control over that territory in August 1995.
7. On an unspecified date, the Croatian police found photographs which the police of the Serbian paramilitary authorities had taken on 26 February 1993 in the course of an on-site inspection concerning the killing of the applicants’ mother.
8. It appears that the Croatian authorities opened an investigation into the killing of the applicants’ mother. On 27 February 1996 the Croatian police interviewed B.E., A.E. and P.E, neighbours of the applicants’ late mother. None of them had any relevant information about her killing.
9. On 26 January 1997, on the order of an investigating judge of the Šibenik County Court, the body of the applicants’ mother was excavated. The autopsy showed that she had been killed.
10. Between 21 September 2009 and 15 March 2010 the police interviewed six people in connection with the killing of the applicants’ mother, but none of them gave any relevant information.
11. In the meantime, on 1 December 2008 the applicants brought a civil action for damages against the State in connection with the killing of their mother, before the Knin Municipal Court. In the course of the proceedings before the first-instance court, at a hearing held on 15 April 2009, in the presence of the applicants’ legal counsel and the applicants themselves, all the evidence gathered during the investigation was presented. On 30 April 2009 the claim was dismissed. In their appeal of 3 June 2009 the applicants alleged, inter alia, that the Croatian authorities had failed to carry out any relevant measures in order to identify and punish those responsible for the killing of their mother. The first-instance judgment was upheld by the Šibenik County Court on 8 March 2010, the Supreme Court on 15 June 2011 and the Constitutional Court on 30 May 2012.
COMPLAINT
12. The applicants complained under Article 2 of the Convention that the investigation into the death of their mother had been ineffective.
THE LAW
13. The applicants complained that there had been no effective investigation into the circumstances in which their mother had been killed. They relied on Article 2 of the Convention, the relevant part of which reads:
Article 2
“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.”
1. The parties’ arguments
14. The Government firstly argued that the application was incompatible ratione personae with the provisions of the Convention because the applicants’ mother had been killed on territory which had been under the control of the Serbian paramilitary forces, over which the Croatian authorities had had no jurisdiction between 26 August 1991 and 5 August 1995. Given that the paramilitary forces had received assistance and support from the Serbian authorities, it was the duty of those authorities to carry out an investigation into the death of the applicants’ mother.
15. The Government further argued that the events complained of had taken place in January 1993, whereas the Convention had not entered into force in respect of Croatia until 5 November 1997. An investigation into the death of the applicants’ mother should have been carried out immediately after it had occurred. Therefore, the application was incompatible ratione temporis with the provisions of the Convention.
16. The Government further submitted that the applicants had failed to exhaust all available domestic remedies. They contended that the applicants could have lodged complaints against the individual police officers or employees of the State Attorney’s Office who had been in charge of the investigation into the death of their mother. Such complaints could have led to the institution of disciplinary proceedings. As regards protection against the alleged unlawfulness in the conduct of the domestic authorities, the Government pointed out that the applicants could have sought damages from the State for the unlawful acts of its officials.
17. The Government also submitted that the application had been lodged outside the six-month time-limit. The applicants had learned about all the evidence concerning the killing of their mother gathered by the police at a hearing held on 15 April 2009 in the civil proceedings they had instituted. In their appeal of 3 June 2009 against the first-instance judgment adopted in those proceedings, the applicants had complained about the ineffectiveness of the investigation. That showed that they had already been aware at that time that the investigation had been ineffective. However, they had not lodged their application with the Court within six months of those proceedings. Furthermore, since their mother’s death in 1993, the applicants had made no enquiries regarding the investigation into her killing.
18. As regards the Government’s objection ratione personae, the applicants argued that even though the Croatian authorities had not had control over the village of Kijevo at the time when their mother had been killed, in declaring its independence the Republic of Croatia had assumed legal responsibility for its whole territory. Under its Constitution, the authorities of Croatia were obliged to secure its sovereignty throughout its territory, as well as the safety of its population. The Government’s argument that the Serbian authorities had been responsible for carrying out the investigation into the death of the applicants’ mother was incorrect, since the Republic of Serbia had never had sovereignty over that territory. Furthermore, the Croatian authorities had opened an investigation, which showed that they had competence for doing so. The applicants also argued that they had exhausted all available remedies and complied with the six-month time-limit.
2. The Court’s assessment
19. The Court does not have to address all the issues raised by the parties, as this application is in any event inadmissible for non-compliance with the six-month time-limit set out in Article 35 of the Convention for the following reasons.
20. The Court reiterates that the purpose of the six-month rule is to promote security of law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. Furthermore, it is also meant to protect the authorities and other persons concerned from being under any 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).
21. 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 where an applicant avails himself of, or relies on, an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective; in such a case it is appropriate to take as the start of the six‑month period the date when 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).
22. 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; and Gusar v. Moldova and Romania (dec.), no. 37204/02, 30 April 2013).
23. Consequently, where death has occurred, applicant 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 the applicant to ensure that his or her claims are raised before the Court with the necessary expedition to ensure that they may be properly, and fairly, resolved (ibid. § 160).
24. Although the Court has refrained from indicating a specific period for establishing when 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 may 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. 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).
25. The Court reiterates that the procedural aspect of Article 2 of the Convention in circumstances such as those in the present case in principle requires an investigation capable of leading to the identification and punishment of those responsible. The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 69, ECHR 2002‑II).
26. As regards the applicants’ civil action for damages, the Court notes that they asked for compensation in connection with the death of their mother. However, in the circumstances of the present case, those proceedings are not 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; and Orić v. Croatia (dec.), no. 50203/12, § 33, 13 May 2014).
27. It follows, therefore, that the relevant domestic remedy for the applicants’ complaint, which would have had the potential to offer adequate redress, was the criminal investigation (compare to Narin, cited above, § 49; and Orić, cited above, § 34).
28. In the instant case, the Court notes that at the time when the applicant’s mother was killed in 1993, the Croatian authorities had no control over that territory. The Croatian authorities gained control over the territory at issue in August 1995, and in 1996 they opened an inquiry into the circumstances of the death of the applicants’ mother by interviewing her neighbours. None of those interviews gave any indication as to the identity of the perpetrator.
29. The Court reiterates that applicants whose close relatives have been killed may be expected to display a certain amount of diligence and initiative in informing themselves about the progress made in the investigation (see Bulut and Yavuz, cited above). In the Court’s opinion, since the applicants are the children of the victim, they should have displayed due diligence and taken the requisite initiative in informing themselves about the progress made in the investigation (see Varnava and Others, cited above, § 158, and Narin, cited above, § 45).
30. In the present case the applicants made no enquiries about the conduct of, or the progress made in, the criminal investigation at any time (compare to Narin, cited above, §§ 31 and 46, and Deari and Others, cited above, §§ 47-50). On the other hand, during the civil proceedings instituted by them (see paragraph 10 above), the applicants learned of all the evidence gathered by the police. In their appeal of 3 June 2009 against the first-instance judgment adopted in those proceedings, the applicants complained that the Croatian authorities had not carried out an effective investigation into the death of their mother.
31. Given the above circumstances of this case, the Court concludes that the applicants were aware at the latest on 3 June 2009 that there had been no progress in the investigation into the death of their mother, since they made such an allegation in their appeal of that date. However, they lodged the application with the Court more than three years after that, namely on 31 December 2012. They have not put forward any justification for that delay.
32. It follows that the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 9 April 2015.
André WampachElisabeth Steiner
Deputy RegistrarPresident
Full & Egal Universal Law Academy