FIRST SECTION
DECISION
Application no. 56094/12
Jovo GRUBIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 9 June 2015 as a Chamber composed of:
Isabelle Berro, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 13 August 2012,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Jovo Grubić, is a Croatian national who was born in 1952 and lives in Golubić. He was represented before the Court by Mr L. Šušak, a lawyer practising in Zagreb.
2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background to the case
4. During 1991 and 1992 Serbian paramilitary forces gained control over about one-third of the territory of Croatia and proclaimed the “Serbian Autonomous region of Krajina” (Srpska autonomna oblast Krajina, hereinafter “Krajina”). The applicant’s mother, N.G., remained living in Golubić, a village in “Krajina”. At the beginning of August 1995 the Croatian authorities announced a military action with the aim of regaining control over “Krajina”. The action was codenamed “Storm”, and took place from 4 to 7 August 1995. Before that action, the vast majority of the population of “Krajina” fled Croatia, firstly to Bosnia and Herzegovina, and later on many of them went to live in Serbia. Some returned to Croatia after the war. The number of people who fled is estimated at between 100,000 and 150,000.
2. Exhumation and identification of the applicant’s mother’s body
5. On 23 May 2002 the applicant lodged a request with the Yugoslav Red Cross in Belgrade for a search for his mother. He alleged that his mother had disappeared on 5 August 1995 in Golubić, during the “Storm” military action.
6. In May 2002 the body of the applicant’s mother was exhumed in Golubić and transferred to the Zagreb Forensic Institute (Zavod za sudksu medicine u Zagrebu). On 19 November 2002 an autopsy was carried out which failed to establish the cause of death. On 6 December 2002 the applicant received the autopsy report and the body was given to the family. On an unspecified date it was buried in the Golubić graveyard.
3. Civil proceedings for damages
7. On 27 December 2006 the applicant brought a civil action for damages against the State in the Knin Municipal Court (Općinski sud u Kninu). On 7 December 2007 the claim was dismissed on the ground that the circumstances of the death of his mother remained unknown. Thus the applicant had failed to prove either that his mother had been killed by Croatian army soldiers or that her death “resulted from an act of terror or violence aimed at gravely disturbing public order” and that her death was not war-related. This judgment was upheld by the Šibenik County Court (Županijski sud u Šibeniku) on 30 August 2010, and by the Supreme Court (Vrhovni sud Republike Hrvatske) on 6 April 2011.
8. The applicant’s subsequent constitutional complaint was dismissed by the Constitutional Court on 16 February 2012.
B. Relevant domestic law and practice
9. 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 the liability for damage caused by acts of terrorism or other acts of violence committed with an 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 damage referred to in section 1 of this Act ....”
Section 3
“The obligation to compensate for damage under this Act exists irrespective of whether the perpetrator has been identified, criminally prosecuted or found guilty.”
Section 7(1)
“The victim shall have the right to compensation [in the form of damages] of damage resulting from death, bodily injury or impairment of health.”
10. The Liability Act (Croatian Army and Police) (Zakon o odgovornosti Republike Hrvatske za štetu uzrokovanu od pripadnika hrvatskih oružanih i redarstvenih snaga tijekom Domovinskog rata, Official Gazette no. 117/2003 of 23 July 2003) governs the conditions under which the State is liable to pay compensation for damage caused by members of the army and the police during the Homeland War. The relevant provisions read as follows:
Section 1
“The present Act governs the liability of the Republic of Croatia for damage caused by members of the Croatian armed and police forces in military or police service or in connection with such service during the Homeland War in the period between 17 August 1990 and 30 June 1996.”
Section 2
“The Republic of Croatia is liable under general rules governing liability for damage only in respect of damage defined in section 1 hereof which does not have the character of war-related damage.”
Section 3
“(1) War-related damage within the meaning of this Act is, in particular:
– damage caused at the time when and on the territory where military actions were carried out with any means of war combat actions (bombardment, shelling, firing from machine-guns, explosions, mining, moving of troops and the like);
– damage resulting in direct and concrete military gain if, given the time and place where it occurred, it directly served military operations, and in particular:
(a) damage which was a direct consequence of any protective or planning measure which the competent military authorities carried out with the aim of removing or preventing an enemy attack;
(b) damage which was a direct consequence of protective or planning measures which the competent military authorities carried out in anticipation of an enemy action (work in fields, confiscation of movable property, occupation of real estate and the like);
(c) damage which was a direct consequence of measures taken with the aim of preventing the consequences of the damage described in subsection 1 of this section from spreading or of alleviating such consequences;
– damage which, having regard to its results and the specific time and place where it occurred, was directly caused by the state of war and is directly connected with war operations (direct consequences of war events in connection with unrest, turmoil, panic, evacuations and similar events [occurring] immediately after the war operations have been carried out).
(2) It is to be presumed that the damage caused by members of the Croatian armed and police forces in military or police service or in connection with such service during the Homeland War in the period between 17 August 1990 and 30 June 1996 is war-related damage, if it occurred at the time when and on the territory where military combat actions took place, but the injured party may prove the opposite.”
COMPLAINTS
11. The applicant complained that the available criminal-law mechanisms in connection with the death of his mother were inefficient, and that the national authorities had not investigated possible ethnic motives for her killing. He relied on Articles 2 and 14 of the Convention.
12. He further complained under Article 13 of the Convention in conjunction with Article 2 of the Convention that he had no effective remedy in order to challenge the ineffectiveness of the investigation into the death of his mother.
13. He also complained under Article 13 of the Convention that his claim for damages had been dismissed on the grounds that he had not proved that his mother had been killed by members of the Croatian army or that her death was not “war-related”. He claimed that there was no effective remedy in respect of his civil claim for damages.
THE LAW
A. Alleged violation of Articles 2 and 14 of the Convention
14. The applicant complained that the authorities had not taken appropriate and adequate steps to investigate the circumstances of his mother’s death and to bring the perpetrators to justice. He also claimed that his mother had been killed because of her Serbian ethnic origin and that the national authorities had failed to investigate that factor. He relied on Articles 2 and 14 of the Convention, which read as follows:
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.
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.”
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
1. The parties’ submissions
15. The Government argued that the applicant had failed to exhaust all available domestic remedies. They contended that the applicant could have lodged a complaint against individual police officers or employees of the State Attorney’s Office who had been in charge of the investigation into the death of his mother. Such a complaint could have led to the institution of disciplinary proceedings. As regards protection against alleged unlawfulness in the conduct of the domestic authorities, the Government pointed out that the applicant could have sought damages from the State under the State Administration Act. 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).
16. They further maintained that the application had been lodged outside the six-month time-limit, because the applicant had never enquired about the progress of the investigation into the circumstances of his mother’s death.
17. The applicant argued that he had complied with all of the admissibility criteria.
2. The Court’s assessment
18. The Court does not have to address all the issues raised by the parties, as this part of the 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.
19. 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 time. Furthermore, it ought also 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).
20. 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 or relies on an apparently existing remedy and only later 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).
21. As regards the applicant’s civil action for damages, the Court notes that he asked for compensation in connection with the death of his mother. However, 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).
22. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the 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, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others v. the United Kingdom, 27 September 1995, Series A no. 324, § 161; and Kaya v. Turkey, 19 February 1998, Reports of Judgments and Decisions 1998-I, § 86; and Paul and Audrey Edwards, cited above, § 69). The Court notes that in the present case it has not been established that the applicant’s mother’s death resulted from the use of force. The cause of her death remains unknown. It is therefore open to doubt whether the procedural obligation under Article 2 of the Convention has at all been triggered in the circumstances of the present case.
23. Be it as it may, the Court reiterates that applicant whose mother had died may be expected to display a certain amount of diligence and initiative (see, mutatis mutandis, Bulut and Yavuz, cited above). In the instant case, the Court notes that the applicant never requested the competent authorities to institute a criminal investigation into the death of his mother. Following his request lodged with the Red Cross, in 2002 the body of the applicant’s mother was exhumed and an autopsy was carried out which, however, did not establish the cause of her death. No other steps have been taken since December 2002.
24. Given the above circumstances of this case, the Court concludes that the applicant should have become aware long before August 2012, when he lodged his application with the Court, that there had been no further efforts to establish the circumstances of the death of his mother since December 2002. However, he lodged the application with the Court more than nine years after that. He has not put forward any justification for that delay.
25. It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
B. Alleged violation of Article 13 taken together with Article 2 of the Convention
26. The applicant also complained in conjunction with Article 2 of the Convention that he had no effective remedy by which to challenge the ineffectiveness of the investigation into the death of his mother. He relied on Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
1. The parties’ submissions
27. The applicant submitted that he had no remedy to contest the lack of an effective investigation into the circumstances in which his mother had died.
28. The Government replied that the applicant had several remedies at his disposal which he had failed to use (see paragraph 15 above).
2. The Court’s assessment
29. The Court notes that the applicant’s complaint under Article 13 of the Convention is essentially the same as those raised under Articles 2 and 14. It has therefore also been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
C. Alleged violation of Article 6 § 1 of the Convention
30. The applicant further complained, relying on Article 13 of the Convention, that the civil proceedings could not be considered an effective remedy in his 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 is rather an issue of the applicant’s right of access to 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 ...”
1. The parties’ submissions
31. The applicant argued that the ineffectiveness of the civil proceedings was due to the fact that his claim for damages had been dismissed on the grounds that he had not proved that his mother had been killed by members of the Croatian army or that her death was not “war-related”.
32. The Government argued that the applicant had been able to bring his civil claim before a regular civil court and to address himself to several judicial instances where his claim had been decided on the merits.
2. The Court’s assessment
33. 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. In this way, that provision embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before a court in civil matters, is one aspect. The “right to a court” is not absolute. By its very nature it calls for regulation by the State. Contracting States enjoy a certain margin of appreciation 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).
34. 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 verifying compatibility with the Convention of the effects of such an interpretation. Furthermore, the Court must make its assessment in each case in the light of the special 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).
35. Croatian law undoubtedly afforded the applicant the possibility of bringing judicial proceedings. He availed himself of that possibility by bringing a civil action against the State in the Knin Municipal Court (see paragraph 7 above), seeking compensation for the damage he had allegedly sustained on account of the death of his mother. When his claim was dismissed by the first-instance court, he appealed to the Šibenik County Court, and also to the Supreme Court.
36. The national courts examined the applicant’s claim on the merits and found that the circumstances of the death of his mother remained unknown. They concluded that the applicant had failed to prove either that his mother had been killed by Croatian army soldiers or that her death “resulted from an act of terror or violence aimed at gravely disturbing public order”. On these grounds the applicant’s claim was dismissed.
37. It appears that the applicant is essentially dissatisfied with the outcome of the case and the burden of proof placed on him.
38. However, according to 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).
39. Therefore, the Court will not in principle intervene unless the decisions reached by the 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).
40. In the Court’s view it is a normal feature of the civil proceedings that the plaintiff must prove his or her claim. Since the national courts found that the applicant had not satisfied the burden of proof, their conclusions, when dismissing the applicant’s claim do not appear arbitrary or manifestly unreasonable.
41. 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,
Declares the application inadmissible.
Done in English and notified in writing on 2 July 2015.
André WampachIsabelle Berro
Deputy RegistrarPresident
Full & Egal Universal Law Academy