FIRST SECTION
DECISION
Application no. 62726/10
Marija MRĐENOVIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 5 June 2012 as a Chamber composed of:
Anatoly Kovler, President,
Nina Vajić,
Elisabeth Steiner,
Khanlar Hajiyev,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 12 October 2010,
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, Ms Marija Mrđenović, is a Croatian citizen of Serbian ethnic origin, who was born in 1940 and lives in Slavonski Brod. She is represented before the Court by Ms M. Trninić, a lawyer practising in Slavonski Brod.
2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
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. On 7 October 1991 a bomb was thrown at a house owned by the applicant’s parents-in-law. A close relative of the applicant’s husband was killed and another injured.
5. In February and March 1992 fires were started at a house and adjacent premises owned by the applicant’s husband, B.
6. On 15 January 1993 while the applicant and her husband were returning from a funeral in Staro Petrovo Selo, B. was shot in the back. He was taken to a hospital in Nova Gradiška, where he died on 19 January 1993.
2. The criminal investigation
7. On the day of the shooting of the applicant’s husband the police arrived at the scene and carried out a crime scene inspection, which was continued the following day. The crime scene was photographed. The police examined the scene and recovered samples of earth, clothes and biological traces. The footprints found at the scene were not susceptible to forensic examination. A sniffer dog was also used and it was concluded that the perpetrator had walked for about seven hundred metres and had then driven away in a motor vehicle. A special team was formed in the Nova Gradiška Police Station which carried out further investigation. In January 1993 they interviewed more than twenty potential witnesses, including the applicant. However, all these steps were fruitless.
8. On 20 January 1993 an autopsy of B.’s body was carried out.
9. On 16 February 1993 the Nova Gradiška Police Station lodged a criminal complaint against an unknown perpetrator with the Požega County State Attorney’s Office. On 24 October 2001 the case was transferred to the Slavonski Brod County State Attorney’s Office. However, on 30 December 2008 the criminal complaint was dismissed on the grounds that the prosecution had become time-barred.
3. The civil proceedings
10. On an unspecified date the applicant and her two children brought a civil action against the State in the Nova Gradiška Municipal Court, seeking compensation in connection with the death of B.
11. On 6 December 2005 the Municipal Court awarded each claimant 132,000 Croatian kuna (HRK).
12. This judgment was altered by the Slavonski Brod County Court on 21 December 2007. The court lowered the compensation awarded to each child to HRK 90,000 but upheld the sum awarded to the applicant.
13. The applicant and her children lodged an appeal on points of law with the Supreme Court. In respect of the applicant’s children, the appeal was declared inadmissible ratione valoris. As regards the applicant, the Supreme Court reversed the lower courts’ judgment and found that the claim had become time-barred in 1996.
COMPLAINTS
14. The applicant complained that the national authorities had not conducted an effective and thorough investigation into the death of her husband.
15. She also complained under Article 6 of the Convention of the assessment of facts and interpretation of laws by the national courts as regards her civil action for damages.
16. Under Article 14 of the Convention, the applicant complained that she had been discriminated against on the basis of her Serbian origin as regards the application of the statutory limitation period in respect of her civil claim.
THE LAW
A. Alleged violations of Article 2 of the Convention
17. The applicant complained that the domestic authorities had not taken all relevant and adequate steps to investigate the death of her husband, identify the perpetrator and bring that person to justice. The Court considers that this complaint should be examined under the procedural aspect of Article 2 of the Convention, the relevant part of which reads:
“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’ submissions
18. The applicant argued that the investigation into the death of her husband, B., had not been thorough, as the perpetrator had not been identified.
19. The Government argued that the applicant had failed to exhaust all available domestic remedies, as she had not lodged a complaint with the Ministry of Interior against the police officer who had conducted the police investigation.
20. They further contended that any complaints under Article 2 of the Convention were incompatible ratione temporis with the provisions of the Convention, since the events in question had occurred prior to the ratification of the Convention by Croatia on 5 November 1997.
21. They also argued that this part of the application had been lodged out of the six-month time-limit because the criminal complaint had been dismissed on 30 December 2008.
22. Lastly, they argued that the national authorities had taken all relevant steps aimed at identifying the perpetrator but these steps had nevertheless been to no avail.
2. The Court’s assessment
23. The Court does not have to address all the issues raised by the parties, as this application is in any event inadmissible on the following grounds.
24. The Court emphasises that the provisions of the Convention do not bind a Contracting Party in relation to any act or omission which took place or any situation which ceased to exist before the date of the entry into force of the Convention with respect to that Party or, as the case may be, before the date on which the respondent Party recognized the right of individual petition (“the critical date” – see Blečić v. Croatia [GC], no. 59532/00, § 70, ECHR 2006‑III; Šilih v. Slovenia [GC], no. 71463/01, § 140, 9 April 2009; and 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, § 130, ECHR 2009). The Court may, however, have some regard to facts which occurred prior to the critical date because of their causal connection with subsequent facts which form the sole basis of the complaint and of the Court’s examination (see Šilih, cited above, § 141).
25. The Court notes that the shooting of B. took place on 15 January 1993 and that he died on 19 January 1993. In this connection the Court notes that the Convention entered into force in respect of Croatia on 5 November 1997. Therefore, any complaints by the applicant asserting the responsibility of the Contracting State for factual events in 1993 are outside the Court’s temporal jurisdiction.
26. However, following the killing of the applicant’s husband, a procedural obligation arose requiring the authorities of the respondent State to conduct a thorough, effective and independent investigation and criminal proceedings where all necessary steps aimed at indentifying and punishing the perpetrator are taken. The applicant contended that the obligation was of an indefinite duration and did not expire until it had been satisfied. The Court must therefore consider whether any procedural obligation arising in the present case under Article 2 of the Convention is within its temporal jurisdiction.
27. It is clear from the Court’s case-law that the procedural obligation to carry out an effective investigation under Article 2 constitutes a separate and autonomous duty on Contracting States. It can therefore be considered an independent obligation arising out of Article 2, capable of binding the State even when the death took place before the critical date (see, inter alia, Šilih, cited above, § 159; Varnava and Others, cited above, § 147; and Velcea and Mazăre v. Romania, no. 64301/01, § 81, 1 December 2009). As the Court has previously observed, the procedural obligation under Article 2 binds the State throughout the period in which the authorities can reasonably be expected to take measures with the aim of elucidating the circumstances of a death and establishing responsibility for it (see Šilih, cited above, § 157). In this context, it should be noted that there are little grounds to be overly prescriptive as regards the possibility of an obligation to investigate unlawful killings arising many years after the events, since the public interest in obtaining the prosecution and conviction of perpetrators is firmly recognised, particularly in the context of war crimes and crimes against humanity (see Brecknell v. the United Kingdom, no. 32457/04, § 69, 27 November 2007).
28. However, having regard to the principle of legal certainty, the Court’s temporal jurisdiction as regards compliance with procedural obligations in respect of events that occur before the critical date is not open-ended. As the Court explained in Šilih, cited above, §§ 161-163, where the death occurred before the critical date, only procedural acts or omissions which occur after that date fall within the Court’s temporal jurisdiction. Further, there must exist a genuine connection between the death and the entry into force of the Convention in respect of the respondent State for the procedural obligations imposed by Article 2 to come into effect. In practice, this means that a significant proportion of the procedural steps required by this provision have been, or should have been, carried out after the critical date. However, the Court does not exclude that in certain circumstances the connection could also be based on the need to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective manner (see also Agache and Others v. Romania, no. 2712/02, § 69, 20 October 2009; and Velcea and Mazăre, cited above, §§ 83-85; Tuna v. Turkey, no. 22339/03, §§ 58-60, 19 January 2010).
29. The Court reiterates in this regard that there is an important distinction to be made between cases involving missing persons and those involving killings in so far as its assessment of whether the procedural obligation falls within the competence ratione temporis of the Court is concerned. As the Court found in Varnava and Others, cited above, §§ 148‑149:
“There is however an important distinction to be drawn in the Court’s case-law between the obligation to investigate a suspicious death and the obligation to investigate a suspicious disappearance. A disappearance is a distinct phenomenon, characterised by an ongoing situation of uncertainty and unaccountability in which there is a lack of information or even a deliberate concealment and obfuscation of what has occurred ... This situation is very often drawn out over time, prolonging the torment of the victim’s relatives. It cannot therefore be said that a disappearance is, simply, an ‘instantaneous’ act or event; the additional distinctive element of subsequent failure to account for the whereabouts and fate of the missing person gives rise to a continuing situation. Thus, the procedural obligation will, potentially, persist as long as the fate of the person is unaccounted for; the ongoing failure to provide the requisite investigation will be regarded as a continuing violation (see the fourth inter-State case, § 136). This is so, even where death may, eventually, be presumed.
It may be noted that the approach applied in Šilih v. Slovenia (cited above, § 163) concerning the requirement of proximity of the death and investigative steps to the date of entry into force of the Convention applies only in the context of killings or suspicious deaths, where the anchoring factual element, the loss of life of the victim, is known for a certainty, even if the exact cause or ultimate responsibility is not. The procedural obligation in that context is not of a continuing nature in the sense described above.”
30. The Court has previously considered cases in which some investigation into the deaths in question, as well as relevant court proceedings seeking redress, took place both before and after the critical date (see, for example, Šilih, cited above; Teren Aksakal v. Turkey, no. 51967/99, ECHR 2007‑X (extracts); Agache and others, cited above; Velcea and Mazăre, cited above; Şandru and Others v. Romania, no. 22465/03, 8 December 2009; and Tuna, cited above). In such cases, having established that some of the steps were taken after the critical date, the Court examined the nature of these steps and their significance to the procedural obligation under Article 2 in order to assess whether it had temporal jurisdiction. Accordingly, in Šilih, the proximity in time of the death of the applicant’s son to the acceptance by Slovenia of the right of individual petition, as well as the fact that the large majority of the civil and criminal proceedings occurred after the critical date, established the temporal competence of the Court in respect of the procedural obligation under Article 2 of the Convention (see Šilih, cited above, §§ 164-165). In Teren Aksakal, the Court noted that the procedure by which the authorities had the opportunity to provide appropriate redress for the alleged violations of the Convention had terminated some sixteen years after the date on which Turkey had recognised the right of individual petition. The obligation on Turkey to have regard to their obligations under the Convention in respect of all pending cases justified the establishment of the Court’s temporal jurisdiction in respect of the procedural steps and legal proceedings which continued after the critical date (Teren Aksakal, cited above, §§ 67 and 74‑76). In finding that it had temporal jurisdiction in the cases of Agache and others, Velcea and Mazăre and Tuna, the Court emphasised that all or most of the criminal and civil proceedings had begun and were completed after the critical date and that the complaints before the Court essentially related to these proceedings (Agache and others, cited above, §§ 70-72; Velcea and Mazăre, cited above, §§ 86-87; and Tuna, cited above, §§ 61‑62).
31. In the present case, the applicant’s procedural complaint is related to alleged failings in the investigation. As noted above, in order for the Court’s jurisdiction to be established in respect of the alleged violation of the respondent State’s procedural obligations, it must be shown that omissions occurred after the critical date and that there is a genuine connection between the death of the applicant’s husband and the coming into effect of the Convention in respect of Croatia. Accordingly, the Court must be satisfied that a significant proportion of the procedural steps required by the Convention ought to have been carried out after the critical date.
32. In accordance with their Article 2 obligations, the Croatian authorities were required to conduct an effective official investigation into the shooting and subsequent death of B. on 15 and 19 January 1993, promptly and with reasonable expedition (see, inter alia, Yaşa v. Turkey, 2 September 1998, §§ 102-104, Reports of Judgments and Decisions 1998‑VI; Çakıcı v. Turkey [GC], no. 23657/94, §§ 80-87, ECHR 1999‑IV; and Mahmut Kaya v. Turkey, no. 22535/93, §§ 106-107, ECHR 2000‑III). The Court notes that the police arrived at the crime scene on the same day the shooting took place and secured all available evidence. During January 1993 more than twenty potential witnesses were questioned and the police pursued every line of information. However, the perpetrator was not identified. The Court notes that all relevant steps were taken at the beginning of 1993, more than four years and ten months before the Convention entered into force in respect of Croatia.
33. While it is clear that there are circumstances in which the procedural obligations arising under Article 2 may be, to some degree, revived, those circumstances are not present here. As the Court has previously noted, it cannot be the case that any assertion or allegation can trigger a fresh investigative obligation under Article 2. However, where there is a new, plausible allegation, piece of evidence or item of information relevant to the identification, and eventual prosecution or punishment of the perpetrator of an unlawful killing, the authorities are under an obligation to take further investigative measures (see Brecknell, cited above, §§ 70-71). In the present case, the Court observes that no fresh information has been obtained since the beginning of 1993 which could revive the authorities’ procedural obligation to investigate the applicant’s husband’s death and to bring the procedural obligations under Article 2 within the temporal jurisdiction of the Court.
34. Accordingly, the Court finds that the alleged failure of the Croatian authorities to investigate the death of B. and to inform the applicant of the outcome of the investigation occurred before 5 November 1997. The applicant’s procedural complaint under Article 2 must therefore be considered inadmissible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
B. Other alleged violations of the Convention
35. The applicant also complained, relying on Articles 6 and 14 of the Convention about the assessment of facts and the application of laws in the civil proceedings for damages and that she had been discriminated against in those proceedings on the basis of her Serbian ethic origin.
36. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3(a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren NielsenAnatoly Kovler
RegistrarPresident
Full & Egal Universal Law Academy