SECOND SECTION
DECISION
Application no. 38882/13
Desanka OPAČIĆ and Miloš GODIĆ
against Croatia
The European Court of Human Rights (Second Section), sitting on 26 January 2016 as a Committee composed of:
Jon Fridrik Kjølbro, President,
Ksenija Turković,
Georges Ravarani, judges,
and Abel Campos, Deputy Section Registrar,
Having regard to the above application lodged on 31 May 2013,
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 applicants, Ms Desanka Opačić and Mr Miloš Godić, are Croatian nationals, who were born in 1940 and 1937 respectively and live in Vojnić and Frankfurt. They were 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.
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. In 1991 the armed conflict escalated in Croatia. During the years 1991 and 1992 Serbian paramilitary forces gained control of about one third of the territory of Croatia and proclaimed the so-called “Serbian Autonomous region of Krajina” (Srpska autonomna oblast Krajina, hereinafter the “Krajina”). At the beginning of August 1995 the Croatian authorities announced a campaign of military action with the aim of regaining control over the Krajina. The action was codenamed “Storm” and lasted from 4 to 7 August 1995. Before that action, the vast majority of the population of the Krajina had 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.
5. On 6 August 1995 the applicants’ mother, A.G., together with the other members of her family, was in a convoy of tractors and other vehicles, with civilians and soldiers of the Serbian para-military forces, which was trying to flee Croatia and reach Bosnia and Herzegovina. When the convoy was passing by the village of Rujevac, an exchange of fire between the Serbian para-military forces in the convoy and the Fifth Corpus of the Army of Bosnia and Herzegovina ensued. The applicant’s mother was killed in that incident but her body has not yet been found.
6. On 5 November 1997 Croatia ratified the Convention.
2. The first phase of the investigation into the wounding of the applicant
7. The Croatian authorities learned about the death of the applicants’ mother in August 2003 when the applicants brought their civil action for damages with the Zagreb Municipal Court (see paragraph 9 below). On 2 March 2004 the police interviewed the first applicant who confirmed the facts summarised in paragraph 5 above.
3. Investigation following the Sisak County State Attorney Office’s request for information
8. On 10 June 2011 the Sisak County State Attorney Office’s requested the police to “check the circumstances in which A.G. had lost her life”. Between 11 and 26 July 2011 the police interviewed N.O., a granddaughter of A.G. as well as the first and the second applicants but no new information was obtained.
4. Civil proceedings
9. On 18 August 2003 the applicants brought a civil claim in the Zagreb Municipal Court (Općinski sud u Zagrebu) against the State, seeking damages in connection with the death of their mother.
10. The Zagreb Municipal Court heard evidence from the applicants and two witnesses and on 22 November 2006 dismissed the claim. The parties did not suggest any other evidence. The first-instance court held that the death of the applicants’ mother was war-related damage for which the Sate was not liable. This judgment was upheld by the Zagreb County Court (Županijski sud u Zagrebu) on 25 September 2007 and by the Supreme Court (Vrhovni sud Republike Hrvatske) on 21 March 2012.
11. The applicant’s subsequent constitutional complaint was declared inadmissible by the Constitutional Court (Ustavni sud Republike Hrvatske) on 21 November 2012 as manifestly ill-founded.
B. Relevant domestic law
12. The relevant provisions of the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations and of the Liability Act (Croatian Army and Police) are set out in Grubić v. Croatia (dec.), no. 56094/12, §§ 9-10, 9 June 2015.
COMPLAINTS
13. The applicants complained under the procedural aspect of Articles 2 and 14 of the Convention that the available criminal-law mechanisms in connection with the death of their mother were inefficient, and that the national authorities had not investigated possible ethnic motives for her death, as required under Article 14 of the Convention.
14. They further complained under Article 13 of the Convention that their claim for damages had been dismissed on the grounds that they had not proved the circumstances of their mother’s death.
THE LAW
A. Alleged violation of Article 2 of the Convention
15. The applicants complained that the authorities had not taken appropriate and adequate steps to investigate the death of their mother A.G. and to bring the perpetrators to justice. They also claimed that their mother had been killed because of her Serbian ethnic origin and that the national authorities had failed to investigate that factor. They relied on Articles 2 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. ...”
1. The parties’ submissions
16. 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 individual police officers or employees of the State Attorney’s Office who had been in charge of the investigation into the death of their respective son and brother. 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 applicants 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).
17. They further maintained that the application had been lodged outside the six-month time-limit, because the applicants had submitted their application with the Court about eighteen years after their mother had been killed.
18. The applicants argued that they had complied with all of the admissibility criteria.
2. The Court’s assessment
19. The Court does not have to address all the issues raised by the parties, as this application is, for the following reasons, in any event inadmissible for non-compliance with the six-month time-limit set out in Article 35 of the Convention.
20. 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 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).
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 Rumania (dec.), no. 37204/02, 30 April 2013).
23. Consequently, where a 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 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 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. In the present case, the Court notes that the applicants lodged their application with the Court more than seventeen years after the date of the killing of their mother, and that the investigation was formally pending at the time when the application was lodged (compare to Utsmiyeva and Others v. Russia (dec.), no. 31179/11, § 34, 26 August 2014).
27. The Court further observes that the investigation has not attained any tangible results and no suspects have been identified. The investigation remained at a standstill from March 2004 for the significant period of more than seven years, when no steps were taken and no communication between the authorities and the applicants took place (see paragraphs 7 and 8 above).
28. The Court notes that all military activity in the area at issue ceased in August 1995. The applicants had received no information from the authorities for more than seven years, and yet there is no evidence in the documents submitted that – despite such a significant period of silence on the part of the authorities – they attempted to request information on their own initiative. They remained passive in respect of the seemingly dormant domestic investigation (compare to Utsmiyeva and Others, cited above, § 36). If the applicants failed to become aware of the ineffectiveness of the investigation given such a significant lull in the course of proceedings, the Court considers that this was attributable to their own negligence (see, for example, Findik and Omer v. Turkey (decs.), nos. 33898/11 and 35798/11, § 15).
29. The Court observes that since the applicants are the children of the victim of the violations claimed, they may be expected to display due diligence and take the requisite initiative in informing themselves about the progress being made in the investigation into their mother’s killing. The absence of any news from the investigators of such a serious crime for such a significant period of time should have prompted them to draw appropriate conclusions (see, for example, Açış v. Turkey, no. 7050/05, § 42, 1 February 2011).
30. In view of the above, the Court finds that the applicants have not shown convincingly that some kinds of advances were being made that would justify their inactivity for more than seven years. The standstill in the investigation occurred in March 2004, well before 31 May 2013 when this application was lodged (compare to Finozhenok, cited above). The Court finds that, following the standstill in the investigation, the applicants ought to have concluded long before – and certainly more than six months before – the introduction of the present application that this investigation was without effect.
31. As to the round of investigation which had occurred in 2011, the Court notes 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; 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 does not find that the steps taken in 2011 can lead to any other conclusion, since they have not led to the discovery of any new elements (see, mutatis mutandis, Finozhenok, cited above; and Nasirkayeva v Russia (dec.), no. 1721/07).
32. Accordingly, the Court finds that this part of the present application must be rejected for failure to comply with the six-month time-limit set out in Article 35 §§ 1 of the Convention.
B. Alleged violation of Article 6 § 1 of the Convention
33. 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 ...”
1. The parties’ submissions
34. 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 the circumstances of their mother’s death.
35. The Government argued that the applicants had been able to bring their civil claim at several judicial instances before a regular civil court, where the claim had been decided on the merits.
2. The Court’s assessment
36. 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; and Grubić v. Croatia (dec.), cited above, § 33).
37. 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; and Grubić, cited above, § 34).
38. 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 Zagreb Municipal Court (see paragraph 9 above), seeking compensation for the damage they had allegedly sustained on account of the death of their mother. After their claim was dismissed by the first-instance court, the applicants appealed to the Zagreb County Court, and subsequently to the Supreme Court (compare to Grubić, cited above, § 35).
39. The national courts examined the applicants’ claim on the merits and found that the circumstances of the death of their mother remained unknown. On those grounds the applicants’ claim was dismissed. It appears that the applicants are essentially dissatisfied with the outcome of the case and the burden of proof placed on them.
40. 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; and Grubić, cited above, § 38).
41. 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).
42. 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 (compare to Grubić, cited above, § 40).
43. 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 18 February 2016.
Abel CamposJon Fridrik Kjølbro
Deputy RegistrarPresident
Full & Egal Universal Law Academy