FIRST SECTION
DECISION
Application no. 50203/12
Savo ORIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 13 May 2014 as a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Julia Laffranque,
Paulo Pinto de Albuquerque,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 3 July 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 Savo Orić, is a Croatian national of Serbian ethnic origin, who was born in 1952 and lives in Topolovica. He was represented before the Court by Mr J. Jelić, a lawyer practising in Bjelovar.
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. Criminal Investigation
4. On 9 December 1991 the police lodged a criminal complaint with the Bjelovar County State Attorney’s Office against unknown perpetrators on charges of terrorism, alleging that on 5 November 1991 they had learned that there were two corpses in a house in Topolovica. The police had visited the said house and found two bodies, identified as Ljuban Orić and Mara Orić. The crime scene had been photographed.
5. At the request of the applicant, on 15 December 2000 the Grubišno Polje Municipal Court (Općinski sud u Grubišnom Polju) decided that Ljuban and Mara Orić, the applicant’s parents, were presumed to have died on 3 November 1991.
6. In their letter of 22 August 2005 the Bjelovar County State Attorney’s Office qualified the criminal offence as murder and asked the Grubišno Polje Police about the progress of the investigation into the deaths. The latter replied on 31 January 2006 that it had been concluded that the applicant’s parents had been killed in unknown circumstances during a military operation.
7. On 9 November 2006 the Grubišno Polje Police interviewed four people, K.M., I.M., M.S. and J.S., who all lived in Topolovica in 1991. They submitted that between August and November 1991 Toplovica had been occupied by Serbian para-military forces. At the beginning of November 1991 the Croatian forces had entered the village and taken them to another place. When they were leaving they had seen many parts of the village burning.
8. The witness I.M. had returned to the village three days later and entered the house of the Orić family, where he had seen the dead bodies of Ljuban and Mara Orić. The next time he visited the village the house had partly burned down and the roof had fallen in.
9. The witness M.S. submitted that he had been a member of the Croatian Army and on 1 November 1991 when his village, Topolovica, had been taken over by the Croatian army he had seen two copses lying on a bed in the house of the Orić family. He had recognized Ljuban and Mara Orić. Ljuban had had no visible injuries while Mara had been shot. His mother, J.S., had told him that Ljuban had died a natural death because he had not received his medication. Mara had been killed by an unknown person when she had refused to leave the village with the Croatian Army.
10. The witness J.S. submitted that the Serbian para-military forces which had controlled Topolovica had left at the end of October 1991. On the third day thereafter the Croatian army had entered the village. One T.F. had told her that Ljuban Orić, who had been suffering from leukemia, had died because he had not received his medication.
11. The police interviewed J.V. and A.P., the police officers who had carried out the on-the-scene inspection in the house of the Orić family in November 1991, on 7 and 10 March 2008 respectively. J.V. submitted that both victims had been shot with firearms. The woman had been shot in the head and chest. He was not sure about the man, but thought that he had been shot in the chest. He had found bullet cartridges and traces of blood. He had also photographed the crime scene. No other steps had been taken owing to the ongoing war. A.P. submitted that both victims had been shot with firearms and that the house had been burned down.
2. Administrative proceedings
12. On an unspecified date the applicant sought financial assistance for the reconstruction of his parents’ house. His request was dismissed by the administrative authorities in 2003 on the ground that he had not resided in that house at the time the damage had occurred. The applicant brought the same claim again in 2005. It was dismissed on the ground that the same request had already been decided upon.
3. Civil proceedings
13. On 7 February 2007 the applicant, through his legal representative, brought a civil action against the State in the Grubišno Polje Municipal Court, seeking compensation in connection with the death of his parents and the destruction of their property. The claim was dismissed on 3 April 2007 and this judgment was upheld by the Bjelovar County Court and the Supreme Court on 6 September 2007 and 9 April 2008, respectively. The national courts found that the claim had been submitted after the statutory limitation period had expired.
14. The applicant’s subsequent constitutional complaint was dismissed on 9 May 2012.
15. The applicant was legally represented throughout the proceedings.
B. Relevant domestic law
16. The relevant part of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/00, 51/2001, 111/2003, 190/2003, 105/2004, 84/2005, 71/2006, 110/2007, 152/2008, 57/2011, 125/2011, 143/2012 and 144/2012) reads:
Article 81
“(1) The criminal prosecution shall be time-barred after:
- forty years if the case concerns a criminal offence punishable by long term imprisonment or imprisonment of more than fifteen years,
- twenty-five years for a criminal offence punishable by more than ten years’ imprisonment,
- twenty years for a criminal offence punishable by more than five years’ imprisonment,
- fifteen years for a criminal offence punishable by more than three years imprisonment,
- ten years for a criminal offence punishable by more than one year imprisonment,
- six years for other criminal offences.
(2) Criminal prosecution for the crime of genocide (Article 88), aggressive war (Article 89), crimes against humanity (Article 90), war crimes (Article 91) and other criminal offences which are not subject to statutory limitation according to the Constitutional or international law.
(3) If before the expiry of the time-limits under paragraph 1 of this Article, a first-instance judgment has been passed, the statutory limitation periods shall be extended for further two years.”
COMPLAINTS
17. The applicant, relying on Articles 2 and 8 of the Convention, complained about the killing of his parents. He further complained under the procedural aspect of Articles 2 and 14 of the Convention that the criminal law mechanisms as applied in the case at issue did not meet the standards required and that the national authorities had failed to investigate possible ethnic motives for the killing of his parents.
18. He also complained under Article 6 of the Convention that the national courts did not examine his claim for damages on the merits.
THE LAW
A. Alleged violation of Articles 2, 8 and 14 of the Convention
19. The applicant complained that the killing of his parents, who were of Serbian ethnic origin, in 1991 amounted to a war crime against the civilian population and that no effective investigation into the circumstances of their death had taken place. He also contended that the national authorities had failed to investigate possible ethnic motives for their killing allegedly by Croatian soldiers. He relied on Articles 2, 8 and 14 of the Convention, the relevant parts of which read:
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.
...”
Article 8
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
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.”
20. The Court, being master of the characterisation to be given in law to the facts of the case, will consider the applicant’s complaints under Articles 2 and 14 of the Convention.
1. The parties’ arguments
21. The Government argued that the events complained of had taken place in 1991, while the Convention had entered into force in respect of Croatia on 5 November 1997, and that therefore the part of the application concerning the actual death of the applicant’s parents was incompatible ratione temporis with the provisions of the Convention.
22. As regards the procedural aspect of Article 2 of the Convention, they argued that the investigation into the death of the applicant’s parents should have taken place within the six years that elapsed between their death and the entry into force of the Convention in respect of Croatia. In that period all the relevant investigative steps should have been taken. The acts taken by the national authorities before 5 November 1997 had not led to the identification of the perpetrators. There was no “link” between the death of the applicant’s parents and the entry into force of the Convention and therefore the criteria for the Court’s competence ratione temporis, as established in the Šilih judgment (Šilih v. Slovenia [GC], no. 71463/01, § 163, 9 April 2009), had not been satisfied
23. They further submitted that the applicant had failed to exhaust all available domestic remedies. They contended that the applicant could have lodged complaints against the individual police officers or employees of the State Attorney’s Office who were in charge of the investigation into the death of his parents. Such complaints 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 pursuant to the State Administration Act (Zakon o sustavu državne uprave). They argued that such a combination of remedies had been found effective by the Court in the case of D.J. v. Croatia.
24. The Government also submitted that this part of the application had been lodged outside the six-month time-limit and that it was incompatible ratione temporis with the Convention. The applicant’s constitutional complaint had been lodged exclusively in connection with the civil proceedings for compensation and not in connection with the State’s procedural obligations under Articles 2 and 14 of the Convention. Therefore, the decision of the Constitutional Court of 9 May 2012 could not be regarded as a final decision in the present case in respect of the applicant’s complaint under Articles 2 and 14 of the Convention. Since his parents’ death in 1991 the applicant had not made any enquiries regarding the investigation into their killing.
25. The applicant did not submit any comment on the issues related to the admissibility of his application.
2. The Court’s assessment
26. The Court does not have to address all the issues raised by the parties, as this application is in any event inadmissible for the following reasons.
Compliance with the six-month rule
(i) General principles
27. 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 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).
28. 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 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).
29. 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 start 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).
30. 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 (Varnava and Others, cited above, § 160).
31. 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 runs from, the determination of such a period by the Court 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-mentioned Varnava and Others judgment, the Court noted that where the lack of progress or ineffectiveness of an investigation is 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 events. This is in particular pertinent in cases of unlawful death where there is generally a precise point in time at which death is known to have occurred and some basic facts are in the public domain and thus the lack of progress or ineffectiveness of an investigation will generally be more readily apparent (see Varnava and Others, cited above, § 162).
(ii) Application of the above principles to the circumstances of the present case
32. 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).
33. As regards the applicants’ civil action for damages, the Court notes that they asked for compensation in connection with the death of their father. 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).
34. 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).
35. In the instant case, the Court notes that immediately after the impugned event in question in 1991, the police took some initial steps to investigate the circumstances of the applicant’s parents’ death. They visited the house where the bodies had been found and photographed the scene (see paragraph 4 above). Further steps were taken in November 2006 when the police interviewed some potential witnesses, and then in March 2008 when they interviewed two further potential witnesses (see paragraphs 7-11 above).
36. At this juncture the Court notes that the murder of the applicant’s parents was committed during the war in Croatia and that in his application to the Court the applicant alleged that his parents were murdered by Croatian soldiers. He also argued that they had been killed because of their Serbian ethnic origin. All these elements might be relevant for the classification of the offence as a war crime in respect of which the rules on statutory limitation of prosecution do not apply (see Article 18 of the Criminal Code, paragraph 16 above). However, the applicant’s above allegations have not been proven and the Court does not have sufficient elements to dispute the classification of the offence by the national authorities. However, independently from whether or not the offence could be classified as a war crime, the complaints under Articles 2 and 14 of the Convention would in any event be inadmissible for the following reasons.
37. 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 (Bulut and Yavuz, cited above). In the Court’s opinion, since the applicant is the son of the victims, he should be expected to display due diligence and take the requisite initiative in informing himself about the progress made in the investigation (see Varnava and Others, cited above, § 158, and Narin, cited above, § 45). This applies irrespective of the legal qualification of the offence as a murder or as a war crime.
38. The Court notes that the case at issue concerns an instance of violent death. In applying the six-month time-limit for lodging an application in such instances the following periods between the last relevant procedural step on the part of the national authorities and lodging the applications with the Court have been considered too lengthy: in the above-cited cases of Narin, Aydin and Others and Hazar, that period was about seven years; in Bulut and Yavuz it was about six years, while in other cases it ranged from three and a half years to one year and eight months (in Bayran and Yildirim it was three and a half years; in Finozhenok it was three years; in Deari and Others it was two and a half years; in Elsanova it was two years; and in Gusar it was one year and eight months).
39. In the present case the applicant did not show adequate interest in following up 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). In the period between December 1991 and August 2005 which amounts to some fourteen years there was no activity in the investigation and the applicant did not react to that inactivity. Furthermore, the period between the last steps taken in the investigation into the circumstances of the applicant’s parents’ death on 5 November 1991 and the lodging of the application with Court on 3 July 2012 amounts to some four years and four months.
40. Given the above circumstances of this case, the Court concludes that the applicant should have become aware long before July 2012 when he lodged his application with the Court that there had been no progress in the investigation in the period between December 1991 and August 2005, and then again after March 2008. However, he lodged the application with the Court more than four years after that. He has not put forward any justification for that delay.
41. 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 violations of Article 6 § 1 of the Convention
42. The applicant complained about the administrative authorities’ decision refusing his request for financial assistance. He also complained that that the national courts wrongly found that his claim for damages had been lodged after the statutory limitation period had expired and therefore had not examined it on the merits. He relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
1. The administrative proceedings
43. Assuming that any issue under the Convention might at all arise in respect of these proceedings, the Court notes that the last decision in these proceeding was taken in 2003 while the application was lodged with the Court on 3 July 2012.
44. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
2. The civil proceedings
45. 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 (see Bogdanović v. Croatia (dec.), no. 72254/11, 18 March 2014).
For these reasons, the Court, by a majority,
Declares the application inadmissible.
Søren NielsenIsabelle Berro-Lefèvre
RegistrarPresident
Full & Egal Universal Law Academy