Communicated on 29 June 2015
FIRST SECTION
Application no. 19544/15
Janko OREŠČANIN
against Croatia
lodged on 17 April 2015
STATEMENT OF FACTS
The applicant, Mr Janko Oreščanin, is a Croatian national of Serbian ethnic origin, who was born in 1934 and lives in Vrginmost. He is represented before the Court by Mr L. Šušak, a lawyer practising in Zagreb.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
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, initially for Bosnia and Herzegovina, but later many of them went to live in Serbia. Some returned to Croatia after the war.
The applicant lived in the village of Blatuša, on the territory of “Krajina”. When the action “Storm” was announced” he fled Croatia.
On 20 June 2007 the applicant brought a civil action against the State in the Gvozd Municipal Court, seeking damages in the amount of 1,198,383 Croatian kuna, in connection with the destruction and theft of his movable property, allegedly by members of the Croatian army. He alleged that in the first days of the action “Storm” a unit of Croatian army had been stationed in his house. The members of that unit stole his movable property and then burned his house. He submitted a long list of movable property that had allegedly been stolen.
During the proceedings several witnesses testified that the applicant had been a very rich person and had had a number of agricultural equipment and a fully equipped and large house. As to the occupation of the applicant’s house witnesses Ɖ.J., J.O. and M.K. gave their evidence. The relevant part of the written record of Ɖ.J.’s statement reads:
“To a question by the judge, the witness states that immediately after the action ‘Storm’ he was passing [near the plaintiff’s house] and saw persons dressed in camouflage uniforms carrying away objects from the plaintiff’s house. ‘I think that the house and all plaintiff’s [belongings] were burnt’.
To a further question by the judge the witness states that that was Croatian army because only that army was then [present] at that territory.
To a further question by the judge the witness states that when he was passing by the plaintiff’s house [he saw] army in the yard and that then the plaintiff’s house started to burn and that all this happened few days after the action ‘Strom’ but he does not know the exact date.
...
At a further question by the plaintiff’s counsel the witness states that the burning was done by soldiers in Croatian uniforms.”
The relevant part of the written record of M.K’s statement reads:
“... I remember that when I came [to Blatuša] after the action ‘Storm’ that I saw some persons in his [plaintiff’s] house. I entered inside and saw that it was Croatian army. They told me that they were stationed there. They had insignia of the Croatian army and of their brigade. I think that it was on 10th or 11th August 1995 and I remember that in the plaintiff’s yard I saw a bulldozer, agricultural loader (utovarivač), and something else but I do not remember now whether these were disc ploughs (tanjurače) or chisel ploughs (drljače).
To a question by the judge the witness states that when he came again seven days after that 10th or 11th August 1995 he saw that the plaintiff’s house had been burnt, but had not seen who had done it.
...”
On 14 November 2008 the Gvozd Municipal Court dismissed the claim on the grounds that the plaintiff had not proved the following: that the repossession of his property was not possible; who was in possession of his property; that his property had been taken by members of the Croatian army; that the damage he sought was not war-related.
This judgment was upheld by the Sisak County Court on 9 December 2010 and the Supreme Court on 19 February 2014.
The applicant’s subsequent constitutional complaint was dismissed on 15 October 2014 by the Constitutional Court This decision was served on the applicant’s counsel on 23 October 2014.
B. Relevant domestic law
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 armed conflict. 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
The applicant complains under Article 6 § 1 of the Convention that the findings of the national courts were completely arbitrary.
He further complains under Article 8 of the Convention that the national courts failed to recognise that the destruction of his property had no justified reason and that there was no military need for it.
Lastly, he complains under Article 14 of the Convention that the national courts discriminated against him on the grounds of his Serbian ethnic origin.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention?
2. Has there been a violation of the applicant’s right to peaceful enjoyment of possessions, contrary to the requirements of Article 1 of Protocol No. 1?
3. Has the applicant suffered discrimination in the enjoyment of his Convention rights on the ground of his ethnic origin, contrary to Article 14 of the Convention?
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