SECOND SECTION
DECISION
Application no. 32023/13
Mladen and Predrag SAVIĆ
against Croatia
The European Court of Human Rights (Second Section), sitting on 12 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 17 April 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, Mr Mladen Savić and Mr Predrag Savić, are Croatian nationals, who were born in 1977 and 1972 respectively and live in Zemun. They were represented before the Court by Mr H. Alajbeg, a lawyer practising in Split.
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. 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 5 November 1997 Croatia ratified the Convention.
2. Death of the applicants’ father
6. According to the applicants her father, L.S., was killed on 5 August 1995 in the town of Knin, at the territory of Krajina, by unknown persons.
7. L.S.’s remains were exhumed in June 2001 and on the same day the Institute for Forensic Medicine in Zagreb issued a report stating gunshot wound as the cause of his death.
8. On 21 May 2004 the police interviewed M.Š., a neighbor of L.S., who said that he had heard that L.S. had been killed near his house but did not have any other relevant information about the circumstances of his death.
3. Civil proceedings
9. On 4 February 2004 and 25 January 2008 the applicants submitted two separate claims for damages with the State Attorney’s Office in respect of the death of L.S. Both requests were refused.
10. On 9 June 2008 the applicants brought a civil claim in the Knin Municipal Court (Općinski sud u Kninu) against the State, seeking damages in connection with the death of their father.
11. On 11 December 2008 the Knin Municipal Court dismissed the claim for lack of evidence. The parties did not suggest any further evidence. The first-instance court held that the applicants had not proved the circumstances of their father’s death and that M.S.’s death was war-related. This judgment was upheld by the Šibenik County Court (Županijski sud u Šibeniku) on 1 March 2010 and by the Supreme Court (Vrhovni sud Republike Hrvatske) on 21 February 2012.
12. The applicants’ subsequent constitutional complaint was declared inadmissible by the Constitutional Court (Ustavni sud Republike Hrvatske) on 3 October 2012 as manifestly ill-founded.
B. Relevant domestic law
13. 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
14. The applicants complained under the procedural aspect of Articles 2 and 14 of the Convention as well as under Article 13 of the Convention that the available criminal-law mechanisms in connection with the death of their father were inefficient, and that the national authorities had not investigated possible ethnic motives for his death, as required under Article 14 of the Convention.
15. 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 father’s death.
THE LAW
A. Alleged violation of Article 2 of the Convention
16. The applicants complained that the authorities had not taken appropriate and adequate steps to investigate the death of their father L.S. and to bring the perpetrators to justice. They also claimed that their father had been killed because of his Serbian ethnic origin and that the national authorities had failed to investigate that factor. They relied on Articles 2, 13 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
17. 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 father. 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).
18. They further maintained that the application had been lodged outside the six-month time-limit, because the applicants had never enquired about the progress of the investigation into the circumstances of their father’s death.
19. The applicants argued that they had complied with all of the admissibility criteria.
2. The Court’s assessment
20. 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.
21. 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 Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 258, ECHR 2014 (extracts)).
22. 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 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).
23. 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).
24. 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).
25. The Court reiterates that an applicant whose father had died may be expected to display a certain amount of diligence and initiative (see, mutatis mutandis, Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002). In the instant case, the Court notes that the applicants never requested the competent authorities to institute a criminal investigation into the death of their father. The body of the applicants’ father was exhumed and the cause of his death was established in 2001. The police interviewed one potential witness in May 2004 but no relevant information was provided. No other steps have been taken ever since.
26. Given the above circumstances of this case, the Court concludes that the applicants should have become aware long before April 2013, when they lodged their application with the Court, that there had been no further efforts to establish the circumstances of the death of their father since May 2004. However, they lodged the application with the Court about nine years after that.
27. 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 6 § 1 of the Convention
28. 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 characterization 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
29. 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 father’s death.
30. 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
31. 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).
29. 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).
32. 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 Knin Municipal Court (see paragraph 12 above), seeking compensation for the damage they had allegedly sustained on account of the death of their father M.S. After their claim was dismissed by the first-instance court, the applicants appealed to the Šibenik County Court, and subsequently to the Supreme Court (compare to Grubić, cited above, § 35).
33. The national courts examined the applicants’ claim on the merits and found that the circumstances of the death of their father 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.
34. 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).
35. 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).
36. 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).
37. 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 4 February 2016.
Abel CamposJon Fridrik Kjølbro
Deputy RegistrarPresident
Full & Egal Universal Law Academy