ŽARKOVIĆ AND OTHERS v. CROATIA

FIRST SECTION

DECISION

Application no. 75187/12
Sava ŽARKOVIĆ and Others
against Croatia

The European Court of Human Rights (First Section), sitting on 9 June 2015 as a Chamber composed of:

Isabelle Berro, President,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Paulo Pinto de Albuquerque,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković, judges,
and André Wampach, Deputy Section Registrar,

Having regard to the above application lodged on 12 November 2012,

Having regard to the declaration submitted by the respondent Government on 17 December 2014 requesting the Court to strike the application out of its list of cases and the applicants’ reply to that declaration,

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 first applicant, Ms Sava Žarković, is a Croatian national and the second and third applicants, Ms Milica Amanović and Mr Nikola Grubor, are Serbian nationals. The applicants were born in 1945, 1948 and 1952, respectively. They all live in Belgrade, Serbia. They were represented by Mr L. Šušak, a lawyer practising in Zagreb.

2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Background to the case

3. 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 number of people who fled is estimated at between 100,000 and 150,000.

2. Killing of the applicants’ relative

4. On 24 August 1995 the applicants’ relative, J.G., disappeared in the village of Plavno, on the territory of “Krajina”. His body has never been found. From the documents and observations submitted by the parties it appears that no investigation has ever been opened into the circumstances of J.G.’s disappearance or death.

3. Civil proceedings

5. On 13 July 2005 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 J.G. under the Act on Liability of the Republic of Croatia for Damage Caused by Members of the Croatian Army and Police When Acting in Their Official Capacity During the Homeland War (hereinafter the “Liability Act (Croatian Army and Police)”). The case was transferred to the Knin Municipal Court (Općinski sud u Kninu).

6. The Knin Municipal Court heard three witnesses and on 3 January 2008 dismissed the applicants’ claim on the grounds that the killing of J.G. was war-related damage and that the applicants had not proved that J.G. had been killed by Croatian soldiers or police, as they were required to do by the Liability Act (Croatian Army and Police). The relevant part of the first-instance judgment reads:

“The evidence shows that the death of J.G., which occurred on 24 August 1995 in Plavno, after the military action “Storm”, when the Croatian army was stationed on that territory with the aim of securing it, could be considered as damage directly caused by the state of war and connected with the disorder, turmoil, panic, evacuation and similar events immediately after the war operations. Thus, it is war-related damage and ... the liability of the Republic of Croatia is excluded.

...

In view of the above, section 1 of the Liability Act (Croatian Army and Police) cannot be applied ... since there is no evidence that the damage was caused by the Croatian army or Croatian armed forces or the police.

... The plaintiffs did not prove that the members of the Croatian armed forces caused the death of their respective husband and father because there were no direct eyewitnesses.

...”

7. This judgment was upheld by the Šibenik County Court (Županijski sud u Šibeniku) on 19 April 2010. The relevant part of this judgment reads:

“The documents in the case file show that the plaintiffs’ father had disappeared in Plavno on 24 August 1995, that his body had never been found and that he was presumed dead from 6 August 1995 onwards by virtue of a decision of the Knin Municipal Court of 20 June 2000.

...

The first-instance court correctly concluded that neither the plaintiffs nor the witnesses in these proceedings had seen what had happened to the plaintiffs’ father. The fact that at the time there were members of the Croatian army and police in Plavno, on the territory where the military action “Storm” had taken place, cannot in itself be accepted as proof that J.G. had actually been killed by members of the Croatian army.

....

The plaintiffs had to prove that their father had been killed by members of the [Croatian] armed forces or police, and that the murder was not a consequence of war action (war-related damage). It is presumed that war-related damage is damage caused by members of the [Croatian] armed forces or police in military or police service or in connection with such service during the Homeland War (between 17 August 1990 and 30 June 1996), if the damage was caused at the time and on the territory where military actions took place ... The plaintiffs failed to prove not only that the damage was not war-related damage but also that the damage was caused by members of the Croatian armed forces or police.

...”

8. The applicants’ appeal on points of law lodged with the Supreme Court was dismissed on 23 November 2011. The relevant part of the Supreme Court’s judgment reads:

“The lower courts dismissed the claim on the grounds that the plaintiffs had not proved that J.G. had been killed by members of the Croatian armed or police forces, or that his killing was not a result of a war activity (war-related damage), owing to which the conditions for the defendant’s liability had not been fulfilled.

The lower courts based their conclusions on the following facts:

– that the plaintiffs’ respective husband and father J.G. had disappeared in Plavno on 24 August 1995;

– that his body had never been found, and that 6 August 1996 [1995] was considered as the date of his death (decision of the Knin Municipal Court ... of 20 June 2000);

– that during the military action “Storm” the inhabitants of the village of Grubori in Plavno went to the village school so as to be registered by the members of the UNPROFOR and taken to Serbia, whereas the late J.G. had stayed at his home; that they [the inhabitants of the village of Grubori] had met on their way [to the village school] twenty-five to thirty armed soldiers; that after they had left for the village school their part of the village had been burned down; and that they had found several dead bodies upon their return to their homes, but not that of J.G.

This court considers that the lower courts correctly applied substantive law when they dismissed the plaintiffs’ claim.

Section 1 of the Liability Act (Croatian Army and Police) 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. Under section 2 of the Liability Act (Croatian Army and Police) the Republic of Croatia is liable under general rules on liability for damages only in respect of damage under section 1 of that Act which does not have the character of war-related damage.

Furthermore, under section 3 of the Liability Act (Croatian Army and Police), it is presumed that damage caused by members of the Croatian armed and police forces in military or police service or in connection with military combat actions during the Homeland War in the period between 17 August 1990 and 30 June 1996 is war-related damage, but a plaintiff may prove the opposite.

Since it has not been proven that the damage at issue had been committed by members of the Croatian armed or police forces (neither the plaintiffs nor the witnesses in the proceedings having seen what had happened to J.G.) this court considers that the lower courts correctly applied substantive law when they dismissed the plaintiffs’ claim on that ground. The fact that there were members of the Croatian army or police on the relevant days in Plavno, which is part of the territory where the military action “Storm” took place, does not in itself amount to proof and does not lead to the conclusion that J.G. was indeed killed by members of Croatian armed or police forces, as is correctly stated in the impugned second-instance judgment.

Furthermore, and irrespective of the plaintiffs’ failure to prove that the damage at issue was caused by members of the Croatian army, and given that the killing of J.G. occurred in Plavno after the military action “Storm”, when the Croatian army stayed in that territory so as to secure it, it should be said that in the case at issue the presumption of war damage governed by section 3 of the Liability Act (Croatian Army and Police) has been fulfilled (being 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), damage for which the defendant Republic of Croatia is not liable under section 2 of the Liability Act (Croatian Army and Police), as was correctly concluded by the lower courts.

...”

9. The applicants’ subsequent constitutional complaint was declared inadmissible by the Constitutional Court on 7 May 2012 as manifestly ill‑founded.

B. Relevant domestic law

10. 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

11. 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 disappearance and death of their close relative were inefficient, and that the national authorities had not investigated possible ethnic motives for his death, as required under Article 14 of the Convention.

12. 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 that their relative had been killed by members of the Croatian army or that his death was not “war-related” damage. They claimed that there was no effective remedy in respect of their civil claim for damages.

THE LAW

A. Alleged violation of Articles 2 and 14 of the Convention

13. The applicants complained that the authorities had not taken appropriate and adequate steps to investigate the circumstances of the death of their close relative J.G. or to bring the perpetrators to justice. They also claimed that J.G. 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 and 14 of the Convention, which read as follows:

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.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

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.”

14. In a letter submitted on 17 December 2014 the Government informed the Court that they proposed to make the following unilateral declaration with a view to resolving the issues raised under Articles 2 and 14 of the Convention:

“I declare, by way of this unilateral declaration, that the Government of the Republic of Croatia:

(a) acknowledges that in the instant case there has been a violation of the applicants’ right to life, as regards the manner in which the criminal law mechanisms have been applied in the present case by the domestic authorities, as well as the violation of the procedural obligation under Article 14 of the Convention; and

(b) is ready to pay to the applicants 18,900 euros jointly, to cover any non-pecuniary damage and costs and expenses, plus any tax that may be chargeable to the applicants.

This sum will be converted into Croatian kunas at the rate applicable on the date of payment, and will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights to the account indicated by the applicant. In the event of failure to pay this sum within the said three-month period, the Government undertakes to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. This payment will constitute the final resolution of the case”

The declaration is signed by the Government’s Agent.

15. By letter of 4 February 2015 the applicants rejected the Government’s offer, considering the proposed sum to be too low and insisting on the examination of their other complaints.

16. The Court reiterates that Article 37 § 1 (c) of the Convention enables it to strike a case out of its list where:

“... for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

17. It also points out that, in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

18. To this end, the Court will examine the declaration carefully in the light of the principles established in its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).

19. The Court is satisfied that the Government did not dispute this part of the allegations made by the applicants and explicitly acknowledged the breaches of Articles 2 and 14 of the Convention as claimed by them.

20. As to the intended redress to be provided to the applicants, the Government have undertaken to pay 18,900 euros (EUR) in respect of non-pecuniary damage, as well as costs and expenses. The Court notes that even if that amount does not exactly correspond to the awards made by the Court in similar cases, what is important is that the proposed sum is not unreasonable in comparison with them (see Cocchiarella v. Italy [GC], no. 64886/01, § 105, ECHR 2006‑V). The Government have committed themselves to paying that sum within three months from the Court’s decision, with default interest to be due in case of late payment.

21. The Court notes that it has repeatedly found violations of Article 2 taken alone or in conjunction with Article 14 of the Convention on account of inadequate investigations into the killing or ill-treatment of applicants or their close relatives (see Jularić v. Croatia, no. 20106/06, 20 January 2011; Skendžić and Krznarić v. Croatia, no. 16212/08, 20 January 2011; and Jelić v. Croatia, no. 57856/11, 12 June 2014; and, mutatis mutandis, Šečić v. Croatia, no. 40116/02, 31 May 2007). It follows that the complaints raised in the present application are based on the clear and extensive case‑law of the Court.

22. The Court further notes that the Committee of Ministers remains competent to supervise, in accordance with Article 46 § 2 of the Convention, the implementation of judgments concerning similar issues. Therefore, the Court is satisfied that respect for human rights as defined in the Convention (Article 37 § 1 in fine) does not require it to continue its examination of this part of the application. In any event, the Court’s decision is without prejudice to any decision it might take to restore, pursuant to Article 37 § 2 of the Convention, this part of the application to its list of cases should the Government fail to comply with the terms of their unilateral declaration (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008, and Aleksentseva and 28 Others v. Russia (dec.), nos. 75025/01 et al., 23 March 2006). The Court thus considers that it is no longer justified to continue its examination of this part of the application.

23. In view of the above, it is appropriate to strike out of the list the part of the application concerning the inadequacies in the investigation into the killing of the applicants’ close relative J.G. This decision is without prejudice to the Government’s continuing obligation to conduct an investigation in compliance with the requirements of the Convention.

B. Alleged violation of Article 6 § 1 of the Convention

24. The applicants further complained, relying on Article 13 of the Convention, that the civil proceedings for damages 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 is rather an issue of the applicants’ right of access to 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

25. The applicants argued that the ineffectiveness of the civil proceedings was due to the fact that their claim for damages had been dismissed on the grounds that they had not proved that their relative had been killed by members of the Croatian army or that his death was not “war‑related”.

26. The Government argued that the applicants had been able to bring their civil claim before a regular civil court and to come before a number of judicial bodies in which their claim had been decided on the merits.

2. The Court’s assessment

27. 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. In this way, that provision embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before a court in civil matters, is one aspect. The “right to a court” is not absolute. By its very nature it calls for regulation by the State. Contracting States enjoy a certain margin of appreciation 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).

28. 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 verifying compatibility with the Convention of the effects of such an interpretation. Furthermore, the Court must make its assessment in each case in the light of the special 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).

29. 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 6 above), seeking compensation for the damage they had sustained on account of the killing of their close relative. When their claim was dismissed by the Knin Municipal Court, to which the case had been transferred, they appealed to the Šibenik County Court, and also to the Supreme Court.

30. The national courts examined the applicants’ claim on the merits and found that the circumstances of the disappearance and death of their relative remained unknown. They concluded that the applicants had failed to prove either that their relative had been killed by Croatian army soldiers or that his death had “resulted from an act of terror or violence aimed at gravely disturbing public order”. On these grounds the applicants’ claim was dismissed.

31. It appears that the applicants are essentially dissatisfied with the outcome of the case and the burden of proof placed on them.

32. However, in accordance with 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).

33. Therefore, the Court will not in principle intervene unless the decisions reached by the 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).

34. In the Court’s view it is a normal feature of the 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 (see paragraphs 6 and 7 above) do not appear arbitrary or manifestly unreasonable.

35. 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,

Takes note of the terms of the respondent Government’s declaration under Articles 2 and 14 of the Convention and of the arrangements for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (a) of the Convention in so far as it relates to the complaint under Articles 2 and 14 of the Convention; and

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 2 July 2015.

              André WampachIsabelle Berro
Deputy RegistrarPresident

Full & Egal Universal Law Academy