FIRST SECTION

DECISION

Application no. 41317/15 Dimitrije Å KRPAN against Croatia

The European Court of Human Rights (First Section), sitting on 8 December 2020 as a Chamber composed of:

Krzysztof Wojtyczek, President, Ksenija Turković , Linos-Alexandre Sicilianos, Alena Poláčková , Péter Paczolay , Gilberto Felici , Erik Wennerström , judges,

and Abel Campos, Section Registrar ,

Having regard to the above application lodged on 13 August 2015,

Having regard to the observations submitted by the Croatian Government (“the Government”) and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Dimitrije Škrpan , is a Croatian national who was born in 1956 and lives in Srbac . He was represented before the Court by Mr J. Doneski , a lawyer practising in Garešnica .

2 . The Government were represented by their Agent, Ms S. Stažnik .

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

4 . In August 1992 the applicant was arrested by Croatian military police officers and placed in detention in a military barracks in Nova Gradiška .

5 . On 15 March 2010 the applicant submitted a request to the State Attorney ’ s Office of the Republic of Croatia ( Državno odvjetništvo Republike Hrvatske ), seeking damages in respect of his ill-treatment by the Croatian military police officers during his detention in 1992. On 25 March 2010 the State Attorney ’ s Office of the Republic of Croatia forwarded the applicant ’ s request to the Slavonski Brod County State Attorney ’ s Office ( Županijsko državno odvjetništvo u Slavonskom Brodu ), which in turn asked the police to look into the matter.

6 . After conducting an inquiry, on 19 March 2011 the police lodged a criminal complaint against I.K., a Croatian military police officer at the time, for the offence of a war crime against a civilian population.

7 . On 28 March 2011 the Slavonski Brod County State Attorney ’ s Office lodged with the Slavonski Brod County Court ( Županijski sud u Slavonskom Brodu ) a request for an investigation, alleging that there was reasonable suspicion that I.K. had committed a war crime against a civilian population by ill-treating the applicant during his detention in 1992, leading the latter to attempt suicide.

8 . On 3 January 2012 the Slavonski Brod County State Attorney ’ s Office dropped the charges against I.K., holding that there was no evidence that he had committed the offence of a war crime.

9 . The applicant took over the prosecution and on 8 May 2012 filed an indictment against I.K. on charges of a war crime against a civilian population.

10 . During the proceedings, the Osijek County Court established that on 9 August 1992 the applicant had been arrested by M.F. and M.K., who were military police officers, and that during the applicant ’ s detention in a military barracks in Nova Gradiška I.K. had hit him several times in order to extract information from him about certain weapons. The medical documentation drawn up during the applicant ’ s hospitalisation in the Nova Gradiška Medical Centre between 10 and 17 August 1992 showed that two of his ribs were fractured.

11 . On 14 November 2012 the Osijek County Court acquitted I.K. The relevant parts of that judgment read as follows.

“[T]he court concludes that the tragic event occurred from 9 to 10 August 1992 in a Croatian army military barracks in Nova Gradiška ... There is no doubt that the victim, Dimitrije Škrpan , sustained blows all over his body by unknown members of the Croatian armed forces while being detained in a military barracks in Nova Gradiška . What usually happened was that four members of those forces would enter the premises where the victim was held and hit him for several minutes ...

It is undisputed that on 10 August 1992 the victim, Dimitrije Å krpan , was driven to a state of mental instability as a consequence of a particular form of torture and that he attempted suicide, as a result of which he sustained a life-threatening injury but was saved by prompt medical intervention.

Having regard to the psychiatric report, which stated that the suicide attempt could not be correlated with the victim ’ s being abused by I.K., and given that in the court ’ s view the fact that I.K. had hit the victim several times does not entail such a criminal character as to lead to the conclusion that the accused treated a civilian in an inhuman manner during an armed conflict by inflicting grave suffering on him, ... the court does not find that the accused committed the criminal offence with which he was charged ...”

12 . On 4 November 2014 the Osijek County Court ’ s judgment was upheld by the Supreme Court, which held as follows:

“It should be stated that the conduct of the accused was illegal and to be condemned, because the hitting of a detainee by an official is not permissible and contains the characteristics of the criminal offence of ill-treatment in service or in exercising public authority which ... was not an issue in these proceedings and for which the statutory limitation period has expired (on 9 August 1998). However, not every criminal offence committed during an armed conflict amounts to a war crime against the civilian population. To amount to a war crime against the civilian population, inhuman treatment and the inflicting of grave suffering has to entail a certain criminal character and intensity sufficient to fulfil the characteristics of such a grave criminal offence, for which the most severe punishment is prescribed (at that time, twenty years ’ imprisonment). The conduct of the accused does not entail such a character and intensity because a few fist blows do not amount to inhuman treatment inflicting grave suffering within the meaning of the criminal offence of a war crime against the civilian population.”

13 . A subsequent constitutional complaint by the applicant was declared inadmissible on 27 January 2015 on the grounds that it concerned neither a criminal charge against the applicant nor the determination of his civil rights and obligations.

14 . Meanwhile, on 26 January 2015 the applicant lodged a criminal complaint with the Slavonski Brod County State Attorney ’ s Office against unknown perpetrators for the criminal offence of a war crime against a civilian population. The Slavonski Brod County State Attorney ’ s Office asked the police to conduct an inquiry. In their reports of 8 May and 17 June 2015 and 18 March 2016, the police informed the Slavonski Brod County State Attorney ’ s Office that they had not found any precise information regarding the perpetrators of the criminal offence.

15 . On 16 November 2018 the applicant lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ), in which he submitted that in August 1992 he had been ill-treated by Croatian military police officers and that the competent prosecutor ’ s office had still not decided on his related criminal complaint of 26 January 2015. The applicant asked the Constitutional Court to find that there had been a breach of Article 29 of the Croatian Constitution guaranteeing the right to a fair trial, and of Article 6 of the Convention, and to award him 50,000 Croatian kunas (HRK) in compensation [1] .

16 . The Constitutional Court examined the applicant ’ s constitutional complaint under Article 3 of the Convention. On 10 March 2020 it found that there had been a breach of that Article, in both its substantive and procedural limbs, and awarded the applicant HRK 50,000 in compensation.

In particular, the Constitutional Court found that it had undoubtedly been established in the criminal proceedings that the applicant had been beaten by several members of the Croatian army during his detention in a military barracks in Nova Gradiška , as a result of which he had sustained two broken ribs and had attempted suicide. It concluded that the applicant had been subjected to ill-treatment by members of the Croatian army in breach of Article 3 of the Convention.

It furthermore held that not conducting an investigation into the matter – even though the criminal courts had established the identity of the two Croatian military officers who had arrested the applicant and the one who had beaten him, and even though the applicant had been ill-treated in a military barracks controlled by the Croatian army and therefore the identity of those who had been placed there could have been verified – amounted to a breach of the procedural obligation under Article 3 of the Convention.

The Constitutional Court lastly held that the applicant was entitled to just satisfaction for the breaches of the Convention that had been found. Having regard to the amounts awarded to the applicants by way of just satisfaction in Gladović v. Croatia (no. 28847/08, § 4, 10 May 2011), V.D. v. Croatia (no. 15526/10, § 6, 8 November 2011) and Mafalani v. Croatia , (no. 32325/13, § 4, 9 July 2015), which all concerned ill-treatment by State agents, the Constitutional Court held that compensation in the amount of HRK 50,000, which the applicant had asked for in his constitutional complaint, ought to have been accepted in its entirety.

17 . The compensation which the Constitutional Court awarded to the applicant has been paid to him.

18 . The investigation into the applicant ’ s ill-treatment is ongoing.

19 . The civil proceedings which the applicant instituted against the State in September 2015, seeking damages for his ill-treatment by Croatian military police officers in 1992, have been stayed pending the outcome of the investigation.

Relevant legal framework

20 . The relevant provisions of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske , Official Gazette no. 56/90, with subsequent amendments) read as follows:

Article 23

“No one may be subjected to any form of ill-treatment ...”

Article 25

“Any arrested or convicted person shall be accorded humane treatment, and the dignity of such individual shall be respected.”

Article 29 § 1

“Everyone shall be entitled to have his/her rights and obligations, or suspicion or accusation of a criminal offence, decided upon fairly and within a reasonable time by an independent and impartial court established by law.”

21 . The relevant part of the Constitutional Court Act ( Ustavni zakon o Ustavnom sudu Republike Hrvatske , Official Gazette no. 49/02, with subsequent amendments) reads as follows:

Section 31

“1. The Constitutional Court ’ s decisions shall be binding on every physical and legal person.

2. All State bodies and bodies of local and regional government are obliged to implement the Constitutional Court ’ s decisions in matters of their constitutional and legal competence.

3. The Government shall ensure, through a State administration body, implementation of the Constitutional Court ’ s decisions.

4. The Constitutional Court may designate an authority on which it confers the implementation of its decisions.

5. The Constitutional Court may determine the manner in which its decisions shall be implemented.”

22 . Under Croatian civil procedure law, the courts are bound by the relief (remedy) sought by the plaintiff and the facts the parties relied on – the two constituent elements of a claim. The courts therefore cannot (a) award the plaintiff anything greater than, or different in nature from, his or her claim, or (b) decide the case on the basis of facts not relied on by the parties. The relevant provisions of the Civil Procedure Act to that effect are cited in Radomilja and Others v. Croatia ([GC] , nos. 37685/10 and 22768/12 , § 61, 20 March 2018).

23 . Section 231(1) of the Civil Obligations Act ( Zakon o obveznim odnosima , Official Gazette no. 35/05 with subsequent amendments) reads as follows:

“When damage was caused by a criminal act, and the criminal prosecution provides for longer statutory time-limits, the claim for damages against the responsible person will become time-barred only when criminal prosecution [for the crime in question] has become time-barred.”

24 . Article 81 § 1 of the Criminal Code ( Kazneni zakon , Official Gazette no. 125 /11 with subsequent amendments) reads as follows:

“Criminal prosecution cannot become time-barred for criminal offences of ... war crimes...”

25 . The relevant part of the State Attorney ’ s Office report no. A-469/10 entitled “ Data on reports, processed cases and victims of war crimes and proceedings during and after Operation ‘ Storm ’ ( Oluja )” , dated 26 April 2011, reads as follows:

“In all cases of war crimes in which the perpetrators are unknown, the competent investigative authorities were requested to take measures and actions to identify those perpetrators...

Despite all difficulties, this work will not stop as long as there is a possibility that any of the perpetrators or commanders is alive. Namely, there is no statute of limitations for war crimes ...”

26 . The relevant part of the State Attorney ’ s Office report entitled “ Updated report on criminal proceedings for war crimes ”, dated 24 February 2014, reads as follows:

“...in cases in which perpetrators have not yet been identified by the investigative authority continuously require identifying the perpetrators and collecting the evidence necessary for prosecution...

Work on these cases is continuous...”

27 . The relevant part of the State Attorney ’ s Office report entitled “ Action of the State Attorney ’ s Office against Offenders of Criminal Offences of War Crimes Committed in Camps and Prisons During the Homeland War ”, dated 14 August 2020, reads as follows:

“The State Attorney ’ s Office is continuously working on identifying and prosecuting perpetrators of war crimes committed during the Homeland War....

No war crime...can go unpunished and no perpetrator of a war crime can go unpunished...

Competent State attorney ’ s offices in the Republic of Croatia, in cooperation with state bodies and other institutions... continue to take all available measures and actions in order to collect data on unidentified both direct perpetrators and commanders of crimes committed in camps and prisons...”

28 . The State Attorney ’ s Office report on processing of war crimes in 2016 and the first half of 2017 states that in the period between 1991 and 30 June 2017 the Croatian authorities had opened investigations in respect of 3,556 alleged perpetrators of war crimes. There had been 608 convictions for war-related crimes.

COMPLAINT

29 . The applicant complained under Article 3 of the Convention about the lack of an effective investigation into his ill-treatment.

THE LAW

30 . Article 3 of the Convention provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

31 . The Government submitted that the applicant ’ s complaint was incompatible ratione temporis with the provisions of the Convention. Alternatively, they maintained that the investigation and the criminal proceedings conducted against I.K. had complied with the State ’ s procedural obligation under Article 3 of the Convention. The competent authorities were still duly investigating the matter and the fact that they had so far not established the identity of the persons who had ill-treated the applicant could not be considered to be in breach of Article 3 because the obligation to conduct an effective investigation was an obligation of means, not of result.

32 . After the Constitutional Court had decided on the applicant ’ s constitutional complaint on 10 March 2020, the Government submitted that the applicant could no longer claim to be a victim of the alleged violation because the Constitutional Court had acknowledged that there had been a breach of the procedural aspect of Article 3 and had awarded the applicant HRK 50,000 in compensation.

33 . The applicant maintained that the State authorities had failed to conduct an investigation of their own motion immediately after learning in 1992 that he had been ill-treated during his detention. The investigation they had conducted as of 2011, including the criminal proceedings against I.K., could by no means be regarded as being compliant with Article 3. The investigative actions had been undertaken formalistically, without any real intention of establishing the identity of, and punishing, the persons who had ill-treated him.

34 . The applicant disagreed that the Constitutional Court ’ s decision of 10 March 2020 had removed his victim status regarding the alleged violation of the Convention, in particular having regard to the low amount of compensation awarded to him by that court. He referred to a case before the domestic courts in which the claimant had been awarded HRK 75,000 for defamation. Having regard to the fact that he had been tortured, for which no one had been held accountable, the amount of HRK 50,000 had been entirely inappropriate. In his claim for just satisfaction, submitted in the proceedings before the Court, he had sought HRK 150,000 [2] , which was the amount awarded by the Court to an applicant in a previous case involving Article 8 of the Convention.

35 . The applicant explained that although he himself had sought compensation in the amount of HRK 50,000 in his constitutional complaint, he had not asked for it in relation to the violation of Article 3 of the Convention, but for the violation of his right to a trial within a reasonable time because the competent prosecutor had not decided on his criminal complaint within the statutory time-limit. Since the Constitutional Court had decided to examine his complaint under Article 3 and had found a violation of that Article, it ought to have awarded him a much higher amount of compensation.

36 . The applicant added that the investigation into his ill-treatment was formally still open so that the State would avoid being held accountable before the Court. However, in his view, the perpetrators would never be held accountable by the Croatian courts.

37 . The Court considers that it must first ascertain whether the new fact brought to its attention – namely the Constitutional Court ’ s ruling in the applicant ’ s case (see paragraph 16 above) – may lead it to conclude that it is no longer justified to continue the examination of the application (see, for example, Association SOS Attentats and de Boery v. France ( dec. ) [GC], no. 76642/01, § 29, ECHR 2006 ‑ XIV ) and whether the application may consequently be struck out of its list of cases in accordance with Article 37 § 1 of the Convention. This provision, in so far as relevant, reads as follows:

“The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

...

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

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires”

38 . The Court reiterates that it enjoys a wide discretion in identifying grounds capable of being relied upon in striking out an application on this basis, it being understood, however, that such grounds must reside in the particular circumstances of each case (see, for example, Association SOS Attentats and de Boery , cited above, § 37; and Oya Ataman v. Turkey (striking out), no. 47738/99, § 24, 22 May 2007).

39 . In the present case, the Constitutional Court expressly acknowledged that there had been a breach of both the substantive and the procedural obligation of Article 3 of the Convention, in that the applicant had been ill ‑ treated by members of the Croatian army in 1992 and that the domestic authorities had not conducted an effective investigation into his ill-treatment (see paragraph 16 above). In doing so, it awarded the applicant the full amount of non-pecuniary damage he had claimed in his constitutional complaint, and the said amount has already been paid to him (see paragraphs 15 - 17 above).

40 . The applicant argued that the compensation received was disproportionately low having regard to the nature of the violations found. He had lodged his constitutional complaint under Article 29 of the Constitution (which corresponds to Article 6 of the Convention) on the grounds that the competent prosecutor had failed to decide on his criminal complaint within the statutory time-limit. It had never been his intention that the Constitutional Court examine his complaint under Article 3 of the Convention. Since it eventually did so, in the applicant ’ s view, it should have awarded him a much higher amount of compensation.

41 . The Court notes that in his constitutional complaint the applicant submitted that he had been ill-treated by Croatian military police officers during his detention in 1992 and that the competent prosecutor ’ s office had not decided on his criminal complaint in that regard (see paragraph 15 above). The Court agrees with the Constitutional Court that such complaints in substance amount to allegations of breaches of Articles 23 § 1 and 25 § 1 of the Constitution (that is to say, Article 3 of the Convention) in both its substantive and procedural limbs and finds it irrelevant that the applicant had expected that the Constitutional Court would examine them under Article 29 of the Constitution (that is to say, Article 6 of the Convention) and find a breach of the reasonable-time requirement.

42 . As regards the applicant ’ s further expectation that the Constitutional Court would award him a higher amount of compensation than the amount he had claimed in his constitutional complaint, the Court notes that under domestic law, civil courts are bound by the relief sought and the facts relied on by the plaintiffs (see paragraph 22 above). Consequently, in its decision the Constitutional Court was guided by one of the fundamental principles of procedure under domestic and international law ne eat iudex ultra et extra petita partium (“not beyond the request”) (see Radomilja , cited above, § 109). Thus the Court does not find it unacceptable that the Constitutional Court only considered the amount actually claimed and did not of its own motion consider whether the applicant has been otherwise prejudiced (see Nagmetov v. Russia [GC], no. 35589/08, § 68, 30 March 2017). The Court further notes that the applicant has not demonstrated that in cases in which the Constitutional Court has recharacterised a complaint ex proprio motu , it could under the domestic law as it stands at present or in accordance with its existing practice apply the principle of equity by awarding – above the amount sought - just satisfaction on account of non ‑ pecuniary damage occurred as a result of a breach of a fundamental human right, in order to reflect in the broadest of terms the severity of the damage sustained (see also paragraph 22 above and compare with Nagmetov , cited above, §§ 69, 71-73).

43 . Furthermore, the Court observes that, according to domestic law, civil claims for damages caused by a criminal act become time-barred only once the criminal prosecution for the crime in question becomes time ‑ barred (see paragraph 23 above). Given that there is no statutory time ‑ limit for prosecution of war crimes (see paragraph 24 above), and especially that in the applicant ’ s case the Constitutional Court had already held that the applicant has been ill-treated by members of the Croatian army which resulted in a substantive breach of Articles 23 § 1 and 25 § 1 of the Constitution (which correspond to Article 3 of the Convention; see paragraph 16 above), nothing would appear to prevent the applicant, on the basis of this new development, from claiming in civil proceedings against the State any additional damages that he may have suffered (see, mutatis mutandis , M. and Others v. Croatia , no. 50175/12, § 95, 2 May 2017).

44 . However, the Court would stress that, in cases of wilful ill-treatment by State agents, the obligations of the respondent State does not stop at the payment of compensation. The Court must ascertain in such cases that there are no national legal obstacles which would detract from the respondent State ’ s continuing obligation under Article 3 of the Convention to carry out an effective investigation (see Jeronovičs v. Latvia [GC], no. 44898/10, § 122, 5 July 2016 ). Were it otherwise the authorities could confine their reaction to incidents of wilful ill-treatment by State agents to the mere payment of compensation, while not doing enough to prosecute and punish those responsible, making it possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity, and rendering the general legal prohibition of torture and inhuman and degrading treatment, despite its fundamental importance, ineffective in practice (see Gäfgen v. Germany [GC], no. 22978/05, § 119, ECHR 2010 ).

45 . The Court observes that, unlike in some other previous decisions concerning ineffectiveness of investigations under Articles 2 or 3 of the Convention (cited in KuÅ¡ić v. Croatia ( dec. ), no. 71667/17, § 45, 10 December 2019, §), when deciding the applicant ’ s case the Constitutional Court did not expressly order the competent authorities to conduct a Convention-compliant investigation into his allegations of ill ‑ treatment at the hands of the authorities. Nevertheless, it is clear that finding a violation of the substantive aspect of Article 3 of the Convention by no means excludes the obligation of the authorities to continue their efforts in establishing the direct perpetrators of such acts, in order to prevent any appearance of tolerance of or collusion in unlawful acts (see, mutatis mutandis , Jelić v. Croatia , no. 57856/11, § 94, 12 June 2014).

46 . The Court further observes that under domestic law there is no statute of limitations for war crimes and the domestic authorities are under a continuing obligation to investigate those crimes (see paragraphs 24 and 25 ‑ 27 above). Moreover, the Court has already held that the Constitutional Court ’ s decisions of this kind had a binding effect and that the domestic authorities were under an obligation to implement them in matters of their competence (see KuÅ¡ić , cited above, §§ 38 and 97). In fact, such an obligation persists until such a time as the perpetrator has been identified and adequately punished or has died, since prosecution for the offence in question cannot become time-barred (see paragraph 24 above). Finally, in KuÅ¡ić the Court has held that following a favourable Constitutional Court decision finding a breach of the procedural obligation under Article 3 of the Convention, the competent prosecutor resumed an investigation into the complainant ’ s allegations (ibid., § 97 ).

47 . Accordingly, the Court has no reason to doubt that following the Constitutional Court ’ s decision in the present case the prosecuting authorities will still remain under a legal obligation to reactivate and continue the investigation into the applicant ’ s ill-treatment by the State agents, taking into account the Constitutional Court ’ s findings as to the specific deficiencies that it identified in that investigation (ibid.).

48 . In this connection, the Court emphasises that, even where events took place far in the past, whenever new developments occur, for example newly discovered evidence comes to light (see Brecknell v. the United Kingdom , no. 32457/04, §§ 73 ‑ 75, 27 November 2007; Gasyak and Others v. Turkey , no. 27872/03, § 60, 13 October 2009), the obligation to investigate revives. The scope of the continuing obligation to investigate will vary according to the nature of the purported new evidence or information. It may be restricted to verifying the reliability of the new evidence. The authorities can legitimately take into account the prospects of launching a new prosecution at such a late stage. Due to the lapse of time, the level of urgency may have diminished; the immediacy of required investigative steps in the aftermath of an incident is likely to be absent. The standard of expedition in such historical cases is much different from the standard applicable in recent incidents where time is often of the essence in preserving vital evidence at a scene and questioning witnesses when their memories are fresh and detailed (see Treskavica v. Croatia , no. 32036/13, § 62, 12 January 2016).

49 . As to the applicant ’ s argument that the State authorities had no real intention of identifying and punishing the persons who had ill-treated him (see paragraphs 33 and 36 above), the Court notes, as regards the general situation regarding investigations into war crimes, that the prosecution authorities have not remained passive and that significant efforts have been made to prosecute those crimes. In particular, by 30 June 2017 the prosecution authorities had opened investigations in respect of a total of 3,556 alleged perpetrators, and there had been 608 convictions (see paragraph 28 above; see also figures mentioned in Nježić and Štimac v. Croatia , no. 29823/13, § 72, 9 April 2015, and Trivkanović v. Croatia, no. 12986/13, § 82, 6 July 2017).

50 . In view of the above, 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 the present case and considers it appropriate to strike the application out of the list in accordance with Article 37 § 1 (c) of the Convention, this conclusion making it unnecessary for the Court to examine the pleas of inadmissibility raised by the Government, based on the loss of the applicant ’ s victim status and compatibility ratione temporis . As stressed above (see paragraphs 44 - 48 above), this conclusion is without prejudice to the national authorities ’ continuing obligation to conduct an investigation in compliance with the requirements of the Convention (see Žarković and Others v. Croatia ( dec. ), no. 75187/12, § 23, 9 June 2015) or to any decision the Court might take to restore the case to its list of cases pursuant to Article 37 § 2 of the Convention, should the national authorities fail to fulfil that obligation.

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases.

Done in English and notified in writing on 14 January 2021 .

Abel Campos Krzysztof Wojtyczek Registrar President

[1] Approximately 6,600 euros .

[2] Approximately EUR 20,000 .