FIRST SECTION

DECISION

Application no. 37333/17 Miroslav MARIĆ and Marijana MARI Ć against Croatia

The European Court of Human Rights (First Section), sitting on 10 November 2020 as a Chamber composed of:

Krzysztof Wojtyczek, President, Ksenija Turković, Alena Poláčková, Péter Paczolay, Gilberto Felici, Erik Wennerström, Raffaele Sabato, judges, and Renata Degener , Deputy S ection Registrar ,

Having regard to the above application lodged on 17 May 2017,

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

Having deliberated, decides as follows:

THE FACTS

1 . The applicants, Mr Miroslav Marić and Ms Marijana Marić, are Croatian nationals who were born in 1976 and 1971 respectively and live in Rovinj. They were represented before the Court by Mr S. Baotić, a lawyer practicing in Županja.

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 June 1991 Croatia declared its independence from the former Socialist Federal Republic of Yugoslavia ( Socijalistička Federativna Republika Jugoslavija ) and severed its ties with that entity in October 1991. In the same year war began in Croatia.

5 . On 14 November 1991 two aeroplanes of the Yugoslav Peoples ’ Army ( Jugoslavenska narodna armija – hereinafter “the JNA”) bombed Šećerana, a settlement near Županja in Eastern Slavonia.

6 . The applicants ’ father was killed in his flat when one of the bombs hit the building in which it was located. The applicants ’ mother and the first applicant sustained injuries. The family flat was destroyed.

7 . On the same day the Županja police ( Policijska uprava Županja ) conducted an inspection of the bomb site.

8 . On 17 November 1991 the doctors of the Županja hospital carried out an identification of the remains of bodies found on the site. The applicants ’ father was identified as one of the victims.

9 . On 30 November 1991 the Županja police filed a criminal complaint with the Osijek County State Attorney ’ s Office ( Okružni javni tužilac u Osijeku at the time, now Županijsko državno odvjetništvo u Osijeku ) for a war crime against a civilian population, naming the applicants ’ father as one of the victims.

10 . On 14 October 1992 the Županja police filed a supplement to the criminal complaint, stating that there was reasonable suspicion that the perpetrators of the criminal offence were V.K. and Z.J., who had commanded the air bombings in Eastern Slavonia, and M.V., B.V., S.S., S.Si., M.Đ., M.M. and B.R., the pilots who had carried out the bombings.

11 . On 20 November 1992 the Osijek County State Attorney ’ s Office lodged an application for an investigation with the Osijek County Court ( Županijski sud u Osijeku ), stating that there was reasonable suspicion that V.K. and Z.J. had committed a war crime against a civilian population by ordering multiple aeroplane bombings of civilian targets.

12 . Since the whereabouts of V.K. and Z.J. were unknown to the Croatian authorities, on 28 August 1992 the Osijek County Court issued an arrest warrant in respect of them and ordered their detention.

13 . On 18 May 2006 the Osijek County State Attorney ’ s Office filed an indictment against V.K. and Z.J., stating that they had committed a war crime against a civilian population by ordering thirty-three air bombings of civilian targets in Eastern Slavonia in 1991, including the bombing of Šećerana on 14 November 1991 in which the applicants ’ father had been killed.

14 . Following an enquiry by the applicants ’ sister, on 6 May 2013 the Osijek County State Attorney ’ s Office informed her that the criminal case against V.K. and others was pending before the Osijek County Court; however, since the whereabouts of the accused were not known to the Croatian prosecuting authorities, a hearing had still not been scheduled.

15 . In 2014 V.K. died and on 15 May 2015 the criminal proceedings were terminated in respect of him. The proceedings against Z.J., whose whereabouts remained unknown to the Croatian authorities, are still pending.

16 . On 11 June 2013 the applicants, represented by their lawyer, A.M., lodged a civil claim against the State with the Županja Municipal Court ( Općinski sud u Županji ), seeking compensation in respect of pecuniary and non-pecuniary damage caused by their father ’ s killing. They relied on the Court ’ s judgment in the case of Jularić v. Croatia (no. 20106/06, 20 January 2011).

17 . On 4 July 2013 the State, represented by the Civil Department of the Vinkovci Municipal State Attorney ’ s Office ( Općinsko državno odvjetništvo u Vinkovcima, Građansko-upravni odjel, Stalna služba u Županji ), replied to the applicants ’ civil claim, submitting that the death of their father had amounted to war damage for which the State was not liable, and that in any event their claim had been lodged outside the statutory limitation period.

18 . On 19 July 2013 the State submitted that, having regard to the fact that the event causing the damage had occurred on 14 November 1991 and that the applicants had applied for a friendly settlement of the dispute on 15 January 2013, their claim had been lodged outside the statutory limitation period under section 376 of the 1991 Civil Obligations Act ( Zakon o obveznim odnosima , Official Gazette nos. 53/1991, with subsequent amendments – see paragraph 27 below). The State further contended that the applicants had not based their civil claim on any domestic legal provision, but had only referred in general terms to the Court ’ s judgment in Jularić (cited above).

19 . On 9 September 2013 the applicants submitted that the civil courts should apply the longer statutory limitation period under section 377 of the 1991 Civil Obligations Act for lodging a civil claim because the damage had been caused by a criminal offence. They further referred to the Court ’ s judgment in Jularić , alleging that it had concerned an identical example of an ineffective investigation under Article 2 of the Convention, on account of which the Court had awarded the applicants compensation in respect of non ‑ pecuniary damage.

20 . At a hearing held on 28 November 2013, the first applicant submitted that his father had been killed in the JNA bombings of 14 November 1991, that he and his mother and brother had sustained injuries and their flat had been destroyed. His mother had contacted various authorities but to no avail, since they had never received any compensation for the damage sustained.

21 . On 23 May 2014 the Osijek County Court informed the Županja Municipal Court that in the criminal proceedings against V.K. and others for war crimes, there had been no final convictions or acquittals.

22 . On 25 August 2014 the Županja Municipal Court granted the applicants ’ claim and ordered the State to pay them damages.

23 . The State lodged an appeal against the Županja Municipal Court ’ s judgment, arguing that the killing of the applicants ’ father had amounted to war damage for which the State was not liable, that the claim had in any event been lodged outside the statutory limitation period prescribed by section 376 of the Civil Obligations Act, and that the domestic courts could not base their decision on direct reliance on Article 2 of the Convention.

24 . On 5 December 2016 the Vukovar County Court ( Županijski sud u Vukovaru ) overturned the judgment given at first instance and dismissed the applicants ’ claim. It found that the applicants ’ father had been killed on 14 November 1991 and that therefore their civil claim of 10 June 2013 had been lodged outside the objective five-year statutory limitation period under section 376 of the 1991 Civil Obligations Act. The longer statutory limitation period under section 377 of the same Act did not apply in the applicants ’ case. It further held that the killing of the applicants ’ father had in any event amounted to war damage within the meaning of section 2 of the Assessment of War Damage Act ( Zakon o utvrđivanju ratne štete , Official Gazette nos. 61/1991 and 70/1991 – see paragraph 29 below) because it had been caused by enemy forces in time of war. The Republic of Croatia was not liable for war damage.

The Vukovar County Court ordered the applicants, under section 154 of the Civil Procedure Act ( Zakon o parničnom postupku , Official Gazette nos. 53/91, with subsequent amendments – see paragraph 30 below), to pay the State HRK 27,750 [1] in costs, comprising the fees chargeable for the State ’ s representation by the State Attorney ’ s Office.

25 . On 12 January 2017 the applicants lodged a constitutional complaint, alleging a violation of Article 29 of the Constitution guaranteeing the right to a fair trial, and of Article 35 of the Constitution guaranteeing the right to respect for private and family life, dignity, reputation and honour.

They submitted that in the civil proceedings they had indeed sought compensation for damage on account of the death of their father. However, having regard to the fact that in their civil claim they had also referred to the Court ’ s judgment in Jularić (cited above), and that the civil courts should not be bound by the legal basis of a claim, the second-instance court ought to have examined whether they had been entitled to receive compensation on account of the State authorities ’ failure to prosecute the perpetrators of a war crime. The second-instance court had remained entirely silent on this point.

They further complained that the State had failed to conduct an effective investigation into their father ’ s killing, in breach of Article 2 of the Convention because, even though the perpetrators had been known to the authorities from the start, the indictment had not been filed until fifteen years after the event and in the subsequent criminal proceedings no action had been taken.

The applicants lastly complained that the second-instance court ’ s order for them to pay the costs of the State ’ s representation in the civil proceedings had amounted to an excessive burden for them, having regard to their poor financial situation and the circumstances in relation to which they had sought damages.

26 . On 22 March 2017 the Constitutional Court ( Ustavni sud Republike Hrvatske ) dismissed the applicants ’ constitutional complaint as unfounded.

It held that the second-instance court ’ s judgment in the part concerning the assessment of the statutory limitation period for lodging the civil claim had been in accordance with the Constitutional Court ’ s practice on the matter, which had been accepted by the Court in Baničević v. Croatia ((dec.), no. 44252/10, 2 October 2012). It also held that the second-instance court ’ s conclusion that the killing of the applicant ’ s father had amounted to war damage had not been arbitrary. It further held that the decision ordering the applicants to pay the costs of proceedings to the State had not breached their rights under Article 29 of the Constitution, which guaranteed the right to a fair trial. It lastly held that there had been no breach of Article 35 of the Constitution.

The decision was served on the applicants on 6 April 2017.

27 . Sections 376 and 377 of the 1991 Civil Obligations Act (see paragraphs 18 and 19 above) are set out in Nijemčević v. Croatia ((dec.), no. 51519/12, § 19, 11 September 2018).

28 . Under section 1046 of the 2005 Civil Obligations Act ( Zakon o obveznim odnosima , Official Gazette nos. 35/2005, 41/2008, 125/2011, 78/2015 and 29/2018) – as currently in force – damage is diminution of one ’ s property (actual damage), prevention of its increase (lost profit) or infringement of one ’ s personality rights (non-pecuniary damage). Under section 1062(1) of that Act, a legal entity is liable for damage caused by its organ to a third party in the exercise, or in relation to the exercise, of its functions. This provision is used as a basis for the State ’ s liability for damage in cases where there are no more specific provisions governing such liability.

29 . The relevant provisions of the Assessment of War Damage Act are set out in Brkić and Others v. Croatia ((dec.), no. 53794/12, § 12, 6 December 2016).

30 . The relevant provisions of the Civil Procedure Act and the Scales of Advocates ’ Fees and Reimbursement of their Costs ( Tarifa o nagradama i naknadi troškova za rad odvjetnika , Official Gazette nos. 91/2004, 37/2005 and 59/2007), are set out in Cindrić and Bešlić v. Croatia (no. 72152/13, §§ 43-44, 6 September 2016).

31 . 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).

32 . The relevant Constitutional Court case-law concerning effective investigation under Articles 2 and 3 of the Convention is set out in Kušić v. Croatia ((dec.), no. 71667/17, §§ 41-56, 10 December 2019).

COMPLAINTs

33 . The applicants complained under Article 2 of the Convention of the lack of an effective investigation into the killing of their father. They also complained that they had been deprived of their right of access to a court, in breach of Article 6 § 1 of the Convention.

THE LAW

34 . The applicants complained that the domestic authorities had failed to adequately and speedily investigate the killing of their father and to bring the perpetrators to justice. They relied on 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. ...”

(a) The Government

35 . The Government contended that the case-law of the Constitutional Court showed that a constitutional complaint was an effective domestic remedy that could be used for complaints concerning ineffective investigations under Articles 2 and 3 of the Convention. The applicants had indeed lod g ed a constitutional complaint, but in respect of decisions given by the domestic courts in civil proceedings for damages. In that constitutional complaint they had complained about the conclusions of the second-instance court to the effect that their civil claim was time-barred and that their father ’ s killing had amounted to war damage. Thus, they had failed to make proper use of the constitutional complaint as regards their allegation that the investigation had been ineffective.

36 . Alternatively, the Government contended that the complaint had been incompatible ratione temporis with the provisions of the Convention, that it had been lodged out of time and that, in any event, the investigation conducted had been effective.

(a) The applicants

37 . The applicants submitted that they had properly exhausted the domestic remedies in respect of their complaint.

38 . They further contended that the investigation into the killing of their father had been ineffective, since in almost thirty years after their father ’ s killing the authorities had not managed to bring the perpetrators to justice.

2. The Court ’ s assessment

39 . The Court does not have to examine all the issues raised by the parties since the complaint under the procedural aspect of Article 2 of the Convention is in any event inadmissible for the following reasons.

40 . The Court notes that in Kušić (cited above), it had found that in 2019 a constitutional complaint had become an effective domestic remedy for complaints concerning ineffective investigations under Articles 2 and 3 of the Convention (ibid., §§ 93 and 99). It has also held that the exception regarding the rule of exhaustion of the domestic remedies was to be applied in cases of this sort, in that the applicants in such cases should be required to file a constitutional complaint, even if they had lodged their application with the Court before such a complaint had proved to be an effective remedy (ibid., §§ 101-105 and the cases cited therein).

41 . In reply to the Government ’ s particular argument (see paragraph 35 above), the Court notes that in Kušić it held that the fact that a person had raised a complaint alleging a breach of the procedural aspect of Article 2 of the Convention in a constitutional complaint concerning the domestic courts ’ decisions in civil proceedings for damages on account of the violent death of a family member should not prevent the Constitutional Court from examining that complaint in the light of the principles developed in relation to the procedural scope of Article 2 of the Convention (ibid., § 95).

42 . The Court notes that in the constitutional complaint they lodged against the decisions given by the domestic courts in civil proceedings for damages, the applicants complained with reference to Article 2 of the Convention that the investigation into the killing of their father had been ineffective (see paragraph 25 above). However, the Constitutional Court did not examine that complaint (see paragraph 26 above). The Court notes that the Constitutional Court ’ s decision in the applicants ’ case was delivered in 2017 – two years before a constitutional complaint became an effective remedy for such complaints (see paragraph 40 above).

44 . The Court would stress that it remains open for the applicants, following the termination of the proceedings before the Constitutional Court, or if those proceedings become unreasonably protracted, to bring their complaints before the Court if they still consider themselves to be victims of a violation of the Convention.

45 . Against the above background, the Court upholds the Government ’ s objection. The applicants ’ complaint under Article 2 of the Convention must therefore be rejected under Article 35 §§ 1 and 4 for non-exhaustion of domestic remedies.

46 . The applicants further complained that their right of access to a court had been violated. They relied on Article 6 § 1 of the Convention, the relevant parts of which read as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

(a) The Government

47 . The Government submitted that the applicants ’ case should be distinguished from that of Cindrić and Bešlić (cited above), in which the Court had found that ordering the applicants to bear the full costs of the State ’ s representation in the civil proceedings had amounted to a breach of their right of access to a court. In particular, at the time the applicants had lodged their civil action for damages, namely in 2013, the domestic courts ’ practice regarding the statutory limitation period for lodging a civil claim had been entirely clear. Accordingly, the applicants ’ civil action against the State had been obviously time-barred and therefore manifestly unreasonable.

(b) The applicants

48 . The applicants contended that the order imposed on them by the domestic courts to pay the costs of the State ’ s representation in the civil proceedings had violated their right of access to a court. In particular, the amount of HRK 27,750 in costs that they had been ordered to reimburse to the State was excessive, given their poor financial situation.

49 . The applicants further submitted that in their civil claim they had indeed sought compensation for damage on account of the death of their father. However, having regard to the fact that in their claim they had also referred to the Court ’ s judgment in Jularić v. Croatia (no. 20106/06, 20 January 2011), and that the civil courts were not bound by the legal basis of a civil claim, in the applicants ’ view the second-instance court ought to have examined whether they had been entitled to receive compensation on account of the State authorities ’ failure to effectively prosecute the perpetrators of a war crime. The second-instance court had remained entirely silent on this point.

50 . The Court accepts that the requirement for the applicants to pay the costs of the State ’ s representation in the civil proceedings may be viewed as a restriction hindering the right of access to a court (see Cindrić and Bešlić , cited above, § 119).

51 . As the Court has emphasised on a number of occasions, a restriction affecting the right to a court will not be compatible with Article 6 § 1 unless it pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved (see Zubac v. Croatia [GC], no. 40160/12, § 78, 5 April 2018). The Court must therefore examine whether this was achieved in the present case.

52 . The Court accepts that the “loser pays” rule embodied in section 154(1) of the Civil Procedure Act (see paragraphs 24 and 30 above) pursues the legitimate aims of ensuring the proper administration of justice and protecting the rights of others by discouraging ill-founded litigation and excessive costs (see Cindrić and Bešlić , cited above, § § 95-96 and 121).

53 . It further notes that the domestic courts ultimately rejected the applicants ’ civil claim, finding that it had been lodged outside the statutory limitation period, and that in any event the killing of their father had amounted to war damage, for which the State was not liable (see paragraphs 24 and 26 above).

54 . The Court reiterates that it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, since the national authorities are, in the nature of things, particularly qualified to settle the issues arising in this connection (see Radomilja and Others v. Croatia [GC] , nos. 37685/10 and 22768/12 , § 149, 20 March 2018).

55 . In the Court ’ s view, there is nothing arbitrary in the domestic courts ’ conclusion that the killing of the applicants ’ father amounted to war damage under the Assessment of War Damage Act (see paragraph 24 above). Section 2 of that Act states that war damage is damage to the lives of persons caused by enemy and illegal forces which occurred in the period from 15 August 1990 until the termination of enemy activities and military operations in Croatia (see paragraph 29 above). The applicants ’ father was killed in the JNA air bombings of Županja in 1991 (see paragraphs 5-6 above). His death was therefore a direct consequence of the enemy forces ’ military activity. The applicants did not even dispute that under the domestic law, the State was not liable for war damage (see paragraphs 48 ‑ 49 above). Therefore, for the Court, the issue whether the applicants brought their civil action within the statutory limitation period is irrelevant.

56 . In the present case the applicants argued that in their civil claim they had referred to Jularić (cited above), and that therefore the second-instance court should have examined whether they had been entitled to receive damages on the grounds of the State ’ s failure to effectively investigate their father ’ s killing and bring the perpetrators to justice (see paragraph 49 above).

57 . In that connection, the Court notes that in their civil action the applicants did indeed submit that the State had failed to conduct an effective investigation into their father ’ s killing. However, when specifying their civil claim, they explicitly submitted that they were seeking compensation in respect of pecuniary and non-pecuniary damage caused by their father ’ s killing (see paragraph 16 above). They did not claim compensation for the lack of an effective investigation and the resultant mental pain and anguish they were feeling because the perpetrators of the bombings had not been brought to justice. The domestic courts could not have awarded them compensation on that ground on their own motion because under domestic law civil courts are bound by the relief sought and the facts relied on by the plaintiffs (see paragraph 31 above and Radomilja and Others , cited above, § 61). The Court therefore does not find fault with the second-instance court in overturning the judgment at first instance, which had granted the applicants ’ claim (see paragraph 24 above). It also notes that when bringing their civil action, the applicants were represented by a qualified lawyer (see paragraph 16 above).

59 . The Court notes that the possibility of lodging a civil claim against the State on account of the mental pain and anguish they are feeling as a result of an ineffective investigation into their father ’ s killing appears to be still open to the applicants. Indeed, the criminal proceedings against Z.J. for a war crime, the victim of which was the applicants ’ father, are still pending before the Osijek County Court (see paragraph 15 above).

60 . Having regard to the above, the Court holds that ordering the applicants to bear the full costs of the State ’ s representation in the proceedings in issue did not amount to a disproportionate restriction of their right of access to a court (contrast Cindrić and Bešlić , cited above, § 122).

61 . The applicants ’ complaint under Article 6 § 1 of the Convention of lack of access to a court is therefore 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 3 December 2020. }

Renata Degener Krzysztof Wojtyczek Deputy Registrar President

[1] Approximately 3,700 euros