SECOND SECTION

DECISION

Application no . 53794/12 Ivica BRKIĆ and others against Croatia

The European Court of Human Rights (Second Section), sitting on 6 December 2016 as a Chamber composed of:

Işıl Karakaş, President, Julia Laffranque, Nebojša Vučinić, Valeriu Griţco, Ksenija Turković, Jon Fridrik Kjølbro, Stéphanie Mourou-Vikström, judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 31 July 2012,

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 Ivica Brkić, Ms Davorka Tkali ć and Ms Ž eljka Vidi ć, live in Zadar. The first and the second applicants were born in 1972 and the third applicant in 1968. They were represented by Mr Z. Zrilić, a lawyer practising in Zadar.

2. The Croatian Government (“the Government”) were represented by their Agent, Ms Å . Sta ž nik.

A. The circumstances of the case

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

4. On an unspecified date the applicants brought a civil action in the Zadar Municipal Court for damages against the State caused by the killing of their mother, K.-J.B., born in 1935. They alleged that their mother had been killed by firearms in front of her house in Z.G. village on 11 March 1992 when that village had been occupied by Serb paramilitary forces. She had been killed solely because of her Croat ethnicity. Therefore, her death had been motivated by ethnic hatred and had had no connection to any military or belligerent activity, which was also evident from the fact that she had not had arms on her person nor could she have put up any resistance. On the same day four other persons of Croat ethnicity had been killed in the same village. Such an act had amounted to an act of terrorism under the Liability Act (see below).

5. On 5 January 2007 the claim was dismissed. The Municipal Court held that about a third of the territory of the State had been occupied and that the civilians killed on that territory had been mostly of Croat ethnicity, as had the applicants ’ mother. It further held that the applicants ’ mother had been killed by one S.M., a member of the Serb paramilitary forces during the armed conflict between these forces and the Croatian Army. Therefore, the killing of the applicants ’ mother was war damage within the meaning of the Assessment of War Damage Act, for which the Republic of Croatia was not liable. As to that conclusion, the relevant part of the judgment reads as follows:

“It is not disputed between the parties that on 11 March 1992, the day of the killing of K.-J.B. , the village of Z.G. was part of the occupied [territory of the State] ... The decision on investigation in respect of the accused S.M. ... shows that K.-J.B. was one of the victims of the same perpetrator, killed on 11 March 1992 in Z.G. during an exchange of fire between Serb paramilitary forces and the Yugoslav Army on the one side and the armed forces of the Republic of Croatia on the other side ...

...

This court holds that section 2(2) of the Assessment of War Damage Act is applicable in the case at issue ... The killing of K.-J.B., a civilian of Croat ethnicity, in Z.G., which was at the time a part of the occupied [territory of the State], by a member of a paramilitary group – the so-called territorial defence force of the so-called Republic of Serb Krajina whose paramilitary force operated within the so-called Yugoslav Army – is direct life-threatening damage under section 2(2) of the Assessment of War Damage Act, and from the claimant ’ s position it concerns non-pecuniary damage on account of the death of a parent. Therefore, the damage in the specific case was indisputably caused by the enemy, illegal groups or allies of such groups[, and that] damage was caused in the period [provided in] section 1 of that Act, as K.-J.B. was killed on 11 March 1992.”

After concluding that the killing of the applicants ’ mother was war damage, the Municipal Court also held that it had been a terrorist act for which the Croatian State was not liable as it had had no control over the occupied territory of the State. The relevant part of the judgment reads as follows:

“The crucial aspect which is missing and is a condition for the liability of the Republic of Croatia as a State for the damage in this case is its sovereignty. The defendant had no sovereignty over Z.G., which was a part of the broader, temporarily occupied territory of Croatia at that time, during the Homeland War. It did not have control over the territory and inhabitants of that territory, the basic elements of State sovereignty. Thus, as said above, the act of damage ... amounts to an act of terror, that is to say an act of violence committed for political motives with the aim of causing fear, terror and the feeling of personal insecurity in citizens. However, the terrorist act of the killing of the applicants ’ mother by a member of the occupying enemy Serb paramilitary forces was done in occupied Croatian territory, that is to say in the territory where the Republic of Croatia had no sovereignty before the act of damage occurred, on the day when it occurred, or for years afterwards. Given the time (during a state of war), the territory (occupied Croatian territory), and all the circumstances in which the damage occurred, this court concludes that [the act of damage] in the case at issue amounts to a terrorist act which in these circumstances could not have been prevented by the State or its bodies. The defendant did not contribute to such acts of terror or violence in any manner, but instead it attempted to prevent them by all legitimate means, including the defensive Homeland War, one of the aims of which was the liberation of the occupied Croatian territory in which, in the end, it succeeded.”

6. The applicants then lodged an appeal in which they argued that the Municipal Court had held contradictory views, stating that the killing of their mother was war damage for which the State was not liable and at the same time that it had been a terrorist act for which the State was not liable because it had had no control over the territory where the damage had occurred. The applicants asserted that the killing of their mother had been a terrorist act and that the State ’ s liability could not be excluded only because it had occurred in occupied territory. They argued that the legislation governing the State ’ s liability for terrorist acts provided that this liability was based on the principles of solidarity, equal distribution of the public burden and fair and prompt compensation, and that State liability existed irrespective of whether a perpetrator had been identified, criminally prosecuted or found guilty. In the applicants ’ view, this implied that the State was liable for damage not because it had responsibility for it but as an act of social solidarity with victims of terrorist acts.

7. The first-instance judgment was upheld by the Zadar County Court on 10 September 2009, which endorsed the reasoning of the Zadar Municipal Court.

8. The applicants then lodged an appeal on points of law in which they reiterated their arguments from the appeal and pointed out that the appeal court had not addressed these arguments. On 12 April 2011 the Supreme Court upheld the lower courts ’ judgments. The relevant part of the Supreme Court ’ s judgment reads:

“... even though the damage was caused by violence with terror as one of its essential elements, it does not amount to a terrorist act within the meaning of section 1 of the Liability Act, but was caused by belligerent activity of the enemy military or paramilitary forces with the aim of provoking fear in and displacement of the civilian population and has the characteristics of war damage for which the Republic of Croatia is not liable”

9. The applicants ’ subsequent constitutional complaint was dismissed on 19 January 2012. The decision was served on the applicants on 21 February 2012.

B. Relevant domestic law and practice

1. The 2003 Liability Act

10. The relevant part of the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations of 23 July 2003 ( Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija , Official Gazette of the Republic of Croatia no. 117/2003 – “the 2003 Liability Act”), which entered into force on 31 July 2003, provides as follows:

Section 1

“(1) This Act regulates liability for damage caused by acts of terrorism or other acts of violence committed with the aim of seriously disturbing public order by provoking fear or stirring up feelings of insecurity in citizens ...

(2) A terrorist act within the meaning of this Act is especially an act of violence committed for political reasons [motives] with a view to stirring up fear, terror or feelings of personal insecurity in citizens.”

Section 2

“The Republic of Croatia shall be liable for the damage referred to in section 1 of this Act on [the basis of] the principles of social solidarity, equal distribution of the public burden and fair and prompt compensation.”

Section 3

“The obligation to compensate damage under this Act exists irrespective of whether the perpetrator has been identified, criminally prosecuted or found guilty.”

Section 7(1)

“The victim shall have the right to compensation [in the form of damages] for damage resulting from death, bodily injury or impairment of health.”

2. The 2003 Liability Act (Croatian Army and Police)

11. 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) outlines the conditions under which the State is liable to pay compensation for damage caused by members of the army and the police during the Homeland War. 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 Forces and the police force 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 in territory where military actions were carried out with any means of war ... (bombardment, shelling, machine-gun fire, explosions, mining, movement of troops and the like);

– damage resulting in direct and concrete military gains 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 military operations (direct consequences of war events in connection with unrest, turmoil, panic, evacuations and similar events [occurring] immediately after the military operations have been carried out).

(2) It is to be presumed that the damage caused by members of the Croatian Armed Forces and the police force 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 in territory where military combat actions took place, but the injured party may prove the opposite.”

3. The Assessment of War Damage Act

Section 1

“[This Act provides for] the setting up and the activities of the State, municipal and special commissions for the listing and assessment of war damage caused [in the territory] of the Republic of Croatia to its natural and legal persons, and in connection with enemy activities and military operations carried out against [the Republic of Croatia] in the period from 15 August 1990 until the termination [of the said activities].”

Section 2

“War damage within the meaning of this Act, is pecuniary and non-pecuniary damage, direct and indirect damage, and in particular:

1. damage caused to bodily integrity, life and health of persons, freedom or dignity;

...

War damage, within the meaning of this Act, is damage caused by enemy, illegal forces, legal bodies of the Republic of Croatia, as well as allies of the said forces and bodies, when it was indirectly or directly caused in the period mentioned in section 1 of this Act.”

4. The Supreme Court ’ s case-law

13. The Supreme Court has held that the Republic of Croatia was not liable for war-related damage caused by enemy forces on the occupied territories (for example in its judgments nos. Rev-90/09-2 of 9 June 2010; Rev-1199/08-2 of 2 June 2010; Rev-1264/08-2 of 17 March 2011; and Rev-848/10-2 of 19 June 2012). In the latter the Supreme Court endorsed findings of the lower courts that the killing of persons at the occupied territories amounted to war-related damage and added, in so far as relevant, the following:

“Even though the act giving rise to the plaintiffs ’ claim for damages presents certain similarities with a terrorist act since [both] imply [an act of] violence, the act of damage [in the present case] differs significantly from terrorist acts in its features since it contains additional elements and amounts to war-related damage for which the defendant is not liable. This is because the damage did not occur in the territory under the de facto sovereignty of the Republic of Croatia but in the then occupied territory, where there was no possibility for lawful action by the bodies of the Republic of Croatia; this circumstance excludes the otherwise objective liability of the defendant. Furthermore, the act of damage in the present case was not carried out with the sole aim of seriously disturbing public order (this being the aim characteristic of an act of terror) but also involved the use of force, killing and expulsion of the civilian population on that territory with the aim of destroying the internal security and stability of the Republic of Croatia and preventing its lawful bodies from functioning.

...”

COMPLAINT

14. The applicants complained that they had been discriminated against as regards the findings of the national courts in respect of their claim for damages on the basis of the victim ’ s ethnicity and her place of residence.

15. They also complained that they had not been able to obtain damages in connection with the killing of their mother.

THE LAW

A. Alleged violation of Article 14 of the Convention and Article 1 of Protocol No. 12

16. The applicants complained that they had been discriminated against in their right to obtain damages after the killing of their mother on the basis of the victim ’ s ethnicity. This complaint was communicated under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 and under Article 1 of Protocol No. 12, which read as follows:

Article 14

Prohibition of discrimination

“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.”

Article 1 of Protocol No. 12

General prohibition of discrimination

“1. The enjoyment of any right set forth by law 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.

2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”

1. Submissions of the parties

17. The Government argued that the applicants had not properly exhausted domestic remedies because they had not raised the issue of discrimination in the civil proceedings at issue. In particular, they had not relied on the provisions of the Prevention of Discrimination Act in their appeal against the first-instance judgment nor had they raised the matter in their appeal on points of law before the Supreme Court.

18. The Government contended further that the applicants had not been discriminated against since there had been no difference in treatment of the applicants and other persons in similar situations.

19. The applicants submitted that the national courts had characterised all crimes motivated by ethnic hatred and committed in the occupied territory as war damage for which the State bore no liability. Thus they discriminated against all victims of crimes committed in the occupied territory. This discrimination was ultimately based on the victims ’ Croat ethnicity because, as admitted by the national courts, the victims of crimes motivated by ethnic hatred committed in the occupied territory had been persons of Croat ethnicity. However, that type of discrimination was unacceptable given the purpose of the laws governing the right to compensation for a terrorist act which was to abide by the principles of social solidarity and equal distribution of burden and not the question whether the State was responsible for such acts.

2. The Court ’ s assessment

20. The Court does not have to address all the issues raised by the parties because, even assuming that the applicant properly exhausted the available domestic remedies, the application is in any event inadmissible for the following reasons.

21. According to the Court ’ s well-established case-law, discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see Willis v. the United Kingdom , no. 36042/97, § 48, ECHR 2002-IV; Okpisz v. Germany , no. 59140/00, § 33, 25 October 2005; Oršuš and Others v. Croatia [GC], no. 15766/03, § 149, ECHR 2010; and Biao v. Denmark [GC], no. 38590/10, § 89, 24 May 2016).

22. Therefore, the first issue to be answered is whether there was a difference in treatment between the applicants and other persons in similar situations. In this connection the Court notes that the Zadar Municipal Court held different views as to the characterisation under national law of the killing of the applicants ’ mother. On the one hand it held that it was war-related damage for which the State was not at all liable under the Assessment of War Damage Act. On the other hand it also held that the killing of the applicants ’ mother had been a terrorist act for which in principle the State was liable. However, in the case at issue it was not liable since it had had no sovereignty over the occupied territory in which the impugned act had occurred. The applicants asserted that the latter view had been discriminatory and that compensation for non-pecuniary damage caused by the death of a close relative could not depend on the territory on which a victim had been killed since State liability was not based on its responsibility but on the principle of social solidarity.

23. The Court accepts that an issue of discrimination might arise in circumstances in which persons are treated differently depending on their place of residence, and ultimately, as the applicants argued, on their ethnicity (see paragraph 19 above). However, the Court notes that the dispute as to how to regard the killing of the applicants ’ mother created by the reasoning of the first-instance court was resolved by the Supreme Court which clearly stated that the killing of the applicants ’ mother was to be seen as war-related damage since it was “caused by military activity of the enemy military or paramilitary forces” (see paragraph 8 above). It is not disputed between the parties that the State had no liability for war-related damage, irrespective of whether it had caused by enemy forces or Croatian forces (see section 2 of the Assessment of War Damage Act, paragraph 12 above). Therefore, it cannot be said that there was a difference in treatment as regards persons in a situation comparable to that of the applicants when it came to the right to obtain compensation for war-related damage.

24. Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Alleged violation of Article 1 of Protocol No. 1 to the Convention

25. The applicants complained about the dismissal of their claim for non-pecuniary damage in connection with the killing of their mother. This complaint was communicated under Article 1 of Protocol No. 1, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

1. Submissions of the parties

26. The Government argued that the applicants had not had a claim which had been sufficiently established in domestic law but only a hope that their claim would be granted by the national courts. The case-law of the national courts had shown that killings committed by enemy forces in the occupied territory in the context of armed conflicts amounted to war-related damage for which the State was not liable.

27. The applicants contended that their mother had been killed as a civilian and that her death could not be regarded as war-related damage within the meaning of the relevant laws and that the conclusions of the national courts in that respect had been manifestly arbitrary.

2. The Court ’ s assessment

28. The Court reiterates that the concept of “possessions” is not limited to “existing possessions” but may also cover assets, including claims, in respect of which the applicant can argue that he or she has at least a reasonable and legitimate expectation of obtaining effective enjoyment of a property right. An “expectation” is “legitimate” if there is sufficient basis for that interest in national law, for example if it is based on either a legislative provision or a legal act bearing on the property interest in question ( Saghinadze and Others v. Georgia , no. 18768/05, § 103, 27 May 2010) or where there is settled case-law of the domestic courts confirming it ( Kopecký v. Slovakia [GC], no. 44912/98, § 52, ECHR 2004-IX; and Brezovec v. Croatia , no. 13488/07 , § 39, 29 March 2011 ).

29. As to the present case, the Court notes that the applicants ’ claim for damages was dismissed on the grounds that the death of their mother was war-related damage. The Court notes further that section 2 of the Assessment of War Damage 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. Section 2 of the 2003 Liability Act (Croatian Army and Police) provides that the Republic of Croatia is not liable for damage having character of war-related damage under that Act. The practice of the national courts excluded such liability also for war-related damage caused by enemy forces on the occupied territories (see paragraph 13 above) and the parties do not dispute these findings. Therefore, it cannot be said that the applicants ’ claim for non-pecuniary damage caused by the killing of their mother was sufficiently established in national law since the national courts had found that it had been war-related damage for which the State was not liable. This conclusion does not appear arbitrary in the circumstances of the present case.

30. Accordingly, this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 12 January 2017 .

Hasan Bakırcı Işıl KarakaÅŸ              Deputy Registrar President