FIRST SECTION

DECISION

Application no . 79768/12 Radojka KUKAVICA against Croatia

The European Court of Human Rights ( First Section ), sitting on 2 June 2015 as a Chamber composed of:

Isabelle Berro , President, Elisabeth Steiner , Khanlar Hajiyev , Mirjana Lazarova Trajkovska , Erik Møse , Ksenija Turković , Dmitry Dedov , judges, and Søren Nielsen , Section Registrar ,

Having regard to the above application lodged on 26 November 2012 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms Radojka Kukavica , is a Croatian national who was born in 1956 and lives in Crkveni Bok. She was represented before the Court by Mr L. Šušak , a lawyer practising in Zagreb .

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

The circumstances of the case

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

1. Background to the case

4. During 1991 and 1992 S e rbian para-military 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”). The applicant continued to live in the Krajina. At the beginning of August 1995 the Croatian authorities announced a campaign of military action with the aim of regaining control over 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 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.

5. According to the applicant, on 4 August 1995 she and her nephew Z.D. – in a vehicle of the “Lada” make – and her other nephew A.V. – in a vehicle of the “ Zastava ” make – were driving along the road between the villages of Strmen and Slovenci , trying to flee Croatia and reach Bosnia and Herzegovina. After overtaking a convoy of tractors and while passing through a forest called Zelenik , Croatian soldiers started to fire at them. The applicant and both her nephews were wounded. The applicant and Z.D. got out of the vehicle and ran into the woods. Later on , they both managed to flee into Bosnia and Herzegovina. A.V. surrendered to the Croatian soldiers and was provided with first aid.

2. The first phase of the i nvestigation into the wounding of the applicant

6. The Croatian authorities learned about the applicant ’ s wounding in 2005 when she submitted a request for damages to the State Attorney ’ s Office in that connection.

7. On 27 January 2005 the police interviewed A.V. and Z.D., who both gave an account of the events of 4 August 1995 like that described in paragraph 5 above.

8. On 31 January 2005 the police interviewed the applicant, P.T. and I. Å . The applicant confirmed the accounts of A.V. and Z.D. P.T. said that he had been checking on his cattle in the same area on 4 August 1995 and had hidden in the woods during the shooting. After that he had been captured by the Croatian soldiers. He had seen A.V., who had a head wound that had already been tended to, being held by Croatian soldiers.

9. I. Å ., the commander of a unit comprising 178 soldiers of the XVII Home Guard Regiment of the Croatian Army, said that their task on 4 August 1995 had been “to cut communication on the road between Strmen and Slovinci ”. They had completed that task in the morning and in the afternoon had stationed themselves in the forest known as Zelenik , near that road. Tractors and people had occasionally passed along the road. In the afternoon he had received the order to “destroy a foresters ’ lodge” in the Zelenik forest and had sent ten soldiers to carry out that task. A battle between these soldiers and Serbian para-military forces issued. At that moment two vehicles, a Zastava and a Lada, and a tractor appeared on the road. I. Å . was not sure who had fired at the vehicles, since they had found themselves in crossfire from both sides. The crossfire lasted for about twenty minutes. He had no knowledge about the wounding of the applicant.

10. On 12 May 2006 the police interviewed M.D., who said that on 4 August 1995 she had been in a convoy of tractors and that while they had been passing through the forest of Zelenik , Croatian soldiers had started to fire at them and several people had been killed or wounded.

11. On 23 October 2012 the Ministry of Defence sent the daily log of I. Å . ’ s unit for 4 August 1995 to the Sisak Police. This log confirmed the events described by I. Å . in his statement of 31 January 2005.

3. Investigation following the applicant ’ s criminal complaint of November 2012

12. On 27 November 2012 the applicant lodged a criminal complaint with the State Attorney ’ s Office against I. Å . on charges of war crimes against the civilian population. On 30 November 2012 she extended her complaint to M.L.

13. Between 8 and 19 February 2013 the police interviewed A.V., Z.D., the applicant and P.T. They all repeated their prior statements.

COMPLAINTS

14. The applicant complained under the procedural aspect of Article s 2 and 14 of the Convention that the investigation into her wounding had been ineffective.

THE LAW

15 . The applicant complain ed that the authorities had not taken appropriate and ad equate steps to investigate the circumstances of her wounding and to bring the perpetrators to justice. She also claimed that she had been wounded because of her Serbian ethnic origin and that the national authorities had failed to investigate that factor. She relied on Articles 2 and 14 of the Convention, which read :

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.”

A . The parties ’ submissions

16 . The Government put forward several objections concerning the admissibility of the application. Firstly, they argued that Article 2 was n ot applicable in the circumstances of the present case since the app licant had been wounded in cross-fire. By deciding to travel through the area where it had been announced that the military action “Storm” would take place, the applicant had exposed herself to the risk of being wounded.

17 . They further maintained that the applica tion had been lodged outside the six-month time - limit , having been submitted more than nineteen years after the event at issue .

18 . The applicants argued that they had complied with all admissibility criteria.

B . The Court ’ s assessment

20. The Court reiterates that the purpose of the six-month rule is to promote legal c er ta i n ty and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. Furthermore, it is also meant to protect the authorities and other p a r tie s concerned from being left in a state of uncertainty for a prolonged period of time (see Bayram and Yıldırım v. Turkey ( dec. ), no. 38587/97, ECHR 2002 ‑ III, and Bulut and Yavuz v. Turkey ( dec. ), no. 73065/01, 28 May 2002).

21. Where no remedies are available or are judged to be ineffective, the six-month time-limit in principle runs from the date of the act complained of (see Hazar and Others v. Turkey ( dec. ), no. 62566/00, 10 January 2002). However, special considerations may apply in exceptional cases where an applicant avails himself of, or relies on , an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective; in such a case it is appropriate to take as the start of the six ‑ month period the date when he or she first became aware or ought to have become aware of those circumstances rendering the remedy ineffective (see Paul and Audrey Edwards v. the United Kingdom ( dec. ), no. 46477/99, 7 June 2001).

22. In a number of cases concerning ongoing investigations into the deaths of applicants ’ relatives , the Court has examined the period of time from which the applicant could or should have start ed doubting the effectiveness of a remedy (see Şükran Aydın and Others v. Turkey ( dec. ), no. 46231/99, 26 May 2005; Bulut and Yavuz , cited above; Bayram and Yıldırım , cited above; Kıniş v. Turkey ( dec. ), no. 13635/04, 28 June 2005; Elsanova v. Russia ( dec. ) no. 57952/00, 15 November 2005; Frandeş v. Romania ( dec. ), no. 35802/05, 17 May 2011; Finozhenok v. Russia ( dec. ), no. 3025/06, 31 May 2011; Attalah v. France ( dec. ), no. 51987/07, 30 August 2011; Deari and Others v. the Former Yugoslav Republic of Macedonia ( dec. ), no. 54415/09, 6 March 2012; and Gusar v. Moldova and Rumania ( dec. ), no. 37204/02, 30 April 2013).

23. Consequently, where a death has occurred, applicant relatives are expected to take steps to keep track of the investigation ’ s progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any effective criminal investigation (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 158, 18 September 2009). On the same basis, where time is of the essence in resolving the issues in a case, there is a burden on the applicant to ensure that his or her claims are raised before the Court with the necessary expedition to ensure that they may be properly, and fairly, resolved ( ibid. § 160).

24. Although the Court has refrained from indicating a ny specific period for establishing the point at which an investigation has become ineffective for the purposes of assessing when the six-month period should start to run, the determination of such a period by the Court has depended on the circumstances of each case and other factors such as the diligence and interest displayed by the applicants , as well as the adequacy of the investigation in question. In this connection, in the above- cited Varnava and Others judgment, the Court noted that where the lack of progress or ineffectiveness of an investigation was readily apparent, the requirements of expedition may require an applicant to bring such a case before the Court within a matter of months, or at most, depending on the circumstances, a very few years after the events. This is particular ly pertinent in cases of unlawful death where there is generally a precise point in time at which the death is known to have occurred and some basic facts are in the public domain ; thus the lack of progress or ineffectiveness of an investigation will generally be more readily apparent (see Varnava and Others , cited above, § 162) .

26. T he Court reiterates that the procedural aspect of Article 2 of the Convention in circumstances such as those in the present case in principle requires an investigation capable of leading to the identification and punishment of those responsible. The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see Paul and Audrey Edwards v. the United Kingdom , no. 46477/99, § 69, ECHR 2002 ‑ II).

28. The Court further observes that the investigation has not attained any tangible results and no suspects have been identified. The investigation remained at a standstill from May 2006 for the significant period of more than six years, when no steps were taken and no communication between the authorities and the applicant took place (see paragraphs 9 and 10 above).

29. The Court notes that all military activity in the area at issue ceased in August 1995. The applicant lives in Croatia, with direct access to the authorities, and could therefore have applied for information or otherwise communicated with the investigat ors regarding the investigation into her wounding. T he applicant had received no information from the authorities for more than six years , and yet there is no evidence in the documents submitted that – despite such a significant period of silence on the part of the authorities – she attempt ed to request information on her own initiative. She remained passive in respect of the seemingly dormant domestic investigation (compare to Utsmiyeva and Others , cited above, § 36).

30. T he Court observes that since the applicant is a direct victim of the violations claimed , she may be expected to display due diligence and take the requisite initiative in informing herself about the progress being made in the investigation into her wounding . The absence of any news from the investigators of such a serious crime for such a significant period of time should have prompted her to draw appropriate conclusions (see, for example, Açış v. Turkey , no. 7050/05 , § 42, 1 February 2011 ) .

31. Moreover, the Court notes that the investigation into the wounding of the applicant has been pending for more than nine years without any meaningful investigative steps being taken by the authorities, or new evidence or information appearing which would provide the applicant with grounds for hope or some realistic prospect that the investigation would become effective and attain tangible results. If the applicant failed to become aware of the ineffectiveness of the investigation given such a significant lull in the course of proceedings, the Court considers that this was attributable to her own negligence (see, for example, Findik and Omer v. Turkey ( decs .), nos. 33898/11 and 35798/11, § 15).

32. In view of the above, the Court finds that the applicant has not shown convincingly that some kind s of advances were being made that would justify her inactivity for more than six years. The standstill in the investigation occurred in May 2006, well before 26 November 2012 when this application was lodged (compare to Finozhenok , cited above ). It finds that, following the standstill in the investigation, the applicant ought to have concluded long before – and certainly more than six months before – the introduction of the present application that this investigation was without effect.

33. As to the round of investigation which had occurred in 2012, the Court notes that where information purportedly casting new light on the circumstances of a death comes into the public domain, a new obligation to investigate the death may arise (see Hackett v. the United Kingdom ( dec. ), no. 34698/04, 10 May 2005; Brecknell v. the United Kingdom , no. 32457/04, §§ 66-67, 27 November 2007; Williams v. the United Kingdom ( dec. ), no. 32567/06, 17 February 2009; and Harrison and Others v. the United Kingdom ( dec. ), no 44301/13, § 51, 25 March 2014). It cannot be the case that any assertion or allegation can trigger a fresh investigative obligation under Article 2 of the Convention. Nonetheless, given the fundamental importance of this provision, the State authorities must be sensitive to any information or material which has the potential either to undermine the conclusions of an earlier investigation or to allow an earlier inconclusive investigation to be pursued further (see Brecknell , cited above, § 70). As to the present case, the Court does not find that the applicant ’ s initiative in 2012 can lead to any other conclusion, since it has not led to the discovery of any new elements (see, mutatis mutandis, Finozhenok , cited above; and Nasirkayeva v Russia ( dec. ), no. 1721/07).

34. Accordingly, the Court finds that the present application lodged in 2012 must be rejected for failure to comply with the six-month time-limit set out in Article 35 §§ 1 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 25 June 2015 .

Søren Nielsen Isabelle Berro Registrar President