FIRST SECTION

DECISION

Applications nos. 32343/16 and 750/17 J. and Others against Croatia and Petar DAMJANOVIĆ against Croatia

The European Court of Human Rights (First Section), sitting on 26 May 2020 as a Committee composed of:

Aleš Pejchal , President, Pauliine Koskelo, Tim Eicke, judges , and Renata Degener, Deputy Section Registrar ,

Having regard to the above applications lodged on 1 June 2016 and 22 December 2016 respectively,

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 . A list of the applicants is set out in the appendix.

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

3 . On 10 September 1991 a close relative of the applicants was arrested by the Croatian police and never heard of again. An investigation into his disappearance is still ongoing.

4 . The applicant ’ s parents were killed on 6 August 1995 by unknown perpetrators. An investigation into their killing is still ongoing.

5 . In 2004 the applicant lodged a civil claim against the State, seeking damages for the violent death of his parents, alleging that they had been killed by Croatian soldiers. The civil courts rejected the applicant ’ s claim as having been lodged outside the statutory time-limit. The applicant lodged a constitutional complaint, alleging a violation of Articles 2, 6 and 14 of the Convention. He asserted that his parents had undoubtedly been killed by Croatian soldiers and that therefore there had been a violation of their right to life, as guaranteed by Article 2 of the Convention. He cited the case of Damjanović v. Croatia (( dec. ), no. 5306/13, 25 August 2015), pointing out that the applicant in that case – his brother – had complained of the same damaging event and that the Government had acknowledged that there had been a violation of Articles 2 and 14 of the Convention. He contended that given the circumstances, the civil courts ’ decisions rejecting his claim for damages had been arbitrary.

6 . On 20 January 2016 the Constitutional Court dismissed the applicant ’ s constitutional complaint, finding that the civil courts ’ decisions had not been arbitrary.

7 . The relevant domestic law and practice is set out in the case of Kušić v. Croatia (( dec. ), no. 71667/17, §§ 37-56, 10 December 2019).

9 . The following decisions of the Constitutional Court were cited in the case of KuÅ¡ić (cited above, §§ 46-48 and 56): decisions nos. U ‑ II I ‑ 4413/2014 of 19 November 2014; U-III-3427/2015 of 18 November 2015; U-IIIBi-7367/2014 of 15 December 2015; U ‑ IIIB i ‑ 2698/2016 of 14 December 2016; and U-IIIBi-3699/2015 of 30 March 2017.

10 . The following decisions of the Constitutional Court are not available on the Constitutional Court ’ s website (and the applicants did not submit copies of them to the Court): deci sions nos. U-III-1766/2014 of 5 March 2015, and U-III-2725/2015 of 14 November 2016.

The first three decisions indicate that in their constitutional complaint the respective complainants alleged a violation of Articles 2, 6 and 14 of the Convention. The Constitutional Court dismissed those constitutional complaints as manifestly ill-founded, finding that the civil courts ’ conclusions that the claims for damages had been lodged outside the statutory time-limit had not been arbitrary.

As for the remaining two decisions, in their constitutional complaints the respective complainants alleged, inter alia , a violation of the substantive aspect of Article 2 of the Convention, arguing that their family members had been killed by Croatian soldiers. The Constitutional Court held that the State was liable for the killings perpetrated by its agents. In such a situation, the State was obliged to carry out an effective investigation into the killing and to award compensation for damage to the victim ’ s family. The Constitutional Court held that it could not examine the effectiveness of the investigation because the complainants had not complained about the investigation in their constitutional complaints. It furthermore noted that the civil courts had dismissed the complainants ’ claims for damages regarding the killing as having been lodged out of time. Since that conclusion had not been arbitrary, the Constitutional Court held that there had been no violation of Article 2 of the Convention.

COMPLAINTS

12 . The applicants complained under Articles 2 and 14 of the Convention of the lack of an effective investigation into the disappearance and killing of their close relatives.

THE LAW

13 . Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

14 . The applicants complained that the authorities had not taken appropriate and adequate steps to investigate the disappearance and death of their close relatives and to bring the perpetrators to justice. The applicants in case no. 32343/16 also submitted that the national authorities had failed to investigate whether there had been any motive behind the killing of their relative that might have been related to his Serbian origin. The Court, being master of the characterisation to be given in law to the facts of the case, will examine these complaints under 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

15 . In their observations on the admissibility and merits of the applications and in their comments on the applicants ’ claim for just satisfaction submitted on 18 Apr il and 30 June 2017 in case no. 32343/16, and on 8 February and 8 May 2018 in case no. 750/17, the Government contended that the first applicant in case no. 32343/16 did not have victim status, since she had divorced the victim after he had gone missing. They furthermore contended that the complaints in both cases had been lodged out of time, and that, in any event, the investigation conducted had been effective and had not been discriminatory.

16 . In their submission of 7 November 2019 (which related to both cases), the Government referred to the Constitutional Court ’ s decision no. U-IIIBi-4222/2018 of 5 November 2019, in which that court had found a violation of the procedural aspect of Article 2 of the Convention on the grounds that the investigation into the killing of the complainants ’ family member had not been effective (see Kušić v. Croatia ( dec. ), no. 71667/17, § 55, 10 December 2019). The Government argued that the latter decision had confirmed that the constitutional complaint constituted an effective domestic remedy in respect of complaints concerning the alleged lack of an effective investigation under Article 2 of the Convention and that, having regard to the subsidiary character of the Court, the applicants in the present case should be required to use a constitutional complaint before bringing their grievances to the Court.

(b) The applicant s

17 . The applicants contended that the investigation into the disappearance and death of their family members had been ineffective, since over almost thirty years the authorities had not managed to establish any relevant facts.

18 . They furthermore deemed that a constitutional complaint did not constitute an effective remedy for complaints concerning the lack of an effective investigation under Article 2 of the Convention because the Constitutional Court had either declined to examine such complaints or had dismissed them as unfounded. They relied on the Constitutional Court decisions cited in paragraph 8 above. They submitted that the applicant in case no. 750/17 had lodged a constitutional complaint alleging, inter alia, a violation of Article 2 of the Convention, but that the Constitutional Court had not examined that complaint (see paragraph 6 above). Having no prospect of achieving success by lodging a constitutional complaint, the applicants in case no. 32343/16 had decided not to pursue that remedy.

19 . 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.

20 . The Court observes that in their submission of 7 November 2019 the Government raised for the first time the objection that domestic remedies had not been exhausted, in that the applicants had not availed themselves of the constitutional complaint concerning the lack of an effective investigation under Article 2 of the Convention (see paragraph 16 above). In the latter circumstances the first question to answer is whether the Government are prevented from raising such an objection.

21 . The Court would point out that under Rule 55 of the Rules of Court, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application (see Navalnyy v. Russia [GC] , nos. 29580/12 and 4 others, § 60, 15 November 2018; Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 64 and 67, ECHR 2016 (extracts); and Mooren v. Germany [GC], no. 11364/03 , § 57, 9 July 2009). In the present case, the observations on the admissibility of the application were submitted on 18 April 2017 in respect of case no. 32343/16, and on 8 February 2018 in respect of case no. 750/17 (see paragraph 15 above). At that time the grounds on which the Government ’ s objection is based had not yet arisen. In particular, a constitutional complaint concerning the lack of an effective investigation under Article 2 of the Convention became an effective domestic remedy only in 2019 (see Kušić , cited above, § § 92 and 99 and compare N.C. v. Italy [GC], no. 24952/94, § 44, ECHR 2002 X).

22 . The Court reiterates in this connection that where a new legally relevant procedural event occurs in the course of the proceedings before the Court, it is in the interests of the proper administration of justice that the Contracting Party should make any formal objection without delay (see Lebedev v. Russia , no. 4493/04, § 40, 25 October 2007, and N.C., cited above, § 45). In the present case, the Government raised the non-exhaustion objection on 7 November 2019, which was two days after the Constitutional Court rendered a decision finding a breach of the procedural aspect of Article 2 of the Convention on account of the ineffective investigation into the killing of the complainants ’ family member (see paragraph 16 above). Indeed, the Constitutional Court examined the effectiveness of investigations under Article 2 even before 2019, but in the Kušić case th is Court established that only the decisions of the Constitutional Court rendered on 3 April, 9 July and 5 November 2019 had allowed it to find that the Constitutional Court consistently and effectively examined investigations (see Kušić , cited above, §§ 92 and 93).

23 . Having regard to the above, the Court is of the view that in the present case the Government raised the objection of non-exhaustion of domestic remedies in a timely manner (contrast the above-cited cases of N.C., § 46, and Lebedev , § 40).

24 . The applicants in their submission contended that a constitutional complaint was not an effective remedy for complaints concerning ineffective investigations under Article 2 of the Convention because the Constitutional Court usually either ( i ) did not examine or (ii) dismissed such complaints (see paragraph 18 above).

25 . The Court notes that most of the Constitutional Court decisions relied on by the applicants in support of their argument were issued between 2014 and 2017 (see paragraph 8 above). Given the fact that in the recent case of Kušić the Court established that only in 2019 did a constitutional complaint become an effective remedy for complaints concerning ineffective investigations under Articles 2 and 3 of the Convention, there is no reason for the Court to review decisions rendered prior to that year. As to decisions nos. U-III-3689/2018 of 10 December 2019 and U-III-2098/2018 of 9 January 2020, the Court notes that the Constitutional Court did not examine the effectiveness of investigations under Article 2 of the Convention because it found that the complainants had not raised that complaint in their constitutional complaints (see paragraph 11 above).

27 . The Court notes that the applicants lodged their applications with the Court on 1 June 2016 and 22 December 2016 respectively, whereas a constitutional complaint only became an effective remedy in 2019. However, as in the case of Kušić , the Court is of the view that in the present case the applicants should be required by Article 35 § 1 of the Convention to have recourse to a constitutional complaint (see Kušić , cited above, §§ 100-107).

28 . As to the argument that the applicant in case no. 750/17 has already lodged a constitutional complaint alleging a violation of Article 2 of the Convention but that the Constitutional Court failed to examine that complaint (see paragraph 18 above), the Court notes that the Constitutional Court ’ s decision in question was delivered in 2016 – several years before the constitutional complaint became an effective remedy for complaints concerning ineffective investigations under Article 2 of the Convention (see paragraph 6 above). In any event, the Court observes that in his constitutional complaint the applicant alleged a violation of only the substantive aspect of Article 2 of the Convention, maintaining that his parents had been killed by Croatian soldiers. He did not, under the procedural aspect of Article 2, allege that there had been no effective investigation into his parents ’ killing. He cited the case of Damjanović (cited above), contending that the applicant in that case had been his brother, who had complained to the Court of the same damaging event, and that the Government had acknowledged that there had been a violation of Articles 2 and 14 of the Convention. However, he did not refer to the investigation, even in substance, but instead confined himself to challenging the civil courts ’ decisions dismissing as arbitrary his claim for damages. Accordingly, it cannot be accepted that the applicant in case no. 750/17 brought before the Constitutional Court his complaint concerning the ineffective investigation into his parents ’ killing under Article 2 of the Convention.

29 . In this connection, the Court reiterates that the mere fact that an applicant has submitted his or her case to the relevant court does not of itself constitute compliance with the requirements of Article 35 § 1 of the Convention, as even in those jurisdictions where the domestic courts are able, or even obliged, to examine a case of their own motion, applicants are not dispensed from the obligation to raise before them a complaint subsequently made to the Court. Thus, in order to properly exhaust domestic remedies it is not sufficient for a violation of the Convention to be “evident” from the facts of the case or from the applicant ’ s submissions. Rather, the applicant must actually have complained (expressly or in substance) about it in a manner that leaves no doubt that the same complaint that is subsequently submitted to the Court was indeed raised at the domestic level (see Peacock v. the United Kingdom ( dec. ), no. 52335/12, § 38, 5 January 2016, and Hernadi v. Croatia ( dec. ), no. 29998/15, § 92, 3 September 2019).

30 . The Court also reiterates that the existence of mere doubts as to the prospects of success of a constitutional complaint that is not obviously futile does not constitute a valid reason for failing to use that remedy (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 74, 25 March 2014, and Brusco v. Italy ( dec. ), no. 69789/01, ECHR 2001 ‑ IX).

31 . Accordingly, the Court holds that all the applicants in the present case are required to lodge a constitutional complaint. 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.

32 . 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.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible .

Done in English and notified in writing on 18 June 2020 . e {signure_p_2}

Renata Degener Aleš Pejchal Deputy Registrar President

A PPENDIX

Application no . 32343/16

No.

Applicant ’ s Name

Nationality

Place of residence

1N.J.

Croatian

Jabukovac

2D.J.

Croatian

Krnjača

3M.J.

Croatian

Mošćenica

4Z.J.

Croatian

Mošćenica

Application no . 750/17

No.

Applicant ’ s Name

Nationality

Place of residence

1Petar DAMJANOVIĆ

Croatian

Petrinja