SECOND SECTION

DECISION

Application no . 74338/12 Mirjana BABIĆ against Croatia

The European Court of Human Rights ( Second Section ), sitting on 24 November 2015 as a Committee composed of:

Paul Lemmens , President, Ksenija Turković , Jon Fridrik Kjølbro , judges, and Abel Campos , Deputy Section Registrar ,

Having regard to the above application lodged on 19 October 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 Mirjana Babić , is a Croatian national, who was born in 1950 and lives in Mokro Polje . She was represented before the Court by Mr H. Alajbeg , a lawyer practising in Split .

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

1. Background to the case

4. In 1991 the armed conflict escalated in Croatia. During the years 1991 and 1992 Serbian paramilitary 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”). At the beginning of August 1995 the Croatian authorities announced a campaign of military action with the aim of regaining control over the 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 had fled Croatia . Most of them went to Bosnia and Herzegovina, and also to Serbia. Some returned to Croatia after the war. The number of people who fled is estimated at between 100,000 and 150,000.

5. On 5 November 1997 Croatia ratified the Convention.

2. Death of the applicant ’ s mother

6. According to the applicant her mother, M.S., was killed on 10 August 1995 in the village of Zvjerinac , at the territory of Krajina, by unknown persons.

7. M.S. ’ s remains were exhumed during May and June 2001 at the cemetery in Knin . After a DNA analysis was conducted, the Institute for Forensic Medicine in Zagreb issued a report dated 26 October 2003 , which stated that the post-mortem remains were those of M.S. The cause of her death was not established.

8. After the applicant on 26 February 200 4 filed with the State Attorney ’ s Office a claim for damages in connection with the killing of M.S. (see paragraph 11 below), the Šibenik police opened an inquiry into the circumstances of h er death.

9. On 16 August 2004 the Šibenik police interviewed the applicant who had no relevant information about the circumstances of her mothers ’ death.

10 . On 2 September 2004 the Å ibenik p olice interviewed K.J. who said that he had heard that M.S. had locked herself in a pigsty in Zvjerinac and had died there.

3. Civil proceedings

11. On 26 February 200 4 the applicant submitted a claim for damages with the State Attorney ’ s Office in respect of the death of M.S. The request was refused .

12. On 16 November 2004 the applicant brought a civil claim in the Knin Municipal Court ( Op ć inski sud u Kninu ) against the State, seeking damages in connection with the death of her mother.

13. The Knin Municipal Court heard evidence from the applicant and two witnesses and on 11 December 2008 dismissed the claim for lack of evidence. The parties did not suggest any other evidence. The first-instance court held that the applicant had not prove d th e circumstances of her mother ’ s death and that M.S. ’ s death was war-related. This judgment was upheld by the Å ibenik County Court ( Ž upanijski sud u Å ibeniku ) on 22 March 2010 and by the Supreme Court ( Vrhovni sud Republike Hrvatske ) on 15 June 2011.

14. The applicant ’ s subsequent constitutional complaint was declared inadmissible by the Constitutional Court ( Ustavni sud Republike Hrvatske ) on 1 March 2012 as manifestly ill-founded.

B. Relevant domestic law

15 . The relevant provisions of the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations and of the Liability Act (Croatian Army and Police) are set out in Grubi ć v. Croatia ( dec. ), no. 56094/12, §§ 9-10, 9 June 2015.

COMPLAINTS

16. The applicant complained under the procedural aspect of Articles 2 and 14 of the Convention as well as under Article 13 of the Convention that the available criminal-law mechanisms in connection with the death of her mother were inefficient, and that the national authorities had not investigated possible ethnic motives for her death , as required under Article 14 of the Convention.

17. She further complained under Article 13 of the Convention that her claim for damages had been dismissed on the grounds that s he had not proved th e circumstances of her mother ’ s death.

THE LAW

A. Alleged violation of Article 2 of the Convention

18. The applicant complained that the authorities had not taken appropriate and adequate steps to investigate the death of her mother M.S. and to bring the perpetrators to justice. She also claimed that her mother had been killed because of h er Serbian ethnic origin and that the national authorities had failed to investigate that factor. She relied on Articles 2 , 13 and 14 of the Convention . The Court, being master of the characterisation to be given in law to the facts of the case, will examine this complaint 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. ...”

1. The parties ’ submissions

19. The Government argued that t he applicant had failed to exhaust all available domestic remedies. They contended that the applicant could have lodged a complaint against individual police officers or employees of the State Attorney ’ s Office who had been in charge of the investigation into the death of her mother . Such a complaint could have led to the institution of disciplinary proceedings. As regards protection against alleged unlawfulness in the conduct of the domestic authorities, the Government pointed out that the applicant could have sought damages from the State under the State Administration Act. They argued that such a combination of remedies had been found effective by the Court in the case of D.J. v. Croatia (no. 42418/10 , 24 July 2012 ) .

20. They further maintained that the application had been lodged outside the six-month time - limit , because the applicant had never enquired about the progress of the investigation i nto the cir c umstances of h er m other ’ s death.

21. The applicant argued that s he had complied with all of the admissibility criteria.

2. The Court ’ s assessment

22. The Court does not have to address all the issues raised by the parties, as this part of the application is in any event inadmissible for non-compliance with the six-month time-limit set out in Article 35 of the Convention for the following reasons.

23. The Court reiterates that the purpose of the six-month rule is to promote legal certainty and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. Furthermore, it ought also to protect the authorities and other persons concerned from being under any uncertainty for a prolonged period of time (see Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08 , § 258, ECHR 2014 (extracts) ).

24. 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 or relies on an apparently existing remedy and only later 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).

25. As regards the applicant ’ s civil action for damages, the Court notes that s he asked for compensation in connection with the death of her mother. However, these proceedings are not, in the circumstances of the present case, relevant to the State ’ s procedural obligation under Article 2 of the Convention , and therefore do not affect the running of the six-month period (compare to Narin v. Turkey , no. 18907/02 , § 48, 15 December 2009 ).

26. T he Court reiterates that th e obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State ’ s general duty under Article 1 of the Convention to secure to everyone within its jurisdiction the rights and freedoms defined in the Convention, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis , McCann and Others v. the United Kingdom , 27 September 1995, Series A no. 324, § 161; and Kaya v. Turkey , 19 February 1998, Reports of Judg ment s and Decisions 1998-I, § 86; and Paul and Audrey Edwards , cited above, § 69 ). The Court notes that in the present case it has not been established that the applicant ’ s mother ’ s death resulted from the use of force. The cause of her death remains unknown. It is therefore open to doubt whether the procedural obligation under Article 2 of the Convention has at all been triggered in the circumstances of the present case.

27. Be it as it may, the Court reiterates that an applicant whose mother had died may be expected to display a certain amount of diligence and initiative ( see, mutatis mutandis , Bulut and Yavuz v. Turkey ( dec. ) , no. 73065/01, 28 May 2002) . In the instant case, the Court notes that the applicant never requested the competent authorities to institute a criminal investigation into the death of her mother. The body of the applicant ’ s mother was exhumed in 2001 and an autopsy was carried out in 2003 which, however, did not establish the cause of her death. Following the applicant ’ s request for damages lodged with the State Attorney ’ s Office, in 2004 the Å ibenik police interviewed the applicant and one K.J. but no relevant information was provided. No other steps have been taken since September 2004.

28. Given the above circumstances of this case, the Court concludes that the applicant should have become aware long before October 2012, when she lodged her application with the Court, that there had been no further efforts to establish the circumstances of the death of her mother since September 2004. However, she lodged the application with the Court more than eight years after that. She has not put forward any justification for that delay.

29. It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

B. Alleged violation of Article 6 § 1 of the Convention

30. The applicant further complained, relying on Article 13 of the Convention, that the civil proceedings could not be considered an effective remedy in her attempt to obtain damages from the State. T he Court, being master of the characterisation to be given in law to the facts of the case, considers that the complaint concerns the applicant ’ s right of access to a court, as guaranteed under Article 6 § 1 of the Convention. The relevant part of Article 6 § 1 of the Convention reads as follows:

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

1. The parties ’ submissions

31 . The applicant argued that the ineffectiveness of the civil proceedings had been due to the fact that her claim for damages had been dismissed on the ground that she had not proved th e circumstances of her mother ’ s death.

32 . The Government argued that the applicant had been able to bring her civil claim at several judicial instances before a regular civil court, where the claim had been decided on the merits.

2. The Court ’ s assessment

33 . Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. That provision embodies the “right to a court”, of which one aspect is the right of access – that is to say, the right to institute proceedings before a court in civil matters. The “right to a court” is not absolute. By its very nature it calls for regulation by the State. Contracting States enjoy a certain degree of discretion in that respect but the ultimate decision as to the observance of the Convention ’ s requirements rests with the Court (see Golder v. the United Kingdom , 21 January 1975, §§ 34 in fine and 35-36, Series A no. 18, and Z and Others v. the United Kingdom [GC], no. 29392/95, §§ 91 ‑ 93, ECHR 2001-V ; and Grubi ć , cited above, § 33 ).

34 . Furthermore, it is in the first place for the national authorities, and notably the courts, to interpret domestic law. The Court ’ s role is limited to that of verifying compatibility with the Convention of the effects of such interpretation. Furthermore, the Court must make its assessment in each case in the light of the particular features of the proceedings in question and by reference to the object and purpose of Article 6 § 1 (see, mutatis mutandis , Miragall Escolano and Others v. Spain , nos. 38366/97, 38688/97, 40777/98, 40843/98, 41015/98, 41400/98, 41446/98, 41484/98, 41487/98 and 41509/98, § 36, ECHR 2000 I ; and Grubi ć , cited above, § 34 ).

35 . Croatian law undoubtedly afforded the applicant the possibility of bringing judicial proceedings. She availed herself of that possibility by bringing a civil action against the State in the Knin Municipal Court (see paragraph 12 above), seeking compensation for the damage she had allegedly sustained on account of the death of her mother M.S. After her claim was dismissed by the first-instance court, the applicant appealed to the Å ibenik County Court, and subsequently to the Supreme Court (compare to Grubi ć , cited above, § 35) .

36 . The national courts examined the applicant ’ s claim on the merits and found that the circumstances of the death of her mother remained unknown. On those grounds the applicant ’ s claim was dismissed. It appears that the applicant i s essentially dissatisfied with the outcome of the case and the burden of proof placed on her .

37 . However, under Article 19 of the Convention, the duty of the Court is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, inter alia , Tamminen v. Finland , no. 40847/98, § 38, 15 June 2004 ; and Grubi ć , cited above, § 38 ).

38 . Therefore, the Court will not in principle intervene unless decisions reached by domestic courts appear arbitrary or manifestly unreasonable, and provided that the proceedings as a whole were fair, as required by Article 6 § 1 (see Khamidov v. Russia , no. 72118/01, § 170, 15 November 2007, and Anđelković v. Serbia , no. 1401/08, § 24, 9 April 2013).

39 . In the Court ’ s view , it is a normal feature of civil proceedings that the plaintiff must prove his or her claim. Since the national courts found that the applicant had not satisfied the burden of proof, their conclusions when dismissing the applicant ’ s claim do not appear arbitrary or manifestly unreasonable (compare to Grubi ć , cited above, § 40) .

40. It follows that this complaint is 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 17 December 2015 .

Abel Campos Paul Lemmens              Deputy Registrar President