FIRST SECTION

DECISION

Application no. 49681/16 Spomenka PERGAR and Others against Croatia

The European Court of Human Rights (First Section), sitting on 22 February 2022 as a Committee composed of:

Péter Paczolay, President, Alena Poláčková, Davor Derenčinović, judges, and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 49681/16) against Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 19 December 2016 by the applicants listed in the appended table (“the applicants”) who were represented by Mr Z. Novaković , a lawyer practising in Zagreb;

the decision to give notice of the application to the Croatian Government (“the Government”), represented by their Agent, Ms S. Stažnik,

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1 . The application concerns the alleged lack of an effective investigation into the killing of the applicants’ close relative.

2. The applicants’ respective son and brother, T.P., was beaten to death in January 2011. In May 2011 three persons were indicted on charges of inflicting severe bodily injuries to T.P. with a lethal outcome, and the criminal proceedings against them are still pending. Meanwhile, in August 2021 one of the accused died.

3. The applicants complain under the procedural limb of Article 2 of the Convention about the protracted response of the domestic authorities to the death of their close relative.

THE COURT’S ASSESSMENT

4. The Court does not have to examine all the issues raised by the parties but will focus on the Government’s objection as to the non-exhaustion of domestic remedies.

5 . In the case of Kušić and Others v. Croatia ((dec.), no. 71667/17, 10 December 2019) the Court 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 also held that the exception regarding the rule of exhaustion of the domestic remedies was to be applied in cases of this sort and 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., §§ 101-05 and the cases cited therein).

6. The Court notes that the applicants in the present case did not lodge a constitutional complaint. It is true that they introduced their application with the Court on 19 December 2016, whereas, according to the Court’s assessment, a constitutional complaint became an effective remedy only in 2019 (see paragraph 5 above).

7. However, since the criminal proceedings concerning the death of T.P. are still pending (see paragraph 2 above), the Court holds, as in Kušić and Others (cited above, § 106), that the applicants in the present case are required to lodge a constitutional complaint, it being understood that the period during which the proceedings were pending before the Court should not be held against them.

8. Indeed, in accordance with the principle of subsidiarity, one of the fundamental principles on which the Convention system is based, the respondent State should be afforded the opportunity to put matters right through its own legal system before answering before an international body for its acts or omissions.

9. In that connection the Court reiterates that the requirements of Article 2 under its procedural limb go beyond the stage of the official investigation and that if the investigation has led to the institution of proceedings before the national courts, then the proceedings as a whole including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law (see, for example, Öneryıldız v. Turkey [GC], no. 48939/99, § 95, ECHR 2004‑XII).

10. Having regard to the Constitutional Court’s decisions rendered as of 2019, which extensively implement the criteria established by the Court in assessing whether or not an investigation had been effective, including whether the authorities had acted with the required promptness and reasonable expedition (see, for instance, Nafiye Çetin and Others v. Turkey , no. 19180/03, § 42, 7 April 2009; and the Croatian Constitutional Court’s decision U-IIIBi-4222/2018 of 5 November 2019 cited in Kušić and Others, § 55), the Court has no reason to doubt that the Constitutional Court will diligently examine the applicants’ complaint.

11. 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.

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

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 17 March 2022.

Liv Tigerstedt Péter Paczolay Deputy Registrar President

APPENDIX

No.

Applicant’s Name

Year of birth

Nationality

Place of residence

1.Spomenka PERGAR

1966Croatian

Macinec

2.Marijan PERGAR

1961Croatian

ÄŒakovec

3.Miroslav PERGAR

1984Croatian

ÄŒakovec