FIRST SECTION

DECISION

Application no. 80573/12 Svetko HRKALOVIĆ and Nada NARANČIĆ against Croatia

The European Court of Human Rights (First Section), sitting on 23 November 2021 as a Committee composed of:

Erik Wennerström, President, Lorraine Schembri Orland, Ioannis Ktistakis, judges, and Liv Tigerstedt, Deputy Section Registrar ,

Having regard to the above application lodged on 12 November 2012,

Having regard to the Court’s decisions of 19 May 2015 and 7 July 2020,

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 Svetko Hrkalović and Ms Nada Narančić, are Croatian nationals who were born in 1941 and 1945 respectively and live in Novi Beograd. They were represented before the Court by Mr L. Šušak, and subsequently by Ms S. Ormuž and Mr A. Nobilo, lawyers practising in Zagreb.

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

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

4. In 1991 armed conflict escalated in Croatia. In 1991 and 1992 Serbian paramilitary forces gained control of about one-third of the territory of Croatia and proclaimed it the “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 given the code name “Storm” and was carried out from 4 to 7 August 1995. Before that action, the vast majority of the population of the Krajina had fled Croatia, initially for Bosnia and Herzegovina, and later many went to live in Serbia. Some returned to Croatia after the war.

5. The applicants’ mother, Z.H., then eighty years old, remained in her house in the village of Doljani, in the occupied territory of the Krajina.

6. On 3 May 1999 the second applicant contacted the Otočac Sanitary Inspectorate ( Županija Ličko-senjska, Ured za rad, zdravstvo i socijalnu skrb Gospić, Ispostava Otočac, sanitarna inspekcija ), asking to have the remains of her mother exhumed, and to have them transferred to the Doljani cemetery. Her request was granted on the same day.

7. On 7 May 1999 the Otočac Sanitary Inspectorate exhumed Z.H.’s remains, which had been buried in the yard next to her house.

8. On 5 September 2005 the applicants submitted a request to the State Attorney’s Office of the Republic of Croatia ( Državno odvjetništvo Republike Hrvatske ) for the friendly settlement of the dispute. They sought compensation from the State for damage, alleging that their mother had been killed by Croatian soldiers in the course of the military operation “Storm”.

9. On 24 November 2009 the first-instance court rejected the applicants’ civil claim as having been lodged outside the statutory time-limit. Subsequently, that judgment was upheld by the second-instance court and by the Supreme Court ( Vrhovni sud Republike Hrvatske ). On 7 May 2012 the Constitutional Court ( Ustavni sud Republike Hrvatske ) rejected a constitutional complaint by the applicants, holding that the civil courts’ decisions had not been arbitrary.

10. Upon receipt of the applicants’ request for a friendly settlement (see paragraph 8 above), the State Attorney’s Office asked the police to gather information regarding the death of the applicants’ mother.

11. On 18 October 2005 the police interviewed two people, who submitted details regarding the exhumation of the body of the applicants’ mother and the transfer of the body to the cemetery but had no knowledge of the circumstances of her death.

12. On 24 October 2005 the police informed the State Attorney’s Office that the inquiry had shown that the applicants’ mother had died in unknown circumstances during the course of the military action “Storm” in August 1995 and had been buried next to her house, and that her remains had been found in 1999 and transferred to a cemetery. Because of the fact that during the exhumation of Z.H.’s body in 1999 only her skeleton had been found, it had not been possible to establish the presence of injuries or the cause of her death.

13. On 12 May 2011 the Karlovac County State Attorney’s Office ( Županijsko državno odvjetništvo u Karlovcu ) submitted a list of persons to the police and asked them to investigate whether those persons had been victims of war crimes or any other criminal offences. The name of the applicants’ mother was on that list.

14. On 26 May 2011 the police interviewed eight persons. They had no direct knowledge of the circumstances in which the applicants’ mother had died. They reported having heard that she had been killed and buried next to her house.

15. On 3 August 2011 the police visited the cemetery in the village of Doljani and identified the plot to which the remains of the applicants’ mother had been transferred in 1999.

16. On 10 January 2014 the police interviewed an anonymous person, who claimed to have no knowledge of the circumstances in which the applicants’ mother had died, but only knew that she had been buried next to her home.

17. The investigation into the applicants’ mother’s death is still ongoing .

18. On 12 November 2012 the applicants lodged their application with the Court through the lawyer L.Å .

19. Notice of the application was given to the Government who, on 15 September 2014, submitted their observations on the admissibility and merits of the case. The observations were forwarded to the applicants, who were invited to submit their own observations. The Court’s letter was sent to the lawyer F.B.

20. On 19 May 2015 the application was struck out of the Court’s list of cases on the grounds that the applicants, despite having been warned by the Court about the possibility that the application might be struck out, had failed to submit observations in reply to those of the Government.

21. On 1 October 2019 the applicants sent a letter to the Court asking that their application be restored to the Court’s list of cases. They submitted that they had lodged their application through the lawyer L.Š. Lawyer F.B. had not been their representative, and they had not received any correspondence from the Court.

22. On 7 July 2020 the Court restored the application to the Court’s list of cases.

23. On 8 October 2020 the applicants submitted observations in reply to those of the Government, together with their claims for just satisfaction.

24. On 10 November 2020 the Government submitted comments on the applicants’ submissions.

COMPLAINTs

25. The applicants complained under Articles 2 and 14 of the Convention that the investigation into the killing of their mother had been ineffective. They also complained under Article 13 that they had not had an effective domestic remedy at their disposal to consider their Convention complaints.

THE LAW

26. The applicants 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 their complaints under Article 2 of the Convention alone which, in so far as relevant, reads as follows:

“1. Everyone’s right to life shall be protected by law. ...”

27. The Government contended that the complaint had been lodged out of time. The authorities had been apprised of the death of the applicants’ mother for the first time in 2005, when the applicants had contacted the State Attorney’s Office with a view to obtaining damages for her death. To the present day, the applicants had not contacted the investigating authorities regarding the course of the investigation.

28. In their submissions of 10 November 2020, the Government further argued that, because the investigation was still ongoing, the applicants should be required to lodge a constitutional complaint as that was an effective domestic remedy in respect of complaints concerning the alleged lack of an effective investigation under Article 2 of the Convention.

29. The applicants submitted that in 1999 they had informed the authorities that their mother had been buried in the yard next to her house. It had been obvious that she had died in suspicious circumstances during the course of a military operation. An obligation had therefore arisen to conduct an official investigation into the circumstances of her death. However, the first investigative steps had been carried out only in 2005.

30. The applicants further argued that the authorities had never conducted an autopsy of their mother’s remains. They had never interviewed the applicants in person and had not tried to find out which military unit had operated in the village of Doljani in August 1995, when many elderly civilians had been killed.

31. The Court does not have to examine all the issues raised by the parties, since the application is in any event inadmissible for the following reasons.

32. The Court notes that the applicants’ mother was killed in August 1995. The police inquiry commenced in October 2005 (see paragraph 11 above). The applicants lodged their application with the Court on 12 November 2012. The investigation was formally pending at the time when the application was lodged (compare Opačić and Godić v. Croatia (dec.), no. 38882/13, § 26, 26 January 2016, and Obajdin v. Croatia , no. 39468/13, § 31, 4 July 2017).

33. The Court observes that the inquiry undertaken in 2005 did not attain any tangible results and that no suspects were identified (see paragraphs 10-12 above). Between October 2005 and May 2011, the investigation was at a standstill and no steps were taken (see paragraphs 12 and 13 above).

34. It appears that the applicants never attempted to request information from the authorities regarding the course of the investigation (see paragraph 27 above). They remained passive in respect of the seemingly dormant domestic investigation (compare Utsmiyeva and Others v. Russia (dec.), no. 31179/11, § 36, 26 August 2014). Since the applicants are the children of the victim of the alleged violations, they might be expected to have displayed due diligence and to have taken the requisite initiative in informing themselves about the progress being made in the investigation into their mother’s killing. The absence of any news from the investigators of such a serious crime for such a significant period of time should have prompted them to draw appropriate conclusions (see, for example, Açış v. Turkey , no. 7050/05, § 42, 1 February 2011).

35. Considering that the standstill in the investigation dated back to October 2005, well before 12 November 2012, when the present application was lodged, the applicants ought to have concluded long before – and certainly more than six months before – the present application was lodged that the investigation was ineffective (compare to Obajdin, § 34, and Opačić and Godić , § 30, both cited above).

36. As to the investigative steps which took place in 2011 and 2014, the Court reiterates 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. 2457/04, §§ 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).

37. As to the present case, the Court notes that the steps taken in 2011 and 2014 have not led to the discovery of any new elements regarding the circumstances of the death of the applicants’ mother triggering a fresh investigative obligation under Article 2 of the Convention (see paragraphs 13-16 above and compare Opačić and Godić , cited above, § 31, and Nasirkhayeva v. Russia (dec.), no. 1721/07, 31 May 2011).

38. Accordingly, the Court finds that the application 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 16 December 2021.

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Liv Tigerstedt Erik Wennerström Deputy Registrar President