Published on 21 June 2021

FIRST SECTION

Application no. 35853/19 Pantelija ZEC against Croatia lodged on 1 July 2019 c ommunicated on 2 June 2021

SUBJECT MATTER OF THE CASE

The application concerns the domestic courts ’ refusal to reopen civil proceedings the applicant instituted against the State, despite the emergence of relevant new evidence.

In particular, in February 1992 the applicant was arrested, detained and ill-treated by the members of the Croatian armed forces. She was released in July 1992. In 2007 she instituted civil proceedings against the State seeking compensation for non-pecuniary damage sustained. By a judgment which became final on 7 April 2011 the domestic courts dismissed her action as statute-barred because the three-year statutory limitation period had elapsed.

However, in February 2017 a certain Mr S.K., who had been the commander of the detention centre in which the applicant had been detained and ill-treated, was found guilty of war crimes against the civilian population for failing to prevent and punish a number of such crimes, including the applicant ’ s ill-treatment, committed by the soldiers under his command.

Under Croatian law if the damage results from a criminal offence, the regular statutory time-limits for compensation claims are extended to correspond to the time-limits prescribed for prosecution of criminal offences. Given that prosecution for war crimes could not become statute ‑ barred, the applicant on 4 May 2017 sought the reopening of the initial civil proceedings relying on S.K. ’ s conviction for the war crime. However, under Croatian law requests for reopening, if based on newly discovered facts or newly emerged evidence, could be lodged only within five years after the judgment adopted in the proceedings sought to be reopened became final. The applicant ’ s request for reopening was therefore declared inadmissible as lodged outside of the said statutory time-limit. The civil courts did not accept the applicant ’ s argument that she could not have complied with that time-limit because the criminal proceedings against S.K. had ended after the time-limit had already expired.

QUESTIONS TO THE PARTIES

1. Was Article 6 applicable to the proceedings upon the applicant ’ s request for reopening of earlier civil proceedings she had instituted against the State in order to seek compensation for her ill-treatment by the members of the Croatian armed forces (see, mutatis mutandis , Melis v. Greece , no. 30604/07, §§ 18-21, 22 July 2010)?

2. If so, was the domestic courts ’ refusal to reopen those civil proceedings, despite the emergence of relevant new evidence, in breach of her right of access to court guaranteed by Article 6 §1 of the Convention (see, mutatis mutandis , Melis v. Greece , no. 30604/07, §§ 24-29, 22 July 2010)?

3. In the alternative, has there been a breach of the applicant ’ s right of access to court guaranteed by Article 6 §1 of the Convention having regard to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity or because the five-year statutory time-limit for lodging her request for reopening was too short in the given circumstances (see, mutatis mutandis , Sanofi Pasteur v. France , no. 25137/16, §§ 50-61, 13 February 2020, and Howald Moor and Others v. Switzerland , nos. 52067/10 and 41072/11, §§ 22-28, 11 March 2014)?

4. Was the fact that the applicant, as a victim of ill-treatment, was unable to obtain compensation from the State, in breach of the State ’ s positive obligations under Article 3 of the Convention?