Communicated on 16 December 2013

FIRST SECTION

Application no. 72174/13 Marica MIŠČEVIĆ and others against Croatia lodged on 5 November 2013

STATEMENT OF FACTS

The applicants Ms Marica Mi ščević (“the first applicant”), Mr Nikola Mislav Mi ščević (“the second applicant”) and Mr Dragan Mi ščević (“the third applicant”) are Croatian nationals who were born in 19 27 , 19 50 and 19 48 respectively, and live in Zagreb. They are represented before the Court by M r Maro Miho čević , a lawyer practising in Zagreb .

A. The circumstances of the case

1. Background to the case

The applicants lived in a village situated in an area in the so called “Serbian Independent Region Krajina ” which was occupied by Serbian para -military forces from 1991 to August 1995 when the Croatian army in the military action “Storm” regained the whole “ Krajina Region”. The “Storm” military operation was carried out on 5 and 6 August 1995. Few days before the action was widely announced and vast majority of the Serbian population living in that area left their homes and Croatia. Very few of them remained in the area.

The first applicant ’ s husband and the second and third applicants ’ father, M.M., was of Serbian ethnic origin and was an officer in the Yugoslav People ’ s Army who retired in 1980 as a general.

In 1996 M.M. was killed in deserted house of his parents due to an explosion caused by a land mine planted in the house.

2. Civil proceedings

On 5 April 2005 the applicants brought a civil action for damages against the State in the Zagreb Municipal Court, seeking damages under the 2003 Liability Act.

The first instance court granted the claim on 18 May 2006 on the ground that the appl icants ’ house in a near-by village was mined in 1993 during the Homeland war and that their relative was killed in August 1996 while all military operations had ceased in that area in August 1995. It further held that at the time the question of the return of Serbian refugees who had left the area in August 1995 during military action “Storm” was actualised. It concluded that the explosive which killed M.M was intentionally planted in the house and was politically motivated and intended to discourage those who were thinking of returning to the area by causing fear of ending like M.M. The killing of M.M. could not be regarded as war damage since all military operations in the area had ceased a year before that and the applicable laws qualified war damage only that which occurred between 17 August 1990 and 30 June 1996 while M.M. had been killed on 14 August 1996.

This judgment was upheld by the Zagreb County Court on 13 September 2006.

The State Attorney ’ s Office lodged an appeal on points of law ( revizija ) with the Supreme Court. On 18 May 2006 the Supreme Court declared the appeal in respect of the second and the third applicants inadmissible ratione valoris and thus the lower courts ’ judgments, granting them compensation in connection with the death of their father, became final.

As regards the first applicant, the Supreme Court reversed the lower courts ’ judgments holding that the findings of the lower courts had been incorrect. The relevant part of the Supreme Court ’ s judgment reads:

“Under section 1 of the Liability Act a terrorist act is in particular an act of violence committed for political motives aimed at causing general fear and the feeling of personal insecurity among citizens.

This court considers that the circumstances on which both the first and second instance courts relied are not a valid basis for the conclusion that in this case the act [of violence] amounted to a terrorist act within the meaning of section 1 of the Liability Act.

In this connection it is to be stressed that the lack of any war actions in the area concerned does not exclude the existence of war damage, it being the damage caused in relation with the conduct of war where it is not necessary that it was caused in the area where war operations were conducted.

In this case that means that the lack of war operations in the area concerned cannot in itself lead to the conclusion that the act of violence in question amounted to a terrorist act within the meaning of section 1 of the Liability Act.

The conclusions of the first and second instance courts concerning the question of the return of citizens and the public perception of the act in question as a terrorist act, which was received through the media which reported on it, ... cannot be regarded as evidence relevant for any substantive conclusion on the character of that act.

... ”

A subsequent applicants ’ constitutional complaint was declared inadmissible in respect of the second and the third applicants on the ground that they had been granted compensation, and was dismissed in respect of the first applicant.

B. Relevant domestic law

The 2003 Liability Act

The relevant part of the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations ( Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija , Official Gazette of the Republic of Croatia no. 117/2003 of 23 July 2003 – “the 2003 Liability Act”), which entered into force on 31 July 2003, provides as follows:

Section 1

“(1) This Act regulates the liability for damage caused by acts of terrorism or other acts of violence committed with an aim of seriously disturbing public order by provoking fear or stirring up feelings of insecurity in citizens ...

(2) A terrorist act within the meaning of this Act is especially an act of violence committed for political reasons [motives] with a view to stirring up fear, terror or feelings of personal insecurity in citizens.”

Section 2

“The Republic of Croatia shall be liable for the damage referred to in section 1 of this Act ....”

Section 3

“The obligation to compensate damage under this Act exists irrespective of the fact whether the perpetrator has been identified, criminally prosecuted or found guilty.”

Section 7(1)

“The victim shall have the right to compensation [in the form of damages] of damage resulting from death, bodily injury or impairment of health.”

COMPLAINTS

The first applicant complain that the Supreme Court reversed the lower courts ’ judgment, granting her compensation in connection with the death of her husband, without giving adequate reasons and that the decision not to grant her compensation was arbitrary.

QUESTIONS TO THE PARTIES

1. Did the first applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, did the Supreme Court give adequate reasons for reversing the first and second instance judgments?

2. Was the first applicant ’ s claim to obtain damages in connection with the killing of her husband “sufficiently established” to attract applicability to Article 1 of Protocol No. 1 to the Convention? If so, did the dismissal of her claim by the Supreme Court amount to an interference with the first applicant ’ s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? If so, was that interference lawful? In particular did the quality of law together with the practice of the Supreme Court satisfy the criteria of foreseeability? Was the interference necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties? In particular, did that interference impose an excessive individual burden on the applicant (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V)?

3. The Government are invited to provide the case-law of the Supreme Court whereby it has elaborated as to which acts are to be seen as acts of terrorism within the meaning of the 2003 Liability Act and to provide the examples of the Supreme Court judgments in which damage was granted under that Act.