FIRST SECTION

Application no. 78705/12 Bogdan LUKIĆ and others against Croatia lodged on 29 October 2012

STATEMENT OF FACTS

The applicants, Mr Bogdan Lukić , Mr Boško Lukić , Mr Miodrag Lukić , Mr Tihomir Lukić , and Mr Nikola Lukić , are nationals of Croatia and Serbia, respectively born in 1937, 1966, 1967, 1967 and 1973. All applicants live in Vukovar save for the second applicant who lives in Osijek, Croatia. The applicants are represented before the Court by Ms S. Ormuž , a lawyer practicing in Zagreb.

A. The circumstances of the case

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

1. Background to the case

With the outbreak of the war in Croatia in 1991, the applicants, who were of Serbian ethnic origin, left their home in Vukovar. Some of them went to live in Serbia and some in Montenegro. A.L., wife of the first applicant and mother of the second, third, fourth and fifth applicants, stayed in Vukovar where she worked as a nurse.

In November 1991 A.L. was detained by Croatian soldiers. During her detention she was questioned and ill-treated, and on 17 November 1991, summarily executed.

At that time Vukovar fell in the hands of Serbian forces. The alleged perpetrators of A.L. ’ s murder were taken as the prisoners of war to Serbia where on 26 June 1992 the Belgrade Military Court ( Vojni sud u Beogradu ) convicted them. However, later on, they were exchanged as the prisoners of war and it appears that the criminal proceedings against them are pending in Croatia.

2. The applicants ’ civil proceedings

On 8 December 2004 the applicants instituted the friendly settlement procedure with the Vukovar State Attorney ’ s Office ( Općinsko državno odvjetništvo u Vukovaru ; hereinafter: “the State Attorney ’ s Office”) claiming damages for the death of their relative. Such procedure was a mandatory precondition for lodging a civil action before the competent courts.

Since no settlement was reached, the applicants lodged a civil action against the State in the Ilok Municipal Court ( Općinski sud u Iloku ) on 10 April 2006 seeking damages.

On 27 April 2007 the Ilok Municipal Court ruled in the applicants ’ favour. During the proceedings the State Attorney ’ s Office argued that the statutory time-limits for lodging a civil action for damages had expired, but the Ilok Municipal Court dismissed it.

That court held that the general time-limit of five years from the moment when the damage occurred was applicable to the applicants ’ case. Longer time-limits could be applied when the damage was caused by a criminal offence but it was necessary to have a criminal conviction of the perpetrator establishing that the damage was actually caused by the criminal offence. In the case at issue the judgment of the Belgrade Military Court was never recognised in Croatia and thus did not have any legal force. However, the trial court held that the applicants had not been able to lodge their action until 15 January 1998 and therefore, due to some subsequent legislative amendments all time-limits in this context again ceased to run for a period of time, which eventually meant that the applicants ’ civil action was lodged within the relevant time.

Upon the appeal of the State Attorney ’ s Office, the Vukovar County Court ( Županijski sud u Vukovaru ), acting as the court of appeal, quashed the first-instance judgment and ordered that the issue of the time-limits be examined again.

On 3 December 2008 the Ilok Municipal Court dismissed the applicant ’ s civil action on the formal grounds finding that the statutory time-limit for lodging a civil action had expired on 1 January 1998 and that the applicants ’ had lodged their civil action on 10 April 2006. It also declined to apply the longer statutory time-limit period for the damage caused by a criminal offence for the same reasons as in its previous judgment.

On an unspecified date the applicants lodged an appeal with the Vukovar County Court arguing that the longer statutory time-limit for damage caused by a criminal offence was applicable to their case. They also contended that irrespective of the deployment of the international forces in Vukovar in 1992, it had been practically impossible to lodge a civil action on 1 January 1993, as held by the first-instance court.

On 24 March 2009 the Vukovar County Court dismissed the applicants ’ appeal as ill-founded, endorsing the reasoning of the first-instance court.

Against the judgment of the Vukovar County Court the applicants lodged an appeal on points of law with the Supreme Court ( Vrhovni sud Republike Hrvatske ).

On 21 October 2011 the Supreme Court dismissed the applicants ’ appeal on points of law as ill-founded. The Supreme Court in particular noted:

“Since it has not been established that the damage had been caused by a criminal offence, the lower courts correctly applied the relevant law when assessing the limitation periods under section 376 of the Civil Obligations Act [providing for the general statutory limitation periods].”

Lastly, the applicants lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ) and on 7 May 2012 the Constitutional Court declared it inadmissible as manifestly ill-founded.

The decision of the Constitutional Court was served on the applicants ’ representative on 28 May 2012.

B. Relevant domestic law

The relevant provisions of the Civil Obligations Act ( Zakon o obveznim odnosima , Official Gazette nos. 53/1991, 73/1991, 3/1994, 7/1996, 112/1999), as then in force, read as follows:

Section 360

“(1) The right to claim fulfilment of an obligation shall cease when the statutory limitation period has expired.

(2) The statute of limitations [bars a right to claim] when the statutory prescribed period in which a creditor could have claimed fulfilment of an obligation has expired.

...”

Section 376

“(1) A claim for damages shall become statute-barred three years after the injured party learned about the damage and the identity of the person who caused it.

(2) In any event that claim shall become statute-barred five years after the damage occurred.

...”

Section 377

“(1) Where the damage was the result of a criminal offence and the statutory limitation period for criminal prosecution is longer, the claim for damages against the person responsible becomes statute-barred at the same time as the criminal prosecution.

(2) The interruption of the statutory limitation period in respect of criminal prosecution entails the interruption of the statutory limitation period in respect of a claim for damages.

...”

Section 388

“The statutory limitation period is interrupted by the lodging of a civil action or any other action by a creditor against a debtor, before a court or other competent body, which is brought in order to secure or enforce the creditor ’ s claim.”

The relevant parts of the Criminal Code ( Kazneni zakon , Official Gazette no. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001) provide:

Article 18

“(1) On account of the statute of limitations, the criminal legislation of the Republic of Croatia may not be applied after the period determined by this Code has elapsed. The period is calculated from the time the offence was committed, sentence was pronounced or another criminal sanction was ordered.

(2) The impossibility to apply the criminal legislation of the Republic of Croatia does not concern ... the war crimes ...”

Article 20

(1) The limitation period shall start to run from the date on which the offence was committed.

...

(3) The statutory limitation period shall be interrupted each time a procedural step is taken concerning the prosecution of the offence.

...

(5) The statutory limitation period shall start to run again after each interruption.

(6) Criminal prosecutions shall in all cases become time-barred after expiry of the double statutory limitation period.”

COMPLAINT

The applicants complain, under Articles 6 § 1 and 13 of the Convention, that the manner in which the domestic courts applied the time-limits deprived them of the right of access to a court.

QUESTIONS TO THE PARTIES

Did the applicant s have access to a court as required by Article 6 § 1 of the Convention? In particular, was the manner in which the national courts calculated the statutory limitation period in the applicants ’ case foreseeable in view of the fact that the perpetrators were found guilty by a court in Serbia?

The Government are requested to submit two copies of the entire case file from the domestic proceedings.