JOINT DISSENTING OPINION OF JUDGES TURKOVIĆ, PEJCHAL AND ILIEVSKI

1 . To our regret we cannot agree with the majority that in the present case the very essence of the applicant ’ s right of access to a court was not impaired.

2 . The dispute in the present case concerned a complex issue, namely the fixing of the starting-point of the objective five-year limitation period under Croatian law in relation to claims for damages lodged by individuals whose relatives had been killed during the war but of whose death they had learned only subsequently. As noted in the judgment, in such situations the Supreme Court ’ s well-established practice is to calculate the objective five-year statutory limitation period for lodging a civil claim from the date on which the plaintiffs learned about the death of their family members, because it is only after learning about that circumstance that the injured party can suffer emotional pain (see paragraphs 40 and 50 of the judgment).

3 . We agree with the majority that in circumstances where the exact date on which the plaintiffs learned about the death of their family members cannot be established, it would not be unreasonable to rely on the point in time at which they had an objective opportunity to learn about it. However, we believe that the majority were wrong in uncritically accepting the Supreme Court ’ s application of such an exception in the present case, for the following reasons.

4 . Contrary to the Supreme Court ’ s practice in the matter, in the present case the first and second-instance courts failed to establish when the applicant had learned about the death of his parents. Instead, the first ‑ instance court wrongly held that the applicant ’ s civil claim could not become statute-barred (see paragraph 34 of the judgment), whereas the second-instance court wrongly calculated the objective five-year statutory limitation period for lodging the civil claim from the time at which the damaging event had occurred (see paragraph 38 of the judgment). The Supreme Court therefore had to rectify the lower courts ’ decisions as to the running of the statutory limitation period for the applicant ’ s civil claim for damages. Once it had decided not to refer the case back to the lower courts, the Supreme Court found itself in a situation in which it was the first court called upon to fix the starting-point of the objective five-year limitation period. Not being able itself to take evidence and determine the relevant facts, the Supreme Court decided to calculate the objective statutory limitation period from the time at which an objective opportunity had arisen for the applicant to learn about the death of his parents and not, as required by the well-established practice of the domestic courts, from the date on which the applicant had actually learned about their death.

5 . Contrary to the Government ’ s suggestion (see paragraph 75 of the judgment), it does not follow from the Supreme Court ’ s case-law that learning about the death of a family member is the same as having an objective possibility to learn about it. Indeed, none of the Supreme Court ’ s judgments on the subject, save for that in the applicant ’ s case, mentions an objective possibility to learn about the death of a family member (see paragraph 50 of the judgment). For example, in its judgment no. Rev 2617/11-3 of 11 March 2014, the Supreme Court explained that “[t]he non ‑ pecuniary damage on account of the emotional pain related to the death of a close person cannot occur before the injured party actually learns about the death of the close person, because owing to the nature of the matter it is only after learning about that circumstance that the injured party can suffer emotional pain” (ibid.). By that judgment the Supreme Court quashed the lower courts ’ judgments calculating the statutory limitation period as running from 10 September 1995, when the corpse of the plaintiffs ’ family member had been found, deeming that it had not been established in the proceedings “that it was the plaintiffs who had found [his] body on 10 September 1995, that is, that on that day they had learned about his death” (ibid.).

6 . By calculating the objective statutory limitation period, exceptionally, from the time at which the applicant had an objective opportunity to learn about the death of his parents, the Supreme Court has put the applicant in a less favourable position compared with claimants for whom the objective statutory limitation period is calculated from the date on which they actually learned about the death of their relatives. This is especially problematic in the present case, since the Supreme Court drew its conclusion without ever giving the applicant a real opportunity to submit arguments as to when he had actually learned about the death of his parents. Furthermore, neither the lower courts nor the Supreme Court ever addressed the fairly detailed arguments which the applicant raised in that regard before the lower courts, and in fact no reasoned finding was ever made to the effect that it was impossible in the present case to establish when the applicant had actually learned about the death of his parents.

7 . Furthermore, the Supreme Court concluded uncritically that the applicant had had an objective possibility to learn about his parents ’ killing as early as 26 November 2001, because on that day General R.A. had been indicted before the ICTY and the applicant ’ s parents had been listed among the unlawfully killed persons (see paragraph 40 of the judgment). At no point did the court give the applicant an opportunity to rebut that conclusion.

8 . In this regard we find it important to point out the following. The fact that the applicants ’ parents had been listed as victims of Operation Pocket ‑ 93 in the ICTY indictment of 26 November 2001 did not mean that their fate had already been established beyond doubt at that point, enabling the applicant to successfully claim damages for their deaths. Indeed, their bodies have not been found to date (see paragraph 80 of the judgment), and it was only in the proceedings conducted before the Croatian criminal courts, which finally ended in 2009, that it was established by means of witness testimony when and how they had actually died (see paragraphs 21 ‑ 24 of the judgment).

9 . Even disregarding the latter argument, in the present case the Supreme Court did not provide any reasons for its conclusion. It did not clarify whether the applicant had or could reasonably have had access to the information contained in the list of victims attached to the indictment on the same day that it was filed before the ICTY, or by what other means he could have learned about the death of his parents by the time the indictment was filed before the ICTY. As we have already pointed out, since the Supreme Court was the first court in the proceedings to adopt such a conclusion, the applicant had no opportunity to rebut it.

10 . It was only in the proceedings before this Court that the Government attempted to clarify whether the indictment filed against R.A. before the ICTY, together with the attached list of victims, had been published in May and November 2001, and whether it had become available to the Croatian public at that time.

11 . In fact, the Government did not submit any material evidence regarding the publication of the amended indictment of 26 November 2001, relied on by the Supreme Court and listing both of the applicant ’ s parents as victims. Nor did the Government submit evidence of any media coverage in Croatia dating from 2001 and mentioning the indictment against General R.A. or the victims of Operation Pocket-93. They submitted a statement by the former President of Croatia published on the Internet in 2002 and two articles published in a political weekly magazine, one in 2002 and the other in 2003, but neither the statement nor the two articles mentioned the names of victims (see paragraph 53 of the judgment). There is no indication that the applicant himself was ever informed of the ICTY investigation or indictments.

12 . Moreover, the identification information concerning the victims of Operation Pocket-93 does not appear to have become available to the Croatian authorities until late 2002 or early 2003 (see paragraphs 12 and 13 of the judgment). The State did not undertake any investigative steps regarding crimes committed in the course of Operation Pocket-93 before October 2002 (see paragraph 12 of the judgment). Accordingly, had the applicant contacted the national authorities for information regarding his parents ’ fate, he would not have been able to obtain it before the end of 2002 or the beginning of 2003 at the earliest. The objective five-year statutory limitation period for lodging a civil claim for damages would thus have expired in late 2007 at the earliest. We note that the applicant contacted the State Attorney ’ s Office with a request for a friendly settlement of the dispute, thereby interrupting the running of the statutory limitation period for lodging his civil claim for damages (see Momčilović v. Croatia , no. 11239/11, § 24, 26 March 2015) on 6 December 2007 (see paragraph 29 of the judgment).

13 . Furthermore, the solution proposed by the majority revolves around the Court examining on its own initiative whether the applicant could have actually acquired knowledge of the death of his parents and the perpetrators within the subjective three-year statutory limitation period – something which the domestic courts never did in this case. Even if this would not have been problematic on its own, in our view the majority placed an excessive burden on the applicant by requiring him to have contacted the domestic authorities even before they had obtained any data on the victims of Operation Pocket-93 (this was at the end of 2002 or the beginning of 2003 at the earliest).

14 . Finally, we disagree with the majority that the case-law on calculating the timeliness of complaints submitted to the Court under the procedural aspect of Article 2 of the Convention should be applied when assessing the timeliness of a civil claim for damages submitted to the domestic courts (see paragraphs 100 and 102-03 of the judgment).

15 . Accordingly, in our view, the fact that in the present case the Supreme Court calculated the objective statutory limitation period for lodging the civil claim for damages from 26 November 2001 imposed a disproportionate limitation on the applicant ’ s right of access to a court. In our view, there has therefore been a violation of Article 6 § 1 of the Convention in the present case.