MILEUSNIC AND MILEUSNIC-ESPENHEIM v. CROATIA - 66953/09 - Chamber Judgment [2015] ECHR 197 (19 February 2015)

In the case of Mileusnić and Mileusnić-Espenheim v. Croatia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          Isabelle Berro, President,
          Mirjana Lazarova Trajkovska,
          Julia Laffranque,
          Paulo Pinto de Albuquerque,
          Linos-Alexandre Sicilianos,
          Erik Møse,
          Ksenija Turković, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 27 January 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 66953/09) against the Republic of Croatia lodged with the Court on 3 December 2009 under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Petar Mileusnić and Mr Goran Mileusnić Espenheim (“the applicants”), Croatian nationals of Serbian ethnic origin.

2. The applicants were represented by Mr V. Dizdar, a lawyer practising in Novska. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3. The applicants alleged, in particular, that, contrary to the procedural requirement under Article 2 of the Convention, there has been no adequate response by the national authorities to the killing of their close relatives.

4. On 14 September 2009 the case was communicated to the respondent Government with reference to the complaint under the procedural aspect of Article 2 as well as the complaint under Article 13 of the Convention.

5. On 2 March 2013 the first applicant died. The second applicant expressed his wish to pursue the application on his behalf. Given the circumstances of the case, the Court accepts that the second applicant, who is the son of the first applicant, may pursue the application on his behalf.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicants were born in 1936 and 1967. Until his death the first applicant lived in Novska, Croatia. The second applicant lives in Dieskau, Germany.

A. Background to the case

7. According to the applicants, on 18 December 1991, during the armed conflict in Croatia, a number of the first applicant’s neighbours, together with the other members of their family, gathered in the first applicant’s home in Novska, Croatia, because the town was being shelled. At about 9.45 p.m. several soldiers broke into the house and immediately started to hit and kick the first applicant. He could not see them well because the house, like the rest of the town, was without electricity. When he fell to the ground, they dragged him into the kitchen where V.M., the first applicant’s wife and the second applicant’s mother, and G.M., the first applicant’s daughter and the second applicant’s sister, and B., one of their neighbours, were sheltering. In the candlelight, the first applicant saw five men in military uniforms of the Croatian Army with balaclavas on their heads. They continued to hit and kick the first applicant and one of the men cut through the first applicant’s palm with a knife. The other man cut one of B.’s fingers off with the knife. One of the soldiers shot G.M. in the head, the other then cut B.’s throat with a knife and subsequently shot at her with a firearm. The soldiers then ordered V.M. to make coffee for them. One of the soldiers introduced himself as Grgić from a nearby village, Bročice. He asked the first applicant if he knew him and then hit him on the head with the shotgun. One soldier then cut a muscle in the first applicant’s right hand. Next, the soldiers shot V.M. dead. After that, a soldier shot the first applicant through his right cheek. The soldiers then left the kitchen. The first applicant escaped through the window and ran away, reaching a nearby medical centre. From there he was transferred to a hospital in Kutina, then to Zagreb where he lay in a coma for three days. When he came round, one of the doctors told him that three men had been looking for him and wanted him killed. His sister sent an ambulance from Germany and he was transferred from Zagreb to Germany, where he was treated from 6 January to 15 May 1992.

8. When the first applicant returned to his home in Novska on 19 July 1992, he found refugees accommodated in part of the house. In the intervening period, all of his possessions had been taken away.

B. Criminal proceedings

1 First investigation

9. It appears that the police were alerted of the above-described events the following day. On 30 December 1991 the Sisak County Court ordered an investigation into the events in respect of suspects Ž.B., D.L, D.M., I.G. and Z.P.

10. On 23 March 1992 the Zagreb Military Prosecutor dropped the charges against I.G. and Z.P. on the ground that there was insufficient evidence that “any projectiles had been shot from their weapons”.

2. First trial

11. On 23 March 1992 the Zagreb Military Prosecutor indicted the remaining three suspects, Ž.B., D.L. and D.M. before the Zagreb Military Court on three counts of murder aggravated by an exceptionally immoral purpose.

12. The Zagreb Military Court terminated the proceedings against Ž.B., D.L. and D.M. on 2 November 1992 on the basis of the General Amnesty Act.

13. D.L. died on 19 January 1997.

3. Second investigation

14. On 30 October 2008 the applicants lodged a criminal complaint against six suspects, namely, Ž.B., D.L., D.M., I.G. and Z.P., on charges of war crimes against the civilian population.

15. On 10 December 2008 the Sisak County State Attorney’s Office dismissed the complaint against D.L. since he had died in 1997.

16. On 12 January 2009 an investigating judge of the Sisak County Court heard evidence from the first applicant. On 13 January 2009 the first applicant asked that two witnesses be called and provided their addresses and telephone numbers to the County Court.

17. On 9 February 2009 the Police interviewed the potential witnesses, M.B. and P.U.

18. On 30 July 2009 the State Attorney’s Office in Sisak County submitted a request to the Sisak County Court to open an investigation into the above-mentioned criminal complaint. The request was denied on 1 October 2009. However, upon an appeal lodged by the Sisak County State Attorney’s Office of 6 October 2009, the Supreme Court of Croatia ordered on 30 March 2010 that the investigation in respect of Ž.B., D.M., I.G. and Z.P. be carried out.

19. On 20 May 2010 the investigating judge heard evidence from the four suspects. One of them confessed to some of the charges but the other three remained silent. The investigating judge ordered the detention of all four suspects.

20. The investigating judge heard evidence from the first applicant and one other witness on 11 June 2010 and from another four witnesses on 28 June 2010. She heard the first applicant again on 5 July 2010, as well as an expert witness and one of the accused.

4. Second trial

21. On 9 July 2010 the Sisak County State Attorney’s Office indicted Ž.B., D.M., I,.G and Z.P. in the Sisak County Court on charges of war crimes against the civilian population, which included the killing of V.M. and G.M. and seriously wounding the first applicant. The accused lodged objections to the indictment which were dismissed by the Supreme Court (Vrhovni sud Rpublike Hrvatske) on 19 August 2010.

22. Hearings were held on 23 and 24 September 2010. On the latter date the County Court commissioned a report on the autopsy of V.M. and G.M. and a psychiatric report in respect of the accused Ž.B. The report on the autopsy was submitted on 2 November 2010 and the psychiatric report on 11 November 2010.

23. Hearings were held on 15, 16 and 19 November 2010. On the last-mentioned date a judgment dismissing the charges was delivered on the ground that the accused had already been tried for the same offence before the Zagreb Military Court. The charges against I.G. and Z.P. had been dropped by the prosecutor and the proceedings against Ž.B. and D.M. had been terminated under the General Amnesty Act.

24. The Sisak State Attorney’s Office lodged an appeal on 23 February 2011 and on 21 February 2012 the Supreme Court upheld the judgment in respect of I.G. and Z.P. and quashed the judgment in respect of Ž.B. and D.M. As regards I.G. and Z.P. the Supreme Court concluded that the prosecutor had dropped the charges against them because there had not been sufficient evidence that they had participated in the shooting of the victims. Neither had the evidence adduced in the proceedings before the Sisak County Court indicated their involvement in the killing and wounding of the victims. The relevant part of the judgment referring to the actions of I.G. and Z.P. reads:

“The evidence presented [at the trial] ... did not establish any activity on the part of the accused I.G. and Z.P. so as to indicate [that they had committed] acts of violence towards Petar Mileusnić or any other person in the house, before Ž.B., D.M. and the late D.L. started to shoot at the victims. The [first-instance] court concluded that the accused I.G. had not entered the house at all and that the accused [D.]P. had quickly entered and exited the house of the victim Petar Mileusnić, without having committed any act in the house.”

The Supreme Court further held as follows:

“Since no new facts were established in the fresh criminal proceedings in which the impugned judgment was delivered ... save for those [facts] in respect of which the State Attorney had already dropped the charges, irrespective of their different legal qualification, the conclusion of the first-instance court that [the situation] was a matter of res judicata is correct and, contrary to the assertion of the State Attorney in the appeal, the indictment was correctly dismissed in respect of the accused I.G. and Z.P. in accordance with Article 353 point 5 of the Code of Criminal Procedure (1997).”

25. The case was then transferred to the Zagreb County Court.

26. Hearings before the Zagreb County Court were held on 28 November 2012 and 23 January 2013.

27. On 29 October 2013 that court found the accused Ž.B. and D.M. guilty as charged and sentenced them to ten and nine years’ imprisonment respectively. The judgment was upheld by the Supreme Court on 7 March 2013.

C. Civil proceedings

28. On 22 December 2004 the applicants brought a civil action against the State in the Novska Municipal Court (Općinski sdu u Novskoj), seeking compensation in connection with the deaths of V.M. and G.M., wounding of the first applicant as well as pecuniary damage as regards the expenses incurred for the stone erected on the grave of their relatives. In these proceedings the Croatian State was represented by the State Attorney’s Office.

29. On 29 September 2005 the Municipal Court dismissed the applicants’ claim, finding that it had become time-barred.

30. That judgment was upheld by the Sisak County Court on 31 August 2006 and by the Supreme Court of Croatia on 21 February 2007.

31. A subsequent constitutional complaint lodged by the applicants concerning the assessment of facts and interpretation of laws was dismissed by the Constitutional Court (Ustavni sud Republike Hrvatske) on 13 May 2009.

32. On 25 November 2014 the second applicant and the Republic of Croatia, Ministry of Defence, represented by the State Attorney’s Office, reached a settlement by which the State was to pay the second applicant the following amounts: 150,000 Croatian Kuna (HRK) for non-pecuniary damage for the killing of his mother; HRK 75,000 for non-pecuniary damage for the killing of his sister; HRK 12,800 for pecuniary damage concerning the expenses incurred for the stone erected on the grave of his mother and sister; and HRK 2,500 for costs he incurred in the civil proceedings. The said amounts, together with the applicable interest rates, were paid to the second applicant on 8 December 2014.

II. RELEVANT DOMESTIC LAW AND PRACTICE

Relevant domestic law

33. Article 21 of the Constitution (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000 and 28/2001) reads as follows:

“Every human being has the right to life.

...”

34. The relevant part of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/00, 51/2001, 111/2003, 190/2003, 105/2004, 84/2005, 71/2006, 110/2007, 152/2008, 57/2011 and 143/2012) reads:

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 previous rule does not apply in respect of the criminal offences of genocide ..., aggressive war ..., crimes against humanity ..., war crimes ... and other criminal offences which are not subject to statutory limitation according to the Constitution or international law”

35. Article 120 of the Basic Criminal Code of the Republic of Croatia (Osnovni krivični zakon Republike Hrvatske, Official Gazette nos. 53/1991, 39/1992 and 91/1992) prescribes imprisonment of at least five years or of twenty years for war crime against the civilian population.

36. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002) provide:

Article 174(2)

“In order to ... decide whether to request an investigation ... the State Attorney shall order the police to collect the necessary information and take other measures concerning the crime [at issue] with a view to identifying the perpetrator ...”

Article 177

“Where there is a suspicion that a criminal offence liable to public prosecution has been committed, the police shall take the necessary measures with a view to identifying the perpetrator ... and collect all information of possible relevance for the conduct of the criminal proceedings...”

Article 187

“(1) An investigation shall be opened against a particular individual where there is a suspicion that he or she has committed a criminal offence.

(2) During the investigation evidence and information necessary for deciding whether an indictment is to be brought or the proceedings are to be discontinued shall be collected ...”

37. The relevant provisions of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 35/2005; 41/2008 and 125/2011), read as follows:

Section 230

“(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 231

“(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.

...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 2 AND 14 OF THE CONVENTION

38. The applicants complained about the killing of their close relatives and that the authorities had not taken appropriate and adequate steps to investigate the death of their close family members and to bring the perpetrators to justice. They also claimed that their close relatives had been killed because of their Serbian ethnic origin and that the national authorities had failed to investigate that factor. They relied on Articles 2 and 14 of the Convention, which read as follows:

Article 2

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

A. Admissibility

1. The parties’ submissions

39. The Government argued that the complaints related to the procedural aspect of Articles 2 and 14 of the Convention were incompatible ratione temporis with the provisions of the Convention and asserted in that respect that the significant part of the procedural steps had been taken before 5 November 1997, when Croatia ratified the Convention.

40. They further maintained that the applicants had not exhausted all the relevant domestic remedies available to them because they had not lodged a complaint about the conduct of any of the State bodies, such as the police or the State Attorney’s Office, nor had they lodged a criminal complaint against the persons who had conducted the investigation. As regards protection against alleged unlawfulness in the conduct of the domestic authorities, the Government pointed out that the applicants could have sought damages from the State.

41. The applicants made no comments as regards the admissibility of the application.

2. The Court’s assessment

(a) Compatibility ratione temporis

42. The Court has already addressed its temporal jurisdiction as regards both the substantive and the procedural aspect of Article 2 in similar circumstances and found that it had no temporal jurisdiction in respect of the alleged substantive violation of that Article, but had such jurisdiction in respect of the alleged procedural violation in respect of the facts that occurred after 5 November 1997, the date of the ratification of the Convention by Croatia (see of Jelić v. Croatia, no. 57856/11, §§ 47-56, 12 June 2013). The Courts sees no reason to depart from such conclusions in the present case.

43. It follows that the complaint under the substantive aspect of Article 2 of the Convention is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3(a) and must be rejected in accordance with Article 35 § 4.

(b) Exhaustion of domestic remedies

44. The Court has already addressed the same objections as regards the exhaustion of domestic remedies in other cases against Croatia and rejected them (see Jelić, cited above, §§ 59-67). The Court sees no reason to depart from that view in the present case.

45. It follows that the Government’s objection must be dismissed.

46. As regards the compliance with the six-month rule, the Court notes that the present case concerns two distinct sets of proceedings.

(i) The first set of proceedings

47. The first set of proceedings started in 1991 and ended on 2 November 1992 when the Zagreb Military Court terminated the criminal proceedings (see paragraph 12 above).

48. As to the period between 2 November 1992 when a decision applying amnesty in respect of three alleged perpetrators and 30 October 2008 when the applicants lodged a fresh criminal complaint, it is important to recognise that this is not a case where criminal investigations or inquest proceedings have dragged on for a number of years and never reached any conclusion (compare and contrast McKerr v. the United Kingdom, no. 28883/95, §§ 111 and 114, ECHR 2001-III; and McCaughey and Others v. the United Kingdom, no. 43098/09, ECHR 2013). On 23 March 1992 the Zagreb Military Prosecutor dropped the charges against I.G. and D.P. on the ground that there was insufficient evidence that “any projectiles had been shot from their weapons”. Further to this, on 2 November 1992 the Zagreb Military Court terminated the proceedings against Ž.B., D.L. and D.M. on the basis of the General Amnesty Act.

49. After these proceedings ended, there was no “ongoing investigation” in the traditional sense, since the criminal proceedings against the alleged perpetrators were terminated. The compliance with the six-month rule in respect of those proceedings is to be assessed separately (compare to Amine Güzel v. Turkey, no. 41844/09, § 32, 17 September 2013).

50. Many years after the above-said proceedings had been concluded, the applicants lodged a criminal complaint against five suspects, namely, Ž.B., D.L., D.M., I.G. and Z.P., on 30 October 2008, on charges of war crimes against the civilian population. The institution of the fresh criminal proceedings led to a judgment finding the accused Ž.B. and D.M. guilty of war crimes against the civilian population.

51. It would be wrong to see the revival of the procedural obligation incumbent on Croatia under Article 2 following a fresh criminal complaint by the applicants as the continuation of the original obligation to investigate, bringing with it the consequence that the State may be taxed with culpable delays going back many years. Attaching retroactive effect in this way is likely to discourage governments from taking any voluntary steps that might give rise to the revival of the procedural obligation under Article 2 in the first place (compare to Harrison and others v. the United Kingdom (dec.), nos. 44301/13, 44679/13 and 44384/13, § 58, 25 March 2014).

52. Therefore, in so far as the applicants complained about the deficiencies in the first set of proceedings, the Court notes that they ended in November 1992 whereas the application was lodged with the Court on 3 December 2009.

53. It follows that this part of the complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

(ii) The second set of proceedings

54. In so far as the applicants complained about the alleged deficiencies related to the proceedings which commenced with the applicants’ criminal complaint of 30 October 2008 and ended with the Supreme Court’s judgment of 7 March 2013, the Court concludes that these complaints clearly comply with the six-month rule.

(d) The applicants’ victim status

55. The Court notes that on 25 November 2014 the second applicant and the Republic of Croatia, Ministry of Defence, represented by the State Attorney’s Office, reached a settlement by which the State was to pay the second applicant non-pecuniary damage in connection with the killing of his mother and sister, pecuniary damage as regards the expenses incurred for the stone erected on their grave as well as costs of civil proceedings.

56. The Court further notes that the settlement at issue concerns non-pecuniary damage for the actual killing of the second applicant’s mother and sister and pecuniary damage in connection with their burial and are therefore connected with the substantive aspect of Article 2 of the Convention. In this respect the Court has already concluded that such complaints are outside its temporal jurisdiction (see paragraph 42 above).

57. On the other hand, the alleged violation of the procedural aspect of Articles 2 and 14 of the Convention does fall within the Court’s temporal jurisdiction (see paragraph 41 above). The Court has repeatedly held that the procedural obligation of the State under Article 2 to conduct a thorough, official, effective and prompt investigation when individuals have been killed as a result of the use of force cannot be substituted by payment of damages. A Contracting State’s obligation under Article 2 of the Convention to conduct an investigation capable of leading to the identification and punishment of those responsible in cases of fatal assault might be rendered illusory if, in respect of complaints under that Article, an award of damages would suffice (see, mutatis mutandis, Yaşa v. Turkey, 2 September 1998, Reports 1998-VI, § 74, and Isayeva and Others v. Russia, nos. 57947/00, 57948/00 and 57949/00, § 149, 24 February 2005).

58. It follows that, in the circumstances of the present case, it cannot be said that the applicants have lost their victim status as to their complaints under the procedural aspect of Articles 2 and 14 of the Convention.

(e) Conclusion as to admissibility

59. The Court finds that the complaint under the procedural aspect of Articles 2 and 14 in respect of the proceedings which commenced on 30 October 2008 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

60. The applicants contended that the manner in which the national authorities had conducted the investigation and the criminal proceedings fell short of the procedural requirements under Articles 2 and 14 of the Convention.

61. The Government argued that the competent national authorities, which were independent, carried out an effective investigation into the death of the applicants’ close relatives which led to the identification of the perpetrators. The perpetrators had been indicted and convicted in accordance with the criminal-law mechanisms in Croatia.

2. The Court’s assessment

(a) General principles

62. The Court reiterates that Article 2 ranks as one of the most fundamental provisions in the Convention. It enshrines one of the basic values of the democratic societies making up the Council of Europe. The object and purpose of the Convention as an instrument for the protection of individual human beings require that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see, among many other authorities, Anguelova v. Bulgaria, no. 38361/97, § 109, ECHR 2002-IV).

63. The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others v. the United Kingdom, 27 September 1995, § 161, Series A no. 324; and Kaya v. Turkey, 19 February 1998, § 86, Reports 1998-I). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. This investigation should be thorough, independent, accessible to the victim’s family, carried out with reasonable promptness and expedition, effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances or otherwise unlawful, and afford a sufficient element of public scrutiny of the investigation or its results (see Hugh Jordan v. the United Kingdom, no. 24746/94, §§ 105-09, ECHR 2001-III (extracts); Douglas-Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002; Esmukhambetov and Others v. Russia, no. 23445/03, §§ 115-118, 29 March 2011; and Umarova and Others v. Russia, no. 25654/08, §§ 84-88, 31 July 2012).

64. There must also be an implicit requirement of promptness and reasonable expedition (see Yaşa v. Turkey, 2 September 1998, §§ 102-04, Reports of Judgments and Decisions 1998-VI; and Mahmut Kaya v. Turkey, no. 22535/93, §§ 106-07, ECHR 2000-III). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating the use of lethal force may generally be regarded as essential in preserving public confidence in the maintenance of the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Jularić v. Croatia, no. 20106/06, § 43, 20 January 2011), to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see, among many other authorities, McKerr, cited above, §§ 111 and 114, and Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, §§ 69 and 72, ECHR 2002-II).

65. Compliance with the State’s procedural obligations under Article 2 requires the domestic legal system to demonstrate its capacity to enforce criminal law against those who have unlawfully taken the life of another (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005-VII).

66. The requirements of Article 2 go beyond the stage of the official investigation, where this has led to the institution of proceedings in the national courts: the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law. While there is no absolute obligation for all prosecutions to result in conviction or in a particular sentence, the national courts should not under any circumstances be prepared to allow offences concerning violent deaths to go unpunished. This is essential for maintaining public confidence and ensuring adherence to the rule of law and for preventing any appearance of tolerance of or collusion in unlawful acts (see, mutatis mutandis, Öneryıldız v. Turkey [GC], no. 48939/99, § 96, ECHR 2004-XII; Okkalı v. Turkey, no. 52067/99, § 65, ECHR 2006-... (extracts); and Türkmen v. Turkey, no. 43124/98, § 51, 19 December 2006).

(b) Application of these principles to the present case

67. The Court notes at the outset that the investigation and the trial of two identified perpetrators lasted four years, four months and seven days.

68. The proceedings began on 30 October 2008 when the applicants brought a criminal complaint with the Sisak State Attorney’s Office. An investigation was opened on 30 March 2010. The trial began on 9 July 2010.

69. While there were certain delays between the time of lodging the applicants’ criminal complaint and the opening of the investigation, the Court notes that most of these delays were caused by the initial refusal of the Sisak County Court to open an investigation. However, the possibility to adopt a decision not to open an investigation by a competent court is a regular feature of an investigation. The proceedings on appeal against that decision were quickly resolved. The investigation itself was conducted in about three months, which shows sufficient diligence.

70. The trial lasted about two years and eight months. Given that the judgment dismissing the charges was quashed and that there was a fresh trial, that period does not appear excessive.

71. The Court notes that the fact that the proceedings were conducted about sixteen years after the event at issue took place, did not, in the circumstances of the present case, undermine the effectiveness of the investigation and the criminal proceedings against the two identified perpetrators. The relevant facts were established as well as the criminal responsibility of those responsible, who were sentenced to nine and ten years’ imprisonment (see paragraph 27 above). The sentences given to the perpetrators do not appear to fall short of reinforcing the deterrent effect of the judicial system in place and the significance of the role proper sentencing is required to play in preventing violations of the right to life (compare to Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 59, 20 December 2007, and Ali and Ayşe Duran v. Turkey, no. 42942/02, § 62, 8 April 2008).

72. As regards I.G. and Z.P., the Court notes that the national authorities concluded that there was no evidence that they had participated in the killing of the applicants’ close relatives. The Court finds that any assessment of facts relevant to the determination of an individual’s criminal responsibility is in principle in the hands of national courts. The conclusions of the national courts in the present case do not appear arbitrary in any respect.

73. The proceedings were conducted by independent national authorities, i.e. the State attorney’s offices and the courts. The first applicant participated in the proceedings and there is no indication that the applicants were denied access to the case-file or the right to participate in the trial.

74. In conclusion, the Court finds that the national authorities complied with their procedural obligation under Article 2 of the Convention. As regards Article 14 of the Convention and the applicants’ reference to the victims’ ethnic origin, the Court reiterates that Article 14 has no independent existence, but plays an important role by complementing the other provisions of the Convention and its Protocols. The Court considers that the main issue in the present case is the one concerning effectiveness of the investigation into the killing of the applicants’ relatives under the procedural aspect of Article 2 of the Convention. It has already concluded that the authorities have complied with their obligations under that provision. In the Court’s view no further issue remains to be examined under Article 14 of the Convention.

75. It follows that there has been no violation of Article 2 taken together with Article 14 of the Convention.

II. ALLEGED VIOLATIONS OF ARTICLE 13 OF THE CONVENTION

76. The applicants complained that they had no effective remedy as regards the investigation into the death of their close relatives. They relied on Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Admissibility

77. The Court notes that in 2008 the applicants lodged a criminal complaint about the killing of their close relatives. The national authorities opened an investigation upon that complaint, identified the perpetrators and brought an indictment on charges of war crimes against the civilian population against them. Criminal proceedings ensued. In these proceedings the two identified perpetrators were found guilty and sentenced to prison terms of nine and ten years.

78. Against that background, the Court considers that lodging a criminal complaint was an effective remedy which produced the intended result - the identification and punishment of the perpetrators. The Court has already found that in the circumstances of the present case the national authorities fulfilled their procedural obligation under Article 2 of the Convention.

79. In these circumstances the Court finds that the applicants’ complaint under Article 13 of the Convention is inadmissible under Article 35 § 3(a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

80. The applicants further complained about the fact that the national courts dismissed their claim for damages. They relied on Article 1 of Protocol No. 1 which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems 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.”

81. The Court notes the applicants’ claim for damages was dismissed by the national courts on the grounds that it had been lodged after the statutory limitation period had expired. The Court also notes that section 377 of the Civil Obligations Act provides for a longer statutory limitation period for claims for damages if the damage was caused by a criminal offence. This longer statutory limitation period is applicable only where it has been established by a final judgment of the criminal court that the damage was caused by a criminal offence (see Baničević v. Croatia (dec.), no. 44252/10, § 33, 2 October 2012) .

82. The Court notes that, following conviction of the perpetrators by a criminal court, the second applicant has reached an agreement with the State in connection with his claim from the civil proceedings at issue (see paragraphs 28-32 above). In these circumstances, the Court finds that the matter giving rise to the complaint under Article 1 of Protocol No. 1 has been “resolved” within the meaning of Article 37 § 1 (b) of the Convention. In addition, there are no particular reasons relating to respect for human rights as defined in the Convention which would require the Court to continue its examination of this complaint under Article 37 § 1 in fine.

83. Accordingly, this complaint should be struck out of the list.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

84. The applicants complained under Article 6 of the Convention about the length of the criminal proceedings and also about the outcome of the civil proceedings they had instituted against the State.

85. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3(a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaint concerning the procedural aspect of Articles 2 and 14 of the Convention, in respect of the criminal proceedings which commenced on 30 October 2008, admissible and the complaints under the substantive aspect of Article 2 as well as under Article 6 and 13 of the Convention inadmissible;

2. Holds that there has been no violation of the procedural aspect of Articles 2 and 14 of the Convention.

3. Holds that the complaint under Article 1 of Protocol No. 1 to the Convention has been resolved and therefore decides to strike it out of the case;

Done in English, and notified in writing on 19 February 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Isabelle Berro
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> MILEUSNIC AND MILEUSNIC-ESPENHEIM v. CROATIA - 66953/09 - Chamber Judgment [2015] ECHR 197 (19 February 2015) URL: http://www.bailii.org/eu/cases/ECHR/2015/197.html Cite as: [2015] ECHR 197