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FIRST
SECTION
DECISION
Application no.
62726/10
Marija MRĐENOVIĆ
against Croatia
The
European Court of Human Rights (First Section), sitting on
5 June 2012 as a Chamber composed of:
Anatoly
Kovler, President,
Nina
Vajić,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Julia Laffranque,
Linos-Alexandre
Sicilianos,
Erik
Møse, judges,
and
Søren Nielsen, Section
Registrar,
Having
regard to the above application lodged on 12 October 2010,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicant,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Ms Marija Mrđenović, is a Croatian citizen of
Serbian ethnic origin, who was born in 1940 and lives in Slavonski
Brod. She is represented before the Court by Ms M. Trninić, a
lawyer practising in Slavonski Brod.
- The
Croatian Government (“the Government”) were represented
by their Agent, Ms Š. StaZnik.
The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
1. Background to the case
- On
7 October 1991 a bomb was thrown at a house owned by the applicant’s
parents-in-law. A close relative of the applicant’s husband was
killed and another injured.
- In
February and March 1992 fires were started at a house and adjacent
premises owned by the applicant’s husband, B.
- On
15 January 1993 while the applicant and her husband were returning
from a funeral in Staro Petrovo Selo, B. was shot in the back. He was
taken to a hospital in Nova Gradiška, where he died on 19
January 1993.
2. The criminal investigation
- On
the day of the shooting of the applicant’s husband the police
arrived at the scene and carried out a crime scene inspection, which
was continued the following day. The crime scene was photographed.
The police examined the scene and recovered samples of earth, clothes
and biological traces. The footprints found at the scene were not
susceptible to forensic examination. A sniffer dog was also used and
it was concluded that the perpetrator had walked for about seven
hundred metres and had then driven away in a motor vehicle. A special
team was formed in the Nova Gradiška Police Station which
carried out further investigation. In January 1993 they interviewed
more than twenty potential witnesses, including the applicant.
However, all these steps were fruitless.
- On
20 January 1993 an autopsy of B.’s body was carried out.
- On
16 February 1993 the Nova Gradiška Police Station lodged a
criminal complaint against an unknown perpetrator with the PoZega
County State Attorney’s Office. On 24 October 2001 the case was
transferred to the Slavonski Brod County State Attorney’s
Office. However, on 30 December 2008 the criminal complaint was
dismissed on the grounds that the prosecution had become time-barred.
3. The civil proceedings
- On
an unspecified date the applicant and her two children brought a
civil action against the State in the Nova Gradiška Municipal
Court, seeking compensation in connection with the death of B.
- On
6 December 2005 the Municipal Court awarded each claimant 132,000
Croatian kuna (HRK).
- This
judgment was altered by the Slavonski Brod County Court on 21
December 2007. The court lowered the compensation awarded to each
child to HRK 90,000 but upheld the sum awarded to the applicant.
- The
applicant and her children lodged an appeal on points of law with the
Supreme Court. In respect of the applicant’s children, the
appeal was declared inadmissible ratione valoris. As regards
the applicant, the Supreme Court reversed the lower courts’
judgment and found that the claim had become time-barred in 1996.
COMPLAINTS
- The
applicant complained that the national authorities had not conducted
an effective and thorough investigation into the death of her
husband.
- She
also complained under Article 6 of the Convention of the assessment
of facts and interpretation of laws by the national courts as regards
her civil action for damages.
- Under
Article 14 of the Convention, the applicant complained that she had
been discriminated against on the basis of her Serbian origin as
regards the application of the statutory limitation period in respect
of her civil claim.
THE LAW
A. Alleged violations of Article 2 of the Convention
- The
applicant complained that the domestic authorities had not taken all
relevant and adequate steps to investigate the death of her husband,
identify the perpetrator and bring that person to justice. The Court
considers that this complaint should be examined under the procedural
aspect of Article 2 of the Convention, the relevant part of which
reads:
“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.
...”
1. The parties’ submissions
- The
applicant argued that the investigation into the death of her
husband, B., had not been thorough, as the perpetrator had not been
identified.
- The
Government argued that the applicant had failed to exhaust all
available domestic remedies, as she had not lodged a complaint with
the Ministry of Interior against the police officer who had conducted
the police investigation.
- They
further contended that any complaints under Article 2 of the
Convention were incompatible ratione temporis with the
provisions of the Convention, since the events in question had
occurred prior to the ratification of the Convention by Croatia on 5
November 1997.
- They
also argued that this part of the application had been lodged out of
the six-month time-limit because the criminal complaint had been
dismissed on 30 December 2008.
- Lastly,
they argued that the national authorities had taken all relevant
steps aimed at identifying the perpetrator but these steps had
nevertheless been to no avail.
2. The Court’s assessment
- The
Court does not have to address all the issues raised by the parties,
as this application is in any event inadmissible on the following
grounds.
- The
Court emphasises that the provisions of the Convention do not bind a
Contracting Party in relation to any act or omission which took place
or any situation which ceased to exist before the date of the entry
into force of the Convention with respect to that Party or, as the
case may be, before the date on which the respondent Party recognized
the right of individual petition (“the critical date” –
see Blečić v. Croatia [GC], no. 59532/00, § 70,
ECHR 2006 III; Šilih v. Slovenia [GC], no.
71463/01, § 140, 9 April 2009; and Varnava and Others v.
Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90,
16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 130, ECHR
2009). The Court may, however, have some regard to facts which
occurred prior to the critical date because of their causal
connection with subsequent facts which form the sole basis of the
complaint and of the Court’s examination (see Šilih,
cited above, § 141).
- The
Court notes that the shooting of B. took place on 15 January
1993 and that he died on 19 January 1993. In this connection the
Court notes that the Convention entered into force in respect of
Croatia on 5 November 1997. Therefore, any complaints by the
applicant asserting the responsibility of the Contracting State for
factual events in 1993 are outside the Court’s temporal
jurisdiction.
- However,
following the killing of the applicant’s husband, a procedural
obligation arose requiring the authorities of the respondent State to
conduct a thorough, effective and independent investigation and
criminal proceedings where all necessary steps aimed at indentifying
and punishing the perpetrator are taken. The applicant contended that
the obligation was of an indefinite duration and did not expire until
it had been satisfied. The Court must therefore consider whether any
procedural obligation arising in the present case under Article 2 of
the Convention is within its temporal jurisdiction.
- It
is clear from the Court’s case-law that the procedural
obligation to carry out an effective investigation under Article 2
constitutes a separate and autonomous duty on Contracting States. It
can therefore be considered an independent obligation arising out of
Article 2, capable of binding the State even when the death took
place before the critical date (see, inter alia, Šilih,
cited above, § 159; Varnava and Others, cited above, §
147; and Velcea and Mazăre v. Romania, no. 64301/01, §
81, 1 December 2009). As the Court has previously observed, the
procedural obligation under Article 2 binds the State throughout
the period in which the authorities can reasonably be expected to
take measures with the aim of elucidating the circumstances of a
death and establishing responsibility for it (see Šilih,
cited above, § 157). In this context, it should be noted that
there are little grounds to be overly prescriptive as regards the
possibility of an obligation to investigate unlawful killings arising
many years after the events, since the public interest in obtaining
the prosecution and conviction of perpetrators is firmly recognised,
particularly in the context of war crimes and crimes against humanity
(see Brecknell v. the United Kingdom, no. 32457/04, § 69,
27 November 2007).
- However,
having regard to the principle of legal certainty, the Court’s
temporal jurisdiction as regards compliance with procedural
obligations in respect of events that occur before the critical date
is not open-ended. As the Court explained in Šilih,
cited above, §§ 161-163, where the death occurred before
the critical date, only procedural acts or omissions which occur
after that date fall within the Court’s temporal
jurisdiction. Further, there must exist a genuine connection
between the death and the entry into force of the Convention in
respect of the respondent State for the procedural obligations
imposed by Article 2 to come into effect. In practice, this means
that a significant proportion of the procedural steps required by
this provision have been, or should have been, carried out after the
critical date. However, the Court does not exclude that in certain
circumstances the connection could also be based on the need to
ensure that the guarantees and the underlying values of the
Convention are protected in a real and effective manner (see also
Agache and Others v. Romania, no. 2712/02, § 69, 20
October 2009; and Velcea and Mazăre, cited above, §§
83-85; Tuna v. Turkey, no. 22339/03, §§ 58-60,
19 January 2010).
- The
Court reiterates in this regard that there is an important
distinction to be made between cases involving missing persons and
those involving killings in so far as its assessment of whether the
procedural obligation falls within the competence ratione temporis
of the Court is concerned. As the Court found in Varnava and
Others, cited above, §§ 148 149:
“There is however an important distinction to be
drawn in the Court’s case-law between the obligation to
investigate a suspicious death and the obligation to investigate a
suspicious disappearance. A disappearance is a distinct phenomenon,
characterised by an ongoing situation of uncertainty and
unaccountability in which there is a lack of information or even a
deliberate concealment and obfuscation of what has occurred ... This
situation is very often drawn out over time, prolonging the torment
of the victim’s relatives. It cannot therefore be said that a
disappearance is, simply, an ‘instantaneous’ act or
event; the additional distinctive element of subsequent failure to
account for the whereabouts and fate of the missing person gives rise
to a continuing situation. Thus, the procedural obligation will,
potentially, persist as long as the fate of the person is unaccounted
for; the ongoing failure to provide the requisite investigation will
be regarded as a continuing violation (see the fourth inter-State
case, § 136). This is so, even where death may, eventually, be
presumed.
It may be noted that the approach applied in Šilih
v. Slovenia (cited above, § 163) concerning the
requirement of proximity of the death and investigative steps to the
date of entry into force of the Convention applies only in the
context of killings or suspicious deaths, where the anchoring factual
element, the loss of life of the victim, is known for a certainty,
even if the exact cause or ultimate responsibility is not. The
procedural obligation in that context is not of a continuing nature
in the sense described above.”
- The
Court has previously considered cases in which some investigation
into the deaths in question, as well as relevant court proceedings
seeking redress, took place both before and after the critical date
(see, for example, Šilih, cited above; Teren Aksakal
v. Turkey, no. 51967/99, ECHR 2007 X (extracts); Agache
and others, cited above; Velcea and Mazăre, cited
above; Şandru and Others v. Romania, no. 22465/03, 8
December 2009; and Tuna, cited above). In such cases, having
established that some of the steps were taken after the critical
date, the Court examined the nature of these steps and their
significance to the procedural obligation under Article 2 in
order to assess whether it had temporal jurisdiction. Accordingly,
in Šilih, the proximity in time of the death of the
applicant’s son to the acceptance by Slovenia of the right of
individual petition, as well as the fact that the large majority of
the civil and criminal proceedings occurred after the critical date,
established the temporal competence of the Court in respect of the
procedural obligation under Article 2 of the Convention (see
Šilih, cited above, §§ 164-165). In Teren
Aksakal, the Court noted that the procedure by which the
authorities had the opportunity to provide appropriate redress for
the alleged violations of the Convention had terminated some sixteen
years after the date on which Turkey had recognised the right of
individual petition. The obligation on Turkey to have regard to their
obligations under the Convention in respect of all pending cases
justified the establishment of the Court’s temporal
jurisdiction in respect of the procedural steps and legal proceedings
which continued after the critical date (Teren Aksakal, cited
above, §§ 67 and 74 76). In finding that it had
temporal jurisdiction in the cases of Agache and others,
Velcea and Mazăre and Tuna, the Court emphasised
that all or most of the criminal and civil proceedings had begun and
were completed after the critical date and that the complaints before
the Court essentially related to these proceedings (Agache and
others, cited above, §§ 70-72; Velcea and Mazăre,
cited above, §§ 86-87; and Tuna, cited above,
§§ 61 62).
- In
the present case, the applicant’s procedural complaint is
related to alleged failings in the investigation. As noted above, in
order for the Court’s jurisdiction to be established in respect
of the alleged violation of the respondent State’s procedural
obligations, it must be shown that omissions occurred after the
critical date and that there is a genuine connection between the
death of the applicant’s husband and the coming into effect of
the Convention in respect of Croatia. Accordingly, the Court must be
satisfied that a significant proportion of the procedural steps
required by the Convention ought to have been carried out after the
critical date.
- In
accordance with their Article 2 obligations, the Croatian authorities
were required to conduct an effective official investigation into the
shooting and subsequent death of B. on 15 and 19 January 1993,
promptly and with reasonable expedition (see, inter alia, Yaşa
v. Turkey, 2 September 1998, §§ 102-104,
Reports of Judgments and Decisions 1998 VI; Çakıcı
v. Turkey [GC], no. 23657/94, §§ 80-87, ECHR 1999 IV;
and Mahmut Kaya v. Turkey, no. 22535/93, §§
106-107, ECHR 2000 III). The Court notes that the police arrived
at the crime scene on the same day the shooting took place and
secured all available evidence. During January 1993 more than twenty
potential witnesses were questioned and the police pursued every line
of information. However, the perpetrator was not identified. The
Court notes that all relevant steps were taken at the beginning of
1993, more than four years and ten months before the Convention
entered into force in respect of Croatia.
- While
it is clear that there are circumstances in which the procedural
obligations arising under Article 2 may be, to some degree, revived,
those circumstances are not present here. As the Court has previously
noted, it cannot be the case that any assertion or allegation can
trigger a fresh investigative obligation under Article 2. However,
where there is a new, plausible allegation, piece of evidence or item
of information relevant to the identification, and eventual
prosecution or punishment of the perpetrator of an unlawful killing,
the authorities are under an obligation to take further investigative
measures (see Brecknell, cited above, §§ 70-71).
In the present case, the Court observes that no fresh information has
been obtained since the beginning of 1993 which could revive the
authorities’ procedural obligation to investigate the
applicant’s husband’s death and to bring the procedural
obligations under Article 2 within the temporal jurisdiction of the
Court.
- Accordingly,
the Court finds that the alleged failure of the Croatian authorities
to investigate the death of B. and to inform the applicant of the
outcome of the investigation occurred before 5 November 1997. The
applicant’s procedural complaint under Article 2 must therefore
be considered inadmissible 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. Other alleged violations of the Convention
- The
applicant also complained, relying on Articles 6 and 14 of the
Convention about the assessment of facts and the application of laws
in the civil proceedings for damages and that she had been
discriminated against in those proceedings on the basis of her
Serbian ethic origin.
- 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
Declares the application inadmissible.
Søren Nielsen Anatoly Kovler
Registrar President
