first section decision the facts

FIRST SECTION
DECISION
Application no. 50203/12
Savo ORIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 13 May
2014 as a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Julia Laffranque,
Paulo Pinto de Albuquerque,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 3 July 2012,
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
1. The applicant, Mr Savo Orić, is a Croatian national of Serbian ethnic
origin, who was born in 1952 and lives in Topolovica. He was represented
before the Court by Mr J. Jelić, a lawyer practising in Bjelovar.
2. The Croatian Government (“the Government”) were represented by
their Agent, Ms Š. Stažnik.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised
as follows.
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ORIĆ v. CROATIA DECISION
1. Criminal Investigation
4. On 9 December 1991 the police lodged a criminal complaint with the
Bjelovar County State Attorney’s Office against unknown perpetrators on
charges of terrorism, alleging that on 5 November 1991 they had learned
that there were two corpses in a house in Topolovica. The police had visited
the said house and found two bodies, identified as Ljuban Orić and Mara
Orić. The crime scene had been photographed.
5. At the request of the applicant, on 15 December 2000 the Grubišno
Polje Municipal Court (Općinski sud u Grubišnom Polju) decided that
Ljuban and Mara Orić, the applicant’s parents, were presumed to have died
on 3 November 1991.
6. In their letter of 22 August 2005 the Bjelovar County State Attorney’s
Office qualified the criminal offence as murder and asked the Grubišno
Polje Police about the progress of the investigation into the deaths. The
latter replied on 31 January 2006 that it had been concluded that the
applicant’s parents had been killed in unknown circumstances during a
military operation.
7. On 9 November 2006 the Grubišno Polje Police interviewed four
people, K.M., I.M., M.S. and J.S., who all lived in Topolovica in 1991.
They submitted that between August and November 1991 Toplovica had
been occupied by Serbian para-military forces. At the beginning of
November 1991 the Croatian forces had entered the village and taken them
to another place. When they were leaving they had seen many parts of the
village burning.
8. The witness I.M. had returned to the village three days later and
entered the house of the Orić family, where he had seen the dead bodies of
Ljuban and Mara Orić. The next time he visited the village the house had
partly burned down and the roof had fallen in.
9. The witness M.S. submitted that he had been a member of the
Croatian Army and on 1 November 1991 when his village, Topolovica, had
been taken over by the Croatian army he had seen two copses lying on a bed
in the house of the Orić family. He had recognized Ljuban and Mara Orić.
Ljuban had had no visible injuries while Mara had been shot. His mother,
J.S., had told him that Ljuban had died a natural death because he had not
received his medication. Mara had been killed by an unknown person when
she had refused to leave the village with the Croatian Army.
10. The witness J.S. submitted that the Serbian para-military forces
which had controlled Topolovica had left at the end of October 1991. On the
third day thereafter the Croatian army had entered the village. One T.F. had
told her that Ljuban Orić, who had been suffering from leukemia, had died
because he had not received his medication.
11. The police interviewed J.V. and A.P., the police officers who had
carried out the on-the-scene inspection in the house of the Orić family in
November 1991, on 7 and 10 March 2008 respectively. J.V. submitted that
ORIĆ v. CROATIA DECISION
3
both victims had been shot with firearms. The woman had been shot in the
head and chest. He was not sure about the man, but thought that he had been
shot in the chest. He had found bullet cartridges and traces of blood. He had
also photographed the crime scene. No other steps had been taken owing to
the ongoing war. A.P. submitted that both victims had been shot with
firearms and that the house had been burned down.
2. Administrative proceedings
12. On an unspecified date the applicant sought financial assistance for
the reconstruction of his parents’ house. His request was dismissed by the
administrative authorities in 2003 on the ground that he had not resided in
that house at the time the damage had occurred. The applicant brought the
same claim again in 2005. It was dismissed on the ground that the same
request had already been decided upon.
3. Civil proceedings
13. On 7 February 2007 the applicant, through his legal representative,
brought a civil action against the State in the Grubišno Polje Municipal
Court, seeking compensation in connection with the death of his parents and
the destruction of their property. The claim was dismissed on 3 April 2007
and this judgment was upheld by the Bjelovar County Court and the
Supreme Court on 6 September 2007 and 9 April 2008, respectively. The
national courts found that the claim had been submitted after the statutory
limitation period had expired.
14. The applicant’s subsequent constitutional complaint was dismissed
on 9 May 2012.
15. The applicant was legally represented throughout the proceedings.
B. Relevant domestic law
16. 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,
125/2011, 143/2012 and 144/2012) reads:
Article 81
“(1) The criminal prosecution shall be time-barred after:
- forty years if the case concerns a criminal offence punishable by long term
imprisonment or imprisonment of more than fifteen years,
- twenty-five years for a criminal offence punishable by more than ten years’
imprisonment,
- twenty years for a criminal offence punishable by more than five years’
imprisonment,
ORIĆ v. CROATIA DECISION
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- fifteen years for a criminal offence punishable by more than three years
imprisonment,
- ten years for a criminal offence punishable by more than one year imprisonment,
- six years for other criminal offences.
(2) Criminal prosecution for the crime of genocide (Article 88), aggressive war
(Article 89), crimes against humanity (Article 90), war crimes (Article 91) and other
criminal offences which are not subject to statutory limitation according to the
Constitutional or international law.
(3) If before the expiry of the time-limits under paragraph 1 of this Article, a firstinstance judgment has been passed, the statutory limitation periods shall be extended
for further two years.”
COMPLAINTS
17. The applicant, relying on Articles 2 and 8 of the Convention,
complained about the killing of his parents. He further complained under the
procedural aspect of Articles 2 and 14 of the Convention that the criminal
law mechanisms as applied in the case at issue did not meet the standards
required and that the national authorities had failed to investigate possible
ethnic motives for the killing of his parents.
18. He also complained under Article 6 of the Convention that the
national courts did not examine his claim for damages on the merits.
THE LAW
A. Alleged violation of Articles 2, 8 and 14 of the Convention
19. The applicant complained that the killing of his parents, who were of
Serbian ethnic origin, in 1991 amounted to a war crime against the civilian
population and that no effective investigation into the circumstances of their
death had taken place. He also contended that the national authorities had
failed to investigate possible ethnic motives for their killing allegedly by
Croatian soldiers. He relied on Articles 2, 8 and 14 of the Convention, the
relevant parts of which read:
ORIĆ v. CROATIA DECISION
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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.
...”
Article 8
“1. Everyone has the right to respect for his private and family life, his home and
his correspondence.
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.”
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.”
20. The Court, being master of the characterisation to be given in law to
the facts of the case, will consider the applicant’s complaints under
Articles 2 and 14 of the Convention.
1. The parties’ arguments
21. The Government argued that the events complained of had taken
place in 1991, while the Convention had entered into force in respect of
Croatia on 5 November 1997, and that therefore the part of the application
concerning the actual death of the applicant’s parents was incompatible
ratione temporis with the provisions of the Convention.
22. As regards the procedural aspect of Article 2 of the Convention, they
argued that the investigation into the death of the applicant’s parents should
have taken place within the six years that elapsed between their death and
the entry into force of the Convention in respect of Croatia. In that period all
the relevant investigative steps should have been taken. The acts taken by
the national authorities before 5 November 1997 had not led to the
identification of the perpetrators. There was no “link” between the death of
the applicant’s parents and the entry into force of the Convention and
therefore the criteria for the Court’s competence ratione temporis, as
established in the Šilih judgment (Šilih v. Slovenia [GC], no. 71463/01,
§ 163, 9 April 2009), had not been satisfied
23. They further submitted that the applicant had failed to exhaust all
available domestic remedies. They contended that the applicant could have
lodged complaints against the individual police officers or employees of the
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ORIĆ v. CROATIA DECISION
State Attorney’s Office who were in charge of the investigation into the
death of his parents. Such complaints could have led to the institution of
disciplinary proceedings. As regards protection against alleged unlawfulness
in the conduct of the domestic authorities, the Government pointed out that
the applicant could have sought damages from the State pursuant to the
State Administration Act (Zakon o sustavu državne uprave). They argued
that such a combination of remedies had been found effective by the Court
in the case of D.J. v. Croatia.
24. The Government also submitted that this part of the application had
been lodged outside the six-month time-limit and that it was incompatible
ratione temporis with the Convention. The applicant’s constitutional
complaint had been lodged exclusively in connection with the civil
proceedings for compensation and not in connection with the State’s
procedural obligations under Articles 2 and 14 of the Convention.
Therefore, the decision of the Constitutional Court of 9 May 2012 could not
be regarded as a final decision in the present case in respect of the
applicant’s complaint under Articles 2 and 14 of the Convention. Since his
parents’ death in 1991 the applicant had not made any enquiries regarding
the investigation into their killing.
25. The applicant did not submit any comment on the issues related to
the admissibility of his application.
2. The Court’s assessment
26. The Court does not have to address all the issues raised by the
parties, as this application is in any event inadmissible for the following
reasons.
Compliance with the six-month rule
(i) General principles
27. The Court reiterates that the purpose of the six-month rule is to
promote security of law and to ensure that cases raising issues under the
Convention are dealt with within a reasonable time. Furthermore, it ought
also to protect the authorities and other persons concerned from being under
any uncertainty for a prolonged period of time (see Bayram and Yıldırım
v. Turkey (dec.), no. 38587/97, ECHR 2002-III, and Bulut and Yavuz
v. Turkey (dec.), no. 73065/01, 28 May 2002).
28. Where no remedies are available or are judged to be ineffective, the
six-month time-limit in principle runs from the date of the act complained
of (see Hazar and Others v. Turkey (dec.), no. 62566/00, 10 January 2002).
However, special considerations may apply in exceptional cases where an
applicant avails himself or relies on an apparently existing remedy and only
subsequently becomes aware of circumstances which render the remedy
ineffective; in such a case it is appropriate to take as the start of the
ORIĆ v. CROATIA DECISION
7
six-month period the date when he or she first became aware or ought to
have become aware of those circumstances rendering the remedy ineffective
(see Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99,
7 June 2001).
29. In a number of cases concerning ongoing investigations into the
deaths of applicants’ relatives the Court has examined the period of time
from which the applicant could or should start doubting the effectiveness of
a remedy (see Şükran Aydın and Others v. Turkey (dec.), no. 46231/99,
26 May 2005; Bulut and Yavuz, cited above; Bayram and Yıldırım, cited
above; Kıniş v. Turkey (dec.), no. 13635/04, 28 June 2005; Elsanova
v. Russia (dec.) no. 57952/00, 15 November 2005; Frandeş v. Romania
(dec.), no. 35802/05, 17 May 2011; Finozhenok v. Russia (dec.),
no. 3025/06, 31 May 2011; Attalah v. France (dec.), no. 51987/07,
30 August 2011; Deari and Others v. the Former Yugoslav Republic of
Macedonia (dec.), no. 54415/09, 6 March 2012; and Gusar v. Moldova and
Rumania (dec.), no. 37204/02, 30 April 2013).
30. Consequently, where a death has occurred, applicant relatives are
expected to take steps to keep track of the investigation’s progress, or lack
thereof, and to lodge their applications with due expedition once they are, or
should have become, aware of the lack of any effective criminal
investigation (see 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, § 158, 18 September 2009). On the same basis, where time is
of the essence in resolving the issues in a case, there is a burden on the
applicant to ensure that his or her claims are raised before the Court with the
necessary expedition to ensure that they may be properly, and fairly,
resolved (Varnava and Others, cited above, § 160).
31. Although the Court has refrained from indicating a specific period
for establishing when an investigation has become ineffective for the
purposes of assessing when the six-month period runs from, the
determination of such a period by the Court depended on the circumstances
of each case and other factors such as the diligence and interest displayed by
the applicants as well as the adequacy of the investigation in question. In
this connection, in the above-mentioned Varnava and Others judgment, the
Court noted that where the lack of progress or ineffectiveness of an
investigation is readily apparent, the requirements of expedition may require
an applicant to bring such a case before the Court within a matter of months,
or at most, depending on the circumstances, a very few years after events.
This is in particular pertinent in cases of unlawful death where there is
generally a precise point in time at which death is known to have occurred
and some basic facts are in the public domain and thus the lack of progress
or ineffectiveness of an investigation will generally be more readily
apparent (see Varnava and Others, cited above, § 162).
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ORIĆ v. CROATIA DECISION
(ii) Application of the above principles to the circumstances of the present case
32. The Court reiterates that the procedural aspect of Article 2 of the
Convention in circumstances such as those in the present case in principle
requires an investigation capable of leading to the identification and
punishment of those responsible. 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 cases involving State agents or bodies,
to ensure their accountability for deaths occurring under their responsibility
(see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 69,
ECHR 2002-II).
33. As regards the applicants’ civil action for damages, the Court notes
that they asked for compensation in connection with the death of their
father. However, these proceedings are not, in the circumstances of the
present case, relevant to the State’s procedural obligation under Article 2 of
the Convention and therefore do not affect the running of the six-month
period (compare to Narin v. Turkey, no. 18907/02, § 48, 15 December
2009).
34. It follows, therefore, that the relevant domestic remedy for the
applicants’ complaint, which would have had the potential to offer adequate
redress, was the criminal investigation (compare to Narin, cited above,
§ 49).
35. In the instant case, the Court notes that immediately after the
impugned event in question in 1991, the police took some initial steps to
investigate the circumstances of the applicant’s parents’ death. They visited
the house where the bodies had been found and photographed the scene (see
paragraph 4 above). Further steps were taken in November 2006 when the
police interviewed some potential witnesses, and then in March 2008 when
they interviewed two further potential witnesses (see paragraphs 7-11
above).
36. At this juncture the Court notes that the murder of the applicant’s
parents was committed during the war in Croatia and that in his application
to the Court the applicant alleged that his parents were murdered by
Croatian soldiers. He also argued that they had been killed because of their
Serbian ethnic origin. All these elements might be relevant for the
classification of the offence as a war crime in respect of which the rules on
statutory limitation of prosecution do not apply (see Article 18 of the
Criminal Code, paragraph 16 above). However, the applicant’s above
allegations have not been proven and the Court does not have sufficient
elements to dispute the classification of the offence by the national
authorities. However, independently from whether or not the offence could
be classified as a war crime, the complaints under Articles 2 and 14 of the
Convention would in any event be inadmissible for the following reasons.
37. The Court reiterates that applicants whose close relatives have been
killed may be expected to display a certain amount of diligence and
ORIĆ v. CROATIA DECISION
9
initiative in informing themselves about the progress made in the
investigation (Bulut and Yavuz, cited above). In the Court’s opinion, since
the applicant is the son of the victims, he should be expected to display due
diligence and take the requisite initiative in informing himself about the
progress made in the investigation (see Varnava and Others, cited above,
§ 158, and Narin, cited above, § 45). This applies irrespective of the legal
qualification of the offence as a murder or as a war crime.
38. The Court notes that the case at issue concerns an instance of violent
death. In applying the six-month time-limit for lodging an application in
such instances the following periods between the last relevant procedural
step on the part of the national authorities and lodging the applications with
the Court have been considered too lengthy: in the above-cited cases of
Narin, Aydin and Others and Hazar, that period was about seven years; in
Bulut and Yavuz it was about six years, while in other cases it ranged from
three and a half years to one year and eight months (in Bayran and Yildirim
it was three and a half years; in Finozhenok it was three years; in Deari and
Others it was two and a half years; in Elsanova it was two years; and in
Gusar it was one year and eight months).
39. In the present case the applicant did not show adequate interest in
following up the conduct of, or the progress made in, the criminal
investigation at any time (compare to Narin, cited above, §§ 31 and 46; and
Deari and Others, cited above, §§ 47-50). In the period between December
1991 and August 2005 which amounts to some fourteen years there was no
activity in the investigation and the applicant did not react to that inactivity.
Furthermore, the period between the last steps taken in the investigation into
the circumstances of the applicant’s parents’ death on 5 November 1991 and
the lodging of the application with Court on 3 July 2012 amounts to some
four years and four months.
40. Given the above circumstances of this case, the Court concludes that
the applicant should have become aware long before July 2012 when he
lodged his application with the Court that there had been no progress in the
investigation in the period between December 1991 and August 2005, and
then again after March 2008. However, he lodged the application with the
Court more than four years after that. He has not put forward any
justification for that delay.
41. It follows that this part of the application has been introduced out of
time and must be rejected in accordance with Article 35 §§ 1 and 4 of the
Convention.
B. Alleged violations of Article 6 § 1 of the Convention
42. The applicant complained about the administrative authorities’
decision refusing his request for financial assistance. He also complained
that that the national courts wrongly found that his claim for damages had
ORIĆ v. CROATIA DECISION
10
been lodged after the statutory limitation period had expired and therefore
had not examined it on the merits. He relied on Article 6 § 1 of the
Convention, the relevant part of which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a
fair ... hearing ... by [a] ... tribunal ...”
1. The administrative proceedings
43. Assuming that any issue under the Convention might at all arise in
respect of these proceedings, the Court notes that the last decision in these
proceeding was taken in 2003 while the application was lodged with the
Court on 3 July 2012.
44. It follows that this complaint has been introduced out of time and
must be rejected in accordance with Article 35 §§ 1 and 4 of the
Convention.
2. The civil proceedings
45. 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 (see Bogdanović v. Croatia (dec.), no. 72254/11, 18 March
2014).
For these reasons, the Court, by a majority,
Declares the application inadmissible.
Søren Nielsen
Registrar
Isabelle Berro-Lefèvre
President