Commencement of the statute of limitations for civil claims for killings in a military operation due to their widespread disclosure to the media. Violation of the right of access to a court

JUDGMENT

Vujnović v. Croatia  (no. 32349/16)

see here 

SUMMARY

The case essentially concerned the civil proceedings for damages following the death of the
applicant’s parents during a military operation by the Croatian army in 1993. The applicant’s claim
was ultimately dismissed as statute-barred.

The applicant argued that the Supreme Court had been inconsistent when deciding on cases
concerning compensation for the death of family members, as it had not used the same approach
each time for calculating the statutory limitation period, and that the manner in which this time-limit
had been calculated in his case had deprived him of access to a court.

The Court found that the cases relied on by the applicant as examples of inconsistency had
concerned disappearances which had never been elucidated, whereas he had known that his
parents had been killed in the 1993 operation several years before bringing his claim for damages.
The Supreme Court cases referred to by the applicant had therefore involved different facts to the
case concerning his parents and there could be no conflicting case-law.

Moreover, the manner in which the statutory limitation period had been calculated in his case,
namely from 2001 when an indictment by the International Criminal Tribunal for the former
Yugoslavia (“the ICTY”) against a Croatian general had listed his parents among the victims of the
operation, had not amounted to a disproportionate restriction on his right of access to court. The
indictments against the Croatian generals had been widely reported in the media, and yet the
applicant had not contacted the authorities for information about his parents’ fate until 2007 in the
context of the proceedings for damages. Nor had he instituted proceedings with a view to having his
parents declared dead until 2011, some 18 years after their disappearance.

PROVISIONS

Article 2

Article 6

PRINCIPAL FACTS

The applicant, Dušan Vujnović, is a Croatian national who was born in 1963 and lives in Zagreb.
The applicant’s parents were killed during the war in 1993 when the Croatian army conducted a
military operation to regain control from the Serbian forces over territory known as the “Medak
Pocket”.

Several years later investigations were carried out into the role of the Croatian army generals in the
Medak Pocket military operation during which 51 people had been killed. The ICTY indicted several
generals and passed the cases to the Croatian authorities for prosecution.

In particular, a Croatian general, R.A., was indicted in 2001 by the ICTY and then in 2006 by the
Croatian authorities with crimes against humanity and violations of the laws and customs of war in
the course of “Operation Pocket-93”, notably for failing to prevent the massacring of civilians of
Serbian ethnicity. Both indictments listed the applicants’ parents among the victims. The Croatian
courts acquitted General R.A. of the charges in 2008, which decision became final in 2009.

In 2008 the applicant brought a civil claim against the State seeking damages for the killing of his
parents by Croatian soldiers. The courts ultimately ruled against him in 2015. In particular the
Supreme Court held that the applicant had had an objective possibility to learn about the death of
his parents in 2001 when the ICTY indictment against General R.A. had listed both of them among
the victims and that the five-year statutory limitation period should therefore have run from this
point. As he had brought his claim in 2008, it was statute-barred.

In 2011 the applicant brought proceedings before the courts to have his parents declared dead and
the courts issued decisions to that effect which became final in 2012 and 2013.

THE DECISION OF THE COURT…

Article 2 (right to life/investigation)

The Government submitted that although the State Attorney’s Office had continued to investigate
crimes committed during Operation Pocket-93 after General R.A.’s acquittal in 2008, as of that time
the applicant’s parents had not been considered to be victims of a criminal offence. Moreover,
despite a criminal complaint lodged by three persons (not the applicant) in September 2015, to date
no new information had come to light which would undermine such a conclusion.

The Court reiterated that applicants whose close relatives had been killed could be expected to
display due diligence and take the initiative as far as necessary to obtain information about the
progress made in the related investigation.

However, the applicant had not attempted to request information after the criminal proceedings
against General R.A. had ended in November 2009, only turning to the Court with his complaint in
June 2016, long after its six-month deadline for lodging applications.

The Court therefore rejected the applicant’s complaint about the ineffectiveness of the investigation
into his parents’ death as inadmissible for being lodged out of time.

Article 6 § 1

Legal certainty

The applicant argued that the statutory limitation period for lodging a civil claim for damages in his
case should have been calculated from the date on which the decisions declaring his parents dead
had become final, as in several other cases decided by the Supreme Court concerning compensation
for the death of family members.

The Court reiterated that it had previously accepted that giving two disputes different treatment
could not be considered to give rise to conflicting case-law when they concerned different facts.
It noted that the applicant had relied on Supreme Court judgments concerning the disappearance of
plaintiffs’ family members whose fate remained unknown, whereas it was known what had
happened to the applicant’s parents. Information that they had been killed in September 1993
became known before the applicant had instituted civil proceedings for damages (in 2008) and
certainly before he had sought to have them declared dead (in 2011). Indeed, he had admitted that
he had learned about his parents’ fate in 2006, when the indictment against General R.A. had been
brought before the Croatian criminal courts.

The cases relied on by the applicant had therefore involved different facts to the case concerning his
parents. The fact that the domestic courts had not calculated the statutory limitation period for
lodging the civil claim for damages from the date on which the decisions declaring his parents dead
had become final could not therefore be considered to give rise to conflicting case-law and there
had been no breach of the principle of legal certainty. There had accordingly been no violation ofArticle 6 § 1 on that account.

Access to court

The applicant argued that calculating the statutory limitation period for lodging his claim from 2001,
when the Supreme Court considered that he had had an objective possibility to learn of his parents’
death, had deprived him of access to a court.

First, the Court did not find it unreasonable that in circumstances where the exact day on which the
plaintiffs had learned about the death of their family members could not be established, the
domestic courts would rely on the time at which they had had an objective opportunity to learn
about it.

Furthermore, it noted that the indictments filed against the Croatian army generals before the ICTY
for crimes committed in the Medak Pocket in September 1993 had been widely covered by the
media in Croatia. The applicant, as the son of persons who had gone missing during the 1993 military
operation, could not have remained unaware of those publications. Nor had it been unreasonable to
expect that he should show due diligence and turn to the Croatian authorities for information.
However, he had not contacted the police or the State Attorney’s Office about their fate, except in
the context of the civil proceedings for damages in 2007. Nor had he instituted proceedings with a
view to having them declared dead until 2011, some 18 years after their disappearance.

Had he turned to the State authorities for information regarding his parents’ fate at any point after
November 2001 when the ICTY indictment had been filed against general R.A., he could have learned that they had been killed by Croatian soldiers and therefore could have obtained all the information necessary to seek damages from the State.

The Court therefore concluded that the manner in which the Supreme Court had calculated the
statutory limitation period for the applicant to lodge his claim for damages had not constituted a
disproportionate restriction on his right of access to court.

There had accordingly been no violation of Article 6 § 1 of the Convention on that account either.

Separate opinions

Judges Ksenija Turković, Aleš Pejchal and Jovan Ilievski expressed a joint partly dissenting opinion.
This opinion is annexed to the judgment.


ECHRCaseLaw

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