In case of loss of a person in a state of war, the burden of proof for the circumstances of death lies with the state that arrested the deceased and not his relatives! The shift of the burden of proof consists of a violation of fair trial!
JUDGMENT
Baljak and others v. Croatia 25.11.2021 (app. no. 41295/19)
SUMMARY
The case concerned the domestic courts’ dismissal of the applicants’ claim for damages against the
State on the grounds that they had failed to prove that the State was responsible for the death of
their relative, despite the fact that he had been detained by Croatian soldiers and taken to an
unknown location, with his body being found years later in a mass grave with a gunshot wound to
the head.
The Court found in particular that the conclusion reached by the domestic courts when dismissing
the claim was manifestly unreasonable. The domestic courts had imposed an unattainable standard
of proof on the applicants, which was particularly unacceptable in view of the seriousness of the acts
concerned.
The Court further considered that the applicants’ complaint concerning the domestic courts’ order
for them to pay the costs of the State’s representation in the civil proceedings was premature, and
rejected it as inadmissible.
PROVISIONS
Article 6 par. 1
Article 1 of the First Additional Protocol
PRINCIPAL FACTS
The applicants, Milan Baljak, Draginja Baljak, Stana Baljak and Dušanka Tripunović, are Croatian
nationals who were born in 1943, 1924, 1940 and 1974 respectively. The first three live in
Petrovaradin (Serbia) and the fourth lives in Banja Luka (Bosnia and Herzegovina).
At the beginning of August 1995, the Croatian authorities announced a military campaign,
“Operation Storm”, to regain control of a large part of Croatian territory occupied by the Serbian
paramilitary forces since 1991. On 5 August the Croatian army regained control of the town of K.
That same day, the applicants’ relative, S.B. (son, brother and grandson), was captured by Croatian
soldiers in a nearby village. He was placed in a basement together with about 20 other people. The
following day he and several other men were taken by Croatian soldiers to an unknown location. The
applicants never heard from him again. In 2002 his body was found in a grave with a gunshot wound
to the head, together with the bodies of the other men taken with him. It appears that no
investigation was ever opened into the circumstances of S.B.’s disappearance or death.
On 24 June 2005 the applicants brought a civil action against the State in the Zagreb Municipal Civil
Court, alleging that S.B. had been killed by Croatian soldiers and seeking damages. The State
objected that the applicants had not proven that S.B. had been killed by Croatian soldiers, and that
in any event his death had constituted war damage, for which it was not liable.
In January 2015 the Zagreb Municipal Civil Court dismissed the applicants’ civil claim. It held that
they had failed to prove that S.B. had been killed by Croatian soldiers. The witnesses that had been
heard had not seen how he had died. The fact that he had been captured by Croatian soldiers and
that his body had later been found in a grave did not rule out the possibility that he had been killed
by enemy forces especially since he had last been seen in an area where military combat operations
were taking place. Under the Liability Act, a presumption of war damage applied, and the applicants
had failed to prove the opposite.
The Civil Court ordered the applicants to pay 17,450 Croatian kunas (about 2,330 euros) each for the
costs of the proceedings to the State.
The judgment was upheld by the appellate court and the Supreme Court. In January 2019 the
Constitutional Court dismissed their constitutional complaint, ruling that the domestic courts’
conclusion had not been arbitrary. However, four Constitutional Court judges gave a dissenting
opinion on that decision. They submitted that, since S.B. had been under the control of Croatian
soldiers, the State had been responsible for him, as well as for proving what had happened to him,
and that the burden of proof should not have been shifted to the applicants. They further held that
the killing of detained persons was prohibited by international law and could not be considered war
damage. Lastly, in the circumstances, the fact that there had been no criminal convictions for S.B.’s
killing was of no relevance, and it was the responsibility of the State to identify and prosecute the
perpetrators.
Following a request from the applicants, the Ministry of Finance wrote off the debt of the costs of
the proceedings for three of the applicants on account of their poor financial status but did not do so
for the fourth applicant. No appeal was made against that decision.
Relying on Article 6 § 1 (right to a fair hearing), the applicants complained that the domestic courts’
decisions dismissing their claim were arbitrary. They contended that, since S.B. had been under the
control of Croatian soldiers, there had been a clear link between his detention and killing, and the
burden of proof as to what had happened to him should have rested on the authorities. They further
contended that the killing of detainees was unlawful and amounted to a war crime, not war damage.
Moreover, they complained, under Article 6 § 1 and Article 1 of Protocol No. 1 (protection of
property), that the domestic courts’ order for them to pay the costs of the State’s representation in
the civil proceedings had been excessive, given their poor financial situation and the circumstances
in relation to which they had sought damages.
THE DECISION OF THE COURT…
Article 6 § 1
The Court observed that, under Croatian law, the State was liable for any damage caused by
members of its armed forces, unless the damage in question constituted war damage. Damage
caused by members of its armed forces in military service or in connection with military combat
actions during the war in the period between 17 August 1990 and 30 June 1996 was presumed to be
war damage, unless proved otherwise.
The Court reiterated that it had already found in a number of cases that persons who had gone
missing following their detention by soldiers were to be presumed dead and that the State was
therefore responsible for their death. It had already held that in such situations the burden of proof
lay with the authorities to provide a satisfactory and convincing explanation that the victim had
survived or died in different circumstances – see, for example, Trivkanović v. Croatia (no. 2)
(no. 54916/16) of 21 January 2021.
There had been no criminal investigation into the disappearance and killing of the applicants’
relative, nor any criminal convictions. The blame for that could not lie with the applicants. It was
undisputed that S.B. had gone missing while under the control of Croatian soldiers, and that there
had been no news of him until his body was found in a mass grave with a gunshot wound to his
head, together with the bodies of the other men taken at the same time as him. In accordance with
the Court’s case-law, in those circumstances there was a strong presumption of causality between
S.B.’s disappearance and killing. The burden of proof that Croatian soldiers did not unlawfully kill him
rested on the authorities.
The Court found that the conclusion reached by the domestic courts when dismissing the claim –
that the applicants had failed to prove that Croatian soldiers had killed S.B. and that his killing did
not amount to war damage – was manifestly unreasonable, taking into account the circumstances of
the case and the Court’s case-law. The domestic courts had imposed an unattainable standard of
proof on the applicants, which was particularly unacceptable in view of the seriousness of the acts
concerned. There had accordingly been a violation of Article 6 § 1 of the Convention.
Article 6 § 1 and Article 1 of Protocol No. 1
In the light of the violation of Article 6 § 1 of the Convention, the Court noted that the applicants
now had an opportunity to seek the reopening of the domestic proceedings. That would allow for a
fresh examination of their civil claim, as well as a fresh decision on the costs of the proceedings. In
those circumstances, the Court considered that the complaint concerning the costs of the
proceedings was premature and rejected it in accordance with Article 35 §§ 3 and 4 of the
Convention.
Just satisfaction (Article 41)
The Court held that Croatia was to pay the applicants 3,000 euros (EUR) jointly in respect of nonpecuniary damage and EUR 3,350 in respect of costs and expenses.
