Ineffective investigation into two homicides. Non-exhaustion of domestic remedies for failure to apply to a Constitutional Court for compensation of relatives.
JUDGMENT
Kušić and others v. Croatia 16.01.2020 (no. 71667/17),
SUMMARY
In their application to the European Court, the Kušić family alleged that the investigation into the
death of their family members had been ineffective and that the domestic remedy suggested by the
Government for their grievance, a constitutional complaint, was not effective as the Constitutional
Court usually dismissed such complaints as unfounded.
The Court considered, however, that the Constitutional Court, after many years of not examining
such grievances, had revised and consolidated its practice and in its most recent decisions of 2019
had exercised a review of the effectiveness of investigations, taking European Convention case-law
as a basis for its assessment. The Constitutional Court was therefore now an effective remedy for
complaints about ineffective investigations under Articles 2 (right to life) and 3 (prohibition of
inhuman or degrading treatment) of the Convention.
The applicants were therefore required to bring a constitutional complaint in Croatia before bringing
an application before the European Court
PROVISION
Article 2
PRINCIPAL FACTS
The applicants, Zdravka Kušić, Bojan Kušić, and Martina Kušić, are Serbian nationals who were born
in 1958, 1987, and 1990 respectively and live in Kragujevac (Serbia).
The applicants’ relatives, N.K. and P.K, were found shot dead by the side of a road in Petrovo Polje
(Croatia) on 6 February 1992.
The police called an investigating judge as well as a deputy prosecutor and an inspection of the
crime scene was carried out. After an autopsy established that N.K. and P.K. had died from gunshot
wounds to the head and torso, the police filed a criminal complaint with the Sisak County State
Attorney’s Office against unknown persons for murder.
An investigation ensued and the police initially carried out numerous interviews, notably with two
men who had been living with the Kušić family and neighbours who stated that N.K. and P.K. had
been abducted by men in camouflage uniforms. The murders were classified as a war crime in 2006
and further interviews were carried out in late 2008 and the beginning of 2009 and then from 2016
to 2018.
The investigation was transferred to the Osijek authorities in 2010 and most recently, in March 2019,
to the Zagreb authorities, but is to date still ongoing.
THE DECISION OF THE COURT…
First, the Court reiterated that as soon as the State authorities had been informed of the death of a
person in suspicious circumstances, they were required to conduct an effective official investigation
of their own motion. It was not up to the next of kin either to lodge a formal complaint or to take
responsibility for the conduct of any investigative procedures.
In the applicants’ case, the police had filed a criminal complaint shortly after they had learned of the
killings and an investigation had ensued. However, the applicants had considered that that
investigation had been ineffective.
The main question which the Court had to examine was whether, as argued by the Government, a
constitutional complaint was an effective domestic remedy for complaints concerning ineffective
investigations and whether the applicants should have lodged such a complaint before bringing their
application before it.
The applicants alleged that the Constitutional Court usually dismissed such complaints as
unfounded, relying on five decisions between 2012 and 2016 concerning constitutional complaints
about civil court judgments dismissing claims against the State for compensation for violent deaths.
The Court noted, however, that the dates of those decisions corresponded to a transitional period
when the Constitutional Court was consolidating its case-law on the admissibility of complaints
concerning ineffective investigations under Articles 2 and 3 of the European Convention. Indeed, its
case-law had first developed after a decision of November 2014 concerning an allegation of illtreatment. That decision, referring to the standards for an effective investigation in the Strasbourg
Court’s case-law, had found a violation of the procedural aspect of Article 3 of the Convention,
awarded damages to the complainant and ordered the prosecuting authorities to conduct an
effective investigation. The Constitutional Court’s most recent decisions in 2019 had extensively
implemented the criteria established by the Court as concerned the effectiveness of investigations.
Thus, after many years of Croatia not examining grievances concerning the lack of an effective
investigation and dozens of applications being lodged against that country before the Court, the
Constitutional Court now provided parties with the possibility to have the effectiveness of
investigations under Articles 2 and 3 of the Convention reviewed, taking the Court’s case-law as the
basis for its assessment.
Under those circumstances and emphasising the subsidiary character of its role, the Court
considered that the applicants should be required to bring a constitutional complaint, a possibility
which was still open to them given that the investigation into the death of their relatives was still
ongoing, it being understood that the period during which the proceedings were pending before the
Court should not be held against them.
Following the termination of the proceedings before the Constitutional Court, or if those
proceedings became unreasonably protracted, it remained open for the applicants to bring their complaints before the Court if they still considered themselves to be victims of a violation of the
Convention.
The Court concluded that the applicants had not exhausted domestic remedies, meaning that they
had not given the State the opportunity to put matters right through its own legal system first. It
therefore rejected the application as inadmissible.
