Refusal to reconsider a decision for compensation due to death, despite the appearance of new evidence. Violation of a fair trial
JUDGMENT
Trivkanović v. Croatia (no. 2) 21.01.2021 (app. no. 54916/16)
SUMMARY
Refusal to reconsider a decision concerning the applicant’s trial against the State in view of new evidence of the disappearance and death of her two sons and her husband, who had been arrested in 1991 by the police. During the initial trial, her claims were barred because, in the absence of a pending criminal trial, the longer time limits provided for the prosecution of criminal offenses did not apply. In her subsequent request for re-election, she cited as a new element the conviction of a man, leader of a group that committed war crimes against the civilian population, including her sons. The national courts rejected her request, arguing that the man in question was sentenced for their disappearance and not for their death.
According to the ECtHR, the conclusion of the national authorities that there was no causal link between the criminal conduct of the convicted person and the death of the applicant’s sons was clearly absurd, given the authorities’ sole responsibility for the events. The Court has held that in such cases the burden of proof lies with the authorities to provide a satisfactory and convincing explanation. In reaching that conclusion, the national courts placed an excessive burden on the applicant, which was inadmissible because of the gravity of the acts in question.
The ECtHR found a violation of the right to a fair trial (Article 6 of the ECHR) and awarded EUR 12,500 in respect of non-pecuniary damage and EUR 2,000 in respect of costs and expenses.
PROVISION
Article 6
PRINCIPAL FACTS
The applicant, Stoja Trivkanović, was a Croatian national who was born in 1950 and lived in Sisak
(Croatia). The applicant died on 15 December 2019. Her grandsons continued the application in her
stead.
The case concerned a refusal to reopen civil proceedings despite new evidence having emerged.
On 25 August 1991 the Sisak police entered the applicant’s son’s house and seized him, her other
son and her ex-husband. Her ex-husband was found shot dead in the River Sava; her sons were
never seen again. On 21 November 2005 they were declared legally dead.
The applicant brought a civil action for damages against the State in 2006. It was rejected as
time-barred, as the domestic court found that longer time-limits could only apply where a criminal
court found an offence had been committed.
On 16 December 2011 a man was accused of being the leader of a unit that had committed crimes
against the civilian population, including the applicant’s sons, and was indicted for war crimes. He
was found guilty by the courts and given a prison sentence. Relying on that conviction, the applicant
applied for the reopening of the civil proceedings on 1 August 2014.
The Sisak Municipal Court dismissed her application, holding that the man in question had been
convicted for the applicant’s sons’ disappearance, not deaths, a decision that was upheld on appeal.
A constitutional complaint was declared inadmissible by the Constitutional Court.
Relying on Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights, the
applicant complained that she had been denied fair access to a court.
THE DECISION OF THE COURT…
The Court noted that, in the original civil proceedings, the domestic courts dismissed the applicant ‘s action against the State seeking compensation for the deaths of her two sons, who had disappeared after being arrested by the police on 25 August 1991. and who were declared missing on 21 November 2005. These courts held that the claim for damages had become statute-barred since she brought her civil action in September 2006, that is, five years after the disappearance of her children and ( their alleged death in August 1991. In December 2013, the VM was found guilty of war crimes against the civilian population, etc., including the disappearance of the applicant’s sons, committed by members of the police force under his command. Under Croatian law, if the damage was caused by a criminal offense, the normal time limits for claims for damages are extended to correspond to the time limits laid down for the prosecution of criminal offenses. As the prosecution of war crimes could not be statute-barred, the applicant requested that the original civil proceedings be reopened, relying on the VM conviction for war crimes. Under Croatian law, the state is liable under the rules of strict liability for any damage caused by members of its armed forces, unless the damage in question is the result of a war crime.
However, the domestic courts refused to reopen the case by re-examination, considering that VM’s conviction was not new evidence capable of leading to a different outcome, as there was no causal link between the death of the applicant’s children and the criminal conduct. of the VM.
The ECtHR reiterated that it is not its duty to replace the domestic courts, which are better placed to assess the evidence before them, to establish facts and to interpret national law. The Court should not act as a fourth instance court and therefore could not challenge, in accordance with Article 6 (1), the decision of the national courts, unless their conclusions were arbitrary or manifestly unreasonable.
The Court also noted that the decisions of the national courts in the present case were never reviewed by the Supreme Court. In its later case law developed in the context of the same historical events related to the war, the Supreme Court ruled that when a war crime committed by members of the armed forces involved enforced disappearances and the victim who disappeared later was equivalent to a State is liable for the death and consequent damage due to the apparent causal link between the disappearance and the (alleged) death of the victim. This case law has also suggested that in such cases the burden of proof shifts, as it is up to the State to prove that the victim survived or died in different circumstances.
As to whether national court rulings in this case could be considered arbitrary or manifestly absurd, the Court noted that the VM was convicted of failing to prevent and punish a number of war crimes against the civilian population committed by members of the police force. forces under his command, including the disappearance of the applicant’s sons. The conclusion, in these circumstances, that there was no causal link between the VM’s criminal conduct and the death of the applicant’s children, according to the domestic courts which rejected her request for a retrial, is obviously absurd in view of the case law of the ECtHR in accordance with Article 2 of the ECHR, which was mentioned at national level by the Supreme Court, which in subsequent similar cases ruled that this conclusion was unfounded and too formalistic. In reaching that conclusion, the national courts imposed an excessive burden on the applicant, which was inadmissible because of the gravity of the acts in question.
The ECtHR found a violation of the right to a fair trial (Article 6 § 1 of the Convention).
Just satisfaction: to the applicant’s grandsons jointly: 12,500 euros (EUR) for non-pecuniary damage
and EUR 2,000 for costs and expenses
