Přehled
Rozhodnutí
SECOND SECTION
DECISION
Application no. 35853/19
Pantelija ZEC
against Croatia
The European Court of Human Rights (Second Section), sitting on 7 February 2023 as a Committee composed of:
Pauliine Koskelo, President,
Lorraine Schembri Orland,
Davor Derenčinović, judges,
and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the application (no. 35853/19) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 1 July 2019 by a national of Bosnia and Herzegovina, Ms Pantelija Zec, who was born in 1935 and lives in Laktaši (“the applicant”) and who was represented by Mr D. Rupčić, a lawyer practising in Sisak;
the decision to give notice of the complaints under Articles 3 and 6 of the Convention to the Croatian Government (“the Government”), represented by their Agent, Ms Š. Stažnik, and to declare the remainder of the application inadmissible;
the decision by the Government of Bosnia and Herzegovina not to exercise their right to intervene in the proceedings in accordance with Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns the applicant’s complaint that she was unable to obtain compensation for the non-pecuniary damage suffered on account of her ill-treatment by State agents in 1992.
2. On 11 February 1992, during the war in Croatia, the applicant, a civilian, was arrested by the police and handed over to the Croatian army. She was detained in the Kerestinec detention centre until June 1992 and ill-treated by Croatian army soldiers.
3. On 5 November 1997 Croatia ratified the Convention.
4. In 2007 the applicant instituted civil proceedings against the State seeking damages on account of her ill-treatment. At the time, an investigation for war crimes perpetrated by the members of the Croatian army in Kerestinec had been pending since 2001, without leading to any indictments.
5. By a judgment which became final on 7 April 2011, the civil courts dismissed the applicant’s action as being lodged outside the general statutory limitation period noting that, since there were no criminal convictions, the longer statutory limitation period did not apply.
6. In November 2011 the competent prosecutor indicted S.K., commander of the Kerestinec detention centre, and several other members of the Croatian army, for war crimes against the detainees, including the applicant. In April 2016 the trial court found them guilty as charged. In February 2017 the Supreme Court upheld their conviction.
7. Under Croatian law, if the damage results from a criminal offence, the general statutory time-limits for compensation claims are extended to correspond to the time-limits prescribed for prosecution of criminal offences. Given that prosecution for war crimes could not become statute-barred, the applicant on 4 May 2017 sought reopening of the initial civil proceedings, relying on the Croatian army soldiers’ conviction for war crimes.
8. Under Croatian law requests for reopening, if based on newly emerged evidence, or on the fact that the competent authority finally resolved the preliminary issue on which the civil court’s decision was based, could be lodged within five years after the judgment adopted in the civil proceedings sought to be reopened became final. The applicant’s request for reopening was therefore declared inadmissible as being lodged outside the absolute five‑year statutory time-limit. The civil courts did not accept the applicant’s argument that she could not have complied with that time-limit because the criminal proceedings against the members of the Croatian army had lasted so long.
9. The applicant complained, under Article 6 § 1 of the Convention, about the domestic courts’ decision declaring inadmissible her request for reopening of the civil proceedings against the State. She also complained, under Article 3 of the Convention, about the fact that ultimately, due to the length of the investigation and criminal proceedings against the members of the Croatian army, she had been unable to obtain damages for her ill‑treatment.
THE COURT’S ASSESSMENT
10. The Court considers that it is not necessary to address all the parties’ arguments because the application is in any event inadmissible for the following reasons.
11. As for the applicant’s complaint under Article 3 of the Convention that she had been unable to obtain damages for her ill-treatment as a result of the length of the investigation and criminal proceedings, the Court notes at the outset that the applicant’s ill-treatment by the Croatian army soldiers took place in 1992, that is, before the Convention entered into force in respect of Croatia on 5 November 1997 (see paragraphs 2 and 3 above). It further notes that the criminal proceedings against the members of the Croatian army ended in February 2017 (see paragraph 6 above), whereas the applicant lodged her application with the Court on 1 July 2019, more than two years later.
12. It follows that, in so far as the applicant may be understood to complain about the length of the investigation and criminal proceedings against the members of the Croatian army, that is, to raise a complaint under the procedural aspect of Article 3 of the Convention, that complaint is inadmissible under Article 35 § 1 for failure to observe the six-month rule and must be rejected pursuant to Article 35 § 4.
13. The applicant’s complaint that she was ultimately unable to obtain compensation for her ill-treatment falls to be examined under Article 13 of the Convention (see Vasil Sashov Petrov v. Bulgaria, no. 63106/00, §§ 58‑61, 10 June 2010, and Klauz v. Croatia, no. 28963/10, § 38, 18 July 2013).
14. Having regard to the fact that Article 13 cannot be relied on independently from, but only in conjunction with, one or more substantive Articles of the Convention, whereas the applicant’s ill-treatment falls outside the Court’s temporal jurisdiction (see paragraph 11 above), it follows that the complaint under Article 13 is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 thereof and must be rejected pursuant to its Article 35 § 4.
15. As for the applicant’s complaint under Article 6 § 1 of the Convention, the Court notes at the outset that the civil proceedings in which the domestic courts dismissed as time-barred the applicant’s civil claim for damages against the State ended in 2011 (see paragraph 5 above). However, the applicant lodged her application with the Court on 1 July 2019, that is, outside the six-month time-limit set out in Article 35 § 1 of the Convention, it being understood that her subsequent request for reopening of the proceedings is not an effective remedy capable of interrupting the running of that time-limit (see, among many other authorities, Sapeyan v. Armenia, no. 35738/03, § 23, 13 January 2009).
16. It follows that, to the extent that her complaint under Article 6 § 1 of the Convention is to be understood to concern the lack of access to a court in the proceedings which ended in 2011, it is inadmissible under Article 35 § 1 for failure to observe the six-month time-limit and must be rejected pursuant to Article 35 § 4.
17. As for the applicant’s complaint about the domestic courts’ decision declaring inadmissible her request for reopening of the civil proceedings against the State, the Court reiterates that while Article 6 § 1 is not normally applicable to proceedings following a request for reopening, the nature, scope and specific features of such proceedings in a given case and in the particular legal system may bring those proceedings within the ambit of that Article (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 50, ECHR 2015). In the present case the applicant’s request for reopening was declared inadmissible on purely procedural grounds, namely for being lodged outside the five-year statutory time-limit, without the domestic courts touching upon the merits of the case in any way (see paragraph 8 above and contrast Trivkanović v. Croatia (no. 2), no. 54916/16, § 58, 21 January 2021). It follows that the proceedings following the applicant’s request for reopening were not decisive for the determination of her civil rights and obligations and that Article 6 § 1 is therefore inapplicable to them.
18. Accordingly, this part of the applicant’s complaint under Article 6 § 1 of the Convention is inadmissible as being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4.
19. By way of observation, the Court notes that, as of 2017, the applicant can seek compensation directly from the members of the Croatian army S.K. and D.P. on the basis of the final criminal court judgment convicting them for war crimes (see paragraph 6 above).
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 9 March 2023.
Dorothee von Arnim Pauliine Koskelo
Deputy Registrar President