OREŠČANIN proti Chorvatsku

SECOND SECTION

DECISION

Applications nos. 19544/15 and 44792/16
Janko OREŠČANIN
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 applications (nos. 19544/15 and 44792/16) 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 17 April 2015 and 28 July 2016 respectively by a Croatian national, Mr Janko Oreščanin (“the applicant”), who was born in 1934 and lived in Blatuša and who was initially represented by Mr L. Šušak, and then by Ms S. Čanković, both lawyers practising in Zagreb;

the decision to give notice of the complaints under Articles 6 § 1 and 14 of the Convention and Article 1 of Protocol No. 1 thereto to the Croatian Government (“the Government”), represented by their Agent, Ms Š. Stažnik, and to declare the remainder of the application no. 44792/16 inadmissible;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASEs

1. The applications concern the applicant’s complaints under Articles 6 § 1 and 14 of the Convention and Article 1 of Protocol No. 1 thereto about the allegedly arbitrary and discriminatory decisions of the domestic courts rendered in two sets of civil proceedings he had instituted against the State.

2. The applicant’s house was burnt and his movable property from the house burnt or stolen in August 1995.

3. The applicant brought two civil actions against the State, one on 3 June 2004 and the other on 3 July 2007, by which he sought damages in connection with the theft and destruction of his movable property and the burning of his house, allegedly by the members of the Croatian army.

4. In the two sets of civil proceedings, several witnesses testified that the applicant was a wealthy person who had had multiple pieces of agricultural equipment and a fully furnished large house. They also gave evidence to the effect that they had seen Croatian soldiers stationed in the applicant’s house, who had taken objects from it and burnt the house.

5. On 4 June 2007 and 14 November 2008 respectively, the first-instance court dismissed the applicant’s claims on the grounds that he had not proven that he had owned the movable property alleged in his claim; that his property had been taken and his house burnt down by members of the Croatian army; and that the damage for which he had sought compensation did not amount to war damage (for which the State was not liable).

6. These judgments were upheld on 9 December 2010 and 13 February 2014 by the appellate court, who added that the applicant’s claims had in any event been lodged outside the general statutory time-limit.

7. On 19 February 2014 and 11 March 2015 the Supreme Court dismissed the applicant’s appeals on points of law against the lower courts’ judgments.

8. On 15 October 2014 and 11 February 2016, the Constitutional Court dismissed the applicant’s subsequent constitutional complaints. These decisions were served on the applicant’s representative on 23 October 2014 and 19 February 2016 respectively.

9. In both cases the applicant complained, under Articles 6 § 1 and 14 of the Convention and Article 1 of Protocol No. 1 thereto, that the factual findings of the domestic courts were arbitrary, in contradiction with the available evidence, irreconcilable with the actual events, and discriminatory on the grounds of his Serbian ethnic origin.

THE COURT’S ASSESSMENT

1. Preliminary remarks

10. The applicant died on 23 February 2017. On 13 April 2018 his wife and son expressed their wish to continue the applications on his behalf. According to its well-established case-law on the matter (see Trivkanović v. Croatia (no. 2), no. 54916/16, §§ 44-47, 21 January 2021), the Court considers that the applicant’s close family members have standing to pursue the proceedings in the applicant’s stead.

11. Having regard to the intertwined subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

12. The Court further considers that it is not necessary to examine the various inadmissibility objections raised by the Government in the present applications, as they are in any event inadmissible for the reasons set out below.

2. Alleged violation of Article 6 § 1 of the Convention

13. The Court notes that the domestic courts ultimately rejected the applicant’s civil claims finding that they had in any event been time-barred (see paragraph 6 above). They applied the general statutory limitation periods under section 376 of the Civil Obligations Act in respect of civil claims, and not those which would have been applicable if the damage claimed had been the result of a criminal offence (section 377 of the Civil Obligations Act).

14. The Court has already addressed the same issue in several cases against Croatia (see, for instance, Baničević v. Croatia (dec.), no. 44252/10, § 33, 2 October 2012; and Nijemčević v. Croatia (dec.) [Committee], no. 51519/12, § 49, 11 September 2018), finding that according to the established practice of the domestic courts, the statutory limitation periods in respect of the criminal offences that had caused the damage at issue were applicable only where the persons who had caused the damage had been convicted by a final criminal court judgment. In the present case it was undisputed that the individual perpetrators had never been identified and that there had been no convictions.

15. The Court further notes that the applicant never challenged (either in the domestic proceedings or before the Court) the manner in which the domestic courts had calculated the general statutory limitation periods under section 376 of the Civil Obligations Act when concluding that his claims had been lodged after their expiry. The Court is unable to do so on its own motion (compare Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018). It follows that both of the applicant’s civil claims would have in any event been dismissed as time-barred.

16. Accordingly, in the circumstances where both of the applicant’s civil claims would have in any event been dismissed as time-barred, the Court finds that the applicant did not suffer a significant disadvantage on account of the violation complained of, namely, the alleged arbitrary findings by the domestic courts that he had failed to prove that the perpetrators had been Croatian army soldiers and that the damage had not amounted to war damage (see, mutatis mutandis, Grozdanić and Gršković-Grozdanić v. Croatia, no. 43326/13, § 128, 28 January 2021).

17. The Court further notes that it has established clear and extensive case-law concerning complaints relating to arbitrary or manifestly unreasonable domestic courts’ decisions, which also includes cases brought against Croatia (see, for example, Bochan v. Ukraine (no. 2) [GC], no. 22251/08, §§ 61-65, ECHR 2015; and Baljak and Others v. Croatia, no. 41295/19, §§ 35 and 41, 25 November 2021). Thus, an examination on the merits of the applicant’s complaint would not add anything in this regard. The Court therefore concludes that respect for human rights, as defined in the Convention and the Protocols thereto, does not require an examination of this complaint on the merits.

18. In view of the above findings, the Court concludes that the complaint under Article 6 § 1 is inadmissible under Article 35 § 3 (b) of the Convention because the applicant did not suffer a significant disadvantage, and that it must therefore be rejected pursuant to Article 35 § 4.

3. Alleged violation of Article 1 of Protocol No. 1 to the Convention

19. Having regard to the fact that the applicant’s claims for damages against the State were dismissed as in any event being lodged outside the general statutory limitation periods, the calculation of which the applicant never challenged (see paragraph 15 above), the Court finds that the applicant’s claims did not have a sufficient basis in national law to qualify as “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention (see Radomilja and Others, cited above, § 142).

20. It follows that the complaint under Article 1 of Protocol No. 1 is inadmissible for 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.

4. Alleged violation of Article 14 of the Convention in conjunction with Article 6 § 1 and Article 1 of Protocol No. 1

21. As regards Article 14 of the Convention and the applicant’s reference to his Serbian ethnic origin as the reason for the domestic courts’ arbitrary factual findings, the Court reiterates that Article 14 has no independent existence but plays an important role by complementing the other provisions of the Convention and its Protocols (see Mileusnić and Mileusnić-Espenheim v. Croatia, no. 66953/09, § 74, 19 February 2015).

22. Given that the applicant’s civil claims were dismissed as in any event being time-barred (see paragraph 15 above), in the Court’s view no further issue remains to be examined under Article 14 of the Convention.

23. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 9 March 2023.

Dorothee von Arnim Pauliine Koskelo
Deputy Registrar President