NOVOSEL A OSTATNÍ proti Chorvatsku

FIRST SECTION

CASE OF NOVOSEL AND OTHERS v. CROATIA

(Application no. 25182/22)

JUDGMENT

STRASBOURG

26 March 2026

This judgment is final but it may be subject to editorial revision.

In the case of Novosel and Others v. Croatia,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

Frédéric Krenc, President,
Davor Derenčinović,
Alain Chablais, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 25182/22) 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 13 May 2022 by four Croatian nationals (“the applicants”), whose relevant details are listed in the appended table, and who were represented by Ms S. Marković, a lawyer practising in Zagreb;

the decision to give notice of the complaints under the procedural aspect of Article 2 and under Article 6 § 1 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 parties’ observations;

Having deliberated in private on 5 March 2026,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1. The case concerns civil proceedings for damages which the applicants instituted against a public utility company and a municipality following their family member’s drowning in an Olympic-sized swimming pool in 1996.

2. On 14 July 1996, at around 3 p.m., the applicants’ son and brother, Ž.N., 21 years old at the time, arrived at the swimming pool in Jastrebarsko. He was allowed entry without a ticket. At 8.05 p.m., another visitor found his body at the bottom of the pool. An autopsy established that he had died of drowning. It was also established that he had been heavily intoxicated with alcohol. The competent State Attorney’s Office found no elements of a crime.

3. In March 1997 the municipality issued a decision prohibiting persons under the influence of alcohol from accessing the pool and requiring the presence of lifeguards. The pool was issued a usage permit in April 1997.

4. In June 1997 the applicants brought a civil action for damages against the public utility company and the municipality, arguing that their family member had drowned because there had been no rescue and medical assistance in place at the pool at the material time.

5. An expert report obtained in 2003 found that severe alcohol intoxication, as had been established in respect of Ž.N., caused double and blurred vision, light-headedness and a loss of consciousness and reduced the understanding of danger to a minimum. Movement coordination became involuntary and entirely unpredictable.

6. In 2006 witness M.F. stated that at the time of the incident he had worked as one of four guards who had not had the authority to supervise visitors, but only to tidy up the premises. There had been no checks on whether persons were under the influence of alcohol when entering the swimming pool, but signs had been posted. Strong alcoholic beverages had been sold at the pool. Witness K.P. stated that, at the time of the incident, signs with various warnings had been put up on the fence at the entrance to the swimming pool facility. However, employees had not been authorised to prohibit persons under the influence of alcohol from staying at the pool or to remove such persons.

7. In September 2006 the Zagreb Municipal Court granted the applicants’ claim in part. It found that Ž.N. had been heavily intoxicated by alcohol and that there had been no guards in charge of supervising visitors who could have noticed and removed him from the pool, even though his movements, according to the experts, had been involuntary and entirely unpredictable. The lack of any care for visitors had also been reflected in the fact that Ž.N. had been lying on the bottom of the pool for a long period and that a visitor had found him when there had been no other visitors left. It also held that the deceased bore 40% of the responsibility for the accident owing to the fact that he had himself caused his state of heavy intoxication by consuming alcohol and that he had been a poor swimmer.

8. In March 2007 the Zagreb County Court quashed that judgment, raising the issue of the first respondent’s liability, in that it had not been established that it had actually managed the pool facility. It also held that the first‑instance court had failed to provide clear answers as to why the acts or omissions – specifically, allowing Ž.N. to enter the swimming pool facility without a ticket, lack of medical and rescue services and sale of alcohol at the swimming pool – had been unlawful, which was one of the essential elements for establishing tort liability.

9. In April 2010 the Zagreb Municipal Court again granted the applicants’ claim in part. It held that under the Civil Obligations Act the two respondents were strictly liable for Ž.N.’s death as the holders of a dangerous object. An Olympic-sized swimming pool presented an increased risk of harm to persons using it and its usage should have been overseen with greater care. However, the respondents had not undertaken even minimal measures to protect the visitors and regulations mandating the setting up of rescue services had been issued only subsequently. Moreover, the pool had been put to use before it had received a usage permit and Ž.N. had been allowed entry without a ticket.

10. In December 2010 the Zagreb County Court quashed that judgment, holding that the first-instance court had failed to establish the specific technical characteristics of the swimming pool which posed an increased risk of harm. Furthermore, it had not been established whether there had been any unlawfulness causally linked to the incident which was attributable to the respondents and that it remained unclear why the respondents had been required to provide rescue and medical services at the swimming pool.

11. An expert report obtained in February 2016 stated that, while the process of the drowning of a sober person lasted three to five minutes, Ž.N.’s death had probably occurred two to three minutes after the first inhalation of water. Even if resuscitation had been attempted during those two to three minutes after the drowning mechanism had started, no positive response could have been expected from his respiratory system on account of severe alcohol intoxication.

12. At a hearing the experts explained that drowning would not have occurred if Ž.N. had been pulled out of the water before the initiation of the drowning mechanism. Furthermore, had he been pulled out within several seconds after the first inhalation of water, resuscitation might have been successful.

13. On 8 November 2017 the Zagreb Municipal Civil Court dismissed the applicants’ claim. It held that the municipality was not liable because the utility company had been in charge of the management of the pool. Furthermore, Ž.N. was solely responsible for his own death. He had placed himself in a state of severe alcohol poisoning and not even a professional intervention two to three minutes after the first inhalation of water could have saved his life.

14. On 6 February 2018 the Zagreb County Court upheld that judgment, agreeing that the lack of rescue and medical services had not been causally linked with the fatal outcome because it could not have been expected that, even with due care and diligence, it would have been noticed within two to three minutes that Ž.N. had been submerged, all the more so as nothing had shown that he had needed assistance.

15. On 7 October 2020 the Supreme Court dismissed a subsequent appeal on points of law lodged by the applicants. The Constitutional Court dismissed a subsequent constitutional complaint lodged by the applicants by a decision of 6 October 2021, which was served on the applicants on 24 and 26 November 2021.

16. Before the Court, the applicants complained that the civil courts had not adequately examined all the relevant facts of the case and that the proceedings had been excessively lengthy. They relied on Articles 2 and 6 § 1 of the Convention.

• THE COURT’S ASSESSMENT

17. Reiterating that the Court is the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, ECHR 2018) and noting that the applicants’ grievances cover the same issue, the Court finds it appropriate to examine the case solely under the procedural aspect of Article 2 of the Convention (compare Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, §§ 143-45, 19 December 2017).

18. The Court notes at the outset that any alleged breach of the respondent State’s positive substantive obligation under Article 2 of the Convention falls out of the Court’s temporal jurisdiction since the drowning occurred in 1996, whereas Croatia ratified the Convention on 5 November 1997 (compare Jurica v. Croatia, no. 30376/13, §§ 67-72, 2 May 2017). Indeed, that complaint by the applicants was declared inadmissible already at the communication stage of the case. However, having regard to the fact that the civil proceedings complained of were instituted in 1997 and that a final decision was adopted by the Constitutional Court in 2021, the Court has temporal jurisdiction in respect of those proceedings (compare Fergec v. Croatia, no. 68516/14, §§ 6 and 27, 9 May 2017).

19. The Court notes that the complaint under the procedural aspect of Article 2 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

20. While the Court cannot accept the applicants’ argument that the civil courts failed to examine all relevant facts, it observes that the proceedings complained of lasted for 24 years and involved four levels of jurisdiction. Contrary to the Government’s assertion, the Court finds that neither the complexity of the case nor the applicants’ (in)actions justified such lengthy proceedings. In particular, the first-instance court initially twice granted the applicants’ claim in part and, each time, its judgment was quashed by the appellate court because of a failure to elucidate important factual or legal circumstances, that is, because of errors purportedly committed by the first‑instance court (see paragraphs 7-10 above; compare Ciechońska v. Poland, no. 19776/04, § 74, 14 June 2011). Such a lengthy period necessarily prolonged the ordeal of uncertainty for the applicants.

21. In that connection, the Court notes that previous findings of a violation of the procedural aspect of Article 2 of the Convention in a number of cases involving unintentional deaths were largely based on the existence of unreasonable delays and a lack of diligence on the part of the authorities in conducting the proceedings, regardless of their final outcome (see, for example, Fernandes de Oliveira v. Portugal [GC], no. 78103/14, §§ 138-40, 31 January 2019; Fergec, cited above, §§ 39-43; Bilbija and Blažević v. Croatia, no. 62870/13, § 107, 12 January 2016; and Bajić v. Croatia, no. 41108/10, § 107, 13 November 2012).

22. The Court thus concludes that the domestic courts failed to provide a timely response to the civil claim in relation to the applicants’ family member’s drowning in a manner consistent with the State’s procedural obligation under Article 2 of the Convention. Consequently, there has been a violation of Article 2 in its procedural aspect.

• APPLICATION OF ARTICLE 41 OF THE CONVENTION

23. The applicants claimed 107,000 euros (EUR) each in respect of non‑pecuniary damage for violations of the substantive and procedural aspects of Article 2 of the Convention and the length of proceedings under Article 6 of the Convention, as well as EUR 50,000 in respect of costs and expenses incurred before the domestic courts and EUR 10,000 for those incurred before the Court.

24. The Government contested those claims.

25. Noting that the complaint under the substantive aspect of Article 2 of the Convention was declared inadmissible already at the communication stage of the case (see paragraph 18 above), the Court awards to the applicants jointly EUR 20,000 in respect of non-pecuniary damage for the violation found of the procedural aspect of Article 2 of the Convention, plus any tax that may be chargeable.

26. Having regard to the documents in its possession, the Court considers it reasonable to award the applicants jointly the sum of EUR 8,000, covering costs under all heads, plus any tax that may be chargeable to the applicants.

• FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;
2. Holds that there has been a violation of the procedural aspect of Article 2 of the Convention;
3. Holds
   1. that the respondent State is to pay the applicants jointly, within three months, the following amounts:
      1. EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
      2. EUR 8,000 (eight thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;
   2. that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 26 March 2026, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Liv Tigerstedt Frédéric Krenc
Deputy Registrar President

APPENDIX

List of applicants