Case of European Court of Human Rights, January 21, 2021 (case TRIVKANOVIĆ v. CROATIA (No. 2))

Defense:CROATIA (No. 2)
Resolution Date:January 21, 2021

FIRST SECTION

CASE OF TRIVKANOVIĆ v. CROATIA (NO. 2)

(Application no. 54916/16)

JUDGMENT

Art 6 § 1 (civil) • Access to court • Manifestly unreasonable refusal to reopen civil proceedings to seek compensation for death of applicant’s sons, despite emergence of new evidence • Legitimate interest of the applicants in pursuing their late grandmother’s application concerning the claim for compensation for the death of their father under Art 34 • Art 6 applicable, as proceedings following the request for reopening decisive for the determination of civil rights and obligations • Subsequent conviction of police commander for war crimes against the civilian population, including failure to prevent and punish disappearance of applicant’s sons • Manifestly unreasonable finding of no causal link between the deaths and the war crimes, taking into account Court’s case-law under Art 2, echoed at the domestic level by the Supreme Court

STRASBOURG

21 January 2021

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Trivkanović v. Croatia (no. 2),

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

Krzysztof Wojtyczek, President,Ksenija Turković,Aleš Pejchal,Pauliine Koskelo,Tim Eicke,Jovan Ilievski,Raffaele Sabato, judges,and Renata Degener, Deputy Section Registrar,

Having regard to:

the application (no. 54916/16) 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”) by a Croatian national, Ms Stoja Trivkanović (“the applicant”), on 15 September 2016;

the decision to give notice to the Croatian Government (“the Government”) of the complaint concerning access to a court and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 16 December 2020,

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

INTRODUCTION

  1. The case concerns the domestic courts’ refusal to reopen civil proceedings that the applicant instituted against the State in order to seek compensation for the death of her two sons, despite the emergence of new evidence.

    THE FACTS

  2. The applicant was born in 1950 and lived in Sisak. She was represented, by Mr L. Šušak, a lawyer practising in Zagreb.

  3. The Government were represented by their Agent, Ms Š. Stažnik.

  4. The facts of the case, as submitted by the parties, may be summarised as follows.

  5. On 25 August 1991 a number of members of the “Wolves” (Vukovi) unit of the Sisak police entered the house of the applicant’s son, Z.T. They took him, together with the applicant’s second son, B.T., and her former husband, N.T. Her sons have been missing ever since, whereas her former husband’s body was found the next day in the River Sava. An autopsy showed that he had been shot and killed.

  6. By a decision of the Sisak Municipal Court (Općinski sud u Sisku) of 21 November 2005 in special non-contentious proceedings and on the basis of the relevant domestic legislation (see paragraph 39 below), the applicant’s sons were legally declared dead as of 25 August 1991.

  7. On 6 September 2006 the applicant brought a civil action against the State in the Sisak Municipal Court, claiming that her sons had been killed by members of the Croatian police and seeking damages. She relied on the relevant legislation providing for State liability for damage caused by members of its armed forces and the police during the war (see paragraph 29 below).

  8. By a judgment of 2 May 2007 the Municipal Court dismissed the applicant’s action. The judgment was upheld by the Sisak County Court (Županijski sud u Sisku) on 5 January 2010 and thereby became final. A subsequent appeal on points of law lodged by the applicant was dismissed by the Supreme Court (Vrhovni sud Republike Hrvatske) on 28 February 2012. A constitutional complaint lodged by her was declared inadmissible by the Constitutional Court (Ustavni sud Republike Hrvatske) on 13 December 2012.

  9. The civil courts held that the applicant’s claim had become time‑barred because she had brought her action outside of the statutory five‑year time-limit which had started to run from the time her sons had gone missing. They rejected her argument that a longer time-limit had to be applied because the damage had been caused by a criminal offence (see paragraph 28 below and Baničević v. Croatia (dec.), no. 44252/10, § 13, 2 October 2012). Those courts relied on established case-law, under which such longer time-limits applied only where a criminal court found that a criminal offence had indeed been committed (see paragraphs 28 and 37 below and Baničević, cited above, §§ 16-19).

  10. Meanwhile, on an unspecified date broader police inquiries were opened into the killing of individuals of Serb ethnicity in the Sisak area during the war. The inquiries into the killing of the applicant’s former husband and the disappearance of her sons were part of those overall inquiries.

  11. On 16 December 2011 the Osijek County State Attorney’s Office (Županijsko državno odvjetništvo u Osijeku) filed an indictment with the Osijek County Court (Županijski sud u Osijeku) against a certain Mr V.M. and Mr D.B., alleging that they had been in command of the unit whose unnamed members had committed a number of crimes against the civilian population between July 1991 and June 1992, including those against the applicant’s husband and sons. They were charged with war crimes against the civilian population.

  12. By a judgment of the Osijek County Court of 9 December 2013 V.M. was found guilty of war crimes against the civilian population. In his capacity as “commander of police forces in the broader area of Sisak and Banovina” and “deputy head of the Sisak police”, he had not only failed to prevent and punish a number of crimes against the civilian population, committed by members of the police units under his command, but had also prevented measures aimed at identifying the direct perpetrators from being carried out, thereby endorsing and encouraging such crimes. He had even ordered or personally participated in the commission of some of those crimes. The relevant part of the judgment concerning the applicant’s sons and former husband reads:

    “On the afternoon of 25 August 1991 a number of members of the ‘Wolves’ unit of the Sisak police forcibly abducted N.T. and his sons Z. and B.T. from their family home ... in Sisak and took them in a white van to the improvised prison at ‘ORA’, where they were beaten during an unlawful interrogation. Thereafter N.T. was taken to an unknown place on the same day and shot and killed. His body was found on 26 August 1991 on the left bank of the River Sava at a place called Gušće, whereas the fate of Z. and B.T. after they had been taken to ‘ORA’ remains unknown.

    ...

    Having analysed ... the witness testimonies ..., the court finds that those responsible for the taking, arrest and killing of N.T. and his sons Z. and B.T. are unknown members of the ‘Wolves’ reserve unit of the Sisak police.

    ... it follows that the accused V.M. as the commander of all police forces and the deputy head of the Sisak police, by violating the rules of international law during an armed conflict, failed to prevent the unlawful detention and killing of the civilian population. He also failed to prevent crimes which he knew were being committed by members of the police units under his command, and was formally and actually in command of those police units.”

  13. V.M. was sentenced to eight years’ imprisonment; D.B. was acquitted of all charges. All the injured parties, including the applicant, who lodged a civil claim for damages in the criminal proceedings, were instructed to institute separate civil proceedings against the accused.

  14. On 10 June 2014 the Supreme Court upheld the conviction of V.M. and increased his sentence to ten years’ imprisonment.

  15. Those judgments were served on the applicant on 27 July 2014.

  16. On 1 August 2014 the applicant, relying on subparagraph 10 of section 421(1) of the Civil Procedure Act (see paragraph 38 below) and the above-mentioned judgment issued by the criminal courts finding V.M. guilty of war crimes against the civilian population (see paragraph 12 above), applied for the reopening of the civil proceedings (see paragraphs 7‑9). The relevant part of her request reads as follows:

    “On 27 July 2014 the plaintiff received the Osijek County Court judgment and the judgment of the Supreme Court.

    V.M. was finally convicted to a single ten-year prison sentence.

    The conviction judgment refers to the plaintiff’s sons Z.T. and B.T. as having been murdered.

    ...

    We consider that the requirements for reopening of the proceedings set out in section 421(1) subparagraph 10 have been met.

    In the light of the foregoing, the plaintiff suggests that the court allow the reopening of the proceedings and set aside [its] first-instance judgment ... of 5 May 2007, the second-instance judgment of the Sisak County Court ... of 5 January 2010 ... and the Supreme Court’s decision ... of 28 February 2012.”

  17. By a decision of 31 March 2015 the Sisak Municipal Court dismissed the applicant’s request. It held that by the judgment of the Osijek County Court of 9 December 2013 (see paragraph 12 above), V.M. had been convicted of war crimes against the civilian population not for the death of the applicant’s sons, but for their disappearance. The relevant part of that decision reads as follows:

    “From the judgment of the Osijek County Court it does not follow that V.M. was convicted of a war crime for the death of B. and Z.T. Rather, the said judgment establishes his [criminal] liability exclusively (in respect of B. and Z.T.) for their having been taken by force from their house ... [and driven] in a white van to the improvised prison ... where they were beaten up during an unauthorised interrogation...

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