CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 26 novembre 2019

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He was represented before the Court by Mr   L. Šušak, a lawyer practising in Zagreb. 2.     The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. Background to the case 4.     On 21 January 1992 the applicant, a civilian living in Sisak, was arrested by the police and handed over to the Croatian army. Between 27   January and 27 March 1992 he was held in Kerestinec military barracks where he was ill-treated. On 27 March 1992 he was taken to Nemetin where he was exchanged for captured Croatian soldiers. Civil proceedings 5.     On 9 June 2005 the applicant brought a civil action against the State before the Sisak Municipal Court ( Općinski sud u Sisku ), seeking damages related to his ill-treatment in Kerestinec military barracks in 1992. 6.     On 16 November 2006 the Sisak Municipal Court rejected the applicant’s civil claim as time-barred. 7.     On 29 November 2007 the Sisak County Court ( Županijski sud u Sisku ) dismissed an appeal lodged by the applicant and upheld the first ‑ instance judgment. 8.     On 17 June 2009 the Supreme Court ( Vrhovni sud Republike Hrvatske ) dismissed an appeal on points of law lodged by the applicant. It held that his civil claim for damages had been lodged outside the subjective three-year statutory limitation period under section 376(1) of the Civil Obligations Act, calculated from the day he had learned about the damage and its perpetrator, and that it had also been lodged outside the objective five-year statutory limitation period under section 376(2) of the Civil Obligations Act, calculated from the day the damage had occurred (27   March 1992). The longer statutory limitation period under section 377 of the Civil Obligations Act did not apply because of there had been no final criminal court judgment against the perpetrators. 9.     On 20 April 2011 the Constitutional Court ( Ustavni sud Republike Hrvatske ) dismissed a constitutional complaint lodged by the applicant as unfounded. The decision was served on the applicant’s representative on 16   May 2011. Criminal proceedings 10.     Meanwhile, in 2001 the State authorities started receiving criminal complaints regarding ill-treatment of people held in Kerestinec military barracks in 1992. An investigation was conducted against former Croatian army soldiers, S.K., D.P., V.I., Ž.Ž. and G.Š., under reasonable suspicion that they had committed a war crime against prisoners of war held there. 11.     On 21 November 2011 the Zagreb County State Attorney’s Office ( Županijsko državno odvjetništvo u Zagrebu ) lodged an indictment against S.K., D.P. V.I., Ž.Ž. and G.Š. with the Zagreb County Court ( Županijski sud u Zagrebu ) on charges of war crimes against the prisoners of war. Criminal proceedings ensued. 12.     On 5 June 2012 the applicant together with four other people lodged a criminal complaint against S.K., D.P., V.I., Ž.Ž. and G.Š., stating that they had ill-treated him in Kerestinec military barracks between 27 January and 27 March 1992. 13.     At a hearing held before the Zagreb County Court on 24 September 2012 the applicant described the various ways in which he had been ill ‑ treated. 14.     On 24 March 2016 the Zagreb County Court rendered a judgment. S.K., D.P. and V.I. were found guilty of war crimes against prisoners of war and the civilian population and sentenced to eight years’, three years’ and five years’ imprisonment, respectively. Ž.Ž. was found guilty of war crimes against prisoners of war and sentenced to one year and six months’ imprisonment, and G.Š. was found guilty of war crimes against the civilian population and sentenced to two years’ imprisonment. The Zagreb County Court found that S.K., in his capacity as the commander of the prisoner ‑ of ‑ war camps in Zagreb and Kerestinec, had allowed D.P., V.I., Ž.Ž. and G.Š. and other guards and members of the Croatian army to physically and psychologically ill-treat prisoners of war and civilians, and had failed to take measures to prevent such ill-treatment and punish the perpetrators. The applicant was listed as one of the victims. The relevant part of the judgment concerning the applicant reads: “... b) in the period between mid-January and 29 April 1992 in Kerestinec the [following] captured civilians had been beaten several times: ... [the applicant] ..., who [was] physically abused by the accused V.I. and G.Š.. ...; c) the captured civilians[;] ... [including the applicant] ...were abused with electric ‑ shock torture ...; ... e) the captured civilians[;] ... and [the applicant] ... were brought before female prisoners who were stripped naked and were forced to watch them and masturbate together with other male prisoners war prisoners...” 15.     On 15 February 2017 the Supreme Court upheld the first-instance judgment, save for in the part concerning the legal classification of the criminal offences of which S.K., D.P. and V.I. had been found guilty. In particular, it found them guilty of war crimes against the prisoners of war and sentenced them to four years and six months’, two years’ and three years’ imprisonment, respectively. It increased the sentence of Ž.Ž. to two years’ imprisonment and decreased the sentence of G.Š. to one year and five months’ imprisonment. 16.     On 8 May 2019 the Constitutional Court rejected as unfounded a constitutional complaint lodged by S.K. Relevant domestic law and practice 17.     Article 95 of the Basic Criminal Code of the Republic of Croatia ( Osnovni krivični zakon Republike Hrvatske , Official Gazette nos. 53/91 with further amendments) provided that prosecution for, inter alia , war crimes could not become statute-barred. 18.     The Act on the liability of the Republic of Croatia for damage caused by members of the Croatian armed forces and police during the Homeland War ( Zakon o odgovornosti Republike Hrvatske za štetu uzrokovanu od pripadnika hrvatskih oružanih i redarstvenih snaga tijekom Domovinskog rata , Official Gazette no. 117/03), which entered into force on 31 July 2003, provides that the State is liable for damage caused during the Croatian War of Independence from 17 August 1990 to 30 June 1996 by members of the Croatian army and police forces in military or police service or in connection with that service, unless the damage in question constituted war damage. 19.     The relevant provision of the Civil Procedure Act ( Zakon o parničnom postupku , Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/77 with further amendments, and Official Gazette of the Republic of Croatia no. 53/91 with further amendments) concerning preliminary issues, namely section 12 (which also provides for the extent to which the civil courts are bound by the judgments of the criminal courts) as well as the case-law developed in its application, are set out in the case of Baničević v. Croatia ((dec.), no. 44252/10, §§   16-19, 2 October 2012). 20.     The relevant provisions of the Civil Procedure Act concerning the reopening of proceedings read as follows: Section 421(1) “[Civil] proceedings concluded by a final court decision may be reopened at the request of a party ... (9)     if the competent authority by a final decision subsequently resolves the preliminary issue (section 12(1) and (2)) on which the court decision is based; (10)     if a party learns about new facts or finds or gets an opportunity to use new evidence on the basis of which a more favourable decision could have been adopted for that party if those facts or that evidence had been used in the previous proceedings; ...” Section 425(3) “If the reopening of proceedings is sought on the grounds stated in subparagraph 10 of section 421(1) and in section 421(3) of this Act, [the court] may decide to join the examination [of the admissibility] of the request for the reopening [of proceedings] to the examination of the merits of the case.” Proceedings before the Court 21.     The relevant part of the application form reads as follows [1] : “II. STATEMENT OF FACTS The Sisak Municipal Court ... rejected the applicant’s civil claim ... [T]he applicant lodged an appeal which the Sisak County Court dismissed ... The applicant lodged an appeal on points of law which the Supreme Court dismissed as unfounded. The applicant lodged a constitutional complaint ... which the Constitutional Court declared inadmissible. The courts ... rendered unfair decisions and violated Article 29 of the Constitution [guaranteeing the right to a fair trial] and Articles 6 and 14 of the Convention ... The applicant lived in Sisak as a peaceful citizen ... On 27 January 1992 he was taken to Kerestinec prison [the applicant’s phrase] near Zagreb for no reason ... On   27   March 1992 he and forty other civilians were taken to Nemetin and exchanged for Croatian soldiers ... The deportation in itself shows that a war crime against civilians was committed involving forced deportation and abuse of civilian citizens who had nothing to do with the war ... For several months of his stay in Kerestinec prison [the applicant] was exposed to abuse and humiliation, [and] physical and psychological ill ‑ treatment. The courts did not assess any of the evidence, it is unclear on the basis of which evidence his constitutional complaint was dismissed ... In that way the court violated Article 6 of the Convention ... because it did not have regard to the Geneva Convention on the protection of civilians in time of war of 12 August 1949 ... The courts in Croatia found that there had been no war crimes against the civilian population because of there having been no final criminal judgment in that regard. ... The [prosecuting authorities] in Croatia have investigated abuse and killing of civilians for years but they have not indicted the perpetrators, except in cases where there is pressure from the international community ... In the Sisak area it was common ... to kill civilians or to take them to camps such as Kerestinec ... There is an investigation [opened] against V.M. and D.B. before the Osijek County Court regarding war crimes against the civilian population ... committed in the Sisak area. The decision on investigation mentions only thirty-one civilian victims who were killed ... In the case brought by the claimant S.V. and others against the State conducted before the Sisak Municipal Court ... V.V., a witness and former president of the Supreme Court ... mentioned learning of the killing of civilians in the Sisak area ... Lastly, the Constitutional Court deems that in this case [the civil claim was time ‑ barred]. This finding is usual for Croatian courts and now it is endorsed by the Constitutional Court ... War crimes against the civilian population cannot become time ‑ barred ... The courts’ findings are entirely unlawful ... [T]he courts incorrectly applied the relevant law concerning the statutory limitation period ...” III. STATEMENT OF THE ALLEGED VIOLATIONS OF THE CONVENTION AND/OR PROTOCOLS AND OF RELEVANT ARGUMENTS “Owing to there being no further legal path in Croatia, the applicant bases his application on Article 6 of the [Convention], which stipulates ... Article 14 of the Convention, inter alia , stipulates ... In the case in question the applicant has been discriminated against as a member of the Serb ethnic minority in Croatia because the judgments [in the civil proceedings for damages against the State] have been rendered contrary to Article 14 of the Convention. The courts did not have regard to the Fourth Geneva Convention of 12   August 1949 relative to the Protection of Civilian Persons in Time of War, which Croatia ratified in 1992 ... Article 3 of the Fourth Geneva Convention prohibits any armed force causing violence to life and person, cruel treatment and torture and other inhuman and degrading treatment, and in particular the murder of civilians, their deportation and liquidation. Pursuant to Article 51 of the Protocol to the Fourth Geneva Convention ... civilians have special protection in the event of conflict and cannot be the object of attack and terror.” ... V. STATEMENT OF THE OBJECT OF THE APPLICATION “Pursuant to the above, the applicant asks the Court to find that Croatia has violated the following rights of the applicant guaranteed by the Convention: - the right of the [applicant] to a fair and impartial trial, guaranteed by Article 6 of the Convention; - the right of the [applicant] to freedom and security, guaranteed by Article 5 of the Convention, due to his arrest without a warrant and his unlawful exchange. - the right of the [applicant] to enjoyment of the rights guaranteed by the Convention, right to freedom and security without discrimination on the basis of national origin, guaranteed by Article 14 of the Convention, due to his arrest on the basis of his Serb ethnicity; - the right of the [applicant] to enjoyment of rights guaranteed by the Convention, that is to say the right to liberty and security without discrimination on the basis of national origin, guaranteed by Article 14 of the Convention, due to not conducting an effective investigation as to whether his arrest had been racially motivated; - the right of the [applicant] to an effective remedy by which he could ask for compensation for the content of his civil claim under Articles 2, 3, 5 and 14 before the Croatian courts, as guaranteed by Article 13 of the Convention, due to ineffective investigation of the [applicant’s] unlawful arrest, deprivation of his liberty and being exchanged against his will. ...” 22.     On 19 March 2013 notice of the application was given to the Government. The questions to the parties read as follows: “1. Have the domestic authorities complied with their procedural obligations under Article 3 of the Convention (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV)? 2. Have the relevant authorities complied with their procedural obligation under Article 14 of the Convention to investigate whether there was any motive behind the applicant’s alleged ill-treatment that might be related to his Serb [ethnicity] (see,   mutatis mutandis, Šečić v. Croatia , no. 40116/02, § 66, ECHR 2007 VI)? 3. Has the applicant at his disposal an effective domestic remedy for his Convention complaints, as required by Article 13 of the Convention?” THE LAW 23.     The Court firstly needs to examine what were the complaints brought before it by the applicant. Article 3 of the Convention taken alone and in conjunction Articles 13 and 14 The parties’ arguments 24.     In their observations of 31 July 2013 the Government contended, inter alia, that the notification of complaints by the Court was not the same as the complaints brought by the applicant before the Court, nor did it correspond to the claim the applicant had brought before the domestic courts. In particular, in his application lodged on 3 November 2011, the applicant had not complained, either explicitly or in substance, of the lack of an effective investigation into his ill-treatment. He had only complained under Article 6 of the Convention about the fact that his civil claim for damages had been rejected as time-barred. Any allegation of his ill ‑ treatment in Kerestinec military barracks had been alleged only in the context of his civil claim for damages. The only facts which the applicant had submitted in relation to any investigation had been those related to the investigation of crimes committed in the Sisak area against other persons, and not his ill-treatment in Kerestinec military barracks. When he had lodged his application the applicant had not even been aware of the investigation into ill-treatment of persons in Kerestinec military barracks because he had not contacted the investigating authorities up to that point and had lodged his criminal complaint only seven months later. His constitutional complaint submitted to the Constitutional Court had also been related to the civil proceedings for damages only. 25.     The applicant, in his observations in reply of 19 September 2013, submitted that Kerestinec military barracks had been a place for gathering civilians who had then been exchanged for captured Croatian army soldiers. The State authorities had never prosecuted those who had set up camps for civilians of Serbian ethnic origin. S.K. and his four subordinates had received ridiculously low sentences for crimes they had committed in Kerestinec military barracks. If the perpetrators had been of Serbian ethnicity, their sentences would have been much harsher. He further submitted that the Croatian courts had rejected all civil claims by ethnic Serbs as being time-barred. However, they had applied the relevant domestic provisions in a completely wrong way because civil claims for compensation of damage caused by war crimes cannot become time-barred, even in the event of there not being a final criminal conviction. He concluded as follows: “...the Croatian courts violated the following rights of the applicant guaranteed by the Convention: - the right of the [applicant] to a fair and impartial trial guaranteed by Article 6 of the Convention; - the right of the [applicant] to freedom and security guaranteed by Article 5 of the Convention due to his arrest without a warrant and his unlawful exchange. -the right of the [applicant] to enjoyment of the rights guaranteed by the Convention, right to freedom and security without discrimination on the basis of national origin guaranteed by Article 14 of the Convention, due to his arrest on the basis of his Serb ethnicity; - the right of the [applicant] to enjoyment of rights guaranteed by the Convention, that is to say the right to liberty and security without discrimination on the basis of national origin, guaranteed by Article 14 of the Convention, due to not conducting an effective investigation as to whether his arrest had been racially motivated ...” 26.     The Government in their comments of 28 October 2013 contended that in his observations in reply to those of the Government, the applicant had admitted not having brought an Article 3 (procedural) complaint either before the domestic courts or before the Court. He had consistently complained rather about the fact that his civil claim for damages had been rejected as time-barred. 27.     The applicant in his update on the facts of 27 April 2017 contended that having regard to the fact that in the meantime S.K. and his subordinates had been convicted for war crimes, he was entitled to compensation for his ill-treatment and therefore the civil courts’ judgments rejecting his claim for damages had violated his rights. The Court’s assessment 28.     In the case of Radomilja and Others v. Croatia ([GC], nos. 37685/10 and 22768/12, §§ 123-27, 20 March 2018) the Court held that the scope of a case “referred to” the Court in the exercise of the right of individual application is determined by the applicant’s complaint. A complaint consists of two elements: factual allegations and legal arguments. By virtue of the jura novit curia principle the Court is not bound by the legal grounds adduced by the applicant under the Convention and the Protocols thereto and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant. It cannot, however, base its decision on facts that are not covered by the complaint. To do so would be tantamount to deciding beyond the scope of a case; in other words, to deciding on matters that have not been “referred to” it, within the meaning of Article 32 of the Convention. However, because applicants may subsequently elucidate or elaborate upon their initial submissions, the Court must take into account not only the application form but the entirety of their submissions in the course of the proceedings before it, which may rectify any initial omissions or obscurities (ibid., § 129). Furthermore, while nothing prevents an applicant from raising a new complaint in the course of the proceedings before the Court, such a complaint must, like any other, comply with the admissibility requirements (ibid., § 135). 29.     It is with these considerations in mind that the Court will examine the specific circumstances of the present case. 30.     The Court notes that the applicant’s initial complaints before the Court, as formulated in his application form of 3 November 2011, were alleged violations of Articles 6 and 14 of the Convention as regards the decisions of the domestic courts in the civil proceedings for damages. He further stated that he had been ill-treated while being held at Kerestinec military barracks from January to March 1992. He also alleged violations of Articles 5, 13 and 14 of the Convention as regards his arrest and exchange for Croatian army soldiers in 1992. He complained that there had not been an effective investigation into his arrest and exchange for Croatian army soldiers. He did not make any allegations as regards the lack of an effective investigation into his ill-treatment while being held at Kerestinec military barracks from January to March 1992. The only investigation he mentioned in his application concerned crimes committed by V.M. and D.B. against certain other persons (see paragraph 21 above). 31.     The Court further notes that in his observations in reply to those of the Government, the applicant reiterated the complaint under Article 6 regarding the decisions of the domestic courts in the civil proceedings and the complaints under Articles 5 and 14 regarding his arrest and exchange for Croatian army soldiers and the lack of an effective investigation in that regard. He did not make any allegation of there having been no effective investigation into his ill-treatment. He only stated in a general way that S.K. and his four subordinates had not been given appropriate sentences, without relating this allegation to his situation (see paragraph 25 above). The Court notes that he was represented by a lawyer. The Court also notes that in his update on the facts of 27 April 2017, he contended that the civil courts’ judgments dismissing his claim for damages had violated his rights (see   paragraph 27 above). 32.     Accordingly, having regard to the applicant’s statements in his application form and his observations, the Court concludes that it does not have the jurisdiction to examine the complaints under Article 3 of the Convention and Articles 13 and 14 in conjunction with Article 3 concerning the investigation into the applicant’s ill-treatment in Kerestinec military barracks. Other alleged violations 33.     The applicant complained under Articles 6 § 1 and 14 of the Convention that by wrongly finding that his claim for damages had been lodged after the statutory limitation period had expired, the national courts had deprived him of the right of access to court (see paragraphs 5-9 above). The Court notes that the same issue under Article 6 § 1 of the Convention was examined in many cases against Croatia and found to be manifestly ill ‑ founded (see Baničević v. Croatia (dec.), no. 44252/10, 2 October 2012; Bogdanović v. Croatia (dec.), no. 72254/11, 18 March 2014; Orić v.   Croatia (dec.), no. 50203/12, 13 May 2014; B. and Others v. Croatia , no.   71593/11, § 84, 18 June 2015; and Zdjelar and Others v. Croatia , no.   80960/12, § 103, 6 July 2017). The Court sees no reason to depart from that approach in the present case. It follows that this complaint is inadmissible under Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4 of the Convention. 34.     The applicant further complained, under Articles 5 and 14 of the Convention, of his arrest and exchange for Croatian soldiers. The Court notes that the complaint relates to events that took place in 1992, whereas the Convention entered into force in respect of Croatia on 5 November 1997. It follows that this complaint is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4 (compare Zdjelar , cited above, § 104, and B. and Others v. Croatia , cited above, § 85). 35.     The applicant lastly complained, under Articles 5, 13 and 14 of the Convention, of there being no effective investigation into his arrest and exchange for Croatian soldiers in 1992. The Court reiterates that Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt and effective investigation into an arguable claim that a person has been taken into custody and has not been seen since (see Cyprus v. Turkey [GC], no.   25781/94, § 147, ECHR 2001 ‑ IV, and Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 208, ECHR 2009). In the present case, having regard that the applicant’s arrest and exchange for Croatian soldiers occurred in 1992 and that he brought this complaint before the Court only in 2011, whereas by the judgment of the Zagreb County Court of 24 March 2016 several persons had been convicted of war crimes not for the applicant’s arrest and exchange for Croatian soldiers but for his ill-treatment (see paragraphs 14 and 15 above), the Court concludes that it has been lodged out of the six-month time-limit and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.   For these reasons, the Court, unanimously,   Declares the application inadmissible. Done in English and notified in writing on 9 January 2020.   Abel Campos   Krzysztof Wojtyczek   Registrar   President     [1] .     The application form was originally written in Croatian language. The English translation was prepared by the Registry of the Court.