CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 21 janvier 2021

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text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sF920FE69 { font-family:Arial; color:#f8f8f8 } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s867F9C1B { width:175.28pt; display:inline-block } .s40964402 { width:201.63pt; display:inline-block }   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   FINAL   21/04/2021   This judgment has become final under 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. Civil proceedings for compensation 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). Criminal proceedings 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. Proceedings in respect of the applicant’s request for the reopening of the civil proceedings 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, whereupon they disappeared without a trace, but [does] not [establish] the [criminal] liability for their death. Furthermore, it is to be noted that from the evidence in the case file, it is not possible to conclude on which facts the recording of the deaths of B.T. and Z.T. in the vital statistics register was based, much less on which facts the date of their death was established. The death certificate for Z.T. suggests that that his death was recorded on   24   January 2006 with 25 August 1991 as the date on which he had died, whereas the death certificate for B.T. suggests that his death was recorded on 14   September 1991 with 25 August 1991 as the date on which he had died. It follows that, as regards B. and Z.T., it cannot be concluded that the said judgment constitutes a new fact or evidence on the basis of which the plaintiff could have obtained a more favourable decision in this case concerning damages.” 18.     By a decision of 5 January 2016 the Sisak County Court dismissed an appeal lodged by the applicant against the first-instance decision, endorsing the reasons contained therein. It added that the applicant had not proven the causal link between the criminal offence for which V.M. had been convicted and the death of her sons. The relevant part of that decision reads as follows: “It follows from the criminal judgment of the Osijek County Court and the Supreme Court’s judgment that V.M. was convicted for having committed a crime against the civilian population (in that he had failed to take measures to prevent, suppress and punish unlawful acts against and ill-treatment of civilians) ... the judgment refers to the plaintiff’s sons as having been taken by force from their house by the ‘Wolves’ reserve unit of the Sisak Police and taken to [an] improvised prison ... where they were beaten up during an unauthorised interrogation, whereupon they disappeared without a trace. Already in her statement of claim the plaintiff states that she only knows that her sons were taken to [the improvised prison] and that she knows nothing as to what happened to them afterwards, from which she concludes that they were killed. From the foregoing it follows that the plaintiff has not proved with requisite certainty the causal link between the acts or omissions of the accused V.M. and the damage sustained, i.e. the death of her sons. It is to be noted that no bodies, evidence or traces were found from which it could be concluded that the plaintiff’s sons died and how. The plaintiff’s reliance on section 12(3) of the Civil Procedure Act, which states that in civil proceedings regarding the existence of a criminal offence and the perpetrator’s criminal liability, the civil court is bound by the judgment of the criminal court finding the accused guilty, is ill-founded. In particular, there is no direct and immediate link between the criminal offence for which V.M. was convicted and the possible death of Z. and B.T., for which it is uncertain when and whether it occurred. In her request for the reopening of the proceedings, the plaintiff did not explain the causal link between the judgment convicting V.M. and the defendant’s [tort] liability; nor did she state the legal basis for [such] liability ... This court either cannot discern the legal provision on the basis of which the defendant would be liable for the damage [sustained and the compensation] sought by the plaintiff. The first-instance court thus correctly concluded that there were no grounds to allow the reopening of the proceedings under subparagraph 10 of section 421(1) of the Civil Procedure Act because the evidence proposed by the plaintiff – the final judgments – alone could not lead to a more favourable decision if that evidence or those facts had been taken into account in the earlier proceedings. It should be added ... that the burden of proof as regards the existence of grounds for reopening of proceedings is on the applicant, and that the plaintiff did not manage to prove the existence of the grounds ... she relied on.” 19.     The County Court’s decision was served on the applicant’s representative on 23 February 2016. 20.     The applicant then, on 16 March 2016, lodged a constitutional complaint against that decision, alleging, inter alia , a violation of her constitutional right to fair proceedings. 21.     By a decision of 21 April 2016 the Constitutional Court declared inadmissible the applicant’s constitutional complaint and on 5 May 2016 served its decision on her representative. It held that under its longstanding case-law, decisions concerning requests for the reopening of a case were, in principle, not open to constitutional review as such decisions did not concern the determination of parties’ rights or obligations, that is, they did not concern the merits of a case. Proceedings before the Court 22.     On 15 September 2016 the applicant lodged her application with the Court. She alleged, in particular, that the domestic courts’ refusal to reopen the civil proceedings had amounted to a denial of access to a court. 23.     On 13 July 2017 notice of the complaint concerning access to a court was given to the Government and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court. 24.     In a letter of 11 March 2020 the Government informed the Court that the applicant had died on 15 December 2019. The Government produced her death certificate. 25.     In a letter of 23 June 2020 Ms S. Čanković, a lawyer practising in Zagreb, informed the Court: - that in January 2020, that is to say, before the applicant’s death, she had taken over the law office of the applicant’s representative Mr   L. Šušak (see paragraph 2 above); - that on 9 June 2020 the applicant’s grandsons, Mr Robert Trivkanović and Mr Aleksandar Trivkanović, had contacted her and had informed her of the applicant’s death; - that they had expressed the wish to continue the proceedings in the applicant’s stead and had authorised her to represent them before the Court. 26.     Together with her letter, Ms Čanković submitted: - a decision issued by a notary public on 3 March 2020 declaring Mr   Robert Trivkanović the applicant’s sole heir because Mr Aleksandar Trivkanović had renounced his share in the estate in favour of his brother; - two authority forms both dated 9 June 2020, whereby the late applicant’s grandsons had authorised Ms Čanković (hereinafter: “the applicant’s grandsons’ representative”) to represent them before the Court. RELEVANT LEGAL FRAMEWORK AND PRACTICE criminal law 27.     Article 120 of the Basic Criminal Code of Croatia ( Osnovni krivični zakon Republike Hrvatske , Official Gazette nos. 53/91 with further amendments) defining war crime against the civilian population is quoted in the case of Trivkanović v. Croatia , no. 12986/13, § 39, 6 July 2017. Article   95 of the Code provided that prosecution for, inter alia , war crimes could not become statute-barred. tort law Relevant legislation 28.     The Obligations Act ( Zakon o obveznim odnosima , Official Gazette of the Socialist Federal Republic of Yugoslavia no.   29/78 with further amendments, and Official Gazette of the Republic of Croatia no. 53/91, with further amendments – “the 1978 Obligations Act”), which was in force between and 1 October 1978 and 31 December 2005, governed contracts and torts. Its relevant provisions concerning statutory limitation periods ( zastara ), namely sections 360, 376 to 377, 388 and 392, are quoted in Baničević v. Croatia (dec.), no. 44252/10, § 13, 2 October 2012. 29.     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 – “the Liability Act”), which entered into force on 31 July 2003, provides that the State is liable, under general rules of tort liability, for damage caused during the war 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. Supreme Court’s case-law regarding State liability for the damage caused by its armed forces during the war 30.     On 9 May 2007 the Supreme Court rendered a judgment in case no.   Rev 272/07-2 where the plaintiffs had sought damages from the State for the death of their husband and father who had been killed as a victim of a war crime against civilian population committed by a member of the Croatian Army in 1991. The Supreme Court dismissed an appeal on points of law lodged by the State and endorsed the finding of the lower-instance courts that the State was liable under the Liability Act (see paragraph 29 above) for the non-pecuniary damage sustained by the plaintiffs. In particular, the Supreme Court held that for establishing State liability it was irrelevant that the serviceman in question had been off duty when committing the offence, and that a damage resulting from a war crime could not be considered war damage (for which the State was not liable). The relevant part of the judgment reads: “The subject matter of the dispute is the plaintiffs’ claim against [the State] to compensate them for the non-pecuniary damage sustained by the killing by the members of the Croatian Army of, inter alia , [their] husband and father in 1991. ... ... the lower-instance courts found that the defendant was liable, under sections 1 and 2 of [the Liability Act] to compensate the plaintiffs for the non-pecuniary damage sustained by the death of their father and husband .... [In the appeal on points of law the defendant argues that] ... from the witnesses’ testimonies it follows that the offence was committed at the time when [the serviceman in question] had a day off. [Therefore] ... the fact that the judgment of the criminal court states that he committed the criminal offence as a member of the Croatian Army ‘does not in itself mean that the criteria for the defendant’s liability were met’ ... [because] the criterion that the damage was caused in connection with the service was not met. [In the appeal on points of law the defendant further argues that] the substantive law was misapplied in that [the lower-instance court] dismissed as unfounded the defendant’s argument that [the case concerned] war damage because [the damage sustained] resulted from the act of war or was directly related to the war. ... Under section 2 of the [Liability Act] the State is liable, under general rules of tort liability, for damage referred in section 1 of that Act which does not have the characteristics of war damage. [The Supreme Court] accepts as correct the finding of the lower-instance courts that the defendant is liable to [compensate] the plaintiffs for non-pecuniary damage. Given that by the aforementioned final judgment [of the criminal court the serviceman in question], who had been a member of the Croatian Army, was found guilty of a war crime for, inter alia , having killed the plaintiffs’ father and husband, the finding of the lower courts that the defendant is liable to compensate the plaintiffs for non-pecuniary damage is correct. The defendant’s argument that the present case concerns the war damage, for which the State is not liable, is unfounded. The final judgment by the criminal court established that [the serviceman in question] as a member of the Croatian Army, had committed a war crime against civilian population. In [the Supreme Court’s view] a war crime cannot be [seen as] war damage referred to in section 3 of the [Liability Act]. The war crime in question, as it follows from [the judgment of the criminal court], was committed against civilian population of Serbian ethnicity as a retaliation, which refutes the argument made in the appeal on points of law that [the resultant damage] was war damage.” 31.     On 25 September 2018 the Supreme Court rendered a judgment in case no. Rev 2319/14-2 where the plaintiff had sought damages from the State for the death of his father who had been killed as a victim of a war crime against civilian population committed by members of the Croatian Army in 1991. The Supreme Court dismissed an appeal on points of law lodged by the State and endorsed the finding of the lower-instance courts that the State was liable under the Liability Act for the non-pecuniary damage sustained by the plaintiff. In particular, the Supreme Court held that the rule set out in section 377 of the 1978 Obligations Act (see paragraph 28 above), which allowed for the extension of the statutory limitation period for compensation claims if the damage resulted from a criminal offence, applied not only to the perpetrators but also to those vicariously liable for the damage. It thus held that the rule applied to the damage for which the State was vicariously liable under the Liability Act. It also reiterated that a damage resulting from a war crime could not be considered war damage (see paragraph 30 above). The relevant part of the judgment reads: “The subject matter of the dispute is the plaintiff’s claim for non-pecuniary damage for mental anguish caused by the death of his father who was killed during the Homeland War as a result of a criminal offence committed by the members of the Croatian armed forces and the police. ...the statutory limitation period set out in section 377(1) of the [1978] Obligations Act does not apply only to the wrongdoer but also to the person vicariously liable to third persons for the damage inflicted by [the wrongdoer], as the defendant is in the present case. The defendant’s argument that it is not liable for the damage in question because the damage sustained by the plaintiff constitutes war damage is also unfounded. ... Given that it was established in these proceedings that the damage sustained by the plaintiffs is a result of the war crime committed by the members of the Croatian armed forces, which follows from the final judgment of the criminal court, it cannot be said that the case concerns the damage which could in any way be considered war damage, as defined in section 3 of [the Liability Act].” 32.     On 27 March 2019 the Supreme Court rendered a judgment in case no. Rev 2726/2016-2 where the plaintiffs had sought damages from the State for the death of their husband and father who had gone missing as a victim of a war crime against civilian population committed by members of the Croatian Army in 1991. The Supreme Court dismissed an appeal on points of law lodged by the State and endorsed the finding of the lower ‑ instance courts that the State was liable under the Liability Act for the non-pecuniary damage sustained by the plaintiffs. In particular, the Supreme Court held that where a war crime committed by the members of the Croatian Army entailed forced disappearance(s), and the victim gone missing had later on been declared dead, the State was liable for the victim’s death and the resultant damage. That was so because in such cases there was evident causal link between the disappearance and the (presumed) death of the victim. The relevant part of the judgment reads: “The subject matter of the dispute is the plaintiffs’ claim against [the State] to compensate them for the damage sustained by the death of their [family member], [namely] the first plaintiff’s husband and the second and the third plaintiffs’ father, F.G. ... What is in dispute in the proceedings [before the Supreme Court] in the present case is the existence of a causal link between the impugned wrongful act and the compensation claimed, given that the accused members of the Croatian Army were ... not expressly convicted ‘for killing the first plaintiff’s husband’. [It is also] disputed whether the statutory limitation periods set out in section 337(1) or [those set out in] section 376(1) of the [1978] Obligations Act apply to the State in the situation where ... a number of Croatian soldiers had been accused [but] where only some of them were [eventually] convicted, and so for a number of offences constituting a war crime, and where none of them was convicted exclusively for the killing or the death of the first plaintiff’s husband. ... [The lower-instance] courts ... allowed the first plaintiff’s claim [and awarded her compensation] finding that [her husband] had died precisely because of the acts for which T.P. and Ž.T. had been convicted, that is, due to the war crime against civilian population. [Those courts] therefore found that the State was liable for the damage sustained pursuant to section 1 of [the Liability Act]. ... They also found that the crime against civilian population could not become statute ‑ barred and that the defendant’s argument based on the [expiry of the] statutory limitation period was unfounded. ... Those findings are correct. Pursuant to section 12(3) of the Civil Procedure Act the court is in civil proceedings, as regards the existence of the criminal offence and the perpetrator’s criminal liability, bound by the criminal court’s final judgment finding the accused guilty. ... In the present case by the ... judgment of the Osijek County Court ... of 13 June 2011 T.P. and Ž.T. were found guilty of war crimes against civilian population in that they had on 15 November 1991, as members of military police, taken, beside other civilians, F.G. by force from his home [whereupon] - they had tortured [him] and other detained civilians of Serbian ethnicity and beaten [them] by metal rods, rubber truncheons and wooden sticks, - they had afterwards loaded [him] and other detained civilians in a lorry and drove them in the direction of the river I. where they had disappeared without trace (the [criminal court’s] judgment therefore ... does not state that F.G. was killed after he had been taken by force from his home). However, where, as in the present case, immediately after the events referred to in the said judgment of the criminal court, which constitute a war crime, F.G. disappeared without a trace ... and that is the last what is known about him (on the basis of which he had been declared dead as a missing person, and 1 January 1992 had been established as the date of his death), and where the defendant did not prove otherwise, ... it is logical to conclude, as the [lower] courts did, that the death of the first plaintiff’s husband ... was the consequence of the same criminal offence, namely, that he had died because of the acts for which T.P. and Ž.T. were convicted. ... it is to be noted that each case like this has to be individualised and that the rule set out in section 12(3) of the Civil Procedure Act should not be seen strictly formalistically. Thus, the mere fact that F.G. was not mentioned in the criminal judgment as the one who had died in the commission of the criminal offence (...) does not constitute an evidence contrary to what was established above. Nor does the mere fact that his body was never found mean that [the above conclusion] does not correspond to reality. Besides, during the proceedings the defendant did not even argue or attempt to prove that F.G. had survived ... the said the criminal offence ... or that he had died in different circumstances. In view of the foregoing, [the Supreme Court] has no reason to doubt that F.G. was killed ... and that the defendant is liable for the resultant damage, as correctly established by the [lower-instance] courts. Having regard to the above, the [lower-instance] courts were also correct to dismiss the defendant’s argument based on the [the expiry of] statutory limitation period.” Supreme Court’s case-law regarding calculation of statutory limitation periods in cases of forced disappearances 33.     On 27 September 2006 the Supreme Court rendered a judgment in case no. Rev 471/06-2, where the plaintiff had sought damages from the State in relation to the disappearance of her sons who had gone missing after being taken from their home on 7   November 1991 by armed individuals. The relevant part of the judgment reads: “The plaintiff’s claim for damages is based on ... her sons’ disappearance (after being taken by force on 7 November 1991), as a result of which they had eventually been [legally] declared dead. The date of their death was finally set at 8   November 1996. It thus follows that only by declaring the plaintiff’s sons dead and establishing the date of their death could they be considered dead, and that [only] at that moment did the plaintiff become entitled to seek damages [for] their death. ... Therefore, the statutory limitation period could not have started to run before the date of the plaintiff’s sons’ death had been established, nor could it have started to run on the date on which they had been taken, as the lower courts erroneously held.” 34.     On 10 October 2007 the Supreme Court rendered a judgment in case   no. Rev 270/06-2, where the plaintiffs had sought damages from the State in relation to the disappearance of their husband and father who had gone missing after being arrested by police officers on 3   November 1991. The relevant part of the judgment reads: “Namely, the plaintiffs’ claim for damages is based on the disappearance of their husband and father (after being taken by police officers on 3 November 1991 ...), as a result of which he had [eventually] been [legally] declared dead. It thus follows that the statutory limitation period could only have started to run on the day when the decision ... of 26 March 1998 whereby [he] had been declared dead became final ... since that was when the plaintiffs became entitled to seek damages related to his disappearance, that is, to his death.” 35.     On 7 December 2011 the Supreme Court rendered a judgment in case no. Rev-1518/10-2, where the plaintiff had sought damages from the State in relation to the disappearance of her husband who had been taken from their home on 4 July 1992 by unknown individuals dressed in military police uniforms. He had been legally declared dead in 2000, and his body had eventually been identified by his family in 2003. The relevant part of the judgment reads: “... the statutory limitation period for lodging a civil claim for damages related to unauthorised   and unlawful taking by force of a person from his or her home by armed individuals and his or her disappearance cannot start running before the missing person has been [legally] declared dead ... The plaintiff’s husband was [legally] declared dead by a decision ... of 22 May 2000, which became final on 22 June 2000, and only then did the plaintiff become entitled to seek damages ... and not from the date which was established as the date of her husband’s death ...” 36.     On 14 July 2015 the Supreme Court rendered a judgment in case no.   Rev 1668/10-2, where the plaintiff had sought damages from the State related to the disappearance of her father in 1991. The relevant part of the judgment reads: “Regarding calculation of the statutory limitation period in the same circumstances (where the death of the injured party’s predecessor had been established by a final decision declaring him or her dead), the Supreme Court has expressed its view in several of its decisions, for example, Rev-471/06 of 27 September 2006, Rev ‑ 270/06 ‑ 2 of 10 October 2007 and Rev-1518/10-2 of 7 December 2011. [According] to that (already established) view of the Supreme Court, when the missing person has been [legally] declared dead, the statutory limitation period for lodging a civil claim for damages related to the death of that person starts to run on the date the decision declaring that person dead became final (because the injured party was able to seek damages on that ground only from that date), and not from the date established by the decision as the date on which that person had died.” Civil Procedure Act 37.     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 Baničević case (cited above, §§   16-19). 38.     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.” Missing Persons (Declaration of Death) Act 39.     Section 1(1) subparagraph 4 of the Missing Persons (Declaration of Death) Act ( Zakon o proglašenju nestalih osoba umrlima i dokazivanju smrti , Official Gazette no. 10/74), which has been in force since 22 March 1974, provides that the court will declare dead a person who went missing during the war in connection with war events, and who has not been known to be alive for a year after the end of the hostilities. Section 7(1) provides that the date of death will be considered to be the date on which, as established in the proceedings, the missing person is likely to have died, or the date on which he or she probably did not survive. THE LAW ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 40.     The applicant complained that she had been denied access to a court in that the domestic courts had refused to reopen the civil proceedings in which she had sought compensation for the death of her two sons. She relied on Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Preliminary issue of whether the late applicant’s grandsons can pursue the application in her stead Parties’ submissions 41.     In their letter of 11 March 2020 (see paragraph 24 above) the Government invited the Court to strike the application out of its list of cases under Article 37 § 1 (a) of the Convention since, in their view, the applicant’s grandsons were not entitled to pursue the application. 42.     The applicant’s grandsons argued that the Court should continue the examination of the application and allow them to pursue it in their late grandmother’s stead. They submitted that they had been the direct victims of the facts giving rise to the applicant’s claim for damages, namely the disappearance of her son Z.T., who had been their father. 43.     The Government replied that the proceedings before the Court concerned the applicant’s complaint under Article 6 § 1 of the Convention on account of the alleged violation of her right of access to a court. Her grandsons were not parties to those proceedings. Moreover, under the Court’s case law (the Government referred to Georgia Makri and Others v.   Greece (dec.), no. 5977/03, 24 March 2005, and Biç and Others v.   Turkey , no. 55955/00, 2 February 2006) the relatives of the deceased person could not be considered victims in relation to his or her complaints under Article 6 of the Convention. The applicant’s grandsons thus could not claim to be the victims of the violation complained of nor had they a locus standi to continue the proceedings before the Court in the applicant’s stead. Furthermore, in their view, there were no circumstances related to the respect for human rights that would require the Court to continue with the examination of the application. The Court’s assessment 44.     The Court reiterates that only in cases where the victim of the alleged violation has died in the course of domestic proceedings, and before the application was lodged with the Court, will it examine whether relatives or heirs may themselves claim to be the victims of the alleged violation (see Ressegatti v. Switzerland , no. 17671/02, § 23, 13 July 2006). The situation is different in cases such as the present one, where the applicant had gone through the domestic proceedings and died after having lodged her application with the Court. That is because in such cases the Court’s examination is limited to the question whether or not the complaints as originally submitted by the applicant disclose a violation of the Convention (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR   2000 ‑ XII). 45.     Moreover, it is not only material interests which the successor of a deceased applicant may pursue through his or her wish to maintain the application. Human rights cases before the Court generally also have a moral dimension and persons close to an applicant may thus have a legitimate interest in seeing to it that justice is done even after the applicant’s death (ibid.). That is why in such cases heirs or close relatives of the applicant are considered to have a legitimate interest in pursuing the application (see Pais Pires de Lima v. Portugal , no. 70465/12, § 39, 12   February 2019; Hristozov and Others v. Bulgaria , nos. 47039/11 and   358/12, §§ 71-74, 13 November 2012; and, by converse implication, Léger v. France (striking out) [GC], no.   19324/02, § 50, 30 March 2009). 46.     Given that in the present case Mr R. Trivkanović and Mr   A.   Trivkanović are the late applicant’s grandsons, and that the proceedings complained of concern a claim for compensation for the death of their father, the Court finds that they have a legitimate interest in pursuing their late grandmother’s application. 47.     In view of the foregoing, the Court concludes that the conditions for striking the case out of its list, as defined in Article 37 § 1 of the Convention, are not met. The Court accordingly dismisses the Government’s objection to that effect. It will accordingly continue to examine the application at the request of the applicant’s grandsons. Admissibility 48.     The Government disputed the admissibility of the application, arguing that it was incompatible ratione materiae with the provisions of the Convention. In the alternative, they argued that the applicant had failed to observe the six-month rule. However, in view of the Government’s submissions of 29 March 2018 (see paragraph 49 below), the Court finds it appropriate to first examine the issue of whether the applicant’s representative abused the right of application. Abuse of the right of application (a)    Parties’ submissions 49.     In their submissions of 29 March 2018 the Government drew the Court’s attention to the fact that in the applicant’s submissions of 2 March 2018, her representative had used language which they considered inappropriate in proceedings before an international tribunal. In particular, he had stated that the content of the Government’s observations clearly showed that they were unfamiliar with the legal concept of reopening of proceedings and that Government had thus “borne down on” the applicant and her representative, thereby offending the intelligence and expertise of the judges of the Court. The Government further pointed out that it was not the first time the said representative had resorted to offensive and abusive language and that they had brought it to the Court’s attention in a number of other cases. The Government thus invited the Court to either apply Rule   44D of the Rules of Court and exclude the applicant’s representative from the proceedings, declare the application inadmissible as an abuse of the right of application, or at least warn him to refrain from using inappropriate comments in his submissions. 50.     The applicant did not comment on this issue. (b)    The Court’s assessment 51.     The Court reiterates that, whilst the use of offensive language in proceedings before it is undoubtedly inappropriate, an application may only be rejected as abusive in exceptional circumstances (see Felbab v. Serbia , no. 14011/07, 14 April 2009, § 56). Having regard to its case-law (see, a   fortiori , ibid., and the cases cited therein), the Court considers that although the impugned statement made by the applicant’s representative was strongly worded and unwarranted, it does not reach the level that would justify a decision to declare the application inadmissible as an abuse of the right of application. In particular, the Court notes that the applicant’s representative resorted to such language only once in his voluminous submissions on her behalf. 52.     It follows that the Government’s objection concerning the alleged abuse of the right of application must be rejected. Compatibility r