BRKIĆ AND OTHERS v. CROATIA
Inadmissible
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković
1. The applicants, Mr Ivica Brkić, Ms Davorka Tkalić and Ms Željka Vidić, live in Zadar. The first and the second applicants were born in 1972 and the third applicant in 1968. They were represented by Mr Z. Zrilić, a lawyer practising in Zadar. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On an unspecified date the applicants brought a civil action in the Zadar Municipal Court for damages against the State caused by the killing of their mother, K.-J.B., born in 1935. They alleged that their mother had been killed by firearms in front of her house in Z.G. village on 11 March 1992 when that village had been occupied by Serb paramilitary forces. She had been killed solely because of her Croat ethnicity. Therefore, her death had been motivated by ethnic hatred and had had no connection to any military or belligerent activity, which was also evident from the fact that she had not had arms on her person nor could she have put up any resistance. On the same day four other persons of Croat ethnicity had been killed in the same village. Such an act had amounted to an act of terrorism under the Liability Act (see below). 5. On 5 January 2007 the claim was dismissed. The Municipal Court held that about a third of the territory of the State had been occupied and that the civilians killed on that territory had been mostly of Croat ethnicity, as had the applicants’ mother. It further held that the applicants’ mother had been killed by one S.M., a member of the Serb paramilitary forces during the armed conflict between these forces and the Croatian Army. Therefore, the killing of the applicants’ mother was war damage within the meaning of the Assessment of War Damage Act, for which the Republic of Croatia was not liable. As to that conclusion, the relevant part of the judgment reads as follows: “It is not disputed between the parties that on 11 March 1992, the day of the killing of K.-J.B., the village of Z.G. was part of the occupied [territory of the State] ... The decision on investigation in respect of the accused S.M. ... shows that K.-J.B. was one of the victims of the same perpetrator, killed on 11 March 1992 in Z.G. during an exchange of fire between Serb paramilitary forces and the Yugoslav Army on the one side and the armed forces of the Republic of Croatia on the other side ... ... This court holds that section 2(2) of the Assessment of War Damage Act is applicable in the case at issue ... The killing of K.-J.B., a civilian of Croat ethnicity, in Z.G., which was at the time a part of the occupied [territory of the State], by a member of a paramilitary group – the so-called territorial defence force of the so-called Republic of Serb Krajina whose paramilitary force operated within the so-called Yugoslav Army – is direct life-threatening damage under section 2(2) of the Assessment of War Damage Act, and from the claimant’s position it concerns non-pecuniary damage on account of the death of a parent. Therefore, the damage in the specific case was indisputably caused by the enemy, illegal groups or allies of such groups[, and that] damage was caused in the period [provided in] section 1 of that Act, as K.-J.B. was killed on 11 March 1992.” After concluding that the killing of the applicants’ mother was war damage, the Municipal Court also held that it had been a terrorist act for which the Croatian State was not liable as it had had no control over the occupied territory of the State. The relevant part of the judgment reads as follows: “The crucial aspect which is missing and is a condition for the liability of the Republic of Croatia as a State for the damage in this case is its sovereignty. The defendant had no sovereignty over Z.G., which was a part of the broader, temporarily occupied territory of Croatia at that time, during the Homeland War. It did not have control over the territory and inhabitants of that territory, the basic elements of State sovereignty. Thus, as said above, the act of damage ... amounts to an act of terror, that is to say an act of violence committed for political motives with the aim of causing fear, terror and the feeling of personal insecurity in citizens. However, the terrorist act of the killing of the applicants’ mother by a member of the occupying enemy Serb paramilitary forces was done in occupied Croatian territory, that is to say in the territory where the Republic of Croatia had no sovereignty before the act of damage occurred, on the day when it occurred, or for years afterwards. Given the time (during a state of war), the territory (occupied Croatian territory), and all the circumstances in which the damage occurred, this court concludes that [the act of damage] in the case at issue amounts to a terrorist act which in these circumstances could not have been prevented by the State or its bodies. The defendant did not contribute to such acts of terror or violence in any manner, but instead it attempted to prevent them by all legitimate means, including the defensive Homeland War, one of the aims of which was the liberation of the occupied Croatian territory in which, in the end, it succeeded.” 6. The applicants then lodged an appeal in which they argued that the Municipal Court had held contradictory views, stating that the killing of their mother was war damage for which the State was not liable and at the same time that it had been a terrorist act for which the State was not liable because it had had no control over the territory where the damage had occurred. The applicants asserted that the killing of their mother had been a terrorist act and that the State’s liability could not be excluded only because it had occurred in occupied territory. They argued that the legislation governing the State’s liability for terrorist acts provided that this liability was based on the principles of solidarity, equal distribution of the public burden and fair and prompt compensation, and that State liability existed irrespective of whether a perpetrator had been identified, criminally prosecuted or found guilty. In the applicants’ view, this implied that the State was liable for damage not because it had responsibility for it but as an act of social solidarity with victims of terrorist acts. 7. The first-instance judgment was upheld by the Zadar County Court on 10 September 2009, which endorsed the reasoning of the Zadar Municipal Court. 8. The applicants then lodged an appeal on points of law in which they reiterated their arguments from the appeal and pointed out that the appeal court had not addressed these arguments. On 12 April 2011 the Supreme Court upheld the lower courts’ judgments. The relevant part of the Supreme Court’s judgment reads: “... even though the damage was caused by violence with terror as one of its essential elements, it does not amount to a terrorist act within the meaning of section 1 of the Liability Act, but was caused by belligerent activity of the enemy military or paramilitary forces with the aim of provoking fear in and displacement of the civilian population and has the characteristics of war damage for which the Republic of Croatia is not liable” 9. The applicants’ subsequent constitutional complaint was dismissed on 19 January 2012. The decision was served on the applicants on 21 February 2012. 10. The relevant part of the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations of 23 July 2003 (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette of the Republic of Croatia no. 117/2003 – “the 2003 Liability Act”), which entered into force on 31 July 2003, provides as follows: “(1) This Act regulates liability for damage caused by acts of terrorism or other acts of violence committed with the aim of seriously disturbing public order by provoking fear or stirring up feelings of insecurity in citizens ... (2) A terrorist act within the meaning of this Act is especially an act of violence committed for political reasons [motives] with a view to stirring up fear, terror or feelings of personal insecurity in citizens.” “The Republic of Croatia shall be liable for the damage referred to in section 1 of this Act on [the basis of] the principles of social solidarity, equal distribution of the public burden and fair and prompt compensation.” “The obligation to compensate damage under this Act exists irrespective of whether the perpetrator has been identified, criminally prosecuted or found guilty.” “The victim shall have the right to compensation [in the form of damages] for damage resulting from death, bodily injury or impairment of health.” 11. The Liability Act (Croatian Army and Police) (Zakon o odgovornosti Republike Hrvatske za štetu uzrokovanu od pripadnika hrvatskih oružanih i redarstvenih snaga tijekom Domovinskog rata, Official Gazette no. 117/2003 of 23 July 2003) outlines the conditions under which the State is liable to pay compensation for damage caused by members of the army and the police during the Homeland War. The relevant provisions read as follows: “The present Act governs the liability of the Republic of Croatia for damage caused by members of the Croatian Armed Forces and the police force in military or police service or in connection with such service during the Homeland War in the period between 17 August 1990 and 30 June 1996.” “The Republic of Croatia is liable under general rules governing liability for damage only in respect of damage defined in section 1 hereof which does not have the character of war-related damage.” “(1) War-related damage within the meaning of this Act is, in particular: – damage caused at the time when and in territory where military actions were carried out with any means of war ... (bombardment, shelling, machine-gun fire, explosions, mining, movement of troops and the like); – damage resulting in direct and concrete military gains if, given the time and place where it occurred, it directly served military operations, and in particular: (a) damage which was a direct consequence of any protective or planning measure which the competent military authorities carried out with the aim of removing or preventing an enemy attack; (b) damage which was a direct consequence of protective or planning measures which the competent military authorities carried out in anticipation of an enemy action (work in fields, confiscation of movable property, occupation of real estate and the like); (c) damage which was a direct consequence of measures taken with the aim of preventing the consequences of the damage described in subsection 1 of this section from spreading or of alleviating such consequences; – damage which, having regard to its results and the specific time and place where it occurred, was directly caused by the state of war and is directly connected with military operations (direct consequences of war events in connection with unrest, turmoil, panic, evacuations and similar events [occurring] immediately after the military operations have been carried out). (2) It is to be presumed that the damage caused by members of the Croatian Armed Forces and the police force in military or police service or in connection with such service during the Homeland War in the period between 17 August 1990 and 30 June 1996 is war-related damage, if it occurred at the time when and in territory where military combat actions took place, but the injured party may prove the opposite.” 12. The relevant part of that Act (Zakon o utvrđivanju ratne štete, Official Gazette nos. 61/1991 and 70/1991) reads: “[This Act provides for] the setting up and the activities of the State, municipal and special commissions for the listing and assessment of war damage caused [in the territory] of the Republic of Croatia to its natural and legal persons, and in connection with enemy activities and military operations carried out against [the Republic of Croatia] in the period from 15 August 1990 until the termination [of the said activities].” “War damage within the meaning of this Act, is pecuniary and non-pecuniary damage, direct and indirect damage, and in particular: 1. damage caused to bodily integrity, life and health of persons, freedom or dignity; ... War damage, within the meaning of this Act, is damage caused by enemy, illegal forces, legal bodies of the Republic of Croatia, as well as allies of the said forces and bodies, when it was indirectly or directly caused in the period mentioned in section 1 of this Act.” 13. The Supreme Court has held that the Republic of Croatia was not liable for war-related damage caused by enemy forces on the occupied territories (for example in its judgments nos. Rev-90/09-2 of 9 June 2010; Rev-1199/08-2 of 2 June 2010; Rev-1264/08-2 of 17 March 2011; and Rev-848/10-2 of 19 June 2012). In the latter the Supreme Court endorsed findings of the lower courts that the killing of persons at the occupied territories amounted to war-related damage and added, in so far as relevant, the following: “Even though the act giving rise to the plaintiffs’ claim for damages presents certain similarities with a terrorist act since [both] imply [an act of] violence, the act of damage [in the present case] differs significantly from terrorist acts in its features since it contains additional elements and amounts to war-related damage for which the defendant is not liable. This is because the damage did not occur in the territory under the de facto sovereignty of the Republic of Croatia but in the then occupied territory, where there was no possibility for lawful action by the bodies of the Republic of Croatia; this circumstance excludes the otherwise objective liability of the defendant. Furthermore, the act of damage in the present case was not carried out with the sole aim of seriously disturbing public order (this being the aim characteristic of an act of terror) but also involved the use of force, killing and expulsion of the civilian population on that territory with the aim of destroying the internal security and stability of the Republic of Croatia and preventing its lawful bodies from functioning. ...”