BOGDANOVIĆ v. CROATIA
Inadmissible
Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
1. The applicants, Mr Savo Bogdanović, Ms Rosa Bogdanović and Mr Milan Bogdanović are Croatian citizens of Serbian ethnic origin. They were born in 1954, 1952 and 1950 respectively and live in Bosanski Brod, Bosnia and Herzegovina. They were 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. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 11 May 1992 the applicants’ father B.B. was killed in his house in Slavonski Brod in Croatia. 5. On 14 May 1992 the police carried out an on-site inspection of the crime scene and interviewed several persons. An autopsy was carried out on 15 May 1992. 6. Firearms were confiscated from three persons, J.G., J.M. and V.P. A ballistics report was drawn up on 22 May 1992, showing that the cartridges found at the crime scene had not been shot from the confiscated firearms. 7. The police lodged a criminal complaint against an unknown perpetrator on 22 May 1992 with the Požega County State Attorney’s Office on charges of murder. 8. On 26 August 2004 the third applicant asked the Slavonski Brod police for a certificate confirming that his father had died on 11 May 1992, which was issued the following day. 9. On 3 May 2012 the applicants’ lawyer asked the Slavonski Brod County State Attorney’s Office for a copy of the case file concerning the investigation into B.B.’s death, for the purposes of having brought their application with the Court. He was informed that the criminal prosecution for the criminal offence of murder had become statutory barred on 11 April 2007. 10. On 30 December 2004 the applicants brought a civil action against the State in the Zagreb Municipal Court, seeking compensation in connection with the death of their father. They based their claim on the 2003 Liability Act. 11. The claim was dismissed on 24 March 2006. This judgment was upheld on appeal by the Zagreb County Court and the Supreme Court on 13 May 2008 and 9 June 2010 respectively. The national courts found that the claim for compensation had been submitted after the statutory limitation period prescribed by the laws related to the compensation of damages in civil proceedings had expired. 12. A subsequent constitutional complaint lodged by the applicants was dismissed on 4 May 2011. 13. The relevant provisions of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 53/1991, 73/1991, 3/1994, 7/1996, 112/1999), as then in force, read as follows: “(1) The right to claim fulfilment of an obligation shall cease when the statutory limitation period has expired. (2) The statute of limitations [bars a right to claim] when the statutory prescribed period in which a creditor could have claimed fulfilment of an obligation has expired. ...” “(1) A claim for damages shall become statute-barred three years after the injured party learned about the damage and the identity of the person who caused it. (2) In any event that claim shall become statute-barred five years after the damage occurred. ...” 14. Article 34 of the Criminal Code (Krivični zakon, Official Gazette nos. 25/1977, 50/1978, 25/1984, 52/1987, 43/1989, 8/1990, 8/1991, and 53/1991) prescribes imprisonment of at least five years for murder. Qualified murder was punishable by up to twenty years’ imprisonment. 15. The relevant part of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/00, 51/2001, 111/2003, 190/2003, 105/2004, 84/2005, 71/2006, 110/2007, 152/2008, 57/2011 and 143/2012) reads: “(1) On account of the statute of limitations, the criminal legislation of the Republic of Croatia may not be applied after the period determined by this Code has elapsed. The period is calculated from the time the offence was committed, sentence was pronounced or another criminal sanction was ordered. (2) The previous rule does not apply in respect of the criminal offences of genocide ..., aggressive war ..., crimes against humanity ..., war crimes ... and other criminal offences which are not subject to statutory limitation according to the Constitution or international law” “(1) Criminal prosecutions may not be instituted, save for the criminal offences referred to in Article 18 of this Code, after expiry of the following periods from the time the offence was committed: - twenty-five years for the offence punishable by long-term imprisonment; - fifteen years for the offence punishable by more than ten years’ imprisonment; - ten years for the offence punishable by more than five years’ imprisonment ...” “(1) The limitation period shall start to run from the date on which the offence was committed. ... (3) The statutory limitation period shall be interrupted each time a procedural step is taken concerning the prosecution of the offence. ... (5) The statutory limitation period shall start to run again after each interruption. (6) Criminal prosecutions shall in all cases become time-barred after expiry of the double statutory limitation period.” 16. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002) provide: “(1) A claim for compensation for damage caused by a criminal offence shall be examined in the criminal proceedings where so requested by authorised persons, provided that this does not cause significant delays in the proceedings. ...” “A claim for compensation in criminal proceedings may be lodged by persons entitled to lodge such a claim in civil proceedings.” “Persons entitled to lodge a claim for compensation (Article 128) may, until the end of the trial, withdraw their claim in the criminal proceedings and pursue it in the civil proceedings. ...“ 17. The relevant provisions of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and the Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005) read as follows: “If it is necessary for a court, in order to make its decision, to first settle an issue of the existence of a right or legal relationship, and no decision on this issue has yet been adopted by a court or other competent body (preliminary issue), the court may settle the issue itself, unless otherwise provided for under special rules. The court’s decision on a preliminary issue shall have legal effect only in the proceedings in which the issue in question was settled. In civil proceedings, where an issue arises in relation to a criminal offence and the perpetrator’s criminal liability, the court shall be bound by the final judgment of the criminal court by which the accused was found guilty.” 18. The relevant provisions of the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette of the Republic of Croatia no. 117/2003 of 23 July 2003 – “the 2003 Liability Act”), which entered into force on 31 July 2003, provides as follows: “(1) This Act regulates the liability for damage caused by acts of terrorism or other acts of violence committed with an 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 ....” “The obligation to compensate damage under this Act exists irrespective of the fact whether the perpetrator has been identified, criminally prosecuted or found guilty.” “The victim shall have the right to compensation [in the form of damages] of damage resulting from death, bodily injury or impairment of health.” “(1) Where the statutory limitation period began before 3 February 1996, it shall continue after the entry into force of this Act, and the period which had expired before the statutory limitation period was interrupted shall be counted into the overall statutory limitation period. (2) Where the damage occurred after 3 February 1996 the statutory limitation period begins from the entry into force of this Act.” 19. The domestic courts of appeal, on the subject of the possibility for a civil court to apply a longer statutory limitation period under section 377 of the Civil Obligations Act, held that this could be applied only if it had been established by a final judgment of the criminal court that the damage had been caused as the result of a criminal offence. 20. This view was confirmed by the practice of the Supreme Court. For example, in its decision no. Rev- 217/05-2 of 20 October 2005 it held as follows: “The lower court correctly established that section 377 of the Civil Obligations Act was not applicable in this case. ... The longer statutory limitation period [under section 377 of the Civil Obligations Act] applies only when it has been established by a judgment in the criminal proceedings that the damage was caused by a criminal offence ...” 21. The Supreme Court, in its decision no. Rev-2563/1992-2 of 6 April 1993, examined the possibility for a court in civil proceedings to assess the statutory limitation period under section 377 of the Civil Obligations Act if criminal liability had not been established by a final criminal court judgment. The relevant part of the decision reads as follows: “The conclusion of the lower courts that section 377 of the Civil Obligations Act is applicable only if the criminal offence has been established by a final judgment of the criminal court is incorrect. This is because, according to the well-established case-law, if damage has been caused by a criminal offence but no criminal proceedings have been instituted or concluded against the perpetrator because of his death or mental illness, or the offence at issue has been exempted from prosecution by a pardon or amnesty, or if there exist some other circumstances preventing criminal responsibility from being established or barring the criminal prosecution, the fact that the damage was caused by a criminal offence may, if the defendant has invoked the statute of limitations, be established (as a preliminary issue) in the civil proceedings. It is also to be noted that the longer statutory limitation period under section 377 of the Civil Obligations Act is applicable not only in respect of the perpetrator of the criminal offence but also in respect of the person responsible for the damage.”