BANIČEVIĆ v. CROATIA
Inadmissible
Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
1. The applicants, Mr Ante Baničević and Ms Marija Baničević, are Croatian nationals, who were born in 1950 and 1951 respectively and live in Smokvica. They were represented before the Court by Mr M. Tvrdeić, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 17 July 1993 the applicants’ son was killed in a road traffic accident. 4. The Dubrovnik Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Dubrovniku) on 16 November 1995 instituted criminal proceedings in the Korčula Municipal Court (Općinski sud u Korčuli) against D.T., the driver who had allegedly caused the accident. 5. On 7 September 2000 the applicants and their two children lodged a civil action for damages in the Korčula Municipal Court against the insurance company J., with which D.T. was insured. Since the criminal proceedings were pending, the Korčula Municipal Court on 8 March 2002 stayed the civil proceedings until the judgment in the criminal proceedings became final. 6. In a judgment of 12 July 2002 the Korčula Municipal Court found D.T. guilty of causing a road traffic accident and the death of the applicants’ son. However, in a judgment of 13 December 2002 the Dubrovnik County Court (Županijski sud u Dubrovniku), acting as the appeal court, terminated the proceedings against D.T. owing to the expiry of the statutory limitation period. It held that since no procedural steps had been taken in the proceedings for over five years, that is, between 21 October 1996 and 26 March 2002, the prosecution of the offence in question had become timebarred on 21 October 2001, under Article 19 of the Criminal Code. 7. On 2 June 2003 the Korčula Municipal Court granted the applicants’ civil claim for damages. The relevant part of the judgment reads as follows: “Under section 376(1) of the Civil Obligations Act a claim for damages becomes statute-barred three years after the injured party learned about the damage and the identity of the person who caused it (subjective time-limit), or five years after the damage occurred (objective time-limit). In the present case the injured party learned about the damage on the day the road traffic accident in question occurred, when their son and brother died, and the threeyear limitation period started to run on that day, 17 July 1993. The claimants brought their civil action on 7 September 2000, that is to say, after the limitation period prescribed under section 376 of the Civil Obligations Act had expired. However, section 377 of the Civil Obligations Act provides that where the damage was caused by a criminal offence, the statutory limitation period for seeking damages expires at the same time as the statutory limitation period for the criminal prosecution, where the latter period is longer. Criminal case file no. ... shows that the damage in question was the result of a criminal offence, although these proceedings did not end in a final conviction. However, the outcome of the proceedings undoubtedly shows that the damage was the result of a criminal offence. The institution of criminal proceedings interrupts the running of the limitation period for seeking compensation for damage caused by a criminal offence. In the case at issue the statutory limitation period in respect of the criminal offence under Article 272 subparagraph (4) in conjunction with subparagraphs (1) and (2) of the Criminal Code is ten years; hence, the same statutory limitation period is to be applied in respect of the claim for damages in connection with that offence. The civil action in issue was brought on 7 September 2000, that is, before the expiry of the statutory limitation period prescribed in respect of the criminal prosecution, which means that the action was lodged before the expiry of the statutory limitation period under section 377(1) of the Civil Obligations Act.” 8. On 1 September 2005 the Dubrovnik County Court, acting as the court of appeal, reversed the first-instance judgment. The relevant part of the judgment reads as follows: “... the statutory limitation period in respect of a claim for compensation for damage caused by a criminal offence is to be assessed according to section 377 of the Civil Obligations Act only where the existence of a criminal offence and the perpetrator’s responsibility have been established in a final judgment on conviction. Only in exceptional circumstances may a civil court assess, as a preliminary issue, whether the damage was caused by a criminal offence, namely where, owing to certain procedural requirements, it has not been possible to conduct criminal proceedings against the perpetrator (for example owing to the latter’s death); that is not the case here. It is clear from the above that in the case under consideration, the provision to be applied is not section 377 of the Civil Obligations Act but rather section 376 of that Act.” 9. On an unspecified date in 2006 the applicants lodged an appeal on points of law against that judgment with the Supreme Court (Vrhovni sud Republike Hrvatske), complaining that the Dubrovnik County Court had misinterpreted the relevant law concerning the application of the statutory limitation period. 10. On 12 April 2006 the Supreme Court dismissed the applicants’ appeal on points of law. The relevant part of the decision reads as follows: “The longer statutory limitation period in respect of a claim for compensation for damage, under section 377 of the Civil Obligations Act, is applicable if the damage was caused by a criminal offence. The statutory limitation period is to be assessed according to that provision only where the existence of a criminal offence and the perpetrator’s responsibility have been established by a final conviction. In the present case the criminal responsibility of the perpetrator ... has not been established by a final judgment of the criminal court. A civil court may only exceptionally assess whether the damage was caused by a criminal offence, in order to establish the applicable statutory limitation period. It can, in the course of the civil proceedings, deal with that issue only where, owing to certain procedural requirements, it has not been possible to conduct criminal proceedings against the perpetrator. In the present case, however, criminal proceedings were conducted and terminated by a secondinstance judgment dismissing the charges [on procedural grounds].” 11. The applicants lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) on 25 October 2006, arguing that the lower courts had misinterpreted the rules on application of the statutory limitation period. 12. On 4 November 2009 the Constitutional Court dismissed the applicants’ constitutional complaint, endorsing the arguments of the lower courts. This decision was served on the applicants’ counsel on 12 December 2009. 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. ...” “(1) Where the damage was the result of a criminal offence and the statutory limitation period for criminal prosecution is longer, the claim for damages against the person responsible becomes statute-barred at the same time as the criminal prosecution. (2) The interruption of the statutory limitation period in respect of criminal prosecution entails the interruption of the statutory limitation period in respect of a claim for damages. ...” “The statutory limitation period is interrupted by the lodging of a civil action or any other action by a creditor against a debtor, before a court or other competent body, which is brought in order to secure or enforce the creditor’s claim.” “... (3) Where the statutory limitation period has been interrupted by the lodging of a civil action or other request ... it shall start to run again after the termination of the proceedings. ...” 14. The relevant parts of the Criminal Code (Kazneni zakon, Official Gazette no. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001) provide: “(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. ...” “(1) Criminal prosecutions for the purposes of applying the criminal legislation of the Republic of Croatia, ..., may not be instituted after expiry of the following periods, calculated from the time the offence was committed: ... - five years if the case concerns a criminal offence punishable by more than three 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.” “(1) Road users who, by violating the regulations on traffic safety, endanger other road users in such a manner that they cause an accident in which another sustains serious bodily injury or extensive material damage shall be punished by a term of imprisonment of between six months and five years. (2) If the offence referred to in paragraph 1 of this Article is committed by negligence, the perpetrator shall be punished by a fine or by a term of imprisonment not exceeding three years. ... (4) If the offence referred to in paragraph 2 of this Article results in the death of one or more persons, the perpetrator shall be punished by a term of imprisonment of between six months and five years.” 15. 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. ... “ “(1) The court can, by means of a judgment, dismiss the charges, acquit the accused or find him or her guilty.” “The court shall issue a judgment dismissing the charges: ... (6) if the accused has been exempted from prosecution by an amnesty or pardon, or if the statutory limitation period has expired, or if other circumstances barring prosecution exist.” 16. 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.” 17. In its judgment no. Rev-358/1991-2 of 19 December 1991, the Supreme Court held that if a civil action for damages had been lodged after the criminal prosecution had become time-barred, the longer statutory limitation period under section 377 of the Civil Obligations Act could not be applied. The relevant part reads: “Under section 377(1) of the Civil Obligations Act a claim for compensation for damage caused by a criminal offence is time-barred when the statutory limitation period for the criminal prosecution expires. The criminal prosecution of the third defendant undoubtedly became time-barred [in the course of] the criminal proceedings against him in case no. ..., in which the charges against him were dismissed, because the prosecution had become time-barred by a final judgment of 9 March 1987, in other words, before the civil action in these civil proceedings was lodged (on 21 September 1989). Therefore, the claim [for damages] also became time-barred on that date.” 18. 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 or 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.” 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. The relevant part of the appeal decision of the Bjelovar County Court (Županijski sud u Bjelovaru) of 22 April 1999 (no. Gž-626/99) 1999 reads as follows: “... The statutory limitation period under section 377 of the Civil Obligations Act, as a longer limitation period, can be applied only if it has been established, by a judgment of a criminal court, that the damage was caused by a criminal offence. This limitation period cannot be applied if the criminal proceedings were terminated by a decision without a finding of guilt in respect of the person responsible. However, there is some doubt as to whether the civil court is allowed to establish whether the damage was caused by a criminal offence. The civil court is allowed to do so only if there existed some circumstances barring the criminal prosecution, with the result that no criminal proceedings could be conducted against the perpetrator. Only then, in order to assess the statutory limitation period in respect of damage caused by a criminal offence, may the civil court itself establish whether the damage was caused by acts constituting a criminal offence.” The same approach was followed in the appeal judgment of the Varaždin County Court (Županijski sud u Varaždinu) of 3 February 2003 (no. Gž151/03-2), concerning a case where the alleged perpetrator of the offence had died during the criminal proceedings.