LUKIĆ AND OTHERS v. CROATIA
Inadmissible
Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković
1. A list of the applicants is set out in the appendix. They were all represented by Mr L. Šušak, a lawyer practicing 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. The applicants’ family lived in Vukovar, a Croatian town near the Serbian border which was heavily attacked by the Yugoslav People’s Army and paramilitary Serbian armed forces in the period between August and November 1991, during the war in Croatia. 5. According to the applicants, on 17 November 1991 their respective husband and father, K.L., was taken from his home in Borovo Naselje, a district of the town of Vukovar, by Croatian soldiers and killed on 18 November 1991. 6. According to the Government, the town of Vukovar fell on 18 November 1991; after the surrender of the last Croatian forces on 20 November 1991 the Yugoslav Peoples’ Army and Serbian paramilitary forces established their control over it. 7. After the fall of Vukovar, the applicants went to live in Serbia. 8. Between 1992 and 1996 Vukovar was a part of the United Nations Protected Area (UNPA). In 1996 the United Nations Security Council established the United Nations Transitional Administration in Eastern Slavonia, Baranja and Western Sirmium (UNTAES), which included Vukovar. On 15 January 1998 the UNTAES mandate ceased and the transfer of power to the Croatian authorities began. 9. An investigation was opened on 27 November 1991 by an investigating judge of the Belgrade Military Court. On 26 February 1992 the first applicant gave evidence in those proceedings. 10. On 1 April 1992 an indictment was lodged before that court against M.F., Z.Š., M.D. and D.S., Croatian soldiers imprisoned by the Serbian forces, on charges of war crimes against the civilian population. 11. On 26 June 1992 the Belgrade Military Court found the accused guilty as charged. The conviction of Z.Š. and M.D. covered, inter alia, responsibility for the killing of K.L. M.D. was sentenced to twenty years’ imprisonment and Z.Š. to death. This judgment was upheld by the Serbian Supreme Military Court on 29 December 1992 and thus became final. 12. On 14 February 2007 the applicants submitted a claim for damages with the State Attorney’s Office in respect of the death of K.L. They requested that V.P. and M.S. be heard as witnesses. 13. The Croatian authorities learned about the death of the applicants’ relative for the first time when they made the above request. An investigation ensued. On 15 June 2007 the police interviewed V.P., who had no knowledge whatsoever about the killing of K.L. and said that she had never been to Vukovar. It was also established that M.S. had died. 14. The applicant’s request was refused. 15. Between 24 November 2010 and 3 July 2013 the police interviewed the applicants, M.K., P.D., V.M., Z.Š. and M.V. None of them had any relevant knowledge about the circumstances of the killing of K.L. 16. In the meantime, on 3 January 2011 the Vukovar County State Attorney’s Office asked the Serbian Prosecution Office for War Crimes for all evidence in respect of the killing of K.L. On 4 May 2011 the latter Office sent to the Croatian authorities completed documentation which did not contain any of the judgments of the Serbian Military Courts. 17. On 5 March 2008 the applicants brought a civil action against the State before the Vukovar Municipal Court, seeking compensation in connection with the death of their relative. They asked that witness M.K. be heard in respect of the circumstances surrounding the killing of K.L. 18. That claim was dismissed on 13 April 2010. The Municipal Court found that the claim had been submitted after the expiry of the applicable time-limit specified in the statute of limitations. The applicants were also ordered to pay to the State the costs of the proceedings in the amount of 9,750 Croatian kuna (HRK). In an appeal against the first instance-judgment and an appeal on points of law before the Supreme Court the applicants complained about the manner in which the rules on the time-limit specified in the statute of limitations had been applied. The first-instance judgment was upheld by the Vukovar County Court and the Supreme Court on 1 July 2010 and 12 October 2011 respectively. 19. On the latter day the applicants sent to the Supreme Court copies of judgments of the Belgrade Military Court and the Serbian Supreme Military Court (together “the Serbian Military Courts”) (see paragraph 11 above). 20. On 16 February 2012 the applicants lodged a constitutional complaint. They enclosed the judgments of the Serbian Military Courts and argued, inter alia, that there had been a conviction by a criminal court in respect of the killing of K.L. and that therefore their civil claim could not have become statute-barred. The applicants’ constitutional complaint was dismissed on 16 May 2012 as ill-founded. The Constitutional Court did not make any reference to the judgments of the Serbian Military Courts. 21. The State authorities instituted enforcement proceedings in the Vukovar Municipal Court against the first applicant, seeking the payment of the costs of the above-mentioned civil proceedings, together with applicable interest and the costs of the enforcement proceedings. 22. An enforcement order was issued on 19 April 2011; under the order, one-third of the first applicant’s pension was to be seized each month. 23. The first applicant lodged an appeal, arguing that her monthly pension amounted to HRK 1,200 and the seizure of one-third of that amount put her in a precarious position since it did not leave her with sufficient resources for subsistence. 24. The appeal was dismissed by the Vukovar County Court on 14 October 2011 and a subsequent constitutional complaint lodged by the first applicant was dismissed by the Constitutional Court on 4 April 2012. 25. Section 62 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 reads: “1. Everyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, a body of local and regional self-government, or a legal person with public authority, which decided about his or her rights and obligations, or about suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: constitutional right) ... 2. If another legal remedy exists against the violation of the constitutional right [complained of], the constitutional complaint may be lodged only after that remedy has been exhausted. 3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law is allowed, remedies are exhausted only after the decision on these legal remedies has been given.” 26. The relevant provisions of the 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 statute-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.” 27. The relevant part of the Act on the Nullity of Certain Legal Acts of the Judicial Bodies of the Former Y[ugoslav] P[eoples’] A[rmy], the former S[ocialist] F[ederal] R[epublic of] Y[ugoslavia] and the Republic of Serbia (Zakon o ništetnosti određenih pravnih akata pravosudih tijela bivše JNA, bivše SFRJ I Republike Srbije, adopted on 21 October 2011 and published in the Official Gazette no. 124/2011 of 4 November 2011 – hereinafter the “Nullity Act”) reads as follows: “It is to be established that by the enactment of this Act all legal acts of the former YPA, its judicial bodies, the judicial bodies of the former SFRY and the judicial bodies of the Republic of Serbia which concern the Homeland War in the Republic of Croatia, under which citizens of Croatia have been [deemed to be] suspects, or accused or convicted for criminal offences recognised by international law ..., committed on the Croatian territory, are null and void and without legal effect, including: ... - a war crime against the civilian population ... Legal acts adopted by judicial bodies of the Republic of Serbia for which the Croatian judicial authorities establish that they comply with the standards of the Croatian criminal legislation are exempted from nullity.”