CASE OF FERGEC v. CROATIA
Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Procedural aspect)
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković
5. The applicants were born in 1971 and 1974 respectively and live in Sesvete. 6. On 12 December 1996 at about 8.30 p.m. one D.M., a member of the Croatian army, exploded a grenade in a pizza parlour in Zagreb, as a result of which D.M. and one other person died and the second applicant was gravely injured. The first applicant, who worked in a nearby flower shop, came to the scene and found the second applicant lying on the floor, covered in blood. 7. An on-site inspection of the crime scene was carried out on the same evening by the military police and it was videotaped. The report drawn up by them indicates that D.M. was dressed in civilian clothes. During the enquiry the military police took statements from witnesses and on 3 July 1997 sent a report on the incident to the Zagreb County State Attorney’s Office. The relevant part of the report reads: “On 12 December 1996 at about 8.30 p.m. at the N. pizza parlour ... soldier D.M. was consuming alcoholic beverages at the bar in the company of D.Ma., N.F. (an employee of the judicial police) and Ž.B. when all at once [D.M.] took an M-75 hand grenade out of his pocket and pulled out the safety clip and placed the grenade into the hand of waitress T.B., ... who put it on the counter saying ‘What would I need this for?’, whereupon D.[M.], seeing that the grenade had been activated, took it in his right hand and turned sideways from the counter, after which an explosion occurred. [D.M.] was killed on the spot, while D.Ma. and N.F. ... sustained grievous bodily injuries and Ž.B. ... minor bodily injuries. ... The injured were transferred to Dubrava Hospital and D.Ma. died during transport.” No further investigation ensued. 8. On 1 July 1998 the applicants brought a civil action against the State in the Zagreb Municipal Court. The second applicant sought damages in connection with the life-threatening injuries he had sustained in the incident of 12 December 1996, while the first applicant sought damages on account of the stress and fear she had suffered because of the event in question. The applicants argued that D.M. had been on duty at the time when he had exploded the grenade, that he had been dressed in his military uniform and that his mother had obtained a survivor’s pension after his death under a decision which stated that he had died on duty (specifically, “at work”). 9. During the proceedings it was established that the second applicant had sustained numerous injuries to his head, face, chest, belly and lower extremities and that he was suffering from permanent consequences, such as frequent headaches, pain throughout his body, impaired hearing, double vision, fatigue and incapacity for work. 10. Their claim was allowed on 21 June 2002. That judgment was quashed by the Zagreb County Court on 25 April 2005. The first-instance court again allowed the claim on 17 September 2010. However, on 5 April 2011 the Zagreb County Court, after an appeal lodged by the defendant, overturned the judgment and dismissed the applicants’ claim. The relevant part of that judgment reads: “The first-instance court established the following: - D.M. was a member of the Croatian army – a military serviceman; - D.M. used an M-75 grenade, which served a military purpose and was registered for [use by] the members of the Croatian army; - the decision of 12 October 1998 ... issued by the Croatian Pension Fund stated that the mother of D.M., who had been a Croatian Homeland War veteran, obtained the right to a survivor’s pension because [D.M.] had been [serving in the] military when he had caused the damage, and the reasoning of that decision stated that he had died because of an injury sustained at work; - D.M. had not been on duty. On the basis of the thus-established facts the first-instance court concluded that the defendant was liable because the said decision of the Croatian Pension Fund stated that the death of [D.M.], as an active military serviceman, had occurred while [he had been] carrying out his official duties ... The first-instance court also concluded that there had been a failure on the part of the defendant [to carry out a weapons] check under section 14 of the Instruction on the Allocation, Distribution, Carrying and Use of Official Short Weapons. Had the correct check (for which the military police were responsible under section 14 of the above-mentioned Instruction) [been exercised in respect of] the carrying of weapons – namely the grenade [held by D.M.] without a proper licence or an identity document, – and the grenade been taken [from D.M.], the damage most likely would not have occurred. However, this court considers that these facts, as established [by the first-instance court], do not serve as a sufficient basis for concluding that the requirements for the defendant to be held liable for the concrete damage have been met. First of all, D.M.’s parents’ right to obtain a survivor’s pension on the basis of a decision of the Croatian Pension Fund is not decisive for the defendant’s liability for damage since the right to a survivor’s pension was obtained on the basis of D.M.’s status as a Croatian Homeland War veteran – that is to say an insured military person. The fact that the reasoning of that decision ... states that the ‘insured party’s death occurred because of an injury sustained at work’ is not relevant for an assessment of the defendant’s liability in these civil proceedings. An assessment of the facts shows that D.M. was not on duty on the critical evening; that the M-75 grenade was not given to him by his military unit ([according to] a letter from the I Croatian Guard Corps of 12 November 1998); that the record of the on-site inspection carried out on the day of [D.M.’s] death does not show that D.M. was wearing a uniform; and that nothing proved that the grenade in question was the property of the defendant (that D.M. had unlawfully obtained the grenade from the defendant), regardless of the fact that such a grenade serves a military purpose and is registered for [use by] members of the Croatian army; [therefore,] this court finds that the conclusion of the first-instance court regarding ... the liability of the defendant is not correct. Lastly, this court considers ... in respect of the failure of the defendant to carry out a check on the carrying of weapons and to seize [weapons] where there is no licence [to carry them], as the basis of the defendant’s liability, that there is no proof ... that the military police had a duty to carry out a check in the pizza parlour in question on the critical evening or that the competent authorities knew that D.M. possessed a grenade and failed to seize it from him. Therefore, this court finds that the requirements for the defendant’s liability are not met ...” 11. The applicants’ subsequent constitutional complaint of 7 July 2011 was dismissed on 17 June 2014. This decision was served on the applicants on 3 July 2014.