GRUBIĆ v. CROATIA
Inadmissible
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
1. The applicant, Mr Jovo Grubić, is a Croatian national who was born in 1952 and lives in Golubić. He was 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. During 1991 and 1992 Serbian paramilitary forces gained control over about one-third of the territory of Croatia and proclaimed the “Serbian Autonomous region of Krajina” (Srpska autonomna oblast Krajina, hereinafter “Krajina”). The applicant’s mother, N.G., remained living in Golubić, a village in “Krajina”. At the beginning of August 1995 the Croatian authorities announced a military action with the aim of regaining control over “Krajina”. The action was codenamed “Storm”, and took place from 4 to 7 August 1995. Before that action, the vast majority of the population of “Krajina” fled Croatia, firstly to Bosnia and Herzegovina, and later on many of them went to live in Serbia. Some returned to Croatia after the war. The number of people who fled is estimated at between 100,000 and 150,000. 5. On 23 May 2002 the applicant lodged a request with the Yugoslav Red Cross in Belgrade for a search for his mother. He alleged that his mother had disappeared on 5 August 1995 in Golubić, during the “Storm” military action. 6. In May 2002 the body of the applicant’s mother was exhumed in Golubić and transferred to the Zagreb Forensic Institute (Zavod za sudksu medicine u Zagrebu). On 19 November 2002 an autopsy was carried out which failed to establish the cause of death. On 6 December 2002 the applicant received the autopsy report and the body was given to the family. On an unspecified date it was buried in the Golubić graveyard. 7. On 27 December 2006 the applicant brought a civil action for damages against the State in the Knin Municipal Court (Općinski sud u Kninu). On 7 December 2007 the claim was dismissed on the ground that the circumstances of the death of his mother remained unknown. Thus the applicant had failed to prove either that his mother had been killed by Croatian army soldiers or that her death “resulted from an act of terror or violence aimed at gravely disturbing public order” and that her death was not war-related. This judgment was upheld by the Šibenik County Court (Županijski sud u Šibeniku) on 30 August 2010, and by the Supreme Court (Vrhovni sud Republike Hrvatske) on 6 April 2011. 8. The applicant’s subsequent constitutional complaint was dismissed by the Constitutional Court on 16 February 2012. 9. 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 damage referred to in section 1 of this Act ....” “The obligation to compensate for 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] of damage resulting from death, bodily injury or impairment of health.” 10. 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) governs 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 and police forces 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 on the territory where military actions were carried out with any means of war combat actions (bombardment, shelling, firing from machine-guns, explosions, mining, moving of troops and the like); – damage resulting in direct and concrete military gain 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 war operations (direct consequences of war events in connection with unrest, turmoil, panic, evacuations and similar events [occurring] immediately after the war operations have been carried out). (2) It is to be presumed that the damage caused by members of the Croatian armed and police forces 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 on the territory where military combat actions took place, but the injured party may prove the opposite.”