CASE OF NOVAKOVIĆ v. CROATIA
Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
5. The applicant was born in 1956 and lives in Sisak. 6. The applicant, a person of Serbian ethnic origin, lived in the town of Sisak. During 1991 and 1992 Serbian paramilitary forces gained control of about one third of the territory of Croatia and proclaimed the so-called “Serbian Autonomous region of Krajina” (Srpska autonomna oblast Krajina, hereinafter the “Krajina”). The town of Sisak was close to the border of Krajina. There were targeted killing of Serbian civilians by members of the Croatian police and army in the Sisak area during a prolonged period in 1991 and 1992 (see Jelić v. Croatia, no. 57856/11, § 78, 12 June 2014). In July 1991 the applicant left the town of Sisak, fearing for his personal safety. 7. At the beginning of August 1995 the Croatian authorities announced a campaign of military action with the aim of regaining control over the Krajina. The action was codenamed “Storm” and lasted from 4 to 7 August 1995. 8. In 1996 the United Nations Security Council established the United Nations Transitional Administration in Eastern Slavonia, Baranja and Western Sirmium (the “UNTAES”). On 15 January 1998 the UNTAES mandate ceased and the transfer of power to the Croatian authorities began. 9. On 26 September 1999 the applicant lodged a civil action against the Sisak Municipality and the Sisak Market in the Sisak Municipal Court, seeking payment of a sum of money on account of his investments in certain premises. The applicant stated that in July 1991 he left the town of Sisak fearing for his personal safety. He returned to Croatia in 1996. As a result, he was not able to lodge his claim within the five-year statutory time-limit. In his oral evidence given on 19 February 2002 the applicant said that after having left the town of Sisak, he had first moved to Glina, in the territory of the Krajina, and soon afterwards to the Netherlands. 10. On 30 January 2006 the Sisak County Court dismissed the claim on the grounds that it had become time-barred. It held that the applicant had left the town of Sisak of his own free will, that the town of Sisak had never been occupied and that the courts had been operational there at all times. Therefore, there had been no “insurmountable obstacles” for the applicant to lodge his civil claim within the statutory limitation period. The relevant part of the judgment reads: “... the defendant’s objection concerning the statutory limitation period is well founded since the plaintiff brought his civil action on 26 September 1999 and the lease agreement had ceased on 6 September 1991. Therefore, under section 371 of the Obligations Act ... the plaintiff’s claim had become statute-barred after five years. ... The plaintiff’s submissions under section 383 of the Obligations Act concerning insurmountable obstacles which had prevented him from seeking judicial protection of his rights have not been accepted by this court because he had left the town of Sisak of his own free will and the courts [in Sisak] have been operational at all times.” 11. This judgment was upheld by the Sisak County Court on 8 January 2009. The relevant part of its judgment reads: “Under section 383 of the Obligations Act the statutory limitation period is suspended during the time in which a creditor is unable, owing to insurmountable obstacles, to seek the fulfilment of an obligation [from a debtor]. The conclusions of the first-instance court that the plaintiff had not proved the existence of any such obstacles; that the plaintiff had left the town of Sisak of his own free will since that town had never been occupied by the enemy army during the period relevant for the statutory limitation; and that the courts [in Sisak] functioned at all times; are correct and therefore fully endorsed by this court.” 12. On 20 May 2009 the lower courts’ judgments were upheld by the Supreme Court. The relevant part of its judgment reads: “The [lower] courts assessed all relevant circumstances and dismissed the plaintiff’s claim that there were insurmountable obstacles preventing him from lodging his action and that section 383 of the Obligations Act was applicable. Contrary to the plaintiff’s allegations that he could not go to the town of Sisak and lodge his civil action owing to insurmountable obstacles, the courts established that the courts in the town of Sisak had been operational at all times; that the town of Sisak had not been occupied by the enemy army at any time during the period relevant for the statutory limitation; that the plaintiff had not proved the existence of obstacles preventing him from going to Sisak; and that he had left Sisak of his own free will. Since these are well-known facts, the conclusion of the lower courts that there were no insurmountable obstacles preventing him from lodging the claim in due time ... is correct. This court is also of the opinion that the plaintiff cannot rely on insurmountable obstacles of an objective nature within the meaning of section 383 of the Obligations Act since the town of Sisak was not occupied by the enemy army, none of its citizens has the status of refugee or displaced person and the lodging of a civil action was possible during the entire period of war because the courts remained operational.” 13. The applicant’s subsequent constitutional complaint was dismissed on 5 October 2011. The Constitutional Court endorsed the reasoning of the lower courts.