CASE OF NIKOLIĆ v. CROATIA
(Application no. 5096/12)
29 January 2015
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Nikolić v. Croatia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Dmitry Dedov, judges,
and Sřren Nielsen, Section Registrar,
Having deliberated in private on 6 January 2015,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 5096/12) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Ms Nada Nikolić (“the applicant”), on 9 December 2011.
2. The applicant was represented by Mr T. Filaković, a lawyer practising in Osijek. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
3. The applicant alleged in particular that, contrary to the procedural requirement under Article 2 of the Convention, there has not been an adequate response by the national authorities to the killing of her husband.
4. On 12 February 2013 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1964 and lives in Vukovar.
A. Background to the case
6. The events at issue took place in Vukovar, a Croatian town near the Serbian border which was heavily attacked by the Yugoslav People’s Army and paramilitary Serbian armed forces during the armed conflict in Croatia from August to November 1991 and was finally occupied at the end of November 1991. Between 1992 and 1996 Vukovar was a part of the United Nations Protected Area (the “UNPA”).
7. In 1996 the United Nations Security Council established the United Nations Transitional Administration in Eastern Slavonia, Baranja and Western Sirmium (the “UNTAES”), which included Vukovar. On 15 January 1998 the UNTAES mandate ceased and the transfer of power to the Croatian authorities began.
B. Facts concerning the death of the applicant’s husband
8. Between 4 p.m. and 5 p.m. on 2 October 1991, during a general alert, two unknown uniformed men, armed with firearms, apprehended the applicant’s husband, Lj.N., in the basement or the courtyard of a building in Kudeljarska street in Vukovar, and drove him away.
9. On 24 November 1991, the body of Lj.N. was found in the River Danube at Novi Sad, Serbia.
10. On 25 November 1991 the Institute for Forensic Medicine of the Medical Faculty in Novi Sad carried out an autopsy on the body of Lj.N. which established that the cause of death was a gunshot wound caused by a bullet fired from a hand gun.
C. Investigation into the death of the applicant’s husband
11. In 2004 the applicant brought a civil action before the Vukovar Municipal Court against the State, represented by the Vukovar Municipality State Attorney’s Office, seeking damages in connection with the death of her husband.
12. In connection with the above civil proceedings, the Vukovar Municipality State Attorney’s Office asked the Vukovar police to submit all information concerning the death of the applicant’s husband. The police thereby learned about the death of the applicant’s husband for the first time and opened an enquiry into it.
13. On 24 January 2005 the police interviewed the applicant, who stated that on 2 October 1991 her husband had been abducted from the basement of a building in Vukovar by two Croatian soldiers and driven away. She named six other persons who had been present in the basement on that occasion, B.Š., K.Š., J.T., S.P., M.P. and J.M. However, K.Š., S.P. and M.P. had died in the meantime.
14. On the same day the police interviewed J.T., who stated that the applicant’s husband had been taken from the basement of a building in Vukovar in October 1991 by two uniformed and armed men wearing masks.
15. On 3 February 2005 the police interviewed B.Š., who stated that he had joined the Croatian Army in August 1991 and had only been visiting his wife K.Š. and their children, who had sought shelter from the shelling of Vukovar in the same basement as the applicant and her husband. He said he had not been present when the applicant’s husband had been taken.
16. On 15 February 2005 the Vukovar police lodged a criminal complaint with the Vukovar County State Attorney’s Office against an unknown perpetrator in connection with the killing of the applicant’s husband, classifying the offence as a war crime against the civilian population.
17. On 5 May 2009 the applicant approached the Vukovar County State Attorney’s Office and told them that B.Š. had been present when her husband was taken. She also stated that after K.Š. had died around 10 November 1991, one of the men who had taken her husband had come to the basement to take J.M. On that occasion B.Š. ‒ who had also been present ‒ whispered to the applicant: ‘This is the man who took Lj.[N.]’. The applicant also stated that B.Š. lived in Zagreb.
18. On 9 July 2009 the Zagreb police interviewed B.Š. He said that he had not been present when the applicant’s husband had been taken and did not know the identity of those who had taken him.
19. On 21 July 2009 the Vukovar police interviewed J.M., who said that she had been present in the basement on the day Lj.N. had been taken but had not seen the men who had taken him.
20. On 24 March 2011 an investigating judge of the Zagreb County Court heard evidence from B.Š., who repeated his prior statement.
21. On 3 May 2011 an investigating judge of the Vukovar County Court interviewed the applicant, who repeated her statement.
22. On 12 November 2011 the Vukovar police informed the Vukovar County State Attorney’s Office that they had not learned any new information.
D. Civil proceedings
23. As indicated above (see paragraph 11) in November 2004 the applicant brought a civil action against the State in the Vukovar Municipal Court, seeking compensation in connection with the death of her husband. The claim was dismissed on 18 September 2008 and was upheld on appeal by the Vukovar County Court and the Supreme Court on 21 April 2009 and 16 February 2011 respectively. The national courts found that the claim had been submitted after the statutory limitation period had expired.
24. A subsequent constitutional complaint lodged by the applicant was dismissed on 12 July 2011.
II. RELEVANT DOMESTIC LAW
25. Article 21 of the Constitution (Ustav Republike Hrvatske, Official Gazette no. 56/90 with subsequent amendments) reads as follows:
“Every human being has the right to life.
26. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette no. 110/97 with subsequent amendments) provide:
“In order to ... decide whether to request an investigation ... the State Attorney shall order the police to collect the necessary information and take other measures concerning the crime [at issue] with a view to identifying the perpetrator ...”
“Where there is a suspicion that a criminal offence liable to public prosecution has been committed, the police shall take the necessary measures with a view to identifying the perpetrator ... and collect all information of possible relevance for the conduct of the criminal proceedings...”
“(1) An investigation shall be opened against a particular individual where there is a suspicion that he or she has committed a criminal offence.
(2) During the investigation, evidence and information necessary for deciding whether an indictment is to be brought or the proceedings are to be discontinued shall be collected ...”
I. ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION
27. The applicant complained about the deficiencies in the investigation into the killing of her husband. She relied on the procedural aspect of Article 2 of the Convention, the relevant part of which provides:
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
1. The parties’ arguments
28. The Government argued that the applicant had failed to exhaust all available domestic remedies. They contended that the applicant could have lodged a complaint against the individual police officers or employees of the State Attorney’s Office who had been in charge of the investigation into the death of her husband. Such a complaint could have led to the institution of disciplinary proceedings. As regards protection against alleged unlawfulness in the conduct of the domestic authorities, the Government pointed out that the applicant could have sought damages from the State pursuant to the State Administration Act (Zakon o sustavu državne uprave). They argued that such a combination of remedies had been found effective by the Court in the case of D.J. v. Croatia (no. 42418/10, 24 July 2012).
29. The Government argued further that the application had been introduced before the Court outside the six-month time-limit because she had not enquired about the progress of investigation and had not reacted to delays in the investigation.
30. In reply, the applicant submitted that she had exhausted all available remedies and complied with the six-month rule.
2. The Court’s assessment
(a) Exhaustion of domestic remedies
31. The Court has already addressed the same objections as regards the exhaustion of domestic remedies in other cases against Croatia and has rejected them (see Jelić v. Croatia, no. 57856/11, §§ 59-67, 12 June 2014). The Court sees no reason to depart from that view in the present case.
32. It follows that the Government’s objection must be dismissed.
(b) Compliance with the six-month rule
33. The Court observes that in a number of cases concerning ongoing investigations into the deaths of applicants’ relatives it has examined the period of time from which the applicant could or should start doubting the effectiveness of a remedy and its bearing on the six-month time-limit provided for in Article 35 § 1 of the Convention (see Şükran Aydın and Others v. Turkey (dec.), no. 46231/99, 26 May 2005; Elsanova v. Russia (dec.) no. 57952/00, 15 November 2005; and Narin v. Turkey, no. 18907/02, § 50, 15 December 2009). The determination of whether the applicant in a given case has complied with the admissibility criteria will depend on the circumstances of the case and other factors such as the diligence and interest displayed by the applicants, as well as the adequacy of the investigation in question (see Narin, cited above, § 43). The Court has found that in cases concerning instances of violent death, the ineffectiveness of the investigation will generally be more readily apparent; the requirement of expedition may require an applicant to bring such a case to Strasbourg within a matter of months or at most, depending on the circumstances, just a few years after the events (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 158, ECHR 2009).
34. As can be seen from the case-law referred to above, the Court has refrained from indicating a specific period for establishing when an investigation has become ineffective for the purposes of assessing the date from which the six-month period starts to run. The determination of such a period by the Court depends on the circumstances of each case and other factors such as the diligence and interest displayed by the applicants.
35. As to the case at issue, the Court notes that the investigation into the death of the applicant’s husband commenced in 2005 and is still pending. In 2011 an investigating judge of the Vukovar County Court was still hearing evidence from witnesses, including the applicant. It cannot therefore be said that the six-month time-limit expired at any time in the period between 2005 and the date when the present application was lodged with the Court, on 9 December 2011. It follows that the applicant has complied with the six-month time-limit.
(c) Conclusion as to the admissibility
36. The Court notes that the complaint under the procedural aspect of Article 2 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. The parties’ submissions
37. The Government argued that the Croatian authorities had taken all the appropriate steps, interviewed everyone who could have had any information about the events at issue and had followed up all leads as soon as they had learned about the abduction of the applicant’s husband in 2004. They had thus satisfied their procedural obligation under Article 2 of the Convention.
38. The applicant maintained her complaint.
2. The Court’s assessment
(a) General principles
39. The Court has already held that the obligation to protect life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires that there should be some form of effective official investigation when individuals have been killed as a result of the use of force, either by State officials or by private individuals (see, for example, Branko Tomašić and Others v. Croatia, no. 46598/06, § 62, 15 January 2009).
40. The investigation must be effective in the sense that it is capable of leading to the identification and punishment of those responsible (see Oğur v. Turkey [GC], no. 21594/93, § 88, ECHR 1999-III). In particular, the authorities must take the steps reasonably available to them to secure evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death (see, for an example concerning autopsies, Salman v. Turkey [GC], no. 21986/93, § 106, ECHR 2000-VII; for an example concerning witnesses, Tanrıkulu v. Turkey [GC], no. 23763/94, ECHR 1999-IV, § 109; and for an example concerning forensic evidence, Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible may risk falling foul of this standard.
41. There must be a degree of public scrutiny of the investigation or its results sufficient to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Shanaghan v. the United Kingdom, no. 37715/97, §§ 91-92, 4 May 2001).
42. Even where events took place far in the past, it is possible that new developments occur such that a fresh obligation to investigate arises, for example, newly-discovered evidence comes to light (Brecknell v. the United Kingdom, no. 32457/04, §§ 73-75, 27 November 2007; Hackett v United Kingdom, no. 4698/04, (dec.) May 10, 2005; Gasyak and Others v. Turkey, no. 27872/03, 13 October 2009). The scope of the fresh obligation to investigate will vary according to the nature of the purported new evidence or information. It may be restricted to verifying the reliability of the new evidence. The authorities can legitimately take into account the prospects of launching a new prosecution at such a late stage. Due to the lapse of time, the level of urgency may have diminished; the immediacy of required investigative steps in the aftermath of an incident is likely to be absent (e.g. Brecknell, cited above, §§ 79-81. The standard of expedition in such historical cases is much different from the standard applicable in recent incidents where time is often of the essence in preserving vital evidence at a scene and questioning witnesses when their memories are fresh and detailed (see Palić v. Bosnia and Herzegovina, no. 4704/04, § 70, 15 February 2011 concerning complex post-conflict situations; Emin and Others v Cyprus, no. 59623/08 et al, (dec.) 3 April 2012; and (dec.), no. 60441/13 et al., § 21, 11 March 2014).
(b) Application of these principles to the present case
43. As regards the present case, the Court notes that the relevant authorities learned about the death of the applicant’s husband in suspicious circumstances at the end of 2004, when the applicant lodged a civil action for damages against the State. The State was represented in these proceedings by the Vukovar Municipality State Attorney’s Office, which promptly asked the Vukovar Police for all available information in connection with the death of the applicant’s husband. The police had no such information but started an enquiry into it. The police interviewed the applicant and everyone who had allegedly witnessed the taking of the applicant’s husband by two uniformed men.
44. The Court is mindful of the fact that the applicant’s husband was allegedly taken by uniformed men from Vukovar in 1991 and that the applicant did not report it to the Croatian authorities, who had remained unaware of it until the end of 2004. Owing to the fact that some fourteen years had elapsed, the prospect of establishing the truth had significantly diminished. Some of the alleged witnesses of the event had died in the meantime. Those still alive had no relevant information about the identity of the men who had taken the applicant’s husband (compare to Gürtekin and Others v. Cyprus (dec.), no. 60441/13, § 25, 11 March 2014).
45. At this juncture the Court reiterates that it has qualified the scope of the above-mentioned obligation to conduct an effective investigation as an obligation as to means, not as to results (see, for example, the Shanaghan judgment, cited above, § 90 and the judgments referred to therein). As regards the adequacy of the steps taken by the Croatian authorities in connection with the death of the applicant’s husband, the Court is not persuaded by the applicant’s submission that there have been any significant oversights or omissions. The applicants have not pointed to any other concrete avenues of enquiry that the police could in fact pursue. The facts of the case show that the key traceable witnesses were interviewed and the available evidence collected and reviewed. The Court notes that the police pursued every line of information. The fact that the investigation did not succeed in identifying the perpetrators does not necessarily render the investigation ineffective. In the circumstances, the Court cannot impugn the authorities for any culpable disregard, discernible bad faith or lack of will (compare to Gürtekin and Others, cited above, § 27).
46. The foregoing considerations are sufficient to enable the Court to conclude that there has been no violation of Article 2 of the Convention in the circumstances of the present case.
II. ALLEGED VIOLATIONS OF ARTICLE 13 OF THE CONVENTION
47. The applicant complained that she had no effective remedy as regards the investigation into the death of her husband. She relied on Article 13 of the Convention, which reads:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
48. The Court considers that this complaint is closely linked to the one concerning the procedural aspect of Article 2 of the Convention and must also therefore be declared admissible.
49. The Court considers that the main issue in the present case is the one concerning effectiveness of the investigation into the death of the applicant’s husband. The complaint under Article 13 of the Convention is a repetition of the complaint under the procedural aspect of Article 2. In view of the Court’s analysis under Article 2 of the Convention, the Court considers that in the circumstances of the present case there is no need to examine any further complaint under Article 13 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
50. The applicant complained under Article 6 of the Convention about the outcome of the civil proceedings she had instituted against the State.
51. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention (see Bogdanović v. Croatia (dec.), no. 72254/11, §§ 47-56, 18 March 2014). It follows that it is inadmissible under Article 35 § 3 (a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning the procedural aspect of Article 2 of the Convention as well as the complaint under Article 13 of the Convention admissible and the remainder of the application inadmissible;
2. Holds that there has been no violation of the procedural aspect of Article 2 of the Convention.
3. Holds that there is no need to examine the complaint under Article 13 of the Convention.
Done in English, and notified in writing on 29 January 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sřren Nielsen Isabelle