Last Updated on October 3, 2020 by LawEuro
FIRST SECTION
DECISION
Application no. 51519/12
Jovan NIJEMČEVIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 11 September 2018 as a Committee composed of:
Kristina Pardalos, President,
Ksenija Turković,
Tim Eicke, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 23 July 2012,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Jovan Nijemčević, is a Croatian and Canadian national who was born in 1939 and lives in Guelph. He was represented before the Court by Ms L. Budak, a lawyer practising in Zagreb.
2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 26 December 1991 the applicant entered his house in Hum Varoš, Croatia, and found that it had been robbed.
5. The following day he filed a criminal complaint, alleging that his house must have been robbed by members of the Croatian army. He also requested compensation for pecuniary damage.
6. On 10 July 1995 the applicant brought a civil action against the State before the Zagreb Municipal Court (Općinskisud u Zagrebu), seeking compensation for pecuniary damage. He submitted that his house had been used by members of the Croatian army in the period between 25 September 1991 and 15 December 1991 and that it had been robbed by them.
7. On 20 March 1996 the State, represented by the Zagreb Municipal State Attorney’s Office (Općinskodržavnoodvjetništvo u Zagrebu; hereinafter: the State), replied to the applicant’s civil action, suggesting that the damage he had suffered amounted to war damage, for which the State was not liable.
8. In a submission of 4 December 2002 the State objected that the applicant’s claim was statute-barred as he had lodged it more than three years after the date he had learned about the damage.
9. At a hearing held on 12 December 2002 the applicant gave his oral evidence.
10. On 14 March 2003 the Slatina Municipal State Attorney’s Office (Općinskodržavnoodvjetništvo u Slatini) informed the Zagreb Municipal Court that the perpetrators of the criminal offence which had resulted in causing damage to the applicant had not been found and that criminal proceedings had not been instituted.
11. On 5 May 2006 the Zagreb Municipal Court dismissed the applicant’s claim as unfounded.
12. The applicant appealed and on 3 July 2007 the Zagreb County Court (Županijskisud u Zagrebu) quashed the first-instance judgment and remitted the case for fresh examination.
13. On 31 March 2008 the Zagreb Municipal Court dismissed the applicant’s claim on the grounds that it was statute-barred. The court held that pursuant to section 376(1) of the Civil Obligations Act the three-year statutory limitation period for lodging a civil claim for damages started to run the moment an injured party obtained all the relevant information to be able to seek damages. The court found that on 27 December 1991 the applicant had already been aware of the damage and that it had been caused by members of the Croatian army. The three-year time-limit had therefore started to run on that date at the latest since he had already had all the relevant information at that point to be able to seek compensation from the State, which was ex lege liable for it.
14. The applicant appealed and on 26 May 2009 the Zagreb County Court quashed the Zagreb Municipal Court’s judgment. It held that the applicant had not known the identity of the people who had caused him damage, only that they had been members of the Croatian army. The time‑limit for his claim had therefore been five years, as set out in section 376(2) of the Civil Obligations Act.
15. On 28 January 2010 the Zagreb Municipal Court again dismissed the applicant’s claim as having been lodged outside the three-year statutory limitation period, reiterating the reasoning from its judgment of 31 March 2008 (see paragraph 13 above). Further to this it held that the longer statutory limitation period set out in section 377 of the Civil Obligations Act did not apply because the persons who had caused damage to the applicant had never been convicted by a final criminal court judgment.
16. On 1 March 2011 the Zagreb County Court dismissed an appeal lodged by the applicant and upheld the first-instance judgment. It held that learning who had caused the damage in question, as the second of the cumulative criteria for the start of the three-year statutory limitation period under section 376(1) of the Civil Obligations Act, in essence implied learning who was liable for that damage. Since the applicant had known that the damage he had suffered had been caused by members of the Croatian Army and that the State was ex lege liable to compensate him for such damage – which was why he had lodged his claim against the State in the first place – the time-limit for his claim had been three years. It agreed with the first-instance court that the longer statutory limitation period set out in section 377 of the Civil Obligations Act was not applicable.
17. On 1 December 2011 the Supreme Court (VrhovnisudRepublikeHrvatske) dismissed an appeal on points of law by the applicant endorsing the reasons provided by the Zagreb County Court for its decision.
18. A subsequent constitutional complaint was declared inadmissible by the Constitutional Court (UstavnisudRepublikeHrvatske) on 13 June 2012. That decision was served on the applicant’s representative on 11 July 2012.
B. Relevant domestic law and practice
1. Relevant domestic law
19. The relevant provisions of the Civil Obligations Act (Zakon o obveznimodnosima, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/1978, 39/1985, 46/1985 and 57/1989, and Official Gazette of the Republic of Croatia nos. 53/1991, 73/1991, 3/1994, 107/1995, 7/1996, 91/1996, 112/1999, 88/2001 and 35/2005 – “the 1978 Obligations Act”), which was in force between and 1 October 1978 and 31 December 2005, read as follows:
Section 376
“(1) A claim for damages shall become statute-barred three years after the injured party learned of the damage and the person who caused it.
(2) In any event that claim shall become statute-barred five years after the damage occurred.
…”
Section 377
“(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.
…”
20. Section 184(a) of the Act on changes to the Civil Obligations Act (Zakon o dopunamaZakona o obveznimodnosima, Official Gazette no. 112/1999 – hereinafter “the Civil Obligations (Amendment) Act”) provided that all proceedings instituted against the State in respect of damage caused by members of the Croatian army and police in the performance of their duties during the Homeland War in Croatia from 17 August 1990 to 30 June 1996 were to be stayed. The Act also imposed an obligation on the government to submit to parliament special legislation regulating liability for such damage within six months of the Act’s entry into force.
21. The Act on the liability of the Republic of Croatia for damage caused by members of the Croatian army and police in the performance of their duties during the Homeland War (Zakon o odgovornostiRepublikeHrvatskezaštetuuzrokovanuodpripadnikahrvatskihoružanihiredarstvenihsnagatijekomDomovinskog rata, Official Gazette, no. 117/2003 – “the 2003 Liability Act”), in force as from 31 July 2003, regulates the circumstances in which the State is liable for damage caused by members of the Croatian army and police during the Homeland War from 17 August 1990 to 30 June 1996.
2. Domestic courts’ case-law
22. In its decision no. Gž 964/86 of 27 May 1987 the Zadar County Court (Okružnisud u Zadru) held that learning who had caused the damage, as the second criterion for the start of the three-year time-limit set out in section 376(1) of the Civil Obligations Act for lodging a civil claim for damages, implied learning about the circumstances in which under tort law a particular subject was liable for that damage.
23. In its decision no. Rev 979/1991-2 of 18 September 1991 the Supreme Court held that learning who had caused the damage, as the second criterion for the start of the three-year time-limit set out in section 376(1) of the Civil Obligations Act for lodging a civil claim for damages, was determined according to the moment when the claimant as the injured party had information at his or her disposal about the injurer, along with the information necessary to take the appropriate action in order to claim damages.
24. In the following judgments the Supreme Court examined the running of the three-year time-limit set out in section 376(1) of the Civil Obligations Act in cases against the State in which injured parties sought compensation of damage caused by the members of the Croatian army:
Judgment no. Rev 84/2007-2 of 12 March 2008 was rendered in a case in which the plaintiffs had sought damages in connection with the murder of their husband and father on 23 September 1991 by a member of the Croatian army. The Supreme Court held that the three-year time-limit for lodging a civil claim had started to run on the day the plaintiffs had learned that their relative had been murdered by a member of the Croatian army as that was when they had been able to seek damages from the State.
Judgment no. Rev-x 503/10-2 of 9 February 2011 was rendered in a case in which the plaintiff had sought damages in connection with the murder of her husband on 24 September 1991 by a member of the Croatian army. The Supreme Court held that, given that the State was ex lege liable for the damage caused by the members of the Croatian army to third persons, the three-year time-limit for lodging a civil claim had started to run on the day the injured party had learned that the damage had been caused by the members of the Croatian army, regardless of the fact that their exact identity was not known.
Judgment no. Rev 353/11-2 of 17 June 2014 was rendered in a case in which the plaintiff had sought damages in connection with burning down his house in August 1995 by members of the Croatian army. The Supreme Court held that the three-year time-limit set out in section 376(1) of the Civil Obligations Act for lodging a civil claim had started to run in August 1995 when the plaintiff had learned that his house had been burned down by the members of the Croatian army, as that was when he had learned who was liable for the damage (the State).
25. On the subject of the possibility of interrupting the running of the statutory limitation period set out in section 376 of the Civil Obligations Act for lodging a civil claim for damages, in its decision no. Gzz-86/84 of 29 January 1985 the Supreme Court held that the criminal proceedings on their own, even in the event of a final judgment finding the person who had caused the damage guilty, do not interrupt the running of such period, unless in the criminal proceedings the injured party lodged a claim for damages (imovinskopravnizahtjev).
3. Legal doctrine
26. The relevant part of the book TheCivil Obligations Act with Comments (Zakon o obveznimodnosima s komentarom, VilimGorenc, Pravnabiblioteka, Zagreb, p. 501), published in 1998, reads as follows:
“The injured party’s learning of the injurer [the person who caused the damage], as the second cumulative fact for the start of the subjective statutory limitation period of a claim, is not determined according to the point in time the claimant could have learned who caused the damage, as the first-instance court has established, and is especially not determined according to the moment of learning that the insurance company was liable for the damage, regardless of who the insurer of the vehicle which caused the damage was, which was the position of the second-instance court. It is rather determined according to the moment when the claimant as the injured party had information at his or her disposal about the injurer, along with the information necessary to take the appropriate action in order to claim damages.
It is from that time, on condition the claimant has learned about the damage, that the statutory limitation period starts to run in respect of all the physical and legal persons who are liable to provide compensation for the damage under the applicable legislation, including the insurance company ([the Supreme Court] Vs, Rev-237/89 of 30 August 1989 and Vs, Gzz-6/89 of 30 August 1989 PSP 47/64, and Vs, Rev‑2098/93 of 17 November 1994).”
COMPLAINT
27. The applicant complained that he had not had access to a court because of the manner in which the domestic courts had interpreted and applied the provisions of the Civil Obligations Act.
THE LAW
28. The applicant relied on Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …”
A. The parties’ arguments
1. The Government
29. The Government argued that domestic courts had established early on in their practice that learning who had caused the damage in a case in essence implied obtaining information about that person, along with the information necessary to seek damages (see paragraph 26 above). According to the Government, that meant that it had not been necessary to know the exact identity of the person who had caused the damage. It had rather been sufficient to learn of a particular feature of that person, allowing an injured party to seek damages from whoever was liable under the law for compensation.
30. The Government submitted that the same approach had been applied consistently in civil proceedings against the State in which injured parties had sought compensation for damage caused by members of the Croatian army. In particular, given that the State was ex lege liable for such damage, the subjective statutory limitation period for lodging a civil claim started to run from the moment an injured party learned that damage had been caused by members of the Croatian army, regardless of the fact that their exact identity was not known (see paragraph 24 above). The domestic courts’ decision in the applicant’s case had been in line with that practice. The fact that the Zagreb County Court had expressed different views on the matter was irrelevant as its decision of 26 May 2009 had not been a final decision in the case.
31. The Government contended that when the applicant had learned of the damage in December 1991, he ought to have known that under the established practice the subjective statutory limitation period for lodging his civil claim had started to run as soon as he had learned that the damage had been caused by members of the Croatian army. Moreover, there had been nothing to prevent him from lodging his civil action for damages within the subjective statutory limitation period. He had not had to wait for the outcome of his criminal complaint as the civil courts could have examined the liability of the State for the damage he had suffered irrespective of whether or not the criminal proceedings against the members of the Croatian army who had caused the damage had been instituted.
32. The Government further contended that by submitting a request for compensation of pecuniary damage together with his criminal complaint on 27 December 1991 the applicant could not have interrupted the running of the statutory limitation period set out in section 376 of the Civil Obligations Act. This was because the criminal proceedings against the persons who had caused the damage to the applicant had never been instituted (see paragraphs 10 and 25 above).
33. Finally, the Government submitted that the longer statutory limitation period set out in section 377 of the Civil Obligations Act did not apply in the applicant’s case because the persons who had caused him damage had never been convicted by a final criminal court judgment.
2. The applicant
34. The applicant submitted that the wording of section 376 of the Civil Obligations Act, which regulated the statutory limitation period for lodging a civil claim for damages, made it clear that the subjective statutory limitation period expired three years after the injured party had learned of the damage and the person who had caused it, whereas the objective statutory limitation period expired five years after the damage had occurred. The applicant argued that it had not been foreseeable that the criterion of learning which person had caused the damage, required for the start of the subjective statutory limitation period, in essence meant learning who was liable under the law to pay compensation. Had that been clear from the start, it would not have taken fifteen years for the domestic courts to dismiss his claim as statute-barred. Moreover, in the impugned civil proceedings the Zagreb County Court had expressed contradictory opinions on the matter.
35. The applicant further submitted that he had never found out who had robbed his house. That was because the domestic authorities had never undertaken any steps to investigate the matter after he had filed a criminal complaint in 1991. It had therefore not been possible for the subjective statutory limitation period to start to run and so the objective five-year time‑limit under section 376(2) of the Obligations Act had been applicable in his case. Since he had lodged his civil claim within five years of the day the damage had occurred, the domestic courts had wrongfully dismissed his claim as statute-barred.
36. The applicant further contended that by submitting a request for compensation of pecuniary damage together with his criminal complaint on 27 December 1991 he had clearly interrupted the running of the statutory limitation period. The latter had been confirmed by the Supreme Court’s decision no. Gzz-86/84 of 29 January 1985 (see paragraph 25 above).
37. The applicant also argued that the domestic courts had wrongfully refused to apply section 377 of the Civil Obligations Act which provided for a longer statutory limitation period for claims for damages if the damage had been caused by a criminal offence. Nothing had prevented the domestic courts from establishing in the civil proceedings, as a preliminary issue, whether the damage had been caused by a criminal offence
38. Finally, in his observations submitted to the Court on 7 June 2018 the applicant for the first time complained that in the period from 1999 to 2003 he had no access to court in respect of his civil claim for damages because of the legislative changes which had caused staying of all proceedings instituted against the State in respect of damage caused by members of the Croatian army during the Homeland War (see paragraphs 20 and 21 above). Notwithstanding the fact that a decision on staying the proceedings had never been issued in his case and that during that period the first-instance court had continued to conduct the proceedings (see paragraph 9 above) – that court had not decided his case until after 2003 (see paragraph 11 above).
B. The Court’s assessment
1. General principles
39. The general principles concerning the right of access to a court are set out in the case of Zubac v. Croatia ([GC], no. 40160/12, §§ 76-79, 5 April 2018).
2. Application of those principles to the present case
40. The Court has already held that statutory limitation periods serve several important purposes, namely to ensure legal certainty and finality, protect potential respondents from stale claims which might be difficult to counter and prevent the injustice which might arise if courts were required to decide upon events which took place in the distant past on the basis of evidence which might have become unreliable and incomplete because of the passage of time (seeStubbings and Others v. the United Kingdom, 22 October 1996, § 51, Reports 1996‑IV; and see also Baničević v. Croatia (dec.), no. 44252/10, § 31, 2 October 2012). Therefore, litigants should expect those rules to be applied.
41. As the above considerations show, the existence of a limitation period per se is not incompatible with the Convention. What the Court needs to ascertain in a given case is whether the nature of the time-limit in question and/or the manner in which it was applied are compatible with the Convention (see Vrbica v. Croatia, no. 32540/05, § 66, 1 April 2010). This means, in particular, that the Court must satisfy itself that the application of the statutory limitation periods could be regarded as foreseeable for the applicants, having regard to the relevant legislation and case-law and the particular circumstances of the case (see Osu v. Italy, no. 36534/97, § 35, 11 July 2002; Vrbica, cited above, § 72; and Majski v. Croatia (no. 2), no. 16924/08, § 69, 19 July 2011).
42. The central issue in the present case is whether, having regard to the relevant legislation and case-law and the particular circumstances of the case, the applicant could reasonably have foreseen in December 1991, when he learned that his house had been robbed, that learning who had caused him damage, as the second cumulative circumstance for the start of the subjective statutory limitation period, in essence implied only knowing that the culprits were members of the Croatian army, without knowing their exact identity.
43. The Court has acknowledged in its case-law that however clearly drafted a legal provision may be, in any system of law there is an inevitable element of judicial interpretation (see Kafkaris v. Cyprus [GC], no. 21906/04, § 141, ECHR 2008).
44. The Court firstly notes that – starting from 2008 – the domestic courts’ practice on the matter in cases against the State in which injured parties sought compensation for damage caused by the members of the Croatian army was clear and consistent. Since the State was ex lege liable for such damage, the subjective statutory limitation period for lodging a civil claim started to run from the moment an injured party learned that damage had been caused by members of the Croatian army, regardless of the fact that their exact identity was not known (see paragraph 24 above). The Court notes that the decision taken by the domestic courts in the applicant’s case was in line with that practice (see paragraphs 15-18 above). The Court is of the view that the fact that on 26 May 2009 the Zagreb County Court expressed a different opinion is not, in itself, a sign of contradiction, as that decision was not a final decision in the case.
45. The Court further notes that the relevant domestic courts’ practice had already before December 1991 indicated, and paved the way to further development of, the approach taken in cases against the State concerning compensation for damage caused by members of the Croatian army. In particular, in its decision of 27 May 1987 the Zadar County Court held that learning who had caused the damage, as the second criteria for the start of the three-year statutory limitation period under section 376(1) of the Civil Obligations Act, implied learning about the circumstances in which under tort law a particular subject was liable for that damage (see paragraph 22 above). Further to this, in several of its decisions rendered in August 1989 and September 1991 the Supreme Court held that learning who had caused the damage was determined according to the moment the injured party obtained information about the injurer, along with the information necessary to take the appropriate action in order to claim damages (see paragraphs 23 and 26 above).
46. In the present case the domestic courts’ established that on 27 December 1991 the applicant had already been aware of the damage and that it had been caused by the members of the Croatian army. They also established that the applicant had already known at that point that the State was liable under the law to compensate the damage, as he eventually directed his civil claim against it. The Court thus accepts that on 27 December 1991 the applicant already had all the relevant information at his disposal to be able to seek damages from the State, as required by the jurisprudence available at the time for the start of the three-year statutory limitation period under section 376(1) of the Civil Obligations Act.
47. The Court notes that there was nothing to prevent the applicant from lodging his civil claim within the three-year statutory limitation period calculated from 27 December 1991. This would have allowed the civil courts to examine the applicant’s claim on the merits irrespective of whether or not criminal proceedings against the persons who had caused the damage were instituted. Instead, the applicant waited for almost four years and thus created a situation in which his civil action was dismissed as time-barred.
48. The Court further notes that by submitting the request for compensation of pecuniary damage together with his criminal complaint on 27 December 1991 the applicant did not interrupt the running of the statutory limitation period set out in section 376 of the Civil Obligations Act. The Supreme Court’s decision no. Gzz-86/84 of 29 January 1985 relied on by the applicant in his argument referred to lodging a claim for damages in the criminal proceedings on indictment, whereas such proceedings were never instituted in his case (see paragraphs 10 and 25 above).
49. As to the applicant’s argument that the domestic courts should have applied section 377 of the Civil Obligations Act in his case, the Court notes that it has already addressed the same issue in several cases against Croatia (see Baničević v. Croatia (dec.), no. 44252/10, 2 October 2012; and Orić v. Croatia (dec.), no. 50203/12, 13 May 2014). The Court found that according to the established practice of the domestic courts statutory limitation period set out in section 377 of the Civil Obligations Act was applicable only where it had been established by a final judgment of the criminal court that the damage had been caused by a criminal offence (see Baničević, cited above, § 33). The persons who had caused damage to the applicant had never been convicted by a final criminal court judgment (see paragraph 10 above). The applicant’s particular argument that the civil courts could have examined as a preliminary issue the fact that the damage had been caused by a criminal offence has also already been addressed by the Court (see Baničević, cited above, § 35, in fine).
50. As to the applicant’s complaint that in the period from 1999 to 2003 he had no access to court in respect of his civil claim for damages because of the legislative changes which had caused staying of all proceedings instituted against the State in respect of damage caused by members of the Croatian army during the Homeland War, the Court notes that this complaint was brought before the Court for the first time on 7 June 2018. However, even assuming that it was submitted on time, the Court notes that the proceedings in question have never formally been stayed (as admitted by the applicant, see paragraph 38 above), and that during the period complained of the Zagreb Municipal Court continued to conduct the proceedings (see paragraph 9 above).
51. In view of the above considerations it cannot be said that the manner in which the statutory limitation period was applied in this case impaired the very essence of the applicant’s right of access to a court.
52. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 4 October 2018.
Renata Degener Kristina Pardalos
Deputy Registrar President
Leave a Reply