FIRST SECTION
\nDECISION<\/p>\n
Application no. 51519\/12
\nJovan NIJEM\u010cEVI\u0106
\nagainst Croatia<\/p>\n
The European Court of Human Rights (First Section), sitting on 11\u00a0September 2018 as a Committee composed of:<\/p>\n
Kristina Pardalos, President,
\nKsenija Turkovi\u0107,
\nTim Eicke, judges,
\nand Renata Degener, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 23 July 2012,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, Mr Jovan Nijem\u010devi\u0107, 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.<\/p>\n 2.\u00a0\u00a0The Croatian Government (\u201cthe Government\u201d) were represented by their Agent, Ms \u0160. Sta\u017enik.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 3.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 4.\u00a0\u00a0On 26 December 1991 the applicant entered his house in Hum Varo\u0161, Croatia, and found that it had been robbed.<\/p>\n 5.\u00a0\u00a0The 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.<\/p>\n 6.\u00a0\u00a0On 10 July 1995 the applicant brought a civil action against the State before the Zagreb Municipal Court (Op\u0107inskisud 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.<\/p>\n 7.\u00a0\u00a0On 20 March 1996 the State, represented by the Zagreb Municipal State Attorney\u2019s Office (Op\u0107inskodr\u017eavnoodvjetni\u0161tvo u Zagrebu; hereinafter: the State), replied to the applicant\u2019s civil action, suggesting that the damage he had suffered amounted to war damage, for which the State was not liable.<\/p>\n 8.\u00a0\u00a0In a submission of 4 December 2002 the State objected that the applicant\u2019s claim was statute-barred as he had lodged it more than three years after the date he had learned about the damage.<\/p>\n 9.\u00a0\u00a0At a hearing held on 12 December 2002 the applicant gave his oral evidence.<\/p>\n 10.\u00a0\u00a0On 14 March 2003 the Slatina Municipal State Attorney\u2019s Office (Op\u0107inskodr\u017eavnoodvjetni\u0161tvo 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.<\/p>\n 11.\u00a0\u00a0On 5 May 2006 the Zagreb Municipal Court dismissed the applicant\u2019s claim as unfounded.<\/p>\n 12.\u00a0\u00a0The applicant appealed and on 3 July 2007 the Zagreb County Court (\u017dupanijskisud u Zagrebu) quashed the first-instance judgment and remitted the case for fresh examination.<\/p>\n 13.\u00a0\u00a0On 31 March 2008 the Zagreb Municipal Court dismissed the applicant\u2019s 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.<\/p>\n 14.\u00a0\u00a0The applicant appealed and on 26 May 2009 the Zagreb County Court quashed the Zagreb Municipal Court\u2019s 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\u2011limit for his claim had therefore been five years, as set out in section 376(2) of the Civil Obligations Act.<\/p>\n 15.\u00a0\u00a0On 28 January 2010 the Zagreb Municipal Court again dismissed the applicant\u2019s 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.<\/p>\n 16.\u00a0\u00a0On 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 \u2013 which was why he had lodged his claim against the State in the first place \u2013 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.<\/p>\n 17.\u00a0\u00a0On 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.<\/p>\n 18.\u00a0\u00a0A subsequent constitutional complaint was declared inadmissible by the Constitutional Court (UstavnisudRepublikeHrvatske) on 13 June 2012. That decision was served on the applicant\u2019s representative on 11 July 2012.<\/p>\n B.\u00a0\u00a0Relevant domestic law and practice<\/strong><\/p>\n 1.\u00a0\u00a0Relevant domestic law<\/em><\/p>\n 19.\u00a0\u00a0The 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 \u2013 \u201cthe 1978 Obligations Act\u201d), which was in force between and 1 October 1978 and 31\u00a0December 2005, read as follows:<\/p>\n Section 376<\/p>\n \u201c(1)\u00a0\u00a0A claim for damages shall become statute-barred three years after the injured party learned of the damage and the person who caused it.<\/p>\n (2)\u00a0\u00a0In any event that claim shall become statute-barred five years after the damage occurred.<\/p>\n …\u201d<\/p>\n Section 377<\/p>\n \u201c(1)\u00a0\u00a0Where 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.<\/p>\n (2)\u00a0\u00a0The 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.<\/p>\n …\u201d<\/p>\n 20.\u00a0\u00a0Section 184(a) of the Act on changes to the Civil Obligations Act (Zakon o dopunamaZakona o obveznimodnosima, Official Gazette no.\u00a0112\/1999 \u2013 hereinafter \u201cthe Civil Obligations (Amendment) Act\u201d) 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\u00a0August 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\u2019s entry into force.<\/p>\n 21.\u00a0\u00a0The 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 odgovornostiRepublikeHrvatskeza\u0161tetuuzrokovanuodpripadnikahrvatskihoru\u017eanihiredarstvenihsnagatijekomDomovinskog rata, Official Gazette, no.\u00a0117\/2003 \u2013 \u201cthe 2003 Liability Act\u201d), 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.<\/p>\n 2.\u00a0\u00a0Domestic courts\u2019 case-law<\/em><\/p>\n 22.\u00a0\u00a0In its decision no. G\u017e 964\/86 of 27 May 1987 the Zadar County Court (Okru\u017enisud 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.<\/p>\n 23.\u00a0\u00a0In 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.<\/p>\n 24.\u00a0\u00a0In 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:<\/p>\n 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.<\/p>\n 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.<\/p>\n 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).<\/p>\n 25.\u00a0\u00a0On 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\u00a0January 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).<\/p>\n 3.\u00a0\u00a0Legal doctrine<\/em><\/p>\n 26.\u00a0\u00a0The 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:<\/p>\n \u201cThe injured party\u2019s 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.<\/p>\n 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\u20112098\/93 of 17 November 1994).\u201d<\/p>\n COMPLAINT<\/strong><\/p>\n 27.\u00a0\u00a0The 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.<\/p>\n THE LAW<\/strong><\/p>\n 28.\u00a0\u00a0The applicant relied on Article 6 \u00a7 1 of the Convention, which reads as follows:<\/p>\n \u201cIn the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …\u201d<\/p>\n A.\u00a0\u00a0The parties\u2019 arguments<\/strong><\/p>\n 1.\u00a0\u00a0The Government<\/em><\/p>\n 29.\u00a0\u00a0The 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.<\/p>\n 30.\u00a0\u00a0The 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\u2019 decision in the applicant\u2019s 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.<\/p>\n 31.\u00a0\u00a0The 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.<\/p>\n 32.\u00a0\u00a0The 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\u00a0paragraphs 10 and 25 above).<\/p>\n 33.\u00a0\u00a0Finally, 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\u2019s case because the persons who had caused him damage had never been convicted by a final criminal court judgment.<\/p>\n 2.\u00a0\u00a0The applicant<\/em><\/p>\n 34.\u00a0\u00a0The 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.<\/p>\n 35.\u00a0\u00a0The 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\u2011limit 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.<\/p>\n 36.\u00a0\u00a0The 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\u2019s decision no. Gzz-86\/84 of 29 January 1985 (see paragraph 25 above).<\/p>\n 37.\u00a0\u00a0The 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<\/p>\n 38.\u00a0\u00a0Finally, 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\u00a0paragraphs\u00a020 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\u00a09 above) \u2013 that court had not decided his case until after 2003 (see\u00a0paragraph 11 above).<\/p>\n