CASE OF FERGEC v. CROATIA

1. The case originated in an application (no. 68516/14) 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 two Croatian nationals, Ms Sandra Fergec and Mr Neven Fergec (“the applicants”), on 13 October 2014.
2. The applicants were represented by Mr K. Canjuga, a lawyer practising in Sesvete. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
3. The applicants complained under Article 2 of the Convention about the length and ineffectiveness of the civil proceedings they had instituted against the State.
4. On 29 June 2015 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants were born in 1971 and 1974 respectively and live in Sesvete.
6. On 12 December 1996 at about 8 .30 p.m. one D.M., a member of the Croatian army, exploded a grenade in a pizza parlour in Zagreb, as a result of which D.M. and one other person died and the second applicant was gravely injured. The first applicant, who worked in a nearby flower shop, came to the scene and found the second applicant lying on the floor, covered in blood.
7. An on- site inspection of the crime scene was carried out on the same evening by the military police and it was videotaped. The report drawn up by them indicates that D.M. was dressed in civilian clothes. During the enquiry the military police took statements from witnesses and on 3 July 1997 sent a report on the incident to the Zagreb County State Attorney ’ s Office. The relevant part of the report reads:
“ On 12 December 1996 at about 8.30 p.m. at the N. pizza parlour ... soldier D.M. was consuming alcoholic beverages at the bar in the company of D.Ma., N.F. ( an employee of the judicial police ) and Ž .B. when all at once [D.M.] took an M-75 hand grenade out of his pocket and pulled out the safety clip and placed the grenade into the hand of waitress T.B., ... who put it on the counter saying ‘ What would I need this for? ’, whereupon D.[M.], seeing that the grenade had been activated, took it in his right hand and turned sideways from the counter, after which an explosion occurred. [D.M.] was killed on the spot, while D.Ma. and N.F. ... sustained grievous bodily injuries and Ž .B. ... minor bodily injuries. ... The injured were transferred to Dubrava Hospital and D.Ma. died during transport.”
No further investigation ensued.
8. On 1 July 1998 the applicants brought a civil action against the State in the Zagreb Municipal Court. The second applicant sought damages in connection with the life-threatening injuries he had sustained in the incident of 12 December 1996, while the first applicant sought damages on account of the stress and fear she had suffered because of the event in question. The applicants argued that D.M. had been on duty at the time when he had exploded the grenade, that he had been dressed in his military uniform and that his mother had obtained a survivor ’ s pension after his death under a decision which stated that he had died on duty (specifically, “ at work” ).
9. During the proceedings it was established that the second applicant had sustained numerous injuries to his head, face, chest, belly and lower extremities and that he was suffering from permanent consequences, such as frequent headaches, pain throughout his body, impaired hearing, double vision, fatigue and incapacity for work.
10. Their claim was allowed on 21 June 2002. That judgment was quashed by the Zagreb County Court on 25 April 2005. The first-instance court again allowed the claim on 17 September 2010. However, on 5 April 2011 the Zagreb County Court, after an appeal lodged by the defendant, overturned the judgment and dismissed the applicants ’ claim. The relevant part of that judgment reads:
“The first-instance court established the following:
- D. M. was a member of the Croatian army – a military serviceman;
- D.M. used an M-75 grenade, which served a military purpose and was registered for [use by] the members of the Croatian army;
- the decision of 12 October 1998 ... issued by the Croatian Pension Fund stated that the mother of D.M., who had been a Croatian Homeland War veteran, obtained the right to a survivor ’ s pension because [D.M.] had been [serving in the] military when he had caused the damage, and the reasoning of that decision stated that he had died because of an injury sustained at work;
On the basis of the thus- established facts the first-instance court concluded that the defendant was liable because the said decision of the Croatian Pension Fund stated that the death of [D.M.], as an active military serviceman, had occurred while [he had been] carrying out his official duties ...
The first-instance court also concluded that there had been a failure on the part of the defendant [to carry out a weapons] check under section 14 of the Instruction on the Allocation, Distribution, Carrying and Use of Official Short Weapons. Had the correct check (for which the military police were responsible under section 14 of the above- mentioned Instruction) [been exercised in respect of ] the carrying of weapons – namely the grenade [held by D.M.] without a proper licence or an identity document, – and the grenade been taken [from D.M. ], the damage most likely would not have occurred.
However, this court considers that these facts, as established [by the first-instance court], do not serve as a sufficient basis for concluding that the requirements for the defendant to be held liable for the concrete damage have been met.
First of all, D.M. ’ s parents ’ right to obtain a survivor ’ s pension on the basis of a decision of the Croatian Pension Fund is not decisive for the defendant ’ s liability for damage since the right to a survivor ’ s pension was obtained on the basis of D.M. ’ s status as a Croatian Homeland War veteran – that is to say an insured military person. The fact that the reasoning of that decision ... states that the ‘ insured party ’ s death occurred because of an injury sustained at work ’ is not relevant for an assessment of the defendant ’ s liability in these civil proceedings.
An assessment of the facts shows that D.M. was not on duty on the critical evening; that the M-75 grenade was not given to him by his military unit ( [according to] a letter from the I Croatian Guard Corps of 12 November 1998); that the record of the on-site inspection carried out on the day of [D.M. ’ s] death does not show that D.M. was wearing a uniform; and that nothing proved that the grenade in question was the property of the defendant ( that D.M. had unlawfully obtained the grenade from the defendant), regardless of the fact that such a grenade serves a military purpose and is registered for [use by] members of the Croatian army; [therefore,] this court finds that the conclusion of the first-instance court regarding ... the liability of the defendant is not correct.
Lastly, this court considers ... in respect of the failure of the defendant to carry out a check on the carrying of weapons and to seize [weapons] where there is no licence [to carry them], as the basis of the defendant ’ s liability, that there is no proof ... that the military police had a duty to carry out a check in the pizza parlour in question on the critical evening or that the competent authorities knew that D.M. possessed a grenade and failed to seize it from him. Therefore, this court finds that the requirements for the defendant ’ s liability are not met ... ”
11. The applicants ’ subsequent constitutional complaint of 7 July 2011 was dismissed on 17 June 2014. This decision was served on the applicants on 3 July 2014.
12. Section 48 of the Act on Service in Military Forces ( Zakon o službi u oružanim snagama, Official Gazette no. 23/1995) provides as follows:
“The Republic of Croatia is liable for damage caused to third parties by a military person in connection with the exercise of his or her service, save for when it has been proved that the military person [in question] acted in accordance with the Rules of Service ( Službovnik ) and other regulations. The Republic of Croatia is liable for other forms of damage caused in connection with military service in accordance with the general rules on liability for damage.
13. The relevant provisions of the Obligations Act ( Zakon o obveznim odnosima, Official Gazette nos. 35/2005 and 41/2008) read as follows:
“ (1) Anyone who causes damage to another shall be liable to pay compensation unless he or she proves that the damage occurred through no fault of his or her own.
“Damage is the diminution of one ’ s property ( [in the form of] actual damage) or the prevention of its increase ( [in the form of] lost profits), as well as the infringement of one ’ s right to personal integrity (non-pecuniary damage).”
“(1) The employer by whom an employee was employed at the time that the damage was caused is liable for any damage the employee causes in carrying out his or her work duties or in connection with his or her work, unless the employer proves that grounds for the exclusion of the employee ’ s liability exist.
(2) A person who suffers damage also has the right to seek compensation for that damage directly from the employee in the event that the damage was caused intentionally .”
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
14. The applicants complained that in the civil proceedings they had instituted against the State in connection with the wounding of the second applicant not all of the relevant facts had been adequately established and the State had withheld some relevant information. They relied on Article 2 of the Convention, the relevant part of which reads:
“1. Everyone ’ s right to life shall be protected by law. ... ”
15. The Government contended that the application was out of the Court ’ s temporal jurisdiction because the event in question had taken place on 12 December 1996, whereas Croatia had only ratified the Convention on 5 November 1997. Because the State ’ s procedural obligation under Article 2 had been to conduct an effective investigation, which in the instant case had ended on 3 July 1997, the applicants ’ complaints did not fall within the Court ’ s temporal jurisdiction. On the same grounds the Government argued that the application had been lodged out of the six-month time- limit because that six-month period was to be calculated as starting at the end of the police enquiry. The civil proceedings instituted by the applicants were irrelevant since such proceedings did not constitute an adequate response to the alleged violation under Article 2 of the Convention.
16. The applicants made no comment as to the admissibility of the application.
(a) As regards the first applicant
17. The Court reiterates that where a violation of the right to life is alleged, the Convention organs have accepted applications from relatives of the deceased, including a deceased ’ s wife ( Aytekin v. Turkey, judgment of 23 September 1998, Reports of Judgments and Decisions 1998 ‑ VII). The rationale of that approach is that otherwise it would not be possible to bring before the Court cases in the event of the death of the direct victim.
18. However, in the present case, the second applicant – whose right to life was arguably at stake – survived and there is no need for his wife to bring an application before the Court in that respect.
19. Further to this, the Court notes that in the domestic proceedings the first applicant did not seek damages in connection with the second applicant ’ s right to life, but only in respect of the fear and stress that she herself had allegedly sustained because of the event in question. However, such allegations do not fall under the ambit of Article 2 of the Convention and in the circumstances of the present case it cannot be said that the first applicant is a victim of any violation under that Article.
20. Accordingly, this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, in accordance with Article 35 § 4.
(b) As regards the second applicant
(i) Applicability of Article 2 of the Convention
21. The Court further notes that Article 2 of the Convention may come into play even if a person whose right to life was allegedly breached did not die. For example, in the case of L.C.B. v. the United Kingdom ( 9 June 1998, Reports of Judgments and Decisions 1998 ‑ III) the Court examined, on the merits, the allegations made under Article 2 by the applicant, who was suffering from leukaemia and had complained about the State ’ s failure to warn her parents of the possible risk to her health caused by her father ’ s participation in nuclear tests (see L.C.B. v. the United Kingdom, cited above, §§ 36-41). Similarly, in Osman v. the United Kingdom ( 28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII), the Court examined the State ’ s obligation to protect the right to life of Ali and Ahmet Osman, even though the latter had not lost his life but had been wounded in a shooting incident ( ibid., §§ 115-122). In a number of other cases, the Court considered that Article 2 was applicable to non-fatal shootings where the applicants ’ lives had been put at serious risk as a result of the conduct of the security forces or third persons (see, for example, Makaratzis v. Greece [GC], no. 50385/99, § 49-55, ECHR 2004 ‑ XI; Soare and Others v. Romania, no. 24329/02, §§ 108-109, 22 February 2011; Trévalec v. Belgium, no. 30812/07, §§ 55 ‑ 61, 14 June 2011; Sašo Gorgiev v. the former Yugoslav Republic of Macedonia, no. 49382/06, § 29, ECHR 2012 (extracts); and Yotova v. Bulgaria, no. 43606/04, § 69, 23 October 2012).
22. In this connection the degree and type of force used and the intention or aim behind the use of force may, among other factors, be relevant in assessing whether a particular action resulting in bodily injury but not death is such as to bring the facts within the scope of the safeguard afforded by Article 2 of the Convention, having regard to the object and purpose of that Article (see İlhan v. Turkey [GC], no. 22277/93, § 76, ECHR 2000 ‑ VII; and Makaratzis, cited above, § 51).
23. In the present case, the facts established by the domestic authorities show that D.M. activated a hand grenade in a pizza parlour. Several persons, including the second applicant, were injured and two persons died. The Court accepts that there is no indication that D.M. intended to kill the second applicant. It observes, however, that the fact that the latter was not killed was fortuitous. In that connection the Court attaches weight to the fact that D.M. activated a hand grenade in close vicinity to several individuals, including the second applicant. The second applicant sustained grievous bodily injuries and suffers from permanent consequences, including incapacity for work (see paragraph 9 above).
24. In the light of the above circumstances, the Court concludes that, irrespective of whether or not D.M. actually intended to kill him, the second applicant was the victim of conduct which, by its very nature, put his life at risk, even though, in the event, he survived. Article 2 is thus applicable in the instant case.
(ii) Compatibility ratione temporis and compliance with the six-month rule
(α) As regards the police enquiry
25. The Court notes that the police enquiry was completed on 3 July 1997, whereas the Convention was ratified by Croatia on 5 November 1997.
26. Accordingly, any complaints related to the police enquiry are incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, in accordance with Article 35 § 4.
(β) As regards the civil proceedings
27. The Court notes that the civil proceedings were instituted in 1998; a final decision was adopted by the Constitutional Court on 17 June 2014. It follows that in respect of these proceedings the Court has temporal jurisdiction and that the complaint under Article 2 was introduced within the six-month time-limit. The Government ’ s objections in that respect therefore have to be dismissed.
(iii) Conclusion as to the admissibility
28. The Court notes that those of the second applicant ’ s complaints that relate to the civil proceedings in question are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
29. The second applicant argued that the mother of D.M. had obtained a survivor ’ s pension on the grounds that D.M. had died “in service”. It followed that the injuries sustained by the second applicant had been caused by a military serviceman. Furthermore, the grenade that he had activated at the time in question had been procured for him by the State in connection with his service. The second applicant also stressed that the civil proceedings in question had lasted for an excessively long time, even though they concerned his claim in respect of the protection of his right to life.
30. The Government submitted that the national authorities had established that D.M. had been acting in a private capacity since he had activated a grenade which had not been given to him by the State authorities or in connection with his status as a military serviceman; moreover, he had been off duty and he had not been dressed in his uniform but in his civilian clothes. In such circumstances there was no liability on the part of the State for his actions because the State was liable only for damage caused by military personnel in connection with their service.
31. The Government maintained that the applicants had made two main arguments in support of their complaint: firstly, they had argued that D.M. had been wearing his uniform on the evening in question; secondly, they had argued that D.M. ’ s parents ’ right to a survivors ’ pension had been established on the basis of his death “at work”. As to the first of these arguments, the Government argued that it had been clearly established in the domestic proceedings that D.M. had been dressed in civilian clothing, which was also obvious from video recording of the on-site inspection. As to the second argument of the applicants, the Government submitted that the decision adopted in the administrative proceedings regarding D.M. ’ s parents ’ right to a survivors ’ pension was based on his having been wounded ( and an “illness” sustained ) in the Homeland War and not because he had been on duty at the time of his death.
32. The Court reiterates that Article 2 does not solely concern deaths resulting from the use of force by agents of the State but also, in the first sentence of its first paragraph, lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction (see, for example, L.C.B. v. the United Kingdom, cited above, § 36, and Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 54, ECHR 2002-II). This includes an obligation to have in place an effective independent judicial system securing the availability of legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim (see Sašo Gorgiev, cited above, § 43, and Armani Da Silva v. the United Kingdom [GC], no. 5878/08, §§ 229-239, ECHR 2016; Anna Todorova v. Bulgaria, no. 23302/03, § 72, 24 May 2011, and Antonov v. Ukraine, no. 28096/04, § 44, 3 November 2011). Such a system may and, under certain circumstances, must include recourse to the criminal law ( ibid. , § 45).
33. However, if the infringement of the right to life or physical integrity is not caused intentionally, the State may meet its obligation by affording victims a civil-law remedy, either alone or in conjunction with a criminal-law one, enabling any responsibility of the individuals concerned to be established and any appropriate civil redress, such as an order for damages, to be obtained (see, among other authorities, Vo v. France [GC], no. 53924/00, § 90, ECHR 2004-VII, and Anna Todorova, cited above, § 73).
34. In the instant case, there is nothing to indicate that D.M. caused life- threatening injuries to the second applicant intentionally, and the circumstances of the event in question were not such as to raise suspicions in that regard. The Court therefore concludes that the present case concerns the negligent behaviour of a private individual which resulted in serious bodily harm. The Court must thus take a comprehensive look at the procedures that were available to the second applicant. There were two such procedures. The first was an inquiry carried out by the military police, which falls outside the Court ’ s temporal jurisdiction (see paragraph 24 above). The second was a separate civil action that the applicant brought against the State.
35. As regards the civil proceedings, the Court notes that the Croatian legal system allows for a civil action for compensation to be brought against the State in respect of damage caused by a military serviceman. In the instant case the second applicant ’ s civil action for damages against the State was dismissed by the national courts on the grounds that at the time in question D.M. was not acting as a State agent but in a private capacity and that there was therefore no liability on the part of the State for the injuries he caused to the second applicant (see paragraph 10 above).
36. The Court reiterates that whether a person is an agent of the State for the purposes of the Convention is defined on the basis of a multitude of criteria, one of them being functional (see Kotov v. Russia [GC], no. 54522/00, §§ 92 et seq., 3 April 2012). The Court notes that although D.M. was a military serviceman, there is nothing to suggest that on the evening in question he was performing any service-related functions. The national courts established that the accident had happened when he had been off duty and dressed in civilian clothes and that he had not used any weapons conferred on him in connection with his position, and the Court sees no ground not to accept these findings. The Court further notes that there is no indication that he used any special powers, tools or information connected to his service either (see, by contrast, Đurđević v. Croatia, no. 52442/09, § 75, ECHR 2011 (extracts ), and Sašo Gorgiev, cited above, §§ 48-52). Given the circumstances of the present case, therefore, the Court accepts the national courts ’ findings that D.M. acted as an ordinary private individual not vested with any official powers (compare Kotelnikov v. Russia, no. 45104/05, § 93, 12 July 2016).
37. The Court finds that civil proceedings in which a claimant may seek damages from the State on account of its liability for life-threatening acts of one of its agents are in principle sufficient to satisfy the State ’ s obligation to provide an effective independent judicial system capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim of the alleged infringements of the right to life (see Ilbeyi Kemaloğlu and Meriye Kemaloğlu v. Turkey, no. 19986/06, § 38, 10 April 2012). The fact that the second applicant ’ s claim against the State was dismissed cannot undermine the effectiveness of that system as such.
38. However, further to this, the Court reiterates that a requirement of promptness and reasonable expedition is implicit in the context of the State ’ s obligations under Article 2 of the Convention. Even where there may be obstacles or difficulties which prevent progress in an investigation or a trial in a particular situation, a prompt response by the authorities is vital in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in, or tolerance of, unlawful acts (see Šilih v. Slovenia [GC], no. 71463/01, § 195, 9 April 2009 ). Accordingly, in a number of cases before the Court concerning the implementation of a domestic regulatory framework for the protection of patients ’ lives, the finding of a violation was largely based on the existence of unreasonable delays and a lack of diligence on the part of the authorities in conducting the proceedings, regardless of their final outcome (see, for example, Dodov v. Bulgaria, no. 59548/00, § 98, 17 January 2008; Šilih, cited above, §§ 202-211; Dvořáček and Dvořáčková v. Slovakia, no. 30754/04, § 70, 28 July 2009; and Bajić v. Croatia, no. 41108/10, § 107, 13 November 2012 ).
39. As to the instant case the Court observes that the civil proceedings against the State were instituted by the second applicant on 1 July 1998 and were finally determined by the Constitutional Court on 17 June 2014; they thus lasted for almost sixteen years.
40. In this connection the Court reiterates that in Article 2 cases concerning proceedings instituted to elucidate the circumstances of an individual ’ s death, lengthy proceedings such as these are a strong indication that the proceedings were defective to the point of constituting a violation of the respondent State ’ s positive obligations under the Convention, unless the State has provided highly convincing and plausible reasons to justify such a course of proceedings (see Kudra v. Croatia, no. 13904/07, § 113, 18 December 2012; Šilih, cited above, § 203; Igor Shevchenko v. Ukraine, no. 22737/04, § 60, 12 January 2012; and Bilbija and Blažević v. Croatia, no. 62870/13, § 107, 12 January 2016 ). However, in the present case, the Government have failed to give any plausible justification for such lengthy proceedings.
41. In view of the overall length of the proceedings, the Court observes that the first-instance proceedings lasted for almost four years and the appeal proceedings for almost three years, amounting to almost seven years in total. The fresh round of first-instance proceedings then lasted for more than five years. Further to this, after the proceedings had lasted for thirteen years in total it took the Constitutional Court a further three years to declare the second applicant ’ s constitutional complaint inadmissible as ill -founded.
42. In these circumstances the Court finds that the relevant mechanisms of the domestic legal system seen as a whole did not secure in practice an effective and prompt response on the part of the authorities consistent with the State ’ s obligations under Article 2 of the Convention (compare Bilbija and Blažević, cited above, § 118.
43. There has therefore been a violation of Article 2 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
44. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
45. The second applicant claimed 22,700 Croatian kuna (HRK – approximately 3,010 euros (EUR) ) in respect of pecuniary damage consisting of the lost salary and costs incurred by a third person in order to provide him with help during his medical treatment and HRK 59,000 (approximately EUR 7,830) in respect of non-pecuniary damage.
46. The Government considered these claims excessive, unfounded and unsubstantiated.
47. As regards pecuniary damage, the Court notes that the second applicant ’ s claim in that respect related to the substantive aspect of Article 2 of the Convention, which presupposed the State ’ s responsibility for actual death or, as in this case, potentially lethal injuries. However, no such violation has been found in this case. Therefore, as the Court does not see any causal link between the claimed amount and the finding of a violation, the second applicant ’ s claim for pecuniary damage is dismissed. Having regard to all the circumstances of the present case, the Court accepts that the second applicant suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the second applicant the amount claimed, that is EUR 7,830 in respect of non-pecuniary damage, plus any tax that may be chargeable to him.
48. The applicants also claimed HRK 43,125.36 (approximately EUR 5,725 ) for the costs and expenses incurred before the domestic authorities.
49. The Government considered the applicants ’ claim unsubstantiated and unfounded.