10 May Ordering the applicants to bear the full costs of the State’s representation in the civil proceedings violated the Convention

In the case of Bursać and Others v. Croatia (application no. 78836/16) the European Court of Human Rights has found a violation of Article 1 of Protocol No. 1 to the Convention.

The applicants, Bosiljka Bursać, Đuka Damjanović, Nena Damjanović, Danica Dubajić and Milica Vasiljević, are Croatian nationals who were born between 1940 and 1953 and live in Apatin, Gračac, Srb and Zagreb. The applicants’ father was an ethnic Serb who was allegedly killed in 1995 by Croatian soldiers during the battle to regain control over Krajina in the war following the dissolution of Yugoslavia. They later sued the State for compensation in 2005. The case concerns the investigation into his death. It also concerns the applicants having to pay the State’s costs in the civil proceedings. Relying on Article 2 (right to life) and Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights, and Article 1 of Protocol No. 1 (protection of property) to the European Convention, the applicants complain, in particular, that the investigation was inadequate and that the excessive costs breached their peaceful enjoyment of possessions. 

The Court observes that no international instrument explicitly prohibits ordering victims of grave breaches of fundamental human rights to bear the costs of related civil proceedings for damages in which they have been unsuccessful. However, such decisions appear to be at odds with the obligation of States to minimise the risk of re-traumatising victims of grave breaches of fundamental human rights, as set forth in key international instruments, including the United Nations Basic Principles and Guidelines on the Right to a Remedy and General Comment No. 3 on Article 14 of the Convention against Torture.

The Court has held, with respect to Article 2 of the Convention, that where the applicants have an arguable claim that their family members have been unlawfully killed by agents of the State, the notion of an effective remedy for the purposes of Article 13 entails, in addition to a thorough and effective investigation capable of leading to the identification and punishment of those responsible, the payment of compensation where appropriate.

In the Court’s view, in circumstances where the investigation into the killing of the applicants’ father, an elderly civilian, never led to the identification or punishment of the perpetrators, and the applicants were unable to obtain compensation in civil proceedings as there had been no criminal conviction requiring the applicants to pay the costs of the State’s representation in the civil proceedings further exacerbated their traumatisation, contrary to the spirit of the Convention and its Protocols.

Another factor of importance is the applicants’ individual financial situation. Given their arguments in that regard (see paragraph 75 above), the Court accepts that having to pay the amount ordered by the national courts in respect of the costs of the proceedings at issue appears to have been burdensome for the applicants. This burden appears even greater in a situation where the applicants were possibly also required to cover the costs of their own legal representation in the civil proceedings. In the particular circumstances of the present case, the Court considers that ordering the applicants to bear the full costs of the State’s representation in the civil proceedings amounted to a disproportionate burden on them. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

Reference from the official website of the European Court of Human Rights