Strasbourg Observers

Trivkanović v. Croatia: About rigidity, reopening and proof of forced disappearances

February 15, 2021

By Lize R. Glas, Assistant Professor of European law, Radboud University, the Netherlands. 


The judgment in the case of Trivkanović v. Croatia (no. 2) (21 January 2021, nr. 54916/16) provides a good illustration of the European Court of Human Rights’ (ECtHR; Court) at times flexible approach towards the rules that it has created in its judgments. In the instant case, the Court presents itself as flexible when it comes to the applicability of Article 6(1) ECHR to judicial reopening proceedings and when it comes to evaluating the standard of proof imposed on the applicant by domestic judges in light of the same provision. By taking a flexible approach, the Court helps to ensure that the European Convention of Human Rights (ECHR; Convention) rights are not ‘theoretical or illusory’, but ‘practical and effective’ (see for example Salduz v. Turkey, § 51). In this blog post, I will take a closer look at the two instances of the Court’s flexible approach and at the Court’s rationales for making the exceptions. It is particularly noteworthy that the Court expects the Croatian judges to apply Article 2 ECHR case-law about state liability in case of a forced disappearance in domestic civil compensation proceedings. 


On 25 August 1991, during the war that raged in Croatia at that time, police officers took the applicant’s two sons and her former husband. The applicant’s husband was shot and killed. His body was found in a river the next day. The sons have been missing ever since. In 2005, they were legally declared dead as of the day of their disappearance. One year later, the applicant brought a civil action against the state to seek compensation for the death of her sons, who had been killed by the police according to her. The applicant relied on domestic legislation providing for state liability with regard to damages caused by members of the armed forces and the police during the war. A municipal court dismissed the applicant’s compensation claim. The claim had become time-barred, because she had not brought her action within the statutory five-year limit (which, according to the Croatian civil courts, had started to run on the day of the disappearance).

At some (unknown) point, the police started investigations into the killing of individuals of Serb ethnicity during the war in the area where the applicant lived. These investigations extended to the killing of her former husband and the disappearance of her sons. In 2013, a county court found V.M., the commander of the local police unit in 1991, guilty of war crimes against the civilian population. V.M. had failed to prevent and punish crimes committed by police officers under his command. These crimes included the disappearance of the applicant’s sons. One year later, the applicant requested the reopening of the compensation proceedings, considering that, under Croatian law, closed proceedings may be reopened if a party learns about new facts or evidence on the basis of which a more favourable decision could have been adopted, had the new facts or evidence been relied on in the closed proceedings. Importantly, Croatian law also provides that, if damage results from a criminal offence, the regular statutory time-limits for compensation claims must match the time-limits prescribed for the prosecution of criminal offences and prosecution cannot become time-barred for war crimes.  

A municipal court dismissed the request, because V.M. had not been convicted for the death of the applicant’s sons. Consequently, the criminal law-judgment did not amount to a new fact or to new evidence. An appeal court upheld the dismissal, holding that the applicant had failed to prove a causal link between V.M.’s crime and the damage in the form of the death of her sons. Subsequently, the applicant brought a case before the Constitutional Court to complain about a violation of her right to a fair trial. That court declared her complaint inadmissible because decisions about reopening requests do not concern the merits of a case since they do not determine a party’s rights or obligations. 


Before the Court could decide the applicant’s complaint about an alleged violation of Article 6(1) ECHR because of the refusal to reopen domestic proceedings, it had to deal with one preliminary issue and three admissibility issues. The preliminary issue arose because the applicant died after she had submitted her application. The Court established that her grandsons, who were the sons of one of the disappeared men, could pursue the application in her stead. After the Court had established that the ‘strongly worded and unwarranted’ statement by the applicant’s representative did not amount to abuse of the right of application and that the constitutional complaint was an effective remedy that had to be exhausted for the purposes of Article 35(1) ECHR, the Court had to deal with the last admissibility issue. 

The Croatian government argued that the application was incompatible ratione materiae with Article 6(1) ECHR, because the reopening proceedings did not involve the determination of the applicant’s civil rights and obligations. The Court agreed that this provision is ‘not normally’ applicable to such proceedings, but it added that exceptions are possible. The current case warranted making an exception, because the domestic courts had engaged in a detailed examination of a question relating to the merits of the compensation claim (i.e. the potential causal link between the acts of V.M. and the damage) and answered this question (i.e. no such link existed). Therefore, the reopening proceedings were ‘decisive’ for the determination the applicant’s civil rights and obligations and, hence, Article 6(1) ECHR was applicable. 

The Court concluded that the reopening proceedings had been in violation of Article 6(1) ECHR (after it summarized the facts once more in paragraphs 76-77). For the Court to be able to reach this conclusion, it had to scrutinise the domestic judges’ findings, something which it does only when these findings are ‘arbitrary or manifestly unreasonable’. The Court deemed the domestic judgments manifestly unreasonable based on Strasbourg case-law adopted under Article 2 ECHR (the right to life). In this case-law, the Strasbourg Court held states liable for the death of persons who had disappeared following their detention by state agents. The Court has previously found that, in these circumstances, a strong presumption of causality arises between the detention and the death when the events surrounding the death lie, wholly or partially, within the exclusive knowledge of the authorities. Consequently, the burden of proof is on the authorities to prove that they did not kill the person who had disappeared. Considering this case-law, the Court found the conclusion of the domestic courts, that there was no causal link between V.M.’s acts and the death of the applicant’s sons, ‘manifestly unreasonable’, resulting in ‘an unattainable standard of proof’.  


The first instance of flexibility in Trivkanović v. Croatia (no. 2) concerns the applicability of Article 6(1) ECHR to extraordinary appeals seeking the reopening of terminated civil proceedings. This provision is, as a rule, not applicable in such proceedings. As the Court explained in Bochan v. Ukraine (no. 2) and in many other cases, the ‘civil limb’ of Article 6(1) ECHR is only applicable when there is an arguable claim as to the existence of a right that is recognized under domestic law. Reopening proceedings do not normally involve the determination of such a right, because ‘the matter is covered by the principle of res judicata of a final judgment in national proceedings’ (§ 42). Consequently, Article 6(1) ECHR is not applicable to extraordinary appeals, but there are exceptions to this rule. In Bochan v. Ukraine (no. 2), the Court ‘clarified’ that exceptions exist in two situations. First, when an appeal entails or results in reconsidering the merits of a case afresh. Second, when the proceedings ‘were deemed to be similar in nature and scope to ordinary appeal proceedings’ (§§ 46-47). Put more generally, ‘the nature, scope and specific features of the proceedings’ may bring them within the scope of the right to a fair trial (§ 50). 

Trivkanović v. Croatia (no. 2) is a fine example of the first exception. The facts of this case offer the Court an opportunity to clarify this exception and it seizes this opportunity. The Court explains that the rationale for making the first exception is that domestic judges can decide on the merits of a case when they are formally only deciding whether or not to reopen a case. If this would happen and Article 6(1) ECHR would not be applicable, the domestic judges could decide the merits without protecting the right to a fair trial and the Court’s scrutiny (§ 60). By preventing this from happening, the Court protects the Convention rights in a practical and effective manner, as I also noted in the introduction. The Court also explains that there is a difference between deciding on reopening on the one hand and deciding the merits of a reopened case afresh on the other hand (§ 55). Article 6(1) ECHR only applies to the latter decision. The fact that a court touches ‘to a certain degree upon the merits of the case’ when taking the former decision does not entail the applicability of Article 6(1) ECHR (§ 56-57). Therefore, the question is when the tipping point is reached; in other words, the question is  when discussing the merits amounts to reconsidering the merits of a case afresh. The tipping point is not reached when domestic judges just establish whether the new facts or evidence can ‘potentially lead to a different outcome’ in case of reopening; they should not determine whether the reopened case would result in a different outcome (§ 59). If domestic judges indeed want to prevent the applicability of the right to a fair trial to reopening proceedings, they need to attain a difficult balance between motivating their decision on the question of reopening convincingly and not touching on the merits of a case too extensively. In the applicant’s case, the domestic judges went ‘too far’, because they examined in detail whether there was a causal link between the forced disappearances and the death of the applicant’s sons – ‘an issue that pertained to the merits of the compensation claim’ (§ 58).  

The second instance of flexibility in Trivkanović v. Croatia (no. 2) concerns the Court’s evaluation of the standard of proof imposed on the applicant, in light the right to a fair trial. A problem which the Court has to confront when applying Article 6 ECHR ‘is the closeness with which it should monitor the functioning of national courts’ (p. 374), for it is not the Court’s task to act as a court of fourth instance and question the judgment of national courts (§ 78). Instead, its task is limited to ensuring ‘the observance of the engagements undertaken by the by the High Contracting Parties in the Convention’ (Article 19 ECHR). Moreover, the national authorities are better placed to assess evidence, establish facts, interpret domestic law and rule on guilt under criminal law and on civil liability (Trivkanović v. Croatia (no. 2)§ 78; Georgia v. Russia (I), § 94). However, it is not only the Court’s task to establish whether the domestic courts have observed specific procedural fair trial guarantees, but also to judge whether the domestic proceedings ‘as a whole’ guarantee a fair hearing (Centro Europa 7 S.r.l. and Di Stefano v. Italy, § 197). When judging the latter, the Court does act as a court of fourth instance and determines more specifically whether a domestic judgment ‘can be regarded as arbitrary or manifestly unreasonable’ (Trivkanović v. Croatia (no. 2), § 78). By taking on this role, the Court helps to ensure that Article 6 ECHR is protected in a practical and effective manner. 

In Trivkanović v. Croatia (no. 2), the Croatian courts failed to ensure to the fairness of the applicant’s proceedings because of the ‘unattainable standard of proof’ that they set for proving a causal link between the disappearance of the applicant’s sons and their presumed deaths (§ 81). According to the Court, the Croatian courts should have known better because ‘a strong presumption of causality’ arises ‘between the detention and the death’ in Article 2 ECHR cases on forced disappearances (§ 79). It seems as if the only acceptable outcome in the domestic proceedings would have been to accept a causal link between the disappearance and the deaths (and to establish liability of the state on that basis, unless the state provided a satisfactory and convincing explanation). The foregoing signifies that the Court may require of domestic judges that they import presumptions of causality from its Article 2 ECHR case law into domestic tort law and thus combine two wholly different bodies of law. For Croatian judges this will not be problematic considering that the Croatian Supreme Court decided in 2019 ‘that where a war crime committed by the members of the Croatian Army entailed forced disappearance(s), and the victim gone missing had later on been declared dead, the State was liable for the victim’s death and the resultant damage’ (§ 32). Like the Strasbourg Court, the Supreme Court concluded that, in these circumstances, a causal link exists between the disappearance and the (presumed) death that is strong enough to establish state liability (§ 32). I wonder if it will be equally easy for other domestic judges to import presumptions of causality from the Strasbourg Article 2 ECHR case-law.


The Court’s flexible approach reveals that the Croatian judges adopted an overly formal approach and that the Convention system can function as a reminder to domestic judges that some flexibility may be required if human rights are to be protected effectively. A question that remains is whether domestic judges from other countries will be able to adapt their tort law as easily to the Convention requirements if need be as the Croatian Supreme Court did. The overly formalistic approach taken by the Croatian judges did not just relate to the standard of proof required in the applicant’s case. The Court’s flexible approach towards the scope of Article 6(1) ECHR when dealing with the question of admissibility exposes the comparably formalistic approach taken by the Croatian Constitutional Court towards its own admissibility criteria. Whereas the ECtHR decided that the decision on reopening related to the merits of the case because of the content of the decision, the Constitutional Court did not look behind appearances and decided that, because the decision concerned a request for reopening, it did not concern the merits of the case (§ 21).  

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