13 Jan Constitutional complaint in Croatia an effective remedy for complaints about ineffective investigations under Articles 2 (right to life) and 3 (prohibition of inhuman or degrading treatment) of the Convention
In the case of Kušić and Others v. Croatia (application no. 71667/17, 16.01.2019) the European Court of Human Rights has unanimously declared the application inadmissible.
The applicants, Zdravka Kušić, Bojan Kušić, and Martina Kušić, are Serbian nationals who were born in 1958, 1987, and 1990 respectively and live in Kragujevac (Serbia). The applicants’ relatives, N.K. and P.K, were found shot dead by the side of a road in Petrovo Polje (Croatia) on 6 February 1992.
In their application to the European Court, the Kušić family alleged that the investigation into the death of their family members had been ineffective since the investigation is to date still ongoing and that the domestic remedy suggested by the Government for their grievance, a constitutional complaint, was not effective as the Constitutional Court usually dismissed such complaints as unfounded.
The main question which the Court had to examine was whether, as argued by the Government, a constitutional complaint was an effective domestic remedy for complaints concerning ineffective investigations and whether the applicants should have lodged such a complaint before bringing their application before it. The applicants alleged that the Constitutional Court usually dismissed such complaints as unfounded, relying on five decisions between 2012 and 2016 concerning constitutional complaints about civil court judgments dismissing claims against the State for compensation for violent deaths.
The Court considered, however, that the Constitutional Court, after many years of not examining such grievances, had revised and consolidated its practice and in its most recent decisions of 2019 had exercised a review of the effectiveness of investigations, taking European Convention case-law as a basis for its assessment. The Constitutional Court was therefore now an effective remedy for complaints about ineffective investigations under Articles 2 (right to life) and 3 (prohibition of inhuman or degrading treatment) of the Convention. The applicants were therefore required to bring a constitutional complaint in Croatia before bringing an application before the European Court.
References from the official website of the European Court of Human Rights