Published on 27 March 2023
SECOND SECTION
Application no. 52767/21
Ljiljana GVOZDEN
against Croatia
lodged on 20 October 2021
communicated on 6 March 2023
SUBJECT MATTER OF THE CASE
The application concerns the unfairness of the administrative proceedings and the ensuing judicial review proceedings in which the applicant sought the recognition (validation) of the years she spent working in the occupied territory of Croatia as her years of service for the purposes of the Croatian pension insurance.
The Croatian Pension Fund refused her request because she had not been registered as an insured person in the pension fund ran by the occupying authorities. In so deciding the Croatian Pension Fund refused the applicant’s proposal to take into account other evidence (she submitted her health insurance certificate and proposed several witnesses) because under the relevant law the records of the pension fund ran by the occupying authorities were the core evidence whereas the other evidence (such as that which the applicant proposed) was only supplementary.
The applicant then brought an action for judicial review in the administrative courts arguing that the Croatian Pension Fund had refused to take and assess the evidence proposed by her. The first-instance administrative court dismissed her action endorsing the reasons of the Fund. In her appeal the applicant also relied on the Constitutional Court’s decision from 2019 in a similar case where that court had held that years of service could be proved by other evidence, notably, a health insurance certificate, if a person had not been registered as an insured person in the pension fund ran by the occupying authorities. The High Administrative Court dismissed her appeal without answering the applicant’s argument based on the Constitutional Court’s decision from 2019.
She raised the same argument in her subsequent constitutional complaint. The Constitutional Court acknowledged that argument but did not reply to it and dismissed her constitutional complaint. Three dissenting judges pointed out that the Constitutional Court had not addressed that argument and had not explained why its decision in the applicant’s case was different from the decision adopted in 2019 in a similar case.
The applicant complains under Article 6 § 1 of the Convention about the unfairness of the proceedings in question.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the proceedings complained of, as required by Article 6 § 1 of the Convention? In particular:
2. Did the High Administrative Court and the Constitutional Court reply to the applicant’s argument based on an earlier Constitutional Court’s decision? If they did not, was their failure to do so contrary to the applicant’s right to a reasoned judgment, guaranteed by Article 6 § 1 of the Convention (see Jaćimović v. Croatia, no. 22688/09, §§ 46-53, 31 October 2013; Ruiz Torija v. Spain, 9 December 1994, §§ 29-30, Series A no. 303-A; Hiro Balani v. Spain, 9 December 1994, §§ 27-28, Series A no. 303-B; and Atanasovski v. the former Yugoslav Republic of Macedonia, no. 36815/03, §§ 36-39, 14 January 2010)?