FIRST SECTION
Application no. 24660/07
Zlatan LUKEŽIĆ against Croatia
lodged on 26 May 2007
STATEMENT OF FACTS
The applicant, Mr Zlatan Lukežić, is a Croatian national who was born in 1962 and lives in Rijeka. He was represented before the Court by Mr A. Bilić, a lawyer practising in Rijeka.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was an employee of the Service for Protection of the Constitutional Order (SPCO), which was abolished in 2003.
On 29 August 2003 the Counter-Intelligence Agency (CA) issued a decision by which the applicant was placed at the disposal of the Croatian Government with effect from 1 September 2003. He had the right to stay in service for a further four months, after which his employment was to be terminated. The grounds for that decision were that the post occupied by the applicant required a higher competence and higher level of professional conduct than the applicant could meet. Subsequently, the applicant’s employment was terminated when the four-month period elapsed. Other civil servants formerly employed in state bodies which had been abolished or in individual posts which had similarly been abolished received similar decisions.
On an appeal by the applicant, on 29 October 2003 the second-instance administrative body upheld the above-mentioned decision, finding also that over the last eleven years the applicant as the operative agent had shown only an average knowledge of law and national security; he had performed his duty in a routine manner and had behaved in an inappropriate manner towards his colleagues and superiors, which was also mentioned in his appraisal for 2001. It was also stated that an investigation had been opened in respect of the applicant and that he had been detained. It concluded that owing to a reorganisation which resulted in a reduced number of posts, there were not sufficient posts for all employees, and preference was given to employees with better work records.
The applicant challenged the administrative bodies’ decisions before the Administrative Court. On 27 May 2004 the Administrative Court refused the applicant’s claim as unfounded, since it found that the second-instance administrative body had applied the law correctly.
The applicant complained to the Constitutional Court, which on 26 December 2006 dismissed the applicant’s complaint, finding that there was no breach of the constitutional right of equality before the law in the decision of the Administrative Court, since the findings of that court were based in law and were not arbitrary in any respect.
B. Relevant domestic law and practice
1. The Constitution
The relevant provisions of the Croatian Constitution (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum) read as follows:
Article 14
“Everyone in the Republic of Croatia shall enjoy rights and freedoms regardless of their race, colour, sex, language, religion, political or other beliefs, national or social origin, property, birth, education, social status or other characteristics.
All shall be equal before the law.”
Article 19
“Individual acts of state administration and bodies vested with public powers shall be based in law.
Judicial review of the legality of individual acts of administrative authorities and bodies vested with public powers shall be guaranteed.”
2. The Civil Service Act
The relevant provisions of the Civil Service Act (Zakon o državnim službenicima i namještenicima, Official Gazette no. 27/2001 read as follows:
Section 103
”(1) Civil servants of an abolished state body shall be assigned to the state body to which the functions of the abolished body have been transferred, unless it is otherwise provided by special law.
(2) If civil servants are not assigned to posts in the state body to which they have been assigned or in another state body on the ground that there are no available posts or that those civil servants have not met the required professional and other conditions for assignment to available posts, they shall be placed at the disposal of the Government of the Republic of Croatia by a decision of the head of the body to which they have been assigned.
(3) If individual posts in a state body are abolished the civil servants shall be assigned to other posts appropriate to their professional qualification in that or another state body within three months of the day of abolition of their previous posts at the latest. Until they are assigned to a new post, civil servants have the right to remuneration and other benefits, according to their previous posts.”
Section 104
“(1) Civil servants who have not been assigned to new posts within the time-limit set in section 103 of this Act shall be placed at the disposal of the Government of the Republic of Croatia with a notice period and [shall be granted] a severance allowance.
...”
Section 107
“(1) A decision placing a civil servant at [the Government’s] disposal shall be served on a ministry which has jurisdiction over general administrative affairs or, in the case of disposal of civil servants of judicial bodies, to the Ministry of Justice...”.
Section 118
“The appointment of a civil servant is terminated by the force of law [in the following situations]:
.i) by the expiration of the period for which they were placed at [the Government’s] disposal ...”
3. The Constitutional Court’s case-law
In cases similar to the applicant’s, that is to say in cases in which civil servants whose employment had been terminated in situations where state bodies or individual posts in state bodies had been abolished and civil servants had been placed at the disposal of the Government, the Constitutional Court has found that judgments of the Administrative Court refusing a civil servant’s claims violated the constitutional right of equality before the law set out in Article 14 § 2 of the Constitution in conjunction with the constitutional right to work (Article 54 § 2 of the Constitution) and the constitutional right to judicial overview of the lawfulness of individual acts of administrative authorities in Article 19 § 2 of the Constitution, in conjunction with constitutional rights to equality before the law and to a fair trial, as set out in Articles 14 § 2 and 29 § 1 of the Constitution.
The key point of the Constitutional Court’s finding was that the first-instance administrative bodies in the operative part of the administrative act had failed to establish an obligation on the part of the Government to attempt to find appropriate posts for civil servants in other state bodies within the disposal period. Furthermore, the Constitutional Court also pointed out that the date of termination of employment had been fixed without specifically stating that the termination of employment was possible only when there was no other post available. These errors had not been rectified by the second administrative body or by the Administrative Court. The Constitutional Court’s decisions including those findings were delivered in the period before and after the decision of the same court in the applicant’s case, in which the Constitutional Court took a different approach without any explanation as to how the applicant’s situation was different from that taken in those other cases.
COMPLAINTS
The applicant complains under Article 6 § 1 of the Convention that he did not have an opportunity to be heard in the administrative proceedings, and that decisions of the administrative bodies were not substantiated as regards the reasons for his disposal and subsequently the termination of the employment. The applicant is also referring to the judgments of the Administrative Court and the Constitutional Court in cases similar to his, in which they took a completely opposite view from the one taken in his case.
The applicant also complains under Article 13 of the Convention that he received the decision of the first-instance administrative body three months after he had been dismissed from his post.
He further complains under Article 14 of the Convention that he was discriminated against in comparison to other civil servants.
Finally, he cites Article 17 of the Convention, without any substantiation.
QUESTION
Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention, in view of his statement that the Constitutional Court adopted decisions opposite to the one in his case in similar situations? In particular, did the national authorities observe the principle of legal certainty?
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