FIRST SECTION
Application no. 41578/10
Safet SALKOVIĆ
against Croatia
lodged on 12 July 2010
STATEMENT OF FACTS
The applicant, Mr Safet Salković, is a national of Bosnia and Herzegovina, who was born in 1936 and lives in Tuzla. He was represented before the Court by Mr V. Đurović, a lawyer practising in Zagreb.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 12 May 1998 the Constitutional Court (Ustavni sud Republike Hrvatske) found that pension instalments of pension beneficiaries in the Republic of Croatia had to be adjusted.
On 15 July 2004 the Croatian Parliament (Sabor Republike Hrvatske) enacted the Act on Enforcement of the Decision of the Constitutional Court of the Republic of Croatia of 12 May 1998, published in the Official Gazette, no. 105/2004 and 19/2007 (Zakon o provođenju Odluke Ustavnog suda Republike Hrvatske od 12 svibnja 1998, Narodne novine, broj 105/2004, 19/2007).
This Act, inter alia, in section 1 provided that any difference in the amount of the pensions that had to be paid and that were actually paid to the pension beneficiaries, was to be compensated through a special fund. Section 4 of the same Act obliged the Croatian Pension Fund (Hrvatski zavod za mirovinsko osiguranje) to assess the amount of compensation in respect of every single pension beneficiary.
On 26 November 2005 the applicant was informed by company HPB-I from Zagreb, which was managing the special pension fund HPB-INVEST (“HPB-I”), that he was not entitled to any redress because there had been no need to adjust his pension instalments.
On 9 January 2006 the applicant lodged a request with the Zagreb Office of the Croatian Pension Fund (Hrvatski zavod za mirovinsko osiguranje Područna služba u Zagrebu) and company HPB-I asking that the issue of adjustments of his pension instalments be re-examined and the adequate compensation awarded.
The Central Office of the Croatian Pension Fund (Središnji ured Hrvatskog zavoda za mirovinsko osiguranje) informed the applicant on 20 January 2006 that his pension instalments had been correctly established.
On 6 February 2006 the applicant lodged another request with the Zagreb Office of the Croatian Pension Fund asking for a reasoned decision on his pension instalments. In his request the applicant also noted that, in the case the previous notice of the Central Office of the Croatian Pension Fund was considered as a decision on his pension instalments, that he was then lodging an appeal against that decision.
On 28 February 2006 the Zagreb Office of the Croatian Pension Fund declared the applicant’s request inadmissible on the ground that it was not competent for the applicant’s request and that the payment of the compensation to pension beneficiaries was within the competence of a special fund. The relevant part of this decision reads:
“Under section 1 paragraph 2 of [the Act on Enforcement of the Decision of the Constitutional Court of the Republic of Croatia of 12 May 1998] the compensation to the beneficiaries is to be paid through a special fund. Since the right to the compensation, under the said Act, is not paid through the Croatian Pension Fund but through a [special] pension fund, this body does not appear competent to decide the request ...”
On an unspecified date in 2006 the applicant lodged an appeal with the Central Office of the Croatian Pension Fund against the above decision arguing that his request for adjustment of the pension instalments had never been properly examined.
On 24 April 2006 the Central Office of the Croatian Pension Fund dismissed the applicant’s appeal reiterating the same arguments which had been adduced in the first-instance decision.
Against the above decision the applicant lodged an administrative action in the Administrative Court (Upravni sud Republike Hrvatske). The applicant relied on the Act on Enforcement of the Decision of the Constitutional Court of the Republic of Croatia of 12 May 1998, arguing that it obliged the Croatian Pension Fund to assess the amount of the compensation to be paid to him.
The Administrative Court dismissed the applicant’s complaint on the ground that the Croatian Pension Fund had not been competent for deciding his request on 8 July 2009.
On an unspecified date in 2009 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske).
On 3 December 2009 the Constitutional Court declared the constitutional complaint inadmissible as ill-founded.
B. Relevant domestic law
The relevant part of the Act on Enforcement of the Decision of the Constitutional Court of the Republic of Croatia of 12 May 1998, published in the Official Gazette, no. 105/2004 and 19/2007 (Zakon o provođenju Odluke Ustavnog suda Republike Hrvatske od 12 svibnja 1998, Narodne novine, broj 105/2004, 19/2007) provides:
Section 1
“This Act regulates the enforcement of the Decision of the Constitutional Court of the Republic of Croatia no. U-I-283/97 of 12 May 1998 (Official Gazette no. 69/98) in order to compensate the pension beneficiaries in connection with the erroneous adjustment of pensions in the period between 1 September 1993 and 31 December 1998.
Compensation to the pension beneficiaries under this Act is to be paid through a special fund.
The special fund pursuant to paragraph 2 of this section is to be established by a separate Act which will define its activities and the rights and obligations as regards the payment of the compensation.”
Section 3
“In order to compensate the pension beneficiaries, the Croatian Pension Fund shall assess the difference between the amounts of the ... pension instalments ... for the period between 1 September 1993 and 31 December 1998 ... and the Act on Adjustment of Pensions and Other Pecuniary Pension and Invalidity Incomes and Governing Pension and Invalidity Funds (Official Gazette no. 20/97 and 89/97).
... “
Section 4
“The Croatian Pension Fund shall carry out of its own motion in respect of every single pension beneficiary within a year from the date when this Act comes into force assessment of the difference described in section 3 of this Act
...“
COMPLAINTS
The applicant complains under Article 6 of the Convention that he did not have access to court in that the competent domestic authorities refused to examine his case.
The applicant complains under Article 13 of the Convention that he did not have an effective domestic remedy.
The applicant complains under Article 1 of Protocol No. 1 that his right to peaceful enjoyment of possessions was violated.
QUESTIONS TO THE PARTIES
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 particular, did the applicant have a possibility to bring his claim relating to his civil rights and obligations before a court or tribunal within the meaning of Article 6 § 1 of the Convention?
Full & Egal Universal Law Academy