CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 8 juillet 2014

.s800EAC49 { font-size:12pt } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sE5273FBD { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center; font-size:10pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s75A32C27 { border-collapse:collapse } .s938C1CCA { padding-right:5.4pt; padding-left:5.4pt; vertical-align:top } .s598389F7 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s21F79B08 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-align:center; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s59DEA84 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s507451D6 { width:4.53pt; display:inline-block } .sF4F12EF6 { width:180.75pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .s8934192D { margin-top:36pt; margin-bottom:0pt; text-align:center } .s6B505E72 { margin:0pt; padding-left:0pt } .sCAA154B1 { margin-left:33.01pt; padding-left:2.99pt; font-family:Arial } .s38800F65 { width:3.95pt; display:inline-block }   FIRST SECTION DECISION Application no. 45903/08 Jelena KOVAČEVIĆ against Croatia and 2 other applications (see list appended) The European Court of Human Rights (First Section), sitting on 8 July 2014 as a Chamber composed of:   Isabelle Berro-Lefèvre, President,   Elisabeth Steiner,   Khanlar Hajiyev,   Linos-Alexandre Sicilianos,   Erik Møse,   Ksenija Turković,   Dmitry Dedov, judges, and Søren Nielsen, Section Registrar, Having regard to the above applications lodged on 3 September 2008 and 12 July and 19   October 2010 respectively, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, The Government of Bosnia and Herzegovina, having been informed of their right to intervene (Article 36 § 1 of the Convention and Rule   44   §   1   (a) of the Rules of Court), did not avail themselves of this right, Having deliberated, decides as follows: THE FACTS 1.     The applicants, Ms Jelena Kovačević (“the first applicant”), Mr Safet Salković (“the second applicant”) and Ms Ivanka Karlovčan (“the third applicant”) were born on 27 October 1936, 27 April 1936 and 25 February 1937. They live in Varaždin, Tuzla (Bosnia and Herzegovina) and Zagreb respectively. The second applicant is a national of Bosnia and Herzegovina and the other two applicants are Croatian nationals. The first applicant was represented before the Court by Mr G. Vučetić and the second and the third applicant by Mr V. Đurović, advocates practising in Varaždin and Zagreb respectively. 2.     The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. A.     The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 1.     Background to the applicants’ cases 4.     The applicants are pensioners. Until September 1993 their pensions were regularly adjusted in line with the increase in wages in accordance with section 30 of the Act on principal rights arising from pension and disability insurance ( Zakon o osnovnim pravima iz mirovinskog i invalidskog osiguranja , Official Gazette of the Socialist Federal Republic of Yugoslavia 23/82, 77/82, 75/85, 8/87, 65/87, 76/88, 74/88, 74/89, 87/89, 44/90 and 87/90 and Official Gazette of the Republic of Croatia no. 53/91 – “the Basic Pension and Disability Insurance Act”) and section 121 of the Pension and Disability Insurance Act ( Zakon o mirovinskom i invalidskom osiguranju , Official Gazette nos. 26/83, 5/86, 42/87, 34/89, 57/89, 40/90, 9/91, 26/93, 96/93, 44/94 and 59/96). 5.     In the period between 1 October 1993 and January 1995 the Croatian Government adopted a series of successive decrees whereby it limited the funds available for payment of pensions. This measure was part of the Government’s strategy to curb inflation and stabilise the economy. Since the funds available were insufficient to enable pensions to be adjusted in line with the increase in wages, the level of pensions paid in that period was lower than required by law. 6.     On 19 February 1997 the Act on adjustment of pensions and other benefits arising from pension and disability insurance and on administering pension and disability insurance funds ( Zakon o usklađivanju mirovina i drugih novčanih primanja iz mirovinskog i invalidskog osiguranja, te upravljanju fondovima mirovinskog i invalidskog osiguranja , Official Gazette no. 20/97 – “the Pension Adjustment Act”) entered into force. It provided that in the period between 1 February 1995 and 31   December 1996 pensions should have been adjusted in line with the increase in wages (section 1), and that pensioners were to be compensated for their resultant loss within eighteen months from the Act’s entry into force by way of an increase in their pensions (section 2). The Act also abrogated section   30 of the Basic Pension and Disability Insurance Act and section 121 of the Pension and Disability Insurance Act (see paragraph 4 above) and provided that from 1 January 1997 pensions were to be adjusted in line with the increase in the cost of living (section 3). 7.     By a decision of 12 May 1998 the Constitutional Court ( Ustavni sud Republike Hrvatske ) invalidated almost the entire Pension Adjustment Act, including sections 1-3, as unconstitutional. It also held that the State had an outstanding statutory obligation to pensioners to pay them pensions adjusted in line with the increase in wages as of September 1993. This obligation became known as “the debt to pensioners” ( dug umirovljenicima , hereafter “the pension debt”). 8.     As a result of the Constitutional Court’s decision, 427,809 requests were lodged with the Croatian Pension Fund’s regional offices by pensioners seeking (retrospective) adjustment of their pensions in accordance with the Constitutional Court’s decision, that is, in line with the increase in wages. In addition, pensioners brought 1,775 civil actions for payment of compensation for the pension debt in civil courts. 9.     On 6 August 1998 the Act on the transfer of funds from the State budget to the pension and disability insurance funds and on the adjustment of pensions ( Zakon o prenošenju sredstava državnog proračuna fondovima mirovinskog i invalidskog osiguranja te usklađivanju mirovina , Official Gazette no. 102/98 – “the Transfer Act”) entered into force. It provided that in the period between 1998 and 2002 the State would transfer HRK   7,524,856,731 to the Croatian Pension Fund with a view to increasing all pensions. The increase was paid in the form of a monthly pension supplement ( dodatak uz mirovinu ) of 100 Croatian kunas (HRK) plus 6% of the pension paid in June 1998. The supplement was paid from 6   August 1998 until 31   December 2002, after which it was permanently incorporated and became an integral part of a person’s pension. The legal basis for the supplement was provided by subordinate legislation passed on the basis of the Transfer Act, namely, the Ordinance on the method and time-limits of the payment of the pension supplement ( Pravilnik o načinu i rokovima isplate dodatka uz mirovinu , Official Gazette no. 136/98). The Transfer Act also provided that pensions were to be adjusted at the rate calculated by adding up the rate of the increase in the cost of living and the rate of the increase in wages and then dividing them by half (hereafter “the Swiss formula”). Thereby it in fact derogated from section 30 of the Basic Pension and Disability Insurance Act and section 121 of the Pension and Disability Insurance Act, according to which pensions were to be adjusted in line with the increase in wages (see paragraph 4 above). On 23 December 1998 the Constitutional Court rejected four petitions for (abstract) constitutional review and thus refused to institute proceedings to review the constitutionality of the Transfer Act. 10.     On 1 January 1999 the Pension Insurance Act ( Zakon o mirovinskom osiguranju , Official Gazette nos. 102/98, 127/00, 59/01, 109/01, 147/02, 117/03, 30/04, 177/04, 92/05, 43/07, 79/07, 35/08, 40/10, 121/10, 130/10, 139/10, 61/11, 114/11, 76/12, 112/13) entered into force. It expressly abrogated the Basic Pension and Disability Insurance Act and the Pension and Disability Insurance Act (see paragraph 4 above) and provided that pensions were to be adjusted according to the Swiss formula. 11.     On 1 January 2001 the Act on the increase of pensions to eliminate differences in levels of pensions earned in different periods ( Zakon o povećanju mirovina radi otklanjanja razlika u razini mirovina ostvarenih u različitim razdobljima , Official Gazette no. 127/00 – “the Pensions Increase Act”) entered into force with a view to levelling out pensions, because pensions earned before 31 December 1994 were disproportionately lower than those earned after that date. As set out in its section 1, the Act regulated the method of increasing pensions with a view to eliminating differences in levels of pensions earned in different periods and implemented the Constitutional Court’s decision of 12   May 1998 in accordance with the State’s economic capacities. The Act increased pensions earned before 31   December 1998 by anything between 5% to 20% depending on the year of retirement. The increase was paid between 1   January 2001 and 31 July 2004. On 19   December 2001 the Constitutional Court rejected a number of petitions for (abstract) constitutional review and thus refused to institute proceedings to review the constitutionality of the Pensions Increase Act. 12.     On 5 August 2004 the Act on the implementation of the Constitutional Court’s decision of 12 May 1998 (see paragraphs 51-53 below, hereafter “the Implementation Act”) entered into force. It provided that those pensioners (hereafter “eligible pensioners”) whose pensions had, in the period between 1 September 1993 and 31 December 1998 (hereafter “the relevant period”), not been adjusted in line with the increase in wages had a right to compensation (for the pension debt) which corresponded to the difference between the pension they had been entitled to receive and the pension actually paid to them in that period, reduced by the pension supplement paid under the Transfer Act and the pension increase received under the Pensions Increase Act. In addition, eligible pensioners were also entitled to interest on the total amount of compensation at a rate of 19.9752% calculated from the date of the Act’s entry into force. While the amount of compensation was to be determined (calculated) by the Croatian Pension Fund, the compensation itself was to be obtained through a special fund (“the Pensioners’ Fund”) that was to be established on the basis of subsequent legislation. 13.     On 29 July 2005 the Pensioners’ Fund Act (see paragraphs 54-62 below) entered into force. The Act provided that each eligible pensioner had a right to a share in the Fund depending on the amount of compensation to which they were entitled. The Act gave each of them a choice between payment of half of the compensation in four semi-annual instalments over a period of two years (2006-2007) (Model A), or payment of full compensation in six annual instalments over a period of eight years (2006-2013) with a two-year delay (Model B). In the end, around 74% of eligible pensioners opted for Model A whereas 26% chose Model B. The Pensioners’ Fund is operated and managed by a private investment company, HPB-Invest, which is also charged with calculating the interest due on the amount of compensation determined in advance by the Croatian Pension Fund under the Implementation Act in respect of each eligible pensioner. 14.     According to a report by the Croatian Pension Fund of 31   December 2010, the total amount of compensation for the pension debt that was to be paid through the Pensioners’ Fund was HRK   12,912,219,047.17 plus an additional HRK 2.579.243.782.89 in accrued interest. The report also suggests that 464,025 eligible pensioners were entitled to compensation whereas 257,865 were not, because the total amount of their pensions received in the relevant period together with the pension supplement paid under the Transfer Act and the pension increase paid under the Pensions Increase Act exceeded the total amount of pension they were entitled to receive in that period. 15.     On 15 February 2011 the Constitutional Court rejected thirty-nine petitions for (abstract) constitutional review and thus refused to institute proceedings to review the constitutionality of five provisions of the Implementation Act. Likewise, on 4 October 2011 it rejected eleven petitions for (abstract) constitutional review and thus refused to institute proceedings to review the constitutionality of eight provisions of the Pensioners’ Fund Act (see paragraph 76 below). 2.     The proceedings in the first applicant’s case 16.     The first applicant has been receiving a survivor’s pension ( obiteljska mirovina ) since 9 May 1996, following the death of her husband. 17.     By a notice of 27 November 2005 HPB-Invest informed the first applicant that the amount of compensation for the pension debt owed to her equalled zero Croatian kunas (HRK); in other words, she was not entitled to any compensation. In particular, the calculation contained in the information notice indicated that in the relevant period the first applicant had received, together with the disbursements paid under the Transfer Act and the Pensions Increase Act (see paragraphs 9 and 11-12 above), pension payments in the total amount of HRK 72,238.38, whereas she was entitled to receive HRK   45,538.44. 18.     On 14 December 2005 the first applicant requested the Varaždin Regional Office of the Croatian Pension Fund ( Hrvatski zavod za mirovinsko osiguranje – Područna služba u Varaždinu ) to verify whether the amount of compensation referred to in the HPB-Invest’s information notice had been correctly calculated. 19.     By a letter of 16 January 2006 the Regional Office replied that it had verified the calculation and established that the amount had been calculated correctly. 20.     On 9 October 2007 the first applicant requested the Regional Office to re-calculate the amount of compensation in accordance with the criteria set forth in the Constitutional Court’s decision of 12 May 1998 (see paragraph 7 above). 21.     By a letter of 12 October 2007 the Regional Office, after explaining the method of calculation to the first applicant, reiterated that the amount of compensation in her case had, in its view, been accurately calculated. 22.     On 25 October 2007 the first applicant brought an action for judicial review in the Administrative Court ( Upravni sud Republike Hrvatske ) contesting the Regional Office’s letter of 12 October 2007. She argued that the Regional Office had refused to re-calculate the amount of compensation in her case in accordance with the Constitutional Court’s decision of 12   May 1998. 23.     By a decision of 13 December 2007 the Administrative Court declared the first applicant’s action inadmissible, finding that the contested letter of 12   October 2007 did not constitute an “administrative act”, within the meaning of section 6(2) of the Administrative Disputes Act (see paragraph 66 below), against which administrative-dispute (judicial review) proceedings could be instituted. The relevant part of that decision reads as follows: “Section 4 paragraph 1 of [the Implementation Act] provides that the difference between the pension to which a person was entitled and the pension actually received in the period between 1 September 1993 and 31 December 1998 shall be determined [that is, calculated] for each pensioner separately by the Croatian Pension Fund of its own motion and within a year (without issuing a special decision in administrative proceedings). ... Section 6(1) of the Administrative Disputes Act provides that administrative-dispute proceedings may be initiated only against an administrative act. According to section   8 of that Act, administrative-dispute proceedings may also be initiated [for failure to respond] when the competent [administrative] authority has not adopted the relevant administrative act [that is, a formal decision] following an application or an appeal by a party ... Given that [the plaintiff in the present case] by her action contests an act that is not an administrative act and that [the case] concerns a matter in which the relevant administrative act is not being issued ... it was decided as indicated in the operative provisions.” 24.     On 7 April 2008 the first applicant lodged a constitutional complaint with the Constitutional Court. She relied on Article 14 paragraph   2 (equality before the law) of the Croatian Constitution (see paragraph 50 below). 25.     By a decision of 29 May 2008 the Constitutional Court declared the first applicant’s constitutional complaint inadmissible as lodged outside the statutory time-limit of thirty days. The Constitutional Court’s decision was served on the first applicant on 26 June 2008. 3.     The proceedings in the second applicant’s case 26.     The second applicant has been receiving a disability pension ( invalidska mirovina ) since 10 June 1986. 27.     By a notice of 26 November 2005 HPB-Invest informed the second applicant that the amount of compensation for the pension debt owed to him equalled zero HRK, that is, that he was not entitled to any compensation. In particular, the calculation detailed in the information notice indicated that in the relevant period the second applicant had received, together with the disbursements paid under the Transfer Act and the Pensions Increase Act (see paragraphs 9 and 11-12 above), pension payments in the total amount of HRK   101,291.64, whereas he had been entitled to HRK   98,728.45. However, from the calculation it is evident that the sum of the amounts the second applicant was entitled to receive was not HRK   98,728.45, but HRK   222,378.70. The relevant part of HPB-Invest’s information notice reads as follows:   TOTAL PER YEAR YEAR PAID ENTITLED 1993 0.00 9,659.94 1994 0.00 25,387.97 1995 0.00 38,580.28 1996 32,330.46 42,308.48 1997 0.00 50,022.06 1998 27,440.14 56,419.97 PENSION SUPPLEMENT HRK 100 AND 6% 16,554.30   INCREASE TO ELIMINATE THE DIFFERENCES 1 JANUARY 2001 24,966.74   TOTAL 101,291.64 98,728.45 AMOUNT OF COMPENSATION (Entitled – Paid) 0.00     28.     On 9 January 2006 the second applicant requested both the Zagreb Regional Office of the Croatian Pension Fund ( Hrvatski zavod za mirovinsko osiguranje – Područna služba u Zagrebu ) and HPB-Invest to correct the manifest error in calculation contained in the information notice of 26 November 2005 and pay him HRK 121,087.06, that is, the difference between the amount received and the amount he had actually been entitled to. On 19 January 2006 the applicant submitted the same request to the Central Office of the Croatian Pension Fund ( Hrvatski zavod za mirovinsko osiguranje – Središnja služba ). 29.     By a letter of 20   January 2006 the Central Office replied that it had verified the calculation contained in HPB-Invest’s information notice of 26   November 2005 and established that it was correct. 30.     In his motion of 6 February 2006 the second applicant asked the Zagreb Regional Office to issue a formal decision on the merits of his request of 9 January 2006, pursuant to the Administrative Procedure Act. He added that if the Central Office’s letter of 20 January 2006 was to be considered a decision on his request, then his motion should be considered as an appeal against that decision. 31.     By a decision of 28 February 2006 the Zagreb Regional Office declared the second applicant’s motion inadmissible for lack of jurisdiction. The relevant part of that decision reads as follows: “Section 1 paragraph 2 of [the Implementation Act] provides that compensation is to be obtained through a special fund. Given that, pursuant to the said Act, the ... compensation is not to be obtained through the Croatian Pension Fund but through the Pensioners’ Fund, this authority does not have jurisdiction to decide on the request submitted.” 32.     On 28 March 2006 the second applicant appealed against that decision. 33.     By a decision of 24 April 2006 the Central Office of the Croatian Pension Fund dismissed the second applicant’s appeal and upheld the first-instance decision, repeating the reasons given therein. 34.     On 23 May 2006 the second applicant brought an action for judicial review in the Administrative Court contesting the second-instance decision. 35.     By a judgment of 8 July 2009 the Administrative Court dismissed the second applicant’s action, endorsing the reasons given by the Fund. The relevant part of that judgment reads as follows: “The courts finds that the defendant authority [i.e. the Croatian Pension Fund] acted correctly when it dismissed the plaintiff’s appeal against the decision of the first-instance authority and that it correctly held that the Croatian Pension Fund and its [regional] offices were not competent to determine the amount of compensation [payable for the pension debt], which is exclusively within the power of the Pensioners’ Fund, pursuant to the Pensioners’ Fund Act” 36.     On 5 October 2009 the second applicant lodged a constitutional complaint with the Constitutional Court. He relied on Article 18 (the right to appeal), Article 19 paragraph 2 (the guarantee of judicial review of decisions of administrative and other public authorities) and Article 29 paragraph 1 (the right to a fair hearing) of the Croatian Constitution (see paragraph 50 below) as well as on Article 13 of the Convention. In his constitutional complaint the second applicant wrote, inter alia , the following: “By the contested judgment of 8 July 2009 the Administrative Court dismissed the complainant’s action brought against the decision of the Croatian Pension Fund – Central Office of 24 April 2006 dismissing the complainant’s appeal against the decision of [its] Zagreb Regional Office of 28 February 2006. ... By so doing the Administrative Court failed to fulfil its constitutional role to review the lawfulness of administrative acts and thus breached the complainant’s right to judicial review of the lawfulness of administrative acts guaranteed by Article 19 paragraph 2 of the Constitution. In addition, the complainant’s constitutional right to appeal guaranteed by Article 18 of the Constitution was also breached. In particular, throughout the entire administrative proceedings neither [the Croatian Pension Fund] nor the Administrative Court addressed the complainant’s arguments relating to the incorrect calculation of compensation, raised in his appeal and in his action, but only declined the jurisdiction expressly conferred on them by [the Implementation Act]. After having received [the information notice containing] the calculation with which he disagrees, the complainant asked [the Croatian Pension Fund] to issue a [formal] decision so that he could avail himself of the legal remedies guaranteed by the Constitution. However, [the Croatian Pension Fund] refused to issue such a decision, even though section 3(1) [the Implementation Act] expressly and unequivocally provides that the Croatian Pension Fund shall determine [i.e. calculate] the difference between the pension to which each pensioner was entitled to and the pension actually paid. Such conduct [on the part of the domestic authorities] ... is not and cannot be lawful nor in accordance with the Constitution in any civilised country. That would mean, for example, that someone whose pension was calculated incorrectly would never be able to contest that. Naturally, that [conclusion] cannot be sustained as every party has the right to ask the Croatian Pension Fund to issue a [formal] decision each time the pension is revised (for example, each time the pension is increased) in order to be able to verify that [new] calculation and, if dissatisfied with it, resort to legal remedies (appeal, action). The conduct of [the domestic authorities in the present case] is also contrary to Article   13 of the [Convention] ... and in breach of the constitutional right to a fair hearing under Article 29 paragraph 1 of the Constitution ...” 37.     By a decision of 3 December 2009 the Constitutional Court declared the second applicant’s constitutional complaint inadmissible. It found that even though in his constitutional complaint the second applicant had relied on the relevant Articles of the Constitution, he had not substantiated his complaint by any constitutional-law arguments but had merely repeated the arguments raised in the proceedings before the Administrative Court. Therefore, the Constitutional Court was unable to examine the merits of his constitutional complaint. The Constitutional Court’s decision was served on the second applicant’s representative on 11 January 2010. 4.     The proceedings in the third applicant’s case 38.     The third applicant received an early retirement pension ( prijevremena starosna mirovina ) and then a retirement pension ( starosna mirovina ) from 1 May 1987 until 30 July 2004, whereupon, following the death of her husband, she received a survivor’s pension. 39.     In April 2007 HPB-Invest informed the third applicant that the amount of compensation for the pension debt owed to her equalled zero HRK, that is, that she was not entitled to any compensation. In particular, the calculation detailed in the information notice indicated that in the relevant period the third applicant had received, together with the disbursements paid under the Transfer Act and the Pensions Increase Act (see paragraphs 9 and 11-12 above), pension payments in the total amount of HRK   133,848.36, whereas she had been entitled to receive HRK   92,586.58. 40.     On 30 April 2007 the third applicant asked the Zagreb Regional Office of the Croatian Pension Fund to re-calculate the amount of compensation in accordance with the criteria set forth in the Constitutional Court’s decision of 12 May 1998 (see paragraph 7 above). She argued that the amount of pension she had been entitled to receive was HRK   168,837.00, and not HRK 92,586.58 as indicated in HPB-Invest’s information notice. 41.     By a letter of 17 May 2007 the Zagreb Regional Office replied that it had verified the calculation contained in HPB-Invest’s information notice and established that it was correct. 42.     In her motion of 12 June 2007 the third applicant asked the Zagreb Regional Office to issue a formal decision on the merits of her request of 30   April 2007, pursuant to the Administrative Procedure Act. She added that, if the Regional Office’s letter of 20 January 2006 was to be considered a decision on her request, then her motion should be considered as an appeal against that decision. 43.     By a decision of 27 June 2007 the Zagreb Regional Office declared the third applicant’s motion inadmissible for lack of jurisdiction. The relevant part of that decision reads as follows: “Section 1 paragraph 2 of [the Implementation Act] provides that compensation is to be obtained through a special fund. Given that, pursuant to the said Act, the ... compensation is not to be obtained through the Croatian Pension Fund but through the Pensioners’ Fund, this authority does not have jurisdiction to decide on the request submitted.” 44.     On 17 July 2007 the third applicant appealed against that decision. 45.     By a decision of 22 October 2007 the Central Office of the Croatian Pension Fund dismissed the third applicant’s appeal and upheld the decision of the Regional Office, repeating the reasons given therein. 46.     On 4 December 2007 the third applicant brought an action for judicial review in the Administrative Court contesting the second-instance decision. 47.     By a judgment of 27 March 2008 the Administrative Court dismissed the third applicant’s action, endorsing the reasons given by the Fund. The relevant part of that judgment reads as follows: “Given that compensation [for the pension debt] is not to be obtained through the defendant authority [the Croatian Pension Fund], the first-instance authority [the Regional Office] ... correctly declared the motion [of 12 June 2007] inadmissible for lack of jurisdiction and the second-instance authority [the Central Office] correctly dismissed the plaintiff’s appeal against that decision.” 48.     On 2 July 2008 the third applicant lodged a constitutional complaint with the Constitutional Court. She relied on Article 18 (the right to appeal), Article   19 paragraph 2 (the guarantee of judicial review of decisions of administrative and other public authorities) and Article 29 paragraph 1 (the right to a fair hearing) of the Croatian Constitution (see paragraph 50 below) and Article 13 of the Convention. In her constitutional complaint the third applicant wrote, inter alia , the following: “By the contested judgment of 27 March 2008 the Administrative Court dismissed the complainant’s action brought against the decision of the Croatian Pension Fund Central Office of 22 October 2007 dismissing the complainant’s appeal against the decision of [its] Zagreb Regional Office of 2 June 2007. ... By so doing the Administrative Court failed to fulfil its constitutional role to review the lawfulness of administrative acts and thus breached the complainant’s right to judicial review of the lawfulness of administrative acts guaranteed by Article 19 paragraph 2 of the Constitution. In addition, the complainant’s constitutional right to appeal guaranteed by Article 18 of the Constitution was also breached. In particular, throughout the entire administrative proceedings neither [the Croatian Pension Fund] nor the Administrative Court addressed the complainant’s arguments relating to the incorrect calculation of compensation raised in her appeal. [The Croatian Pension Fund] declined jurisdiction to decide on rights arising from pension insurance (even though it is the only authority in Croatia competent to decide on such rights) and the Administrative Court endorsed that without any legitimate reason. ... After having received the calculation with which she disagrees, the complainant asked [the Croatian Pension Fund] to issue a [formal] decision so that she could avail herself of legal remedies guaranteed by the Constitution. However, [the Croatian Pension Fund] refused to issue such a decision, which is not and cannot be lawful nor in accordance with the Constitution in any civilised country. That is also contrary to Article 13 of the [Convention] ... The above-described conduct [on the part of the domestic authorities] is also in breach of the constitutional right to a fair hearing under Article 29 paragraph 1 of the Constitution ...” 49.     By a decision of 25 March 2010 the Constitutional Court declared the third applicant’s constitutional complaint inadmissible. It found that even though in her constitutional complaint the third applicant had relied on the relevant Articles of the Constitution, she had not substantiated her complaint by any constitutional-law arguments but had merely repeated the arguments raised in the proceedings before the Administrative Court. Therefore, the Constitutional Court was unable to examine the merits of her constitutional complaint. The Constitutional Court’s decision was served on the third applicant on 29 April 2010. B.     Relevant domestic law and practice 1.     The Constitution 50.     The relevant Articles of the Constitution of the Republic of Croatia ( 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), 76/10 and 85/10 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 16 “(1) Rights and freedoms may be restricted only by law in order to protect the rights and freedoms of others, legal order, public morals or health.   (2) Every restriction of the rights and freedoms should be proportional to the nature of the necessity for the restriction in each individual case.” Article 18 “The right to appeal against decisions adopted in the first-instance proceedings before a court or other competent authority shall be guaranteed. The right of appeal may exceptionally be excluded in cases provided by law if other legal protection is ensured.” Article 19 1.     Decisions of the state administration and other public authorities shall be based on law. 2.     Judicial review of the lawfulness of decisions given by administrative or other public authorities shall be guaranteed.” Article 29 § 1 “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.” Article 48 “1. The right of ownership shall be guaranteed.   2. Ownership implies duties. Owners and users of property shall contribute to the general welfare.” 2.     Relevant legislation (a)     The Act on the Implementation of the Constitutional Court’s Decision of 12 May 1998 51.     The relevant provisions of the Act on the implementation of the Constitutional Court’s decision of 12 May 1998 ( Zakon o provođenju odluke Ustavnog suda od 12. svibnja 1998 , Official Gazette of the Republic of Croatia nos. 105/04 and 19/07 – “the Implementation Act”), which entered into force on 5 August 2004, provide as follows. 52.     Sections 1 and 2 provide that pensioners whose pensions had not been adjusted in the period between 1 September 1993 and 31 December 1998 in line with the increase in wages have a right to compensation. Compensation is to be obtained through a special fund that is to be established by special legislation. 53.     Section 3 provides that, with a view to compensating pensioners, the Croatian Pension Fund shall determine (calculate) the difference between the amount of retirement pension, early retirement pension, disability pension or survivor’s pension to which each pensioner was entitled in the relevant period, and the pension actually paid in that period. Disbursements paid under the Transfer Act and the Pensions Increase Act must be included in the calculation (see paragraphs 9 and 11 above). (b)     The Pensioners’ Fund Act (i)     Relevant provisions 54.     The relevant provisions of the Pensioners’ Fund Act ( Zakon o umirovljeničkom fondu , Official Gazette of the Republic of Croatia nos. 93/05, 41/07 and 90/11), which entered into force on 29 July 2005, provide as follows. 55.     Section 2 provides that the founder of the Pensioners’ Fund is, on behalf of the State, the Government of Croatia. 56.     Section 3 provides that the members of the Pensioners’ Fund are (eligible) pensioners referred to in section 2 of the Implementation Act (see paragraph 52 above). 57.     Section 18(1) provides that the calculation of the difference (that is, the calculation of the amount of the pension debt in respect of each pensioner) referred to in section 3 of the Implementation Act (see paragraph 53 above) is the basis for membership of the Pensioners’ Fund. 58.     Section 18(4) provides that HPB-Invest, that is, the private investment company that operates and manages the Pensioners’ Fund, must inform pensioners (by way of an “information notice”) of their membership of the Fund and the amount of compensation they are entitled to within ninety days of the establishment of the Fund. 59.     Section 18(9) – as amended by 2007 Amendments to the Pensioners’ Fund Act ( Zakon o izmjenama i dopunama Zakona o umirovljeničkom fondu , Official Gazette of the Republic of Croatia no. 41/07), which entered into force on 21 April 2007 – provides that a member of the Fund may lodge a complaint ( prigovor ) with HPB-Invest against the information notice referred to in paragraph 4 of the same section (see the preceding paragraph) within fifteen days from the day he or she received it. 60.     Section 41(1) provides that pensioners who have already been compensated on the basis of final and enforceable court decisions are not entitled to compensation from the Pensioners’ Fund. 61.     Section 41(2) provides that pensioners involved in pending administrative proceedings or administrative-dispute proceedings (judicial review before the Administrative Court), shall obtain compensation pursuant to the Pensioners’ Fund Act. 62.     Section 42(1) provides that pensioners who brought civil actions for compensation may become members of the Pensioners’ Fund and obtain compensation pursuant to the Pensioners’ Fund Act if they withdraw their actions. (ii)     Instruction of the Administrative Board of the Pensioners’ Fund of 30   November 2005 63.     The relevant part of the Instruction ( Uputa ) of the Pensioners’ Fund’s Administrative Board of 30   November 2005, which was, according to the Government, published on the web page of the Croatian Party of Pensioners on 1 December 2005, reads as follows: “II.     PROVIDING INFORMATION AND LODGING COMPLAINTS ABOUT THE CALCULATION OF COMPENSATION 1.     Pensioners may obtain clarifications concerning the calculation of compensation [payable to them] exclusively from the employees of the Croatian Pension Fund on the premises of [its] regional offices ... 2.     Pensioners who have received an information notice on membership [of the Fund] and the amount of compensation [payable to them] and who consider that the compensation has been incorrectly calculated may submit a request for re-calculation of the compensation. 3.     Pensioners who have not received an information notice on the calculation of compensation but consider that they are entitled to ... compensation may submit a request for calculation of the amount of compensation [payable to them]. ... 5.     If a pensioner wishes to have the calculation verified he or she may make such a request at a regional office of the Croatian Pension Fund, at the counters specially designated for that purpose, or lodge a written complaint (prigovor) with HPB-Invest. ... 8.     The Croatian Pension Fund shall communicate all its replies to complaints to HPB-Invest, which shall notify all pensioners who lodged complaints of new calculations. 9.     Costs related to requests for calculation or re-calculation of compensation shall be borne by the Croatian Pension Fund only in respect of those pensioners whose compensation was incorrectly calculated by the Croatian Pension Fund. 10.     Another complaint may not be lodged if an earlier one was refused but court proceedings may be instituted [instead]. 11.     The Croatian Pension Fund has forwarded to HPB-Invest information on [civil] proceedings previously instituted against the Croatian Pension Fund by pensioners in [civil] actions. The Croatian Pension Fund shall obtain information on the remaining actions, on the basis of which civil proceedings have not yet been instituted, and forward it to HPB-Invest. The Croatian Pension Fund and HPB-Invest shall ensure that obtaining compensation on two grounds, that is, in [both] civil proceedings and through the Pensioners’ Fund, is avoided. All pensioners who have brought [civil] actions shall be encouraged through the media to reconsider their position ... and to consider withdrawing their actions.” (c)     Administrative Disputes Act of 1977 64.     The Administrative Disputes Act ( Zakon o upravnim sporovima , Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/1977, and Official Gazette of the Republic of Croatia nos. 53/91, 9/92 and 77/92), which was in force between 1 July 1977 and 31 December 2011, in its relevant part, provides as follows: 65.     Section 6(1) provided that administrative-dispute (judicial review) proceedings could be initiated only against an administrative act. 66.     Section 6(2) defined an administrative act as an act whereby a State organ, in the exercise of public authority, decided on a right or obligation of an individual or organisation in an administrative matter. 67.     Section 23 provided that administrative-dispute (judicial review) proceedings were instituted by the bringing of an action. 68.     Section 30 provided that the Administrative Court had to declare an action inadmissible if, inter alia , the contested decision did not constitute an administrative act within the meaning of section 6 of that Act (see paragraph 66 above). (d)     The Obligations Act of 1978 69.     The Obligations Act ( Zakon o obveznim odnosima , Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/1978, 39/1985 and   57/1989, and Official Gazette of the Republic of Croatia nos. 53/91, 73/91, 111/93, 3/94, 7/96, 91/96, 112/99 and 88/01 – hereafter: “the 1978 Obligations Act”), which was in force between 1 October 1978 and 31   December 2005, was the legislation governing contracts and torts. Its relevant provisions read as follows: Damage Section 155 “Damage is diminution of one’s property (actual damage) or prevention of its increase (lost profits) ...” Liability of a legal entity for damage inflicted by its organ Section 172(1) “A legal entity shall be liable for damage caused by its organ to a third person in the exercise, or in relation with the exercise of its functions [duties].” (e)     The Obligations Act of 2006 70.     The text of sections 1046 and 1062(1) of the Obligations Act ( Zakon o obveznim odnosima , Official Gazette, nos. 35/2005 and 41/2008 – “the 2006 Obligations Act”), which entered into force on 1 January 2006, is nearly identical to the text of sections 155 and 172(1) of the former 1978 Obligations Act. 3.     Relevant practice (a)     The Administrative Court’s case-law 71.     In the period between the adoption of the Constitutional Court’s decision of 12 May 1998 (see paragraph 7 above) and the entry into force of the Implementation Act on 5 August 2004 (see paragraph 12 above) 427,809 requests were filed with the Croatian Pension Fund’s regional offices by those seeking (retrospective) adjustment of their pensions in accordance with that decision, that is, in line with the increase in wages (see paragraph 8 above). The Croatian Pension Fund either: (a) did not decide on those requests, thus forcing the pensioners to lodge appeals and actions for failure to respond ( žalba zbog šutnje administracije , tužba zbog šutnje administracije ), or (b) issued formal decisions whereby it dismissed such requests on their merits explaining that in the period between 1   September 1993 and 31   December 1998 no relevant subordinate legislation was adopted enabling it to calculate the level of pensions in line with the increase in wages. On 18   December 2001 the Administrative Court adopted the following practice direction ( zaključak ) which was followed in its subsequent judgments (for example, in cases no.   Us-M-788/1993 of 28   December 2001 and no. Us-M-3200/1998 of 15 May 2002): “On the appeals lodged in the [administrative] proceedings for adjustment of pensions following the adoption of the Constitutional Court’s decision of 12 May 1998 the competent authority [i.e. the Croatian Pension Fund] shall decide by applying the legislation in force after the adoption of that decision, which means that pensions should be adjusted [only] from 1 January 1997 until 30   June 1998 pursuant to section 30 of the [Basic Pension and Disability Insurance Act] ... but having regard also to the provisions of [the Pension Increase Act].” 72.     In decision no. Us-4756/2006 of 6 June 2006 the Administrative Court held that the calculation of the amount of the pension debt by the Croatian Pension Fund in respect of each eligible pensioner was not an “administrative act” within the meaning of section 6 of the Administrative Disputes Act (see paragraph 66 above). It thus declared the plaintiff’s action for judicial review brought against such calculation inadmissible. The relevant part of that decision reads as follows: “Section 4 paragraph 1 of [the Implementation Act] provides that the difference between the pension to which a person was entitled and the pension actually received in the period between 1 September 1993 and 31 December 1998 shall be established [that is, calculated] for each pensioner separately by the Croatian Pension Fund of its own motion and within a year (without issuing a special decision in administrative proceedings). ... Section 6(1) of the Administrative Disputes Act provides that administrative dispute proceedings may be initiated only against an administrative act. Under section   8 of that Act, administrative dispute proceedings may also be initiated [for failure to respond, that is] when the competent [administrative] authority has not adopted the relevant administrative act [that is, a decision] at the request of or on an appeal by a party ... Given that [the plaintiff in the present case] by her action contests an act that is not an administrative act and that [the case] concerns a matter in [respect of] which an administrative act [would not, in any case] be issued ... it was decided as indicated in the operative provisions.” 73.     In decision no. Us-3529/2006 of 6 July 2006 the Administrative Court held that HPB-Invest was not a public authority and that therefore the information notice on the amount of compensation owed to pensioners issued by that company was not an administrative act within the meaning of section 6 of the Administrative Disputes Act (see paragraph 66 above). (b)     The Constitutional Court’s case-law 74.     In decision no. U-III-4245/2007 of 20 February 2008 the Constitutional Court dismissed a constitutional complaint lodged against a judgment of the Administrative Court dismissing an action brought against decisions of the Croatian Pension Fund declaring a pensioner’s request for calculation of the amount of compensation inadmissible for lack of jurisdiction. 75.     In decision no. U-III-3814/2006 of 6 May 2009 the Constitutional Court dismissed a constitutional complaint lodged against a decision of the Administrative Court declaring inadmissible an action brought by a pensioner against a notice from HPB-Invest informing her that she was not entitled to any compensation. Even though in her constitutional complaint the comp