CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 18 juin 2024

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s819344C9 { margin-top:14pt; margin-left:18pt; margin-bottom:12pt; text-indent:-18pt; text-align:justify; font-size:14pt } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .sB6A7F5BF { width:17.54pt; display:inline-block } .s7D49190C { width:104.74pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     SECOND SECTION DECISION Application no. 59775/19 Ivan VRKLJAN against Croatia   The European Court of Human Rights (Second Section), sitting on 18 June 2024 as a Committee composed of:   Lorraine Schembri Orland , President ,   Frédéric Krenc,   Davor Derenčinović , judges , and Dorothee von Arnim, Deputy Section Registrar, Having regard to: the application (no.   59775/19) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 8 November 2019 by a Croatian national, Mr Ivan Vrkljan (“the applicant”), who was born in   1961, lives in Sarvaš and was represented by Mr V. Pajić, a lawyer practising in Osijek; the decision to give notice of the complaint concerning discrimination to the Croatian Government (“the Government”), represented by their Agent, Ms Š. Stažnik, and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The case concerns the applicant’s complaint that he was discriminated against in the framework of a redundancy programme as a result of which he was dismissed on account of not having war veteran status. 2.     In August 2014 the applicant was dismissed from his job as a wagon inspector in a State-owned railway company in the framework of a collective redundancy programme in which around 340 employees had been declared redundant. 3.     The applicant received severance pay in the amount of 120,000   Croatian kunas (HRK), equivalent to 15,927 euros (EUR). 4 .     The applicant then unsuccessfully instituted a labour dispute challenging the decision on his dismissal, claiming that he had been dismissed solely because he did not have war veteran status, whereas his many years of service had not been taken into account, which had been contrary to domestic law. The employer’s decision was upheld by the domestic courts which found that the dismissal had been lawful, based both on the relevant domestic law and the criteria established in the applicable collective agreement. In particular, the courts explained that the redundancy programme had been based on employees fulfilling the various criteria and priorities set out in the collective agreement, such as their age, other income, exemplary fulfilment of work duties, length of employment, having war veteran status and others. Applying the lack of war veteran status criterion to the applicant was not unlawful because the domestic law did not set out which of the criteria was to be given advantage, but that was done in the collective agreement. Nor was such a criterion discriminatory, since the Constitution and domestic laws allowed for positive measures towards those who had participated in the country’s defence during the war. 5 .     In a separate set of proceedings, the domestic courts concluded that the different criteria and the priorities set out in the collective agreement on the basis of which the redundancy programme at the applicant’s employer had been adopted, had been compatible with the Labour Act and had not been discriminatory. In particular, the courts confirmed that the employer had the right to choose which criteria to prioritise as well as to add additional criteria by way of a collective agreement. 6.     The applicant complained, under Article 1 of Protocol No. 12 to the Convention, that he had been discriminated against in that he had been dismissed from work on the sole ground that he did not have war veteran status. He also stressed that during the war he had been under an obligation to work ( radna obveza ) and thus could not have served in the army, a matter which had not been properly addressed by the domestic courts. THE COURT’S ASSESSMENT 7.     The Court considers that it is not necessary to examine the Government’s proposal to strike the application out of its list of cases under Article 37 § 1 (a) of the Convention, since the present application is in any event inadmissible for the following reasons. 8.     The general principles concerning discrimination in cases involving general measures of economic or social strategy, where the States enjoy a wide margin of appreciation, have been summarised in Milivojević v.   Serbia   ((dec.), no.   11944/16, §§   26-30, 5 July 2022). 9.     In particular, in order for an issue to arise under Article 1 of Protocol No.   12, there must be a difference in treatment of persons in analogous, or relevantly similar, situations, based on an identifiable characteristic, or “status”. The elements which characterise different situations and determine the comparability of the two groups that are being compared must be assessed in the light of the subject matter and purpose of the measure which makes the distinction in question (see   Fábián v. Hungary   [GC], no.   78117/13, § 121, 5   September 2017, and Špoljar and Dječji Vrtić Pčelice v. Croatia   (dec.), no.   68320/13, § 39, 22 September 2020). Furthermore, as regards the burden of proof, the Court has held that it is for the applicant to show that there has been a difference in treatment, and only thereafter for the Government to show that it was justified (see   Popović and Others v. Serbia , nos. 26944/13 and 3 others, § 73, 30 June 2020, and Negovanović and Others v. Serbia , nos.   29907/16 and 3 others, §§ 75 and 80, 25 January 2022). 10.     In the present case, the Court notes that the applicant did not specify an identifiable individual or a group of employees which he sought to compare himself with and who have in his view been treated more favourably than him. The mere fact that the applicant had been dismissed on the basis of not fulfilling one of many criteria set out in the relevant collective agreement (see paragraph 5 above) is not sufficient for the Court to conclude that he had been discriminated against. The domestic courts gave sufficient reasons to explain why the application of such criteria had been compatible with the Labour Act and had not been discriminatory (see paragraph 4 above). What the applicant had to do was to show before the Court that there has been a specific individual or a group of persons, who had been in an analogous situation to his and who have been treated differently. 11.     While before the domestic courts the applicant appears to have submitted names of several employees for whom he considered that they had been treated more favourably than him, in the proceedings before the Court he gave no such specifics. Instead, the applicant merely submitted information concerning one employee who had performed a different job and had been made redundant on account of having less years of service than other employees in his unit. In the applicant’s view, that showed that the employer had applied the relevant criteria in a discriminatory manner, in that for some employees it took the years of service into account but not for others. However, in the absence of any further information concerning that particular employee, such as whether or not he had war veteran status, the Court cannot accept such as an assertion made by the applicant not even as prima facie indication that the applicant has been treated differently. 12.     Moreover, as rightly pointed out by the Government, the applicant never argued that he had been treated differently from other employees who had not had war veteran status, or that other criteria had been taken into account in their dismissals. 13.     In sum, the Court is not convinced that the applicant has succeeded in showing that there had been another individual or group with whom he had been in a relevantly similar or analogous position and who had been treated differently compared to him. 14.     It follows that the present application is manifestly ill-founded within the meaning of Article 35 § 3 and has to be rejected pursuant to Article 35 §   4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 11 July 2024.     Dorothee von Arnim   Lorraine Schembri Orland   Deputy Registrar   President