CEDH · CASELAW;COMMUNICATEDCASES;ENG — 5 mars 2012

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s72EB7DC5 { margin-top:18pt; margin-bottom:0pt; text-align:center } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s4070A5A6 { margin-top:36pt; margin-bottom:24pt; text-align:center; page-break-after:avoid } FIRST SECTION Application no. 70196/10 Ivanka KARLOVČAN against Croatia lodged on 19 October 2010   STATEMENT OF FACTS THE FACTS The applicant, Ms Ivanka Karlovčan, is a Croatian national who was born in 1937 and lives in Zagreb. The application was lodged with the Court on 19 October 2010. 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 17 May 2007 the applicant was informed by company HPB-I from Zagreb, which was managing the special pension fund ( Umirovljenički fond ), that she was not entitled to any redress because there had been no need to adjust her pension instalments. On 12 June 2007 the applicant lodged a request ( zahtjev za donošenje rješenja – podredno žalbu ) with the Croatian Pension Fund asking that the issue of adjustments of her pension instalments be re-examined and the adequate compensation awarded. In her request the applicant also noted that in the case the notice of the company HPB-I was to be seen as a decision on the amount of compensation, her request was then to be understood as an appeal against that decision. On 27 June 2007 the Zagreb Office of the Croatian Pension Fund ( Hrvatski zavod za mirovinsko osiguranje Područna služba u Zagrebu ) 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 17 July 2007 the applicant lodged an appeal with the Central Office of the Croatian Pension Fund ( Središnji ured Hrvatskog zavoda za mirovinsko osiguranje ) arguing that her request was within the competence of the Croatian Pension Fund. On 22 October 2007 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. On 4 December 2007 the applicant brought an administrative action in the Administrative Court ( Upravni sud Republike Hrvatske ). The applicant relied on section 4 of 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 her. On 22 October 2007 the Administrative Court dismissed the applicant’s complaint on the ground that the Croatian Pension Fund had not been competent for deciding her request. The relevant part of the judgment reads: “Section 1 of the Act on Enforcement of the Decision of the Constitutional Court of the Republic of Croatia of 12 May 1998, regulates the enforcement of the Decision of the Constitutional Court of the Republic of Croatia no. U-I-283/97 of 12 May 1998, providing redress to the pension beneficiaries based on the partial adjustment of pensions for the period between 1 September 1993 and 31 December 1998 (paragraph 1). Compensation to the pension beneficiaries under that Act is to be paid through a special fund (paragraph 2). The special fund, under paragraph 2 of section 1, is to be established by a separate Act which will define its activities and the rights and obligations in payment by the compensations. Under section 4 paragraph 1 of the same Act, the assessment of any difference in the amount of the pensions that had to be paid and that were actually paid for the period between 1 September 1993 and 31 December 1998 is to be carried out within one year by the Croatian Pension Fund for every single pension beneficiary, on its own motion (without adopting a separate decision in the administrative proceedings). Therefore, with the Act on Enforcement of the Decision of the Constitutional Court of the Republic of Croatia of 12 May 1998 and its amendments (Official Gazette no.   93/05, 41/07) the lawmaker decided not to raise the amount of pension instalments but to compensate the [pension] debt, in order to redress the erroneous calculation of pensions for the period between 1 September 1993 and 31 December 1998 to the pension beneficiaries. Since the compensation at issue will not be paid through the defended body, the first instance body was right in rejecting the request on the ground of lack of competence and the second instance body was right in dismissing the appeal ...” On an unspecified date in 2008 the applicant lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ). On 25 March 2010 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 she did not have access to court in that the competent domestic authorities refused to examine her case. The applicant complains under Article 13 of the Convention that she did not have an effective domestic remedy. The applicant complains under Article 1 of Protocol No. 1 that her right to peaceful enjoyment of possessions was violated. QUESTIONS TO THE PARTIES Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, did the applicant have a possibility to bring her claim relating to her civil rights and obligations before a court or tribunal within the meaning of Article 6 § 1 of the Convention?