FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41730/02 by Vjekoslav BANEKOVI Ć against Croatia

The European Court of Human Rights (First Section), sitting on 23 September 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mr G. Bonello , Mrs F. Tulkens , Mrs N. Vajić , Mr A. Kovler , Mr V. Zagrebelsky, judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 6 November 2002 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Vjekoslav Banekovi ć , is a Croatian national, who was born in 1975 and lives in Kutina , Croatia . He is represented before the Court by Mr B. Posav č i ć , a lawyer practising in Kutina.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant has been a police officer in the service of the Ministry of the Interior since 1995.

On 1 January 1996 he was transferred to perform his duties in Dvor, a town situated in an area previously affected by the Homeland W ar and classified as an “ area of special state care ” . According to the Act on Areas of Special State Care ( Zakon o podru č jima od posebne dr ž avne skrbi ; “ the Act ” ), civil servants performing their duties in these areas had a right to a 50% salary increase.

As he did not receive a salary increase, on 29 October 1998 the applicant filed a civil action with the Kutina Municipal Court, seeking payment of the amounts due . On 29 July 1999 the Kutina Municipal Court declared that it lacked competence to deal with the matter.

On 9 March 2000 the Sisak County Court dismissed the applicant ' s appeal.

On 8 November 2000 the Supreme Court partially quashed the first and the second instance judgments, and remitted the case to the Kutina Municipal Court. It found that a part of the applicant ' s case fell within the competence of the civil courts .

In the meantime, on 29 July 2000 Parliament enacted Amendments to the Act on Areas of Special State Care ( Zakon o izmjenama i dopunama z akona o podru č jima od posebne dr ž avne skrbi ; “ the Amendments ” ). The Amendments provided that salary increase s should only be payable to civil servants who, inter alia , both perform ed their duties and reside d in t he areas of special state care.

In the resumed proceedings, on 14 June 2001 the Kutina Municipal Court dismissed the applicant ' s action , as he did not reside in the area of special state care .

On 26 October 2001 the Sisak County Court upheld the first instance judgment and dismiss ed the applicant ' s appeal. On 6 February 2002 the Supreme Court dismissed his request for revision on points of law as inadmissible.

The applicant filed a constitutional complaint. On 8 April 2004 the Constitutional Court ( Ustavni sud Republike Hrvatske ) dismissed his complaint as being lodged outside the statutory time-limit.

B. Relevant domestic law

The relevant part of the Act on Areas of Special State Care ( Zakon o podru č jima od posebne dr ž avne skrbi , Official Gazette no. 44/1996) provides that all civil servants in service with the state administrative bodies in those areas shall receive a 50% salary increase in comparison with the salaries in other parts of the State.

The relevant part of the Amendments to the Act on Areas of Special State Care ( Zakon o izmjenama i dopunama z akona o podru č jima od posebne dr ž avne skrbi , Official Gazette no. 73/2000) read s as follows:

Section 1 (2)

“ N atural persons who are domiciled and reside within the areas of special state care ... . shall have the rights arising out of this Act. ”

Section 17

“Proceedings to pursue rights arising out of this Act lodged before the day of the entry into force of this Act shall be concluded pursuant to the provisions of this Act.”

COMPLAINTS

1. The applicant complain s about the length and the fairness of the proceedings . He submit s that he did not have a fair trial because the State, by virtue of the Amendments, retroactively intervened in the pending proceedings. He relie s on A rticle 6 § 1 of the Convention.

2. He further complain s that he had no right to request a revision on points of law and thus no effective remedy to challenge the unfavourable second instance court decision. In this respect he invokes Article 13 of the Convention.

3. Finally, the applicant invok es Article 14 in conjunction with Article 6 § 1 of the Convention, claiming that he was discriminated against because in other similar cases the courts had decid ed in favour of the plaintiffs.

THE LAW

1. The applicant complain s that the change in the relevant legislation, resulting in the subsequent refusal to award his salary increase, amounted to a violation of the right to a fair trial as provided by Article 6 of the Convention, read alone and in conjunction with Article 14 .

Article 6 § 1 provides as relevant:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

Article 14 reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court does not consider it necessary to examine whether the domestic remedies in the current case have been exhausted, since the application is in any event inadmissible for the following reasons.

The Court recalls that employment disputes between the authorities and public servants whose duties typify the specific activities of the public service, in so far as the latter is acting as the depository of public authority responsible for protecting the general interests of the State, are not “civil” and are excluded from the scope of Article 6 § 1 of the Convention (see Pellegrin v. France [GC], no. 28541/95, §§ 65-67, ECHR 1999 ‑ VIII). In the Pellegrin case the Court further noted that the manifest example of such activities was provided by the armed forces and the police.

The Court observes that in the present case the applicant is a police officer and is acting as the depository of public authority.

Accordingly, this part of the application is outside the Court ' s competence ratione materiae . It is therefore incompatible with the provisions of the Convention, within the meaning of Article 35 § 3 , and must be rejected pursuant to Article 35 § 4 of the Convention.

It follows that the applicant ' s complaint under Article 14 in conjunction with Article 6 § 1 of the Convention is also incompatible ration e materi a e with the provisions of the Convention.

2. The applicant maintain s that he had no effective remedy to challenge the decision of the first and second instance courts, as his request for revision on points of law was declared inadmissible by the Supreme Court .

He invoke s Article 13 of the Convention , which reads as follows :

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court notes that Article 13 is inapplicable where the main complaint is outside the scope of the Convention (see Kaukonen v. Finland , no. 24738/94, Commission decision of 8 Decemb er 1997 , Decisions and Reports 91, p. 14). In view of its conclusion concerning the applicant ' s complaint under Article 6 of the Convention, the Court considers that this complaint is also incompatible ration e mater ia e with the provisions of the Convention , within the meaning of Article 35 § 3 , and must be rejected pursuant to Article 35 § 4 of the Convention .

For these reasons, the Court unanimously

Declares the application inadmissible.

S ø ren Nielsen Christos Rozakis Registrar President