FIRST SECTION

Application no. 77281/11 Elizabeta MIHIĆ against Croatia lodged on 25 November 2011

STATEMENT OF FACTS

The applicant, Ms Elizabeta Mihić , is a Croatian national, who was born in 1914 and lives in Rijeka . She is represented before the Court by Ms J. Barić , an advocate practising in Rijeka .

A. The circumstances of the case

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

1. Background to the applicant ’ s case

The applicant is a pensioner. Until 1997, her pension was regularly adjusted in line with the increase in wages in accordance with section 30 of the Pension Insurance Act 1991 ( Zakon o osnovnim pravima iz mirovinskog i invalidskog osiguranja , Official Gazette no. 53/1991 of 8 October 1991) .

On 19 February 1997 the Act on Adjustment of Pensions and Other Benefits from Pension and Disability Insurance Funds and on Management of the 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. 20/1997 of 19 February 1997 – “the Pension Adjustment Act”) entered into force, derogating, inter alia , section 30 of the Pension Insurance Act 1991. Section 3 of the new legislation provided that pensions were to be adjusted in line with the increase in living expenses.

On 12 May 1998 the Constitutional Court quashed certain provisions, including section 3, of the aforementioned 1997 legislation as unconstitutional. As a result, 427,809 applications were filed with the Croatian Pension Fund ’ s regional offices by those seeking adjustment of their pensions in accordance with the Constitutional Court ’ s decision, that is, in line with the increase in wages .

On 5 August 2004 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 no. 105/2004 of 28 July 2004 – “the Implementation Act”) entered into force. It provides that retired persons whose pensions were reduced in the period between 1 September 1993 and 31 December 1998 (“the pensioners”) have a right to compensation (hereafter “indemnity”) calculated as the difference between the pension to which they would have been entitled under the previous system and the pension actually received during that period. While the amount of indemnity is to be calculated by the Croatian Pension Fund, the indemnity is to be obtained through a special fund that was to be established by subsequent legislation.

On 29 July 2005 the Pensioners Fund Act ( Zakon o umirovljeničkom fondu , Official Gazette no. 93/2005 of 29 July 2005) entered into force. The Act provides that each pensioner has a right to a share in the Fund depending on the amount of indemnity to which he or she is entitled.

The Pensioners Fund is operated and managed by a private investment company, HPB-Invest d.o.o .

2. Particular circumstances of the applicant ’ s case

In April 2007 HPB-Invest d.o.o . informed the applicant by a letter that the amount of indemnity owed to her was 35,653.75 Croatian kunas (HRK).

By a letter of 31 May 2007 HPB-Invest d.o.o . informed the applicant of her corresponding share in the Pensioners Fund.

(a) Administrative proceedings before the Croatian Pension Fund

On 4 and 16 May 2007 and the applicant submitted requests to the Rijeka Regional Office of the Croatian Pension Fund ( Hrvatski zavod za mirovinsko osiguranje – Područna služba u Rijeci ) asking it to verify whether the amount of indemnity had been correctly calculated and to recalculate it correctly. She argued that, according to her own calculation, the amount of indemnity owed to her was HRK 63,924.49 rat her than HRK 35,653.75.

By a letter of 23 May 2007 the Regional Office replied that it had verified the calculation and established that the amount had been calculated correctly.

On 18 June 2007 applicant asked the Regional Office to issue a formal decision on the merits of her request, pursuant to the Administrative Procedure Act.

On 3 July 2007 the Regional Office issued a ruling declaring the applicant ’ s request inadmissible for lack of jurisdiction. The relevant part of that ruling reads as follows:

“Section 1 paragraph 2 of [the Implementation Act] provides that the indemnity is to be obtained through a special fund. Given that, pursuant to the said Act, the right to indemnity 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 submitted request.”

On 6 August 2007 the applicant appealed against that ruling.

On 13 November 2007 the Central Office of the Croatian Pension Fund ( Hrvatski zavod za mirovinsko osiguranje – Središnja služba ) dismissed the applicant ’ s appeal and upheld the first-instance ruling, repeating the reasons given therein.

On 22 December 2007 the applicant brought an action in the Administrative Court ( Upravni sud Republike Hrvatske ) contesting the Fund ’ s decisions.

On 6 May 2009 the Administrative Court dismissed the applicant ’ s action endorsing the reasons given by the Fund.

The applicant then lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ).

On 27 April 2011 the Constitutional Court declared the applicant ’ s constitutional complaint inadmissible. It found that even though in her constitutional complaint the 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 applicant ’ s representative on 27 May 2011.

(b) The applicant ’ s correspondence with HPB-Invest d.o.o .

Meanwhile, by a letter of 10 May 2007 the applicant informed HPB ‑ Invest d.o.o . that the amount of indemnity contained in that company ’ s letter of April 2007 had been calculated incorrectly and that she had requested the Rijeka Regional Office of the Croatian Pension Fund to provide her with the correct calculation.

On an unspecified date HPB-Invest d.o.o . replied that it had nothing to do with the calculation of indemnity and that any complaints or requests concerning that calculation should be addressed to the Croatian Pension Fund.

B. Relevant domestic law and practice

1. Relevant legislation

(a) The Act on the Implementation of the Constitutional Court ’ s Decision of 12 May 1998

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. 105/2004 and 19/2007 – “the Implementation Act”), which entered into force on 5 August 2004, provide as follows:

Section 2 provides that retired persons whose pensions were reduced in the period between 1 September 1993 and 31 December 1998 (“the pensioners”) have a right to compensation (hereafter “indemnity”) calculated as the difference between the pension to which they would have been entitled under the previous system and the pension actually received during that period. The compensation was to be obtained through a special fund that was to be established by special legislation.

Section 3(1) provides that, with a view to indemnifying pensioners, the Croatian Pension Fund shall establish the difference between the amounts of retirement pension, early retirement (anticipatory) pension, disability pension and survivor ’ s (family) pension to which the pensioners were entitled in the period between 1 September 1993 and 31 December 1998, and the pensions actually paid in that period.

(b) The Pensioners Fund Act

The relevant provision of the Pensioners Fund Act ( Zakon o umirovljeničkom fondu , Official Gazette of the Republic of Croatia nos. 93/2005 and 41/2007), whic h entered into force on 29 July 2005, provides as follows:

Section 18 provides that the calculation of the difference (that is, the calculation of the amount of indemnity) referred to in section 3 of the Implementation Act is the basis for membership in the Pensioners Fund.

(c) Administrative Disputes Act

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. 53/1991, 9/1992 and 77/1992) in its relevant part provides as follows:

Section 6(1) provides that administrative dispute proceedings may be initiated only against an administrative act.

Section 6(2) provides that an administrative act, within the meaning of the Act, is an act whereby a State organ, in the exercise of public authority, decides on a right or obligation of an individual or organisation in an administrative matter.

Section 23 provides that administrative dispute proceedings are instituted by bringing an action.

Section 30 provides that the Administrative Court must declare an action inadmissible if, inter alia , the contested decision does not constitute an administrative act within the meaning of section 6 of that Act.

2. Relevant practice

In decision no. Us-3529/2006 of 6 July 2006 the Administrative Court held that HPB-Invest d.o.o . was not a public authority and that therefore the information notice on the amount of indemnity and a share in the Pensioners Fund issued by that company was not an administrative act, within the meaning of section 6 of the Administrative Disputes Act.

COMPLAINTS

1. The applicant complains under Articles 6 § 1 and 13 of the Convention about the impossibility under the domestic law to contest the calculation of the amount of indemnity due under the Implementation Act.

2. The applicant, on account of the same facts, also complains under Articles 5 and 14 of the Convention and Article 1 of Protocol No. 12 thereto, without specifying further these complaints.

QUESTION S TO THE PARTIES

1. Has the applicant been able to contest the calculation of indemnity due to her under the Act on the Implementation of the Constitutional Court ’ s Decision before the domestic courts?

2. In the negative, has there been a violation of the applicant ’ s right of access to court, contrary to Article 6 § 1 of the Convention, and/or her right to an effective remedy under Article 13 thereof?