SECOND SECTION

DECISION

Application no. 7732/19 Josip HERCEZI against Croatia

The European Court of Human Rights (Second Section), sitting on 30 January 2024 as a Committee composed of:

Pauliine Koskelo , President , Lorraine Schembri Orland, Davor Derenčinović , judges , and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 7732/19) 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 30 January 2019 by a Croatian national, Mr Josip Hercezi (“the applicant”), who was born in 1955, lived in Zagreb and was represented by Ms B. Musulin, a lawyer practising in Zagreb;

the decision to give notice of the application to the Croatian Government (“the Government”), represented by their Agent, Ms Š. Stažnik;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the alleged discrimination of the applicant on account of his disability related to the application of domestic labour legislation.

2. The applicant sustained a work-related injury in 2007.

3 . In 2010 the administrative authorities established that he had suffered a total inability to work and granted him a disability pension. Upon receipt of the administrative authorities’ final decision, the applicant’s employment was terminated ex lege . In line with the provisions of his employer’s collective agreement, he was awarded severance pay in the amount of 8,000 Croatian kunas (HRK; approximately 1,100 euros (EUR)). In 2012 the employer’s insurance also paid the applicant some HRK 120,000 (approximately EUR 16,000) in respect of damages suffered as a result of the work injury.

4. The relevant provision of the Labour Act in force at the material time provided that an employee who had sustained a work-related injury and did not return to work after his or her treatment and recovery, was entitled to a severance pay of at least twice the amount otherwise due to him. On the basis of that provision, the applicant instituted civil proceedings against his former employer (a private company) seeking payment of the difference in severance pay in the amount of some HRK 95,000 (approximately EUR 12,600).

5. The domestic courts dismissed the applicant’s claim finding that the Labour Act provision relied on was applicable only to those employees who had suffered partial loss of ability to work (professional inability to work) and who had been dismissed because they could not have been offered a different post suitable to their physical limitations. Also, in the domestic courts’ view, the aim of the provision in question was to protect employees who, due to their physical impairment, had a limited opportunity of finding new employment compared to healthy employees. The final domestic decision in those proceedings was given by the Constitutional Court on 10 October 2018.

6 . Subsequently, in 2022 the domestic courts granted the applicant’s claim for damages in the amount of some HRK 90,000 (approximately EUR 12,000) in respect of the difference between the disability pension he was receiving and the salary he would have received had he been able to work until the date of his retirement.

7. The applicant complained, relying on Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 to the Convention as well as under Article 1 of Protocol No. 12 to the Convention, that he had been discriminated against on account of his disability. Specifically, he alleged that, by not awarding him double severance pay, the domestic courts had put him at a disadvantage in comparison with employees who had suffered a lower degree of health impairment.

THE COURT’S ASSESSMENT

8. The applicant died on 20 June 2021. On 22 December 2022 his wife expressed her wish to continue the application on his behalf, which the Government opposed.

9. According to its well-established case-law on the matter (see Mile Novaković v. Croatia , no. 73544/14, §§ 33-34, 17 December 2020, with further references), the Court considers that the applicant’s wife as his heir has standing to continue the proceedings in the applicant’s stead and rejects the Government’s objection in this respect.

10. On the other hand, the Court does not find it necessary to examine the Government’s remaining objections related to the applicability of Article 1 of Protocol No. 1 to the Convention, or to the exhaustion of domestic remedies, as the present case is in any event inadmissible for the following reasons.

11. The applicant relied on Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 and Article 1 of Protocol No. 12. As master of the characterisation to be given in law to the facts of the case before it (see, for example, Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), the Court considers that the applicant’s complaint falls to be examined under Article 14 taken in conjunction with Article 1 of Protocol No. 1 to the Convention.

12 . The general principles concerning discrimination in the context of the State’s social policy have been summarised, inter alia , in Milivojević v. Serbia ((dec.), no. 11944/16, §§ 26-30, 5 July 2022).

13. In the present case, the applicant sought to compare himself, a person fully incapacitated to work and in receipt of a disability pension, with employees whose work capacity had been partially reduced and their employers had to dismiss them because they could no longer offer them an adequate position. According to both the domestic courts and the Government, the aim of the provision in question was to protect the latter group of employees and to compensate such employees who necessarily faced insecurities and potentially prolonged periods of unemployment required for them to find suitable new employment (see paragraph 5 above). The Court does not find such an interpretation by the domestic courts of the domestic legal framework applied in the present case neither arbitrary nor manifestly unreasonable.

14. The Court further notes that the applicant in the present case had no such insecurity. Following his work injury, he continued receiving his salary until 2010, when his employment was terminated ex lege and he started receiving a disability pension. Moreover, it transpires from the case file that he also received a modest severance pay from his employer as well as damages from the insurance company for the work injury suffered (see paragraph 3 above).

15. In addition, the Court attaches significant importance to the fact that the applicant was also awarded damages which compensated him for the difference between his disability pension and the salary he would have received had he been in a position to continue his employment (see paragraph 6 above).

16. In light of the above, the Court considers that the applicant has not succeeded in showing that he was in a relevantly similar or analogous position to the group he sought to compare himself with (see paragraph 12 above).

17. It follows that the complaints raised in the present application are manifestly ill-founded within the meaning of Article 35 § 3 (a) and have 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 22 February 2024.

Dorothee von Arnim Pauliine Koskelo Deputy Registrar President