BARBACA v. CROATIA
Inadmissible
Christos Rozakis
The applicant, Mr Zdenko Barbača, is a Croatian citizen, who was born in 1931 and lives in Zagreb. The respondent Government are represented by their Agent Ms Lidija Lukina Karajković. The facts of the case, as submitted by the parties, may be summarised as follows. In August 1989 the applicant obtained his old-age pension which was assessed according to his average wage and years of employment. His pension, as all other pensions in Croatia, was regularly adjusted in line with the increase in wages and the cost of living, pursuant to the 1991 Pension Insurance Act (Zakon o osnovnim pravima iz mirovinskog i invalidskog osiguranja - Official Gazette no. 53/1991). A number of Government Decrees (Uredbe Vlade) adopted between 1993 and 1994 restricted the budget allocation for payment of pensions in Croatia. As a result of these restrictions, ever since August 1993 the pension funds have not been brought into line with the increase in wages but only with the increase in the cost of living, contrary to the 1991 Pension Insurance Act. On 13 February 1997 the Law on Indexing Pensions and Other Payments from Pension and Invalidity Insurance Funds and on Management of the Pension and Invalidity Insurance Funds (hereinafter the “The Pension Indexing Act” - 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) was passed annulling the provisions of the 1991 Pension Insurance Act which regulated the adjustment of pensions. The new law did not bring the pensions into line with the increase in wages and cost of living. On 12 May 1998 the Constitutional Court (Ustavni sud Republike Hrvatske) declared certain provisions of the 1997 Pension Indexing Act incompatible with the Constitution. The decision was published in the Offical Gazette no. 69/1998. On 30 June 1998 the applicant applied to the Zagreb Office of the Croatian Pension Fund (Republički fond mirovinskog i invalidskog osiguranja radnika Hrvatske, Područna služba Zagreb) requesting that his pension be adjusted pursuant to the Constitutional Court’s decision. He received no reply. On 1 September 1998 the applicant lodged a request with the appellate commission of the Pension Insurance Fund. He received no reply. On 16 December 1998 the applicant filed an action with the Administrative Court (Upravni sud Republike Hrvatske) pursuant to the provisions of the Administrative Procedure Act, asking that the court order the lower administrative bodies to reply to his request. The Administrative Court twice sought observations from the lower administrative bodies, but received neither a reply nor the case-file in question. Meanwhile, on 8 December 2000 Parliament enacted the Act on the Increase of Pension Instalments with a view to complying with the Constitutional Court’s decision of 12 May 1998. According to the Government, after the enactment of the above Act the applicant’s pension has been increased by 20 %. On 27 June 2002 the Administrative Court ruled in the applicant’s favour and ordered the Croatian Pension Fund’s Central Office (Hrvatski zavod za mirovinsko osiguranje, Središnja služba) to decide on the applicant’s appeal within thirty days. On 27 September 2002 the Croatian Pension Fund’s Central Office ordered the Zagreb Office of the Croatian Pension Fund (Hrvatski zavod za mirovinsko osiguranje, Područna služba Zagreb) to decide on the applicant’s request within thirty days. On 21 October 2002 the Zagreb Office of the Croatian Pension Fund rejected the applicant’s request. On 4 November 2002 the applicant appealed against that decision. It appears that the proceedings are presently pending before the Croatian Pension Fund’s Central Office as the appellate body. On 30 December 1998 the applicant filed a civil action with the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking payment of his full pension adjusted in accordance with the Constitutional Court’s decision. On 2 May 2002 the court declined jurisdiction in the matter and dismissed the action. It found that the relevant administrative bodies had jurisdiction. On 19 July 2002 the applicant appealed against that decision. The proceedings are presently pending before the Zagreb County Court (Županijski sud u Zagrebu) as the appellate court. The relevant parts of section 63 of the Constitutional Act on the Constitutional Court (entered into force on 15 March 2002, published in the Official Gazette no. 49 of 3 May 2002 - hereinafter “the 2002 Constitutional Act on the Constitutional Court” - Ustavni zakon o Ustavnom sudu Republike Hrvatske iz 2002) read as follows: (1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant’s rights and obligations or a criminal charge against him ... (2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits... (3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request for its payment. The relevant provisions of the Administrative Procedure Act (Zakon o općem upravnom postupku - Official Gazette 53/1991) provide as follows: Section 218 (1) provides that in simple matters, where there is no need to undertake separate examination proceedings, an administrative body is obliged to issue a decision within a period of one month after a party lodged a request. In all other, more complex, cases, an administrative body is obliged to issue a decision within a period of two months after the request was lodged. Section 218 (2) enables a party whose request has not been decided within the periods established in the previous paragraph to lodge an appeal, as if his request had been denied. The relevant provisions of the Administrative Disputes Act (Zakon o upravnim sporovima - Official Gazette 53/1991) provide as follows: Section 26 enables a party who lodged a request with an administrative body to institute administrative proceedings before the Administrative Court (administrative dispute) in the following situations: 1. If the appellate body does not issue a decision upon the applicant’s appeal within 60 days the applicant may repeat his request, and if the appellate body declines to issue a decision within an additional period of seven days, the applicant may lodge a claim with the Administrative Court. 2. When a first instance administrative body does not issue a decision and there is no right to appeal, the applicant may directly lodge a request with the Administrative Court. 3. If a first instance administrative body does not issue a decision upon the applicant’s request within sixty days in matters where a right to appeal exists, the applicant may lodge his request with the appellate administrative body. Against the decision of that body the applicant may institute administrative proceedings, and if that body has not issued a decision there is a right to institute administrative proceedings under the conditions set out in paragraph 1. The relevant parts of the Act on the Increase of Pension Instalments (Zakon o povećanju mirovina, Official Gazette no. 127/2000) provide that pension instalments are to be increased, in order to comply with the Constitutional Court’s decision of 12 May 1998, according to the financial possibilities of the State. It regulates the indexes to be applied to the increase of pensions in each calendar year.