KOMŠO v. CROATIA
Inadmissible
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković
1. The applicant, Ms Dragica Komšo, is a Croatian national who was born in 1969 and lives in Benkovac. Her application was lodged on 13 May 2014. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š.Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On an unspecified date in 2005 the applicant moved with her husband and two children from Drvar in Bosnia and Herzegovina to Benkovac, Croatia. 5. On 24 March 2005 the applicant applied to the Benkovac Social Welfare Centre (Centar za socijalnu skrb Benkovac; “the welfare centre”) for welfare benefits (pravo na pomoć za uzdržavanje). She stated that she was unemployed with no income and had two children who were still minors. 6. On 29 April 2005 a social worker warned the applicant about the need to provide accurate information about her assets and the obligation to report any changes to the welfare centre. 7. On 4 May 2005 the welfare centre granted benefits to the applicant and her family on account of their poor financial situation. 8. On 8 September 2005 the welfare centre received information from an anonymous source that the applicant’s husband had a shop in Drvar. 9. On 16 September 2005 the applicant informed the welfare centre about her husband’s shop. She admitted it existed but argued that she had considered it to be irrelevant because it had been robbed in February 2005 and its earnings had been very low. The applicant was warned about the possibility of criminal and financial liability for providing false statements. 10. On 27 September 2005 the welfare centre decided to stop her benefits. It established that the applicant and her family could provide for themselves through their own work, which in their case was the revenue from their shop. The decision was served on the applicant on 28 September 2005 and she did not lodge an appeal. 11. On the same day, 28 September 2005, the applicant visited the welfare centre and gave a statement about repayment of the social welfare benefits received between 24 March 2005 and 27 September 2005. She was warned that civil proceedings for reimbursement would be instituted against her. The applicant replied that she could not repay the due amount because the earnings from the shop were very low and that she and her husband planned to close it soon. 12. On 13 March 2007 the Benkovac Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Benkovcu; “the State Attorney’s Office”), lodged a civil action against the applicant in the Benkovac Municipal Court (Općinski sud u Benkovcu), relying on the fact that the applicant had failed to disclose that her husband owned a shop in Drvar when she had been granted welfare benefits. The State Attorney’s Office sought repayment of the 8,612 Croatian kunas (HRK) (about 1,170 euros (EUR)) she had received, together with statutory default interest. 13. The applicant argued during the proceedings that the shop had in fact not been in operation since the robbery on 24 January 2005 but that her husband had not been able to close it because of unsettled tax liabilities. She stated that they had not had the means to support themselves and their children. 14. At a hearing on 2 February 2010 the applicant’s lawyer asked for financial information on the husband’s shop to be obtained from the Drvar Tax Authority in order to assess whether the applicant had satisfied the statutory requirements for welfare benefits. The applicant’s lawyer did not provide any reasons why he or the applicant had not been able to obtain the document from the authorities of Bosnia and Herzegovina, nor did he claim that. The first-instance court dismissed the proposal, considering it to be aimed at delaying the proceedings because the data would have had to be requested from Bosnia and Herzegovina via the diplomatic service. The first-instance court pointed out that the applicant had had more than enough time since the institution of the proceedings to obtain the data in question if she deemed it relevant. At the same hearing the court also heard evidence, at the request of the applicant, from the director of the welfare centre, M.B. 15. On 15 February 2010 the Benkovac Municipal Court dismissed the State Attorney’s claim because the applicant had not been given an opportunity to repay the money within a specified time-limit. 16. On 28 April 2011, upon an appeal by the State Attorney’s Office, the Zadar County Court (Županijski sud u Zadru) quashed the first-instance decision and remitted the case for fresh consideration. 17. The court held two hearings in the new proceedings. At a hearing on 25 August 2011 the applicant’s lawyer submitted a certificate from the regional tax office in Drvar dated 4 September 2008 on the applicant’s husband’s unpaid tax liabilities. The State Attorney’s Office argued that the document was irrelevant because a certificate on unpaid tax liabilities could not be proof of earnings. 18. At a hearing held on 8 September 2011 the first-instance court heard evidence from the applicant’s husband at the request of the applicant. He stated that his wife had not disclosed information about their shop because she had been afraid it would prevent them from receiving welfare benefits. At the same hearing the first-instance court dismissed an application from the applicant to be heard in person because it held that she had submitted all her observations in her reply to the claim and that her request to give evidence was aimed at delaying the proceedings. The applicant’s lawyer had no further evidence and the first-instance court concluded the hearing. 19. On 19 September 2011 the Benkovac Municipal Court granted the claim and ordered the applicant to reimburse to the State HRK 8,612, together with statutory default interest, and to pay HRK 5,875 in costs and expenses for the proceedings. It held that while the applicant’s statements about her husband’s shop might in fact have been true, the fact remained that she had not disclosed that information voluntarily and had therefore fraudulently, and undoubtedly unlawfully, obtained social welfare benefits which the court could not make lawful. 20. On 17 October 2011 the applicant lodged an appeal with the Zadar County Court, reiterating her previous arguments. She stated that her husband had owned the shop at issue, not her, and that she had only been employed in her husband’s business, which had been ruined by the robbery. 21. On 19 June 2013 the Zadar County Court, relying on section 196 of the Social Welfare Act, dismissed the applicant’s appeal on the grounds that she had not disclosed the fact that her husband had owned a shop, and that her arguments concerning the actual state of the business and her poor financial situation were of no relevance. 22. The applicant then lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), alleging that her right to a fair hearing had been violated because the first-instance court had disregarded her request to obtain the data on her husband’s shop from the Drvar Tax Authority, thus failing to correctly establish all the circumstances of her case. She also alleged that she had been discriminated against. 23. On 17 December 2013 the Constitutional Court declared her complaint inadmissible as manifestly ill-founded. 24. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/1991, 91/1992, 112/1999, 81/2001, 117/2003, 88/2005, 84/2008, 96/2008, 23/2008, 57/2011, 148/2011 consolidated text), as in force at the material time, provided as follows: “Each party is obliged to provide facts and present evidence on which his or her claim is based or to refute the statements and evidence of his or her opponent. ...” “Parties referring to a document as proof of a statement are obliged to submit that document themselves. ... If the document is in the possession of a state authority or a legal or physical person vested with public authority, and the party is not able to arrange for the document to be handed over or shown, the court shall itself obtain the document upon a motion by the party.” 25. The relevant provision of the Social Welfare Act (Zakon o socijalnoj skrbi, Official Gazette nos. 73/1997, 27/2001, 59/2001, 82/2001 and 103/2003), as in force at the material time, provided as follows: “A beneficiary who was granted allowance on the basis of a decision of the Social Welfare Centre shall compensate the damage if: - on the basis of false or inaccurate data which he or she knew or should have known to be false or inaccurate, or in some other unlawful manner, he or she was granted an allowance to which he or she was not entitled, or he or she was granted this allowance in an amount greater than the amount to which he or she was entitled, - he or she was granted an allowance because he or she failed to report a change that affects the loss or the scope of the entitlement, and he or she knew or should have known about this change.”