CASE OF SOLOMUN v. CROATIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
5. The applicant was born in 1974 and lives in Sisak. 6. In 1993 the applicant took up employment with the Sisak-Moslavina Police Department (Policijska uprava sisačko-moslavačka) as a police officer. On 1 January 1998 he was assigned to a post in the Dvor Police Station (Policijska postaja Dvor). 7. Dvor is a municipality that receives special State support as defined by the legislation in force at that time, namely the Act on Areas receiving Special State Support (Zakona o područjima posebne državne skrbi, Official Gazette, nos. 44/1996, 57/1996, 124/1997 and 73/2000; hereinafter: the “Special State Support Act”). Among other things, that Act guaranteed to those employed in the public sector in areas receiving special State support a special salary uplift, which in the case of the Dvor municipality amounted to 50% of the salaries received in other parts of the country. 8. The amendments to the Special State Support Act which entered into force on 29 July 2000 (Official Gazette no. 73/2000) guaranteed the right to a special salary bonus only to those public sector employees in areas receiving special State support who had both their registered domicile (prebivalište) and also actually resided (borave) in the area at issue. 9. In May 2001 the applicant was assigned to another post in the Sisak-Moslavina Police Department, with his place of work being Sisak. 10. On 29 September 2000 the applicant brought an action against the State in the Kutina Municipal Court (Općinski sud u Kutini), seeking payment of a salary bonus in accordance with the Special State Support Act. 11. Soon afterwards the Kutina Municipal Court decided that it was not competent to hear the case and transferred it to the Hrvatska Kostajnica Municipal Court (Općinski sud u Hrvatskoj Kostajnici). 12. During the proceedings before the Hrvatska Kostajnica Municipal Court, the Sisak State Attorney’s Office (Općinsko državno odvjetništvo u Sisku) ‒ representing the State ‒ objected to that court’s territorial jurisdiction, arguing that the applicant had his domicile and lived in Majur, which was also within an area receiving special State support but outside the territorial jurisdiction of the Hrvatska Kostajnica Municipal Court. The Sisak State Attorney’s Office also submitted that the applicant had been receiving expenses for travel between Sisak and Dvor and that he was not entitled to the special salary bonus as provided under the Special State Support Act because Sisak was not an area receiving special State support. 13. The applicant replied to these submissions with the argument that during his tenure in Dvor he had had authorisation to use a police car, and that he had in fact lived in Majur, but since his house had not been fully reconstructed after the war, he had also spent some time in Sisak. 14. With regard to the contentious submissions of the parties, the Hrvatska Kostajnica Municipal Court heard evidence from the applicant, who pointed out that during his tenure in Dvor his registered domicile had been Majur, where he had actually resided ‒ some of the time in his own house and some of the time with his sister, since his house had needed reconstruction. He also explained that he had had authorisation to use a police car and had also been entitled to travel expenses, even though he had actually lived in Majur. 15. On 2 October 2003 the Hrvatska Kostajnica Municipal Court accepted the applicant’s civil action, ordering the State to pay compensation for his special salary bonus in the total amount of 67,214.69 Croatian kunas (HRK), together with the statutory default interest, for the period between 1 February 1998 and 1 May 2001, and to reimburse him the costs of the proceedings in the amount of HRK 7,978.80. 16. The Hrvatska Kostajnica Municipal Court pointed out that the applicant’s statement as to his domicile and his residence was credible and nothing called it into doubt. It also stressed that the Sisak State Attorney’s Office had neither provided any evidence nor challenged the veracity of the applicant’s statement. Instead, it had argued in its submissions that the applicant had both his domicile and his residence in Majur, within an area receiving special State support. As to the submission concerning travel expenses, the Hrvatska Kostajnica Municipal Court considered that this was a matter relating to the employment conditions of civil servants, which did not in itself have any bearing on the applicant’s domicile and residence. Against this background, the Hrvatska Kostajnica Municipal Court found that the applicant’s claim should be accepted. 17. On 22 October 2003 the Sisak State Attorney’s Office challenged the first-instance judgment before the Sisak County Court (Županijski sud u Sisku) contending that the applicant had only had his domicile in Majur, whereas the travel expenses suggested that he had in fact lived in Sisak. It thus considered that the applicant did not satisfy the criteria of the Special State Support Act necessary to qualify for a special salary uplift. 18. In a decision of 26 February 2004 endorsing all the factual and legal findings of the first-instance judgment, the Sisak County Court dismissed the appeal by the Sisak State Attorney’s Office. The first-instance judgment thus became final. 19. On 19 April 2004 the Kutina Municipal Court opened enforcement proceedings against the State on the basis of the final and enforceable judgment in the applicant’s favour. 20. The judgment was fully enforced on 26 April 2004 by payment of the due amount to the applicant. 21. On 20 May 2004 the State Attorney’s Office of the Republic of Croatia (Državno odvjetništvo Republike Hrvatske) lodged a request for the protection of legality (zahtjev za zaštitu zakonitosti) with the Supreme Court (Vrhovni sud Republike Hrvatske) against the part of the final judgment of the Hrvatska Kostajnica Municipal Court by which the applicant had been awarded HRK 19,238.59 for the period between 11 August 2000 and 5 May 2001 on account of the special salary uplift. It reiterated that the travel expenses which the applicant had received suggested that he had actually resided in Sisak in the period at issue, which could also be deduced from the fact that he had provided an address in Sisak in the civil action he lodged before the Kutina Municipal Court. Thus, once the 2000 amendments to the Special State Support Act had entered into force (see paragraph 8 above), the applicant had no longer been entitled to the special salary bonus since he had no longer resided in an area receiving special State support, which was a precondition for the special uplift, as explained in the judgment of the Supreme Court no. Gzz-190/03 of 18 February 2004. 22. The applicant challenged the request for the protection of legality, arguing that it could not be used as a remedy and that it substantially contradicted the general position on the matter adopted at the meeting of the Civil Division of the Supreme Court on 13 June 2003. 23. On 14 April 2005 the Supreme Court approved the request for the protection of legality, quashed the second-instance judgment in the impugned part, and remitted the case to the Sisak County Court. The Supreme Court held that the 2000 amendments to the Special State Support Act made it clear that civil servants employed in an area receiving special State support who applied for a special salary bonus should also have their domicile and residence in that area. It therefore ordered the Sisak County Court to reassess the appeal arguments of the Sisak Municipal State Attorney’s Office as to whether or not such conditions had been met in the applicant’s case. 24. On 7 December 2006 the Sisak County Court accepted the Sisak Municipal State Attorney’s Office appeal, reversing the first-instance judgment of the Hrvatska Kostajnica Municipal Court in the part in which the applicant was granted HRK 19,238.59 for the period between 11 August 2000 and 5 May 2001 on account of the special salary uplift, and ordering the applicant to repay that amount together with the statutory default interest. The Sisak County Court also reversed the first-instance judgment in the part concerning the costs of the proceedings. 25. The Sisak County Court held that the evidence adduced before the first-instance court suggested that in the period at issue the applicant had not in fact resided in an area receiving special State support, and thus had not met all the requirements under the 2000 amendments to the Special State Support Act concerning the right to a special salary uplift. 26. On 30 January 2007 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) against the judgment of the Sisak County Court of 7 December 2006, challenging the use of a request for the protection of legality in his case. 27. On 29 April 2010 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, holding that the lower courts had acted in accordance with the law. The decision of the Constitutional Court was served on the applicant on 31 May 2010. 28. According to a certificate issued by the Ministry of the Interior on 30 December 2013, pursuant to the above proceedings the applicant repaid the total amount of HRK 28,700 from his salary to the State.