CASE OF ČAKAREVIĆ v. CROATIA
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković
5. The applicant was born in 1954 and lives in Rijeka. 6. On 10 December 1995 the applicant’s employment as an unqualified worker was terminated as a result of her employer becoming insolvent. At that time she had twenty-four years and ten months of service (radni staž) recorded in her “employment book” (radna knjižica). 7. The medical documentation submitted by the applicant shows that since 1993 she has been suffering from a psychiatric condition – depression and neurosis. The medical documents from various dates show her continuous incapacity of working. 8. On 5 November 1996 the Regional Office of the Croatian Employment Bureau in Rijeka (Hrvatski zavod za zapošljavanje, Područna služba u Rijeci, hereinafter “the Rijeka Employment Bureau”) granted the applicant unemployment benefits in the amount of 410.89 Croatian kunas (HRK – about 55 euros (EUR)) for 468 days, starting from 11 December 1995. There was no appeal, so that decision became final. 9. On 17 June 1997 the applicant lodged an application with the Rijeka Employment Bureau for the extension of the duration of unemployment benefits due to her ongoing temporary inability to work. She submitted a medical certificate that she had been ill and thus temporarily incapable of working. 10. On 27 June 1997 the Rijeka Employment Bureau, relying on section 25(1)(2) of the Employment Act, renewed her entitlement to unemployment benefits until further notice. She was to receive HRK 441 (about EUR 59) per month. This entitlement was to continue unless any legally prescribed conditions for withholding the payments occurred before the entitlement period expired, or until her right to compensation ceased to exist. 11. In December 1997 two additional pensionable years of service (staž osiguranja) were entered into the applicant’s employment book. However, that did not mean that the applicant was actually employed, but only that contributions for her pension and invalidity insurance had been paid. Such contributions are regularly paid by employers. However, since the applicant was not employed, these contributions were paid by the Croatian Employment Bureau. 12. On 26 May 1999 the Rijeka Employment Bureau provided the applicant with an “employment benefit card” (kartica korisnika novčane naknade). 13. On 27 March 2001 the Rijeka Employment Bureau terminated the applicant’s entitlement to unemployment benefits with effect from 10 June 1998. It held that the deadline prescribed in section 25(1)(2) of the Employment Act had expired on 9 June 1998. 14. On 3 April 2001 the Rijeka Employment Bureau established that the applicant was to repay it the amount of HRK 19,451.69 (about EUR 2,600). 15. The applicant lodged appeals against both decisions with the Central Office of the Croatian Employment Bureau (Hrvatski zavod za zapošljavanje, Središnja služba, hereinafter “the Central Employment Bureau”). She argued that she had the right to unemployment benefits until she retired. She also relied on her family circumstances and submitted that she was married and that her husband’s pension was HRK 1400 (about EUR 188), and that they had a child of school age and an older son who was employed. However, that body dismissed both her appeals as unfounded on 11 May 2001 and 15 May 2001. It held that she had been entitled to unemployment benefits for as long as she had been unable to work, but subject to a limit of twelve months. 16. On 25 July 2001 the applicant then lodged two administrative actions with the Administrative Court, seeking the annulment of the Central Employment Bureau’s decisions of 11 and 15 May 2001. She claimed that she had twenty-seven years of service, and as such was entitled to unemployment benefits until she was next employed or until she retired. 17. On 22 September 2004 the Administrative Court dismissed the claim concerning the decision of 11 May 2001 upholding the decision of 27 March 2001 (see paragraph 10 above) as ill-founded, endorsing the arguments and conclusions of the lower bodies. 18. In a separate judgment of the same day the Administrative Court quashed the decision of 15 May 2001 which upheld the decision of 3 April 2001 by which the applicant had been ordered to repay the sum of HRK 19,451.69 (see paragraph 14 above). It instructed the parties to seek relief in civil proceedings before a competent municipal court. 19. On 25 March 2005 the Rijeka Employment Bureau contacted the applicant by letter, proposing to reach an out-of-court settlement within fifteen days regarding the repayment of the unemployment benefits which she had received between 9 June 1998 and 27 March 2001, in total HRK 19,451.69. She was cautioned that the Rijeka Employment Bureau would otherwise be compelled to institute civil proceedings against her for repayment of the amount claimed. 20. The applicant replied that she was in poor health, unemployed and without any income, and that in these circumstances she could not accept the obligation to repay the money sought. 21. On 14 April 2009 the applicant lodged an application with the Rijeka Employment Bureau, seeking to overturn its 27 March 2001 decision to terminate her entitlement to unemployment benefits. It was dismissed on 29 June 2009 and this decision was upheld on appeal on 10 July 2009 as well as by the High Administrative Court on 5 July 2012. 22. A subsequent constitutional complaint by the applicant was declared inadmissible on 19 December 2012. 23. On 3 August 2005 the Rijeka Employment Bureau brought a civil action against the applicant for unjust enrichment, seeking repayment of HRK 19,451.69, together with statutory interest, on the basis of the unemployment benefits she had received between 10 June 1998 and 27 March 2001. 24. On 16 November 2005 the applicant responded to the civil action, alleging, inter alia, that the Rijeka Employment Bureau’s actions violated her human rights. She also submitted medical documentation demonstrating her fragile state of health, numerous health problems caused by her difficult personal situation due to long-term unemployment, the poverty in which she and her family lived, and her inability to work. She also brought a counterclaim against the Rijeka Employment Bureau, seeking payment of unemployment benefits from 31 January 2011 to the date of her future retirement, in the amount of HRK 55,680.15. 25. On 26 June 2006 the Rijeka Municipal Court (Općinski sud u Rijeci) dismissed the Rijeka Employment Bureau’s claim as unfounded, relying on section 55 of the Employment Mediation and Unemployment Rights Act (see paragraph 36 below). It held that the applicant could not be held responsible for the bureau’s errors and negligence, particularly bearing in mind that she had not concealed any fact or misled it. The same court also rejected the applicant’s counterclaim, given that a final and binding decision on her entitlement to unemployment benefits had already been adopted in the administrative proceedings, and that such a decision could not be contested in the context of civil proceedings. 26. Both the applicant and the Rijeka Employment Bureau lodged appeals against the firstinstance judgment. 27. On 25 February 2009 the Rijeka County Court (Županijski sud u Rijeci) dismissed the applicant’s appeal and upheld the first-instance judgment with regard to her counterclaim. It also allowed the Rijeka Employment Bureau’s appeal and, relying on section 210 of the Civil Obligations Act, reversed the first-instance judgment in respect of the unjust enrichment claim, and ordered the applicant to pay HRK 19,451.69 plus statutory interest running form 3 August 2005 (the date of lodging the claim against the applicant) to the Rijeka Employment Bureau. It held that the applicant was obliged to return the amount in dispute in view of the fact that a legal basis for the unemployment benefits had ceased to exist on 10 June 1998. 28. The applicant then lodged both an appeal on points of law and a constitutional complaint. 29. On 28 April 2010 the Supreme Court declared her appeal on points of law inadmissible. The applicant then lodged a constitutional complaint against that decision. 30. On 14 March 2013 the Constitutional Court dismissed both of her constitutional complaints as unfounded. It served its decision on the applicant’s representative on 27 March 2013. 31. Meanwhile, on 5 December 2012 the applicant had replied to the Rijeka Employment Bureau’s letter offering her an out-of-court settlement for the amount owed to be reimbursed in sixty instalments. She had stated that she was not able to repay the amount due because she was unemployed, in ill health and had no income. She asked the Rijeka Employment Bureau for debt relief. 32. On 22 April 2013, before the Rijeka Municipal Court, the Rijeka Employment Bureau lodged an application to enforce the Rijeka County Court’s judgment of 25 February 2009 against the applicant. 33. On 20 June 2013 the Rijeka Municipal Court issued a writ of execution in respect of the applicant’s bank account(s). 34. On 26 June 2013 the first-instance court ordered the applicant to pay court fees in the amount of HRK 540 (about EUR 72), on account of the enforcement application and the writ of execution. 35. By a letter of 14 August 2013 the Financial Agency (FINA) informed the first-instance court that there were no records of the applicant’s active bank accounts. 36. By a conclusion (zaključak) of 30 September 2013 the Rijeka Municipal Court informed the Rijeka Employment Bureau about the Financial Agency’s letter and ordered it to give the court information about the applicant’s bank account or make a further proposal. 37. On 22 October 2013 the Rijeka Employment Bureau lodged an application to change the object of the enforcement (prijedlog za promjenu predmeta i sredstva ovrhe), and requested enforcement in relation to the applicant’s movable property, given that she was unemployed and had no income, real property or motor vehicle. 38. By a decision taken on 8 December 2014 the Rijeka Municipal Court declared the application of 22 October 2013 inadmissible on the basis that it was premature, since changing the object of enforcement is not possible before a writ of execution becomes final. 39. The enforcement proceedings are still ongoing.