Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Equality of arms)

Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

NORP The applicant company was established in DATE and has its registered office in GPE .

On DATE the applicant company concluded a contract with ORG ) , GPE ’s national public - service radio broadcaster , a publicly funded institution with its own legal personality , the status of which is regulated by law ( at that time PERSON no . CARDINAL/CARDINAL Coll . , as amended , presently PERSON no . CARDINAL/CARDINAL Coll . , as amended ) .

NORP Under the contract , in return for a fee , the applicant company agreed to act as exclusive agent for ORG as the principal ( “ the principal ” ) for the sale of broadcasting time for the purposes of advertising .

The venture worked well and the contract was amended several times . The amended contract was valid until DATE .

NORP However , in DATE the relationship between the applicant company and the principal began to sour because the principal was not content with the amount of business acquired by the applicant company in DATE .

The principal had accordingly issued the applicant company with a bill for the difference between the estimated profit and the real profit from such business .

As the applicant company did not pay the bill , the principal served the applicant company with a notice of termination of the contract , considering the applicant company ’s failure to pay the bill to be a fundamental breach of the contract .

NORP The notice period expired on DATE , following which the principal arranged for the sale of its broadcasting time by other means .

On DATE the applicant company challenged the validity of the principal ’s notice of termination of the contract in court , but later withdrew the action .

NORP The principal , for its part , sued the applicant company for payment of the difference between the estimated profit and the real profit . No information has been made available about the current state and outcome of those proceedings .

On DATE the applicant company demanded that the principal pay it the equivalent of MONEY ( ORG ) , according to the exchange rate applicable at that time , by way of indemnity for termination of the contract .

With reference to the contract , the amount of the indemnity had been calculated as the applicant company ’s average DATE commission for DATE , taking into account both financial and non - financial transactions between the principal and third parties , the latter being referred to as barter transactions .

As the principal did not satisfy the applicant company ’s claim , on DATE the applicant company sued it for the above - mentioned amount and late - payment interest .

On DATE a copy of the action was served on the principal for observations . Hearings were scheduled for CARDINAL and DATE and CARDINAL DATE , in the course of which ORG súd ) examined complex documentary evidence and heard the statutory representative of the applicant company and CARDINAL witnesses .

However , the principal submitted no written observations and appeared at none of the hearings . The circumstances of its absence were disputed ( see below ) .

On DATE the Bratislava I ORG ( ORG súd ) granted the action in full . It observed that despite having been represented by a lawyer , the principal had failed to submit any observations or to present a good excuse for its failure to appear at any of the hearings . It therefore proceeded to examine the case under LAW of LAW ( Law no . PERSON . , as amended – “ the ORG ” ) , which in the event of a party ’s unjustified failure to cooperate , allows for the examination of the case on the basis of the elements available .

As a preliminary issue , ORG examined the question of validity of the notice of termination of the contract issued by the principal . It observed that the notice had not been contested and concluded that it was valid . There were no reasons disqualifying the applicant company from being eligible for the indemnity , and the barter transactions had rightly been taken into account in its calculation .

NORP The principal appealed ( odvolanie ) to ORG ( PERSON súd ) .

In terms of form , it contested the first - instance judgment in its entirety . Nevertheless , in terms of substance , it acknowledged the existence of the legal basis of the applicant company ’s entitlement to indemnity , disputing solely its scope , in so far as the barter transactions were concerned . Without those transactions , the acknowledged amount of the indemnity was equivalent to some ORG CARDINAL,CARDINAL , according to the exchange rate applicable at that time .

In support of its challenge to the claim exceeding that amount , the principal pointed out that , in the proceedings in its action for payment of the difference between the estimated profit and the real profit ( see paragraph CARDINAL above ) , the applicant company had lodged a counter - claim for compensation for the barter transactions .

The principal also contended that the decision to determine the action in its absence had been arbitrary .

Having examined the appeal , ORG upheld the firstinstance judgment on DATE .

It considered that , except for the part related to the barter transactions , the applicant company ’s claim had been acknowledged by the principal .

As to those transactions , it observed that the applicant company had offset a claim for compensation for them against the claims asserted by the principal in its above - mentioned action . The claim for compensation for those transactions was however a different matter from a claim for indemnity for the termination of the contract , which was asserted in the present proceedings , and which ORG found to be wellfounded .

Lastly , as regards the principal ’s absence from the first - instance proceedings , ORG observed ( i ) that the principal had requested the adjournment of the hearing of DATE ; ( ii ) that the summons for the hearing of DATE had not been deliverable to the principal ’s lawyer prior to that hearing ; and ( iii ) that on CARDINAL DATE the principal ’s new lawyer had requested that the hearing of CARDINAL DATE be adjourned so as to allow him to study the case file , although the summons for that hearing had already been served on the principal on CARDINAL DATE at the latest . In those circumstances , ORG assessment that the principal had been “ absolutely passive ” in the proceedings was right and the examination of the case in the principal ’s absence had been justified .

As no ordinary appeal lay against ORG judgment , following its service on the parties , the matter was resolved with the force of a final and binding decision ( právoplatnosť ) on DATE .

On the expiry of a period of grace for voluntary payment , the judgment became enforceable ( vykonateľnosť ) on DATE .

On DATE the principal challenged ORG judgment by way of a complaint under LAW no . PERSON . , as amended ) . Asserting its rights of access to a court and to a fair hearing , it contended that the impugned judgment was grossly arbitrary and contrary to ORG law . In the latter respect , ORG had arbitrarily refused to ask ORG of ORG for a preliminary ruling .

On DATE ORG ( Ústavný súd ) declared the complaint inadmissible . It held that an unjustified refusal to ask for a preliminary ruling may in certain circumstances give rise to a ground for appealing on points of law ( dovolanie ) under LAW ( g ) of the ORG . As that remedy had not been exhausted , ORG lacked jurisdiction to deal with the complaint .

On DATE the principal filed a petition with ORG ( “ the ORG ” ) requesting the latter to exercise his discretionary power to challenge the above - mentioned judgments by way of an extraordinary appeal on points of law ( mimoriadne dovolanie DATE “ extraordinary appeal ” ) .

The ORG decided to accede to the request and on DATE challenged the contested judgments in ORG ( Najvyšší súd ) .

He argued primarily that the courts had erred in finding the notice of termination of the contract valid because it had not been disputed by the parties . This was a point of law and it could not have been resolved simply with reference to the lack of disagreement of the parties over it . The courts therefore should have examined that question independently and properly . As for the substance , in his view , had the notice been invalid , there would have been no reason for an indemnity . On the other hand , had the notice been valid , the indemnity could have been refused , because it had been based on a breach of contract by the applicant company .

Moreover , the ORG pointed out that the contract had neither provided for nor excluded compensation for barter transactions . In such circumstances , the contract should have been interpreted in terms of the parties’ subsequent practice , which had not involved the payment of compensation for such transactions . They should accordingly not have been taken into account for the purpose of calculation of the indemnity .

Simultaneously , the ORG applied for a ruling to suspend the enforceability of the impugned judgments pending the outcome of the extraordinary appeal . ORG acceded to that request on DATE .

Meanwhile , on DATE , the applicant company had submitted observations in reply ; it submitted further observations on DATE and DATE .

The latter observations were not submitted until after ORG had determined the extraordinary appeal ( see paragraph CARDINAL below ) , as the applicant company did not know of its decision at the time .

In its observations , the applicant company raised numerous arguments , including the following .

There was no justification for protecting the principal ’s rights by way of an extraordinary appeal because it had failed to protect its own rights with due diligence in the lower courts and because , even at the cassation level , it had left the protection of its rights to the public authorities .

In that regard , it had been open to the principal to assert its rights before ORG directly by way of an appeal on points of law . It had not done so simply in order to avoid incurring court fees for such an appeal .

Moreover , under LAW ORG , the availability of an indirect remedy , an extraordinary appeal ( on points of law ) , was excluded by the availability of a direct remedy , an ( ordinary ) appeal on points of law .

At the appellate level , the only point in dispute had been the part of the applicant company ’s claim concerning the barter transactions .

The ORG ’s challenge to the ordinary courts’ findings as regards the validity of the notice to terminate the contract therefore exceeded the grounds of the principal ’s petition for an extraordinary appeal . Indeed , it was contrary to it because the principal had not challenged the notice but rather had relied on it . In any event , the ORG ’s challenge was ill - founded because there was no correlation between the validity of the notice and the fact that it had been based on the applicant company ’s refusal to pay the bill submitted by the principal .

Lastly , with reference to Convention case - law , the applicant company submitted that the extraordinary appeal as a remedy against a final and binding judgment in its favour was incompatible with the principles of the rule of law and legal certainty .

On DATE , sitting in chambers , ORG allowed the extraordinary appeal . It quashed the judgments of both ORG and ORG and remitted the matter to the former for a new examination .

It concluded that the courts had erred in that , firstly , they had omitted to examine the validity of the contract itself and secondly , depending on the outcome of that examination , they had failed properly to examine the validity of the notice . In view of those errors it had not been possible to deal in concreto with the questions of the basis and scope of the applicant company ’s claim .

ORG decision was served on the applicant company ’s lawyer on DATE . As a result , the case was remitted to the first instance , where it has been pending ever since .

On DATE the applicant company lodged a complaint with ORG , contesting ORG decision of CARDINAL DATE . It relied on its rights to access to a court , equality of arms , adversarial proceedings , legal certainty and a fair hearing .

The applicant company argued that the admissibility requirements for the extraordinary appeal had not been met , and that the extraordinary appeal had not only been belated but had exceeded the scope of the principal ’s petition . In addition , by the mere fact of admitting the extraordinary appeal , ORG had set at naught the entire preceding judicial process , in violation of the principle of legal certainty .

The applicant company further argued that in view of ORG decision , a brand new hearing of the case had been called for , even though no procedural irregularities of the previous hearing had been established . In addition , the contested decision was biased in favour of the principal and was not amenable to review on account of lack of reasoning .

The applicant company also contended that ORG had completely ignored its observations in reply to the extraordinary appeal .

Lastly , the applicant company complained that it had been denied access to ORG case file in the extraordinary appeal .

On DATE ORG declared the applicant company ’s complaint inadmissible as being manifestly illfounded .

In so far as the applicant company had sought to contest the extraordinary appeal in principle , ORG observed that the statutory framework for examination of individual complaints did not allow it to examine the compliance of statutes with the LAW and international instruments as such .

To the extent that the applicant company might be understood as wishing to object to any action on the part of the ORG , no such objection could be considered because the applicant company had only identified ORG as the defendant of its complaint .

As for the remainder of the complaint , which concerned ORG , ORG found that the applicant company had failed to show any constitutionally relevant arbitrariness in the interpretation and application of the relevant rules .

As regards the applicant company ’s argument that the extraordinary appeal had been lodged belatedly , it was based on the premise that the principal had appealed against the first - instance judgment only in so far as it concerned the barter transactions . That premise was however mistaken because the principal had defined the target of its appeal as the firstinstance judgment as a whole ( see paragraph CARDINAL above ) .

As to ORG failure to give a specific answer to the applicant company ’s arguments , ORG considered that the right to an answer to submitted arguments was related not to a person but to substance . ORG had thus been under a duty not to reply to the arguments submitted by the applicant company as such , but rather to address the relevant aspects of the case . On the latter point , the applicant company had failed to show that any of the relevant aspects of the case had gone unanswered .

Lastly , ORG accepted that it had been a mistake to deny the applicant company access to ORG case file . However , it held that that had no constitutional significance because , in view of the character of the extraordinary appeal proceedings , access to the case file or the lack of it would have had no impact on the outcome of the proceedings .

A copy of ORG decision was served on the applicant company on DATE .


Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković

The applicants , PERSON ( “ the first applicant ” ) , Mr PERSON ( “ the second applicant ” ) and PERSON ( “ the third applicant ” ) were born on DATE , DATE and DATE . They live in GPE , GPE ( GPE ) and GPE respectively . The second applicant is a national of GPE and GPE and the other CARDINAL applicants are NORP nationals . The first applicant was represented before the ORG by PERSON and the second and the third applicant by PERSON , advocates practising in PERSON and GPE respectively .

ORG ( “ the Government ” ) were represented by their Agent , PERSON .

The facts of the case , as submitted by the parties , may be summarised as follows .

The applicants are pensioners . Until DATE their pensions were regularly adjusted in line with the increase in wages in accordance with LAW on principal rights arising from pension and disability insurance ( Zakon o osnovnim pravima iz mirovinskog i invalidskog osiguranja , ORG of ORG , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL and ORG no . DATE “ LAW ” ) and LAW ( Zakon o mirovinskom i invalidskom osiguranju , ORG nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) .

In the period DATE and DATE ORG adopted a series of successive decrees whereby it limited the funds available for payment of pensions . This measure was part of the ORG ’s strategy to curb inflation and stabilise the economy . Since the funds available were insufficient to enable pensions to be adjusted in line with the increase in wages , the level of pensions paid in that period was lower than required by law .

On DATE the Act on adjustment of pensions and other benefits arising from pension and disability insurance and on administering pension and disability insurance funds ( Zakon o usklađivanju mirovina i drugih novčanih primanja iz mirovinskog i invalidskog osiguranja , te upravljanju fondovima mirovinskog i invalidskog osiguranja , Official Gazette no . DATE “ LAW ” ) entered into force . It provided that in the period DATE and DATE pensions should have been adjusted in line with the increase in wages ( section CARDINAL ) , and that pensioners were to be compensated for their resultant loss within DATE from the LAW ’s entry into force by way of an increase in their pensions ( section CARDINAL ) . The LAW also abrogated section CARDINAL of ORG and section CARDINAL of ORG ( see paragraph CARDINAL above ) and provided that from DATE pensions were to be adjusted in line with the increase in the cost of living ( section CARDINAL ) .

By a decision of CARDINAL DATE ORG ( Ustavni sud PERSON ) invalidated almost the entire LAW , including sections CARDINAL , as unconstitutional . It also held that the ORG had an outstanding statutory obligation to pensioners to pay them pensions adjusted in line with the increase in wages as of DATE . This obligation became known as “ the debt to pensioners ” ( dug umirovljenicima , hereafter “ the pension debt ” ) .

As a result of ORG decision , CARDINAL requests were lodged with ORG regional offices by pensioners seeking ( retrospective ) adjustment of their pensions in accordance with ORG decision , that is , in line with the increase in wages . In addition , pensioners brought CARDINAL civil actions for payment of compensation for the pension debt in civil courts .

On DATE the Act on the transfer of funds from the ORG budget to the pension and disability insurance funds and on the adjustment of pensions ( ORG o prenošenju sredstava državnog proračuna fondovima mirovinskog i invalidskog osiguranja te usklađivanju mirovina , ORG no . DATE “ LAW ” ) entered into force . It provided that in DATE the ORG would transfer HRK CARDINAL,CARDINAL,CARDINAL,CARDINAL to ORG with a view to increasing all pensions . The increase was paid in the form of a DATE pension supplement ( dodatak uz mirovinu ) of CARDINAL NORP kunas ( HRK ) plus PERCENT of the pension paid in DATE . The supplement was paid from DATE until DATE , after which it was permanently incorporated and became an integral part of a person ’s pension . The legal basis for the supplement was provided by subordinate legislation passed on the basis of LAW , namely , the GPE on the method and time - limits of the payment of the pension supplement ( PERSON o načinu i rokovima isplate dodatka uz mirovinu , ORG no . PERSON ) . LAW also provided that pensions were to be adjusted at the rate calculated by adding up the rate of the increase in the cost of living and the rate of the increase in wages and then dividing them by CARDINAL ( hereafter “ the NORP formula ” ) . Thereby it in fact derogated from CARDINAL of ORG and section CARDINAL of ORG , according to which pensions were to be adjusted in line with the increase in wages ( see paragraph CARDINAL above ) . On DATE ORG rejected CARDINAL petitions for ( abstract ) constitutional review and thus refused to institute proceedings to review the constitutionality of LAW .

On DATE LAW ( Zakon o mirovinskom osiguranju , ORG nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , ORG , DATE , CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , ORG , PERSON , CARDINAL , DATE , CARDINAL/CARDINAL , DATE ) entered into force . It expressly abrogated LAW and ORG ( see paragraph CARDINAL above ) and provided that pensions were to be adjusted according to the NORP formula .

On DATE the Act on the increase of pensions to eliminate differences in levels of pensions earned in different periods ( Zakon o povećanju mirovina radi otklanjanja razlika u razini mirovina ostvarenih u različitim razdobljima , Official Gazette no . CARDINAL – “ the Pensions Increase Act ” ) entered into force with a view to levelling out pensions , because pensions earned before DATE were disproportionately lower than those earned after that date . As set out in its LAW regulated the method of increasing pensions with a view to eliminating differences in levels of pensions earned in different periods and implemented ORG decision of CARDINAL DATE in accordance with the ORG ’s economic capacities . The Act increased pensions earned DATE by anything PERCENT depending on DATE of retirement . The increase was paid DATE and DATE . On DATE ORG rejected a number of petitions for ( abstract ) constitutional review and thus refused to institute proceedings to review the constitutionality of LAW .

On DATE the Act on the implementation of the Constitutional Court ’s decision of CARDINAL DATE ( see paragraphs CARDINAL below , hereafter “ the LAW ” ) entered into force . It provided that those pensioners ( hereafter “ eligible pensioners ” ) whose pensions had , in the period DATE and DATE ( hereafter “ the relevant period ” ) , not been adjusted in line with the increase in wages had a right to compensation ( for the pension debt ) which corresponded to the difference between the pension they had been entitled to receive and the pension actually paid to them in that period , reduced by the pension supplement paid under LAW and the pension increase received under LAW . In addition , eligible pensioners were also entitled to interest on the total amount of compensation at a rate of PERCENT calculated from DATE the Act ’s entry into force . While the amount of compensation was to be determined ( calculated ) by ORG , the compensation itself was to be obtained through a special fund ( “ the Pensioners’ Fund ” ) that was to be established on the basis of subsequent legislation .

On DATE LAW ( see paragraphs DATE below ) entered into force . The Act provided that each eligible pensioner had a right to a share in the Fund depending on the amount of compensation to which they were entitled . The LAW gave each of them a choice between payment of CARDINAL of the compensation in CARDINAL semi - DATE instalments over a period of DATE ( DATE ) ( Model A ) , or payment of full compensation in CARDINAL DATE instalments over DATE ( DATE ) with a DATE delay ( Model B ) . In the end , PERCENT of eligible pensioners opted for Model A whereas PERCENT chose PERSON is operated and managed by a private investment company , ORG , which is also charged with calculating the interest due on the amount of compensation determined in advance by ORG under LAW in respect of each eligible pensioner .

According to a report by ORG of DATE , the total amount of compensation for the pension debt that was to be paid through ORG was HRK CARDINAL an additional HRK CARDINAL.CARDINAL.CARDINAL.CARDINAL.CARDINAL in accrued interest . The report also suggests that CARDINAL eligible pensioners were entitled to compensation whereas CARDINAL were not , because the total amount of their pensions received in the relevant period together with the pension supplement paid under LAW and the pension increase paid under LAW exceeded the total amount of pension they were entitled to receive in that period .

On DATE ORG rejected CARDINAL petitions for ( abstract ) constitutional review and thus refused to institute proceedings to review the constitutionality of CARDINAL provisions of LAW . Likewise , on DATE it rejected CARDINAL petitions for ( abstract ) constitutional review and thus refused to institute proceedings to review the constitutionality of CARDINAL provisions of LAW ( see paragraph DATE below ) .

The first applicant has been receiving a survivor ’s pension ( obiteljska mirovina ) since DATE , following the death of her husband .

By a notice of CARDINAL DATE ORG informed the first applicant that the amount of compensation for the pension debt owed to her equalled CARDINAL NORP kunas ( HRK ) ; in other words , she was not entitled to any compensation . In particular , the calculation contained in the information notice indicated that in the relevant period the first applicant had received , together with the disbursements paid under LAW and LAW ( see paragraphs CARDINAL and CARDINAL above ) , pension payments in the total amount of HRK CARDINAL,CARDINAL.CARDINAL , whereas she was entitled to receive HRK DATE .

On DATE the first applicant requested ORG of ORG ( Hrvatski zavod za mirovinsko osiguranje – Područna služba u Varaždinu ) to verify whether the amount of compensation referred to in ORG information notice had been correctly calculated .

By a letter of DATE ORG replied that it had verified the calculation and established that the amount had been calculated correctly .

On DATE the first applicant requested ORG to re - calculate the amount of compensation in accordance with the criteria set forth in ORG decision of CARDINAL DATE ( see paragraph CARDINAL above ) .

By a letter of CARDINAL DATE ORG , after explaining the method of calculation to the first applicant , reiterated that the amount of compensation in her case had , in its view , been accurately calculated .

On DATE the first applicant brought an action for judicial review in ORG ( ORG ) contesting ORG letter of CARDINAL DATE . She argued that ORG had refused to re - calculate the amount of compensation in her case in accordance with ORG decision of CARDINAL DATE .

By a decision of CARDINAL DATE ORG declared the first applicant ’s action inadmissible , finding that the contested letter of CARDINAL DATE did not constitute an “ administrative act ” , within the meaning of section CARDINAL(CARDINAL ) of LAW ( see paragraph CARDINAL below ) , against which administrative - dispute ( judicial review ) proceedings could be instituted . The relevant part of that decision reads as follows :

“ LAW paragraph CARDINAL of [ LAW ] provides that the difference between the pension to which a person was entitled and the pension actually received in the period DATE and DATE shall be determined [ that is , calculated ] for each pensioner separately by ORG of its own motion and within DATE ( without issuing a special decision in administrative proceedings ) .

Section CARDINAL ) of LAW provides that administrative - dispute proceedings may be initiated only against an administrative act . According to section CARDINAL of that Act , administrative - dispute proceedings may also be initiated [ for failure to respond ] when the competent [ administrative ] authority has not adopted the relevant administrative act [ that is , a formal decision ] following an application or an appeal by a party ...

Given that [ the plaintiff in the present case ] by her action contests an act that is not an administrative act and that [ the case ] concerns a matter in which the relevant administrative act is not being issued ... it was decided as indicated in the operative provisions . ”

On DATE the first applicant lodged a constitutional complaint with ORG . She relied on LAW paragraph CARDINAL ( equality before the law ) of LAW ( see paragraph CARDINAL below ) .

By a decision of CARDINAL DATE ORG declared the first applicant ’s constitutional complaint inadmissible as lodged outside the statutory time - limit of DATE . ORG decision was served on the first applicant on DATE .

The second applicant has been receiving a disability pension ( invalidska mirovina ) since DATE .

By a notice of CARDINAL DATE ORG informed the second applicant that the amount of compensation for the pension debt owed to him equalled CARDINAL HRK , that is , that he was not entitled to any compensation . In particular , the calculation detailed in the information notice indicated that in the relevant period the second applicant had received , together with the disbursements paid under LAW and LAW ( see paragraphs CARDINAL and CARDINAL above ) , pension payments in the total amount of HRK CARDINAL,CARDINAL.CARDINAL , whereas he had been entitled to HRK ORG . However , from the calculation it is evident that the sum of the amounts the second applicant was entitled to receive was not HRK ORG , but HRK CARDINAL . The relevant part of ORG information notice reads as follows :

On DATE the second applicant requested both ORG of ORG ( Hrvatski zavod za mirovinsko osiguranje – Područna služba u GPE ) and ORG to correct the manifest error in calculation contained in the information notice of CARDINAL DATE and pay him HRK CARDINAL,CARDINAL.CARDINAL , that is , the difference between the amount received and the amount he had actually been entitled to . On DATE the applicant submitted the same request to ORG of ORG ( Hrvatski zavod za mirovinsko osiguranje – Središnja služba ) .

By a letter of DATE ORG replied that it had verified the calculation contained in ORG information notice of CARDINAL DATE and established that it was correct .

In his motion of DATE the second applicant asked ORG to issue a formal decision on the merits of his request of DATE , pursuant to LAW . He added that if ORG letter of DATE was to be considered a decision on his request , then his motion should be considered as an appeal against that decision .

By a decision of CARDINAL DATE ORG declared the second applicant ’s motion inadmissible for lack of jurisdiction . The relevant part of that decision reads as follows :

“ Section CARDINAL paragraph CARDINAL of [ LAW ] provides that compensation is to be obtained through a special fund . Given that , pursuant to LAW , the ... compensation is not to be obtained through ORG but through ORG , this authority does not have jurisdiction to decide on the request submitted . ”

On DATE the second applicant appealed against that decision .

By a decision of DATE ORG of ORG dismissed the second applicant ’s appeal and upheld the first - instance decision , repeating the reasons given therein .

On DATE the second applicant brought an action for judicial review in ORG contesting the second - instance decision .

By a judgment of DATE ORG dismissed the second applicant ’s action , endorsing the reasons given by the ORG . The relevant part of that judgment reads as follows :

“ The courts finds that the defendant authority [ i.e. ORG ] acted correctly when it dismissed the plaintiff ’s appeal against the decision of the first - instance authority and that it correctly held that ORG and its [ regional ] offices were not competent to determine the amount of compensation [ payable for the pension debt ] , which is exclusively within the power of ORG , pursuant to LAW ”

On DATE the second applicant lodged a constitutional complaint with ORG . He relied on LAW the right to appeal ) , LAW paragraph CARDINAL ( the guarantee of judicial review of decisions of administrative and other public authorities ) and LAW paragraph CARDINAL ( the right to a fair hearing ) of LAW ( see paragraph CARDINAL below ) as well as on LAW . In his constitutional complaint the second applicant wrote , inter alia , the following :

“ By the contested judgment of DATE ORG dismissed the complainant ’s action brought against the decision of ORG of DATE dismissing the complainant ’s appeal against the decision of [ its ] ORG of DATE .

By so doing ORG failed to fulfil its constitutional role to review the lawfulness of administrative acts and thus breached the complainant ’s right to judicial review of the lawfulness of administrative acts guaranteed by LAW paragraph CARDINAL of the LAW .

In addition , the complainant ’s constitutional right to appeal guaranteed by LAW was also breached . In particular , throughout the entire administrative proceedings neither [ ORG ] nor ORG addressed the complainant ’s arguments relating to the incorrect calculation of compensation , raised in his appeal and in his action , but only declined the jurisdiction expressly conferred on them by [ LAW ] .

After having received [ the information notice containing ] the calculation with which he disagrees , the complainant asked [ ORG ] to issue a [ formal ] decision so that he could avail himself of the legal remedies guaranteed by LAW . However , [ ORG ] refused to issue such a decision , even though section CARDINAL ) [ LAW ] expressly and unequivocally provides that ORG shall determine [ i.e. calculate ] the difference between the pension to which each pensioner was entitled to and the pension actually paid .

Such conduct [ on the part of the domestic authorities ] ... is not and can not be lawful nor in accordance with the LAW in any civilised country .

That would mean , for example , that someone whose pension was calculated incorrectly would never be able to contest that . Naturally , that [ conclusion ] can not be sustained as every party has the right to ask ORG to issue a [ formal ] decision each time the pension is revised ( for example , each time the pension is increased ) in order to be able to verify that [ new ] calculation and , if dissatisfied with it , resort to legal remedies ( appeal , action ) .

The conduct of [ the domestic authorities in the present case ] is also contrary to LAW of the [ Convention ] ... and in breach of the constitutional right to a fair hearing under LAW paragraph CARDINAL of the LAW ... ”

By a decision of CARDINAL DATE ORG declared the second applicant ’s constitutional complaint inadmissible . It found that even though in his constitutional complaint the second applicant had relied on the relevant Articles of the LAW , he had not substantiated his complaint by any constitutional - law arguments but had merely repeated the arguments raised in the proceedings before ORG . Therefore , ORG was unable to examine the merits of his constitutional complaint . ORG decision was served on the second applicant ’s representative on DATE .

The third applicant received an early retirement pension ( prijevremena starosna mirovina ) and then a retirement pension ( starosna mirovina ) from DATE until DATE , whereupon , following the death of her husband , she received a survivor ’s pension .

In DATE ORG informed the third applicant that the amount of compensation for the pension debt owed to her equalled CARDINAL HRK , that is , that she was not entitled to any compensation . In particular , the calculation detailed in the information notice indicated that in the relevant period the third applicant had received , together with the disbursements paid under LAW and LAW ( see paragraphs CARDINAL and CARDINAL above ) , pension payments in the total amount of HRK CARDINAL , whereas she had been entitled to receive HRK CARDINAL .

On DATE the third applicant asked ORG of ORG to re - calculate the amount of compensation in accordance with the criteria set forth in ORG decision of CARDINAL DATE ( see paragraph CARDINAL above ) . She argued that the amount of pension she had been entitled to receive was HRK CARDINAL , and not HRK CARDINAL,CARDINAL.CARDINAL as indicated in ORG information notice .

By a letter of CARDINAL DATE ORG replied that it had verified the calculation contained in ORG information notice and established that it was correct .

In her motion of CARDINAL DATE the third applicant asked ORG to issue a formal decision on the merits of her request of CARDINAL DATE , pursuant to LAW . She added that , if ORG letter of DATE was to be considered a decision on her request , then her motion should be considered as an appeal against that decision .

By a decision of DATE ORG declared the third applicant ’s motion inadmissible for lack of jurisdiction . The relevant part of that decision reads as follows :

“ Section CARDINAL paragraph CARDINAL of [ LAW ] provides that compensation is to be obtained through a special fund . Given that , pursuant to LAW , the ... compensation is not to be obtained through ORG but through ORG , this authority does not have jurisdiction to decide on the request submitted . ”

On DATE the third applicant appealed against that decision .

By a decision of CARDINAL DATE ORG of ORG dismissed the third applicant ’s appeal and upheld the decision of ORG , repeating the reasons given therein .

On DATE the third applicant brought an action for judicial review in ORG contesting the second - instance decision .

By a judgment of DATE ORG dismissed the third applicant ’s action , endorsing the reasons given by the ORG . The relevant part of that judgment reads as follows :

“ Given that compensation [ for the pension debt ] is not to be obtained through the defendant authority [ ORG ] , the first - instance authority [ ORG ] ... correctly declared the motion [ of DATE ] inadmissible for lack of jurisdiction and the second - instance authority [ ORG ] correctly dismissed the plaintiff ’s appeal against that decision . ”

On DATE the third applicant lodged a constitutional complaint with ORG . She relied on LAW the right to appeal ) , LAW paragraph CARDINAL ( the guarantee of judicial review of decisions of administrative and other public authorities ) and LAW paragraph CARDINAL ( the right to a fair hearing ) of LAW ( see paragraph CARDINAL below ) and LAW . In her constitutional complaint the third applicant wrote , inter alia , the following :

“ By the contested judgment of DATE ORG dismissed the complainant ’s action brought against the decision of ORG of CARDINAL DATE dismissing the complainant ’s appeal against the decision of [ its ] ORG of DATE .

By so doing ORG failed to fulfil its constitutional role to review the lawfulness of administrative acts and thus breached the complainant ’s right to judicial review of the lawfulness of administrative acts guaranteed by LAW paragraph CARDINAL of the LAW .

In addition , the complainant ’s constitutional right to appeal guaranteed by LAW was also breached . In particular , throughout the entire administrative proceedings neither [ ORG ] nor ORG addressed the complainant ’s arguments relating to the incorrect calculation of compensation raised in her appeal .

[ ORG ] declined jurisdiction to decide on rights arising from pension insurance ( even though it is the only authority in GPE competent to decide on such rights ) and ORG endorsed that without any legitimate reason . ...

After having received the calculation with which she disagrees , the complainant asked [ ORG ] to issue a [ formal ] decision so that she could avail herself of legal remedies guaranteed by LAW . However , [ ORG ] refused to issue such a decision , which is not and can not be lawful nor in accordance with LAW in any civilised country . That is also contrary to LAW ] ...

The above - described conduct [ on the part of the domestic authorities ] is also in breach of the constitutional right to a fair hearing under LAW paragraph CARDINAL of the LAW ... ”

By a decision of CARDINAL DATE ORG declared the third applicant ’s constitutional complaint inadmissible . It found that even though in her constitutional complaint the third applicant had relied on the relevant Articles of the LAW , she had not substantiated her complaint by any constitutional - law arguments but had merely repeated the arguments raised in the proceedings before ORG . Therefore , ORG was unable to examine the merits of her constitutional complaint . ORG decision was served on the third applicant on DATE .

The relevant Articles of the LAW of GPE ( ORG , ORG nos . DATE , CARDINAL , CARDINAL/CARDINAL ( consolidated text ) , CARDINAL , DATE ( consolidated text ) , CARDINAL and DATE ( consolidated text ) , PERSON ( corrigendum ) , CARDINAL and CARDINAL read as follows :

“ Everyone in GPE shall enjoy rights and freedoms regardless of their race , colour , sex , language , religion , political or other beliefs , national or social origin , property , birth , education , social status or other characteristics .

All shall be equal before the law . ”

“ ( CARDINAL ) Rights and freedoms may be restricted only by law in order to protect the rights and freedoms of others , legal order , public morals or health .

( CARDINAL ) Every restriction of the rights and freedoms should be proportional to the nature of the necessity for the restriction in each individual case . ”

“ The right to appeal against decisions adopted in the first - instance proceedings before a court or other competent authority shall be guaranteed .

The right of appeal may exceptionally be excluded in cases provided by law if other legal protection is ensured . ”

Decisions of the state administration and other public authorities shall be based on law .

Judicial review of the lawfulness of decisions given by administrative or other public authorities shall be guaranteed . ”

“ In the determination of his rights and obligations or of any criminal charge against him , everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law . ”

“ CARDINAL . The right of ownership shall be guaranteed .

Ownership implies duties . Owners and users of property shall contribute to the general welfare . ”

The relevant provisions of the LAW on the implementation of ORG decision of CARDINAL DATE ( Zakon o provođenju odluke PERSON CARDINAL . svibnja DATE , ORG nos . CARDINAL and CARDINAL/CARDINAL – “ the LAW ” ) , which entered into force on DATE , provide as follows .

Sections CARDINAL and CARDINAL provide that pensioners whose pensions had not been adjusted in the period DATE and DATE in line with the increase in wages have a right to compensation . Compensation is to be obtained through a special fund that is to be established by special legislation .

Section CARDINAL provides that , with a view to compensating pensioners , ORG shall determine ( calculate ) the difference between the amount of retirement pension , early retirement pension , disability pension or survivor ’s pension to which each pensioner was entitled in the relevant period , and the pension actually paid in that period . Disbursements paid under LAW and LAW must be included in the calculation ( see paragraphs LAW above ) .

The relevant provisions of LAW ( Zakon o umirovljeničkom fondu , ORG nos . CARDINAL , CARDINAL and CARDINAL ) , which entered into force on DATE , provide as follows .

Section CARDINAL provides that the founder of ORG is , on behalf of the ORG , the Government of GPE .

Section CARDINAL provides that the members of ORG are ( eligible ) pensioners referred to in LAW ( see paragraph CARDINAL above ) .

Section CARDINAL ) provides that the calculation of the difference ( that is , the calculation of the amount of the pension debt in respect of each pensioner ) referred to in section CARDINAL of LAW ( see paragraph CARDINAL above ) is the basis for membership of ORG .

Section CARDINAL(CARDINAL ) provides that ORG , that is , the private investment company that operates and manages ORG , must inform pensioners ( by way of an “ information notice ” ) of their membership of ORG and the amount of compensation they are entitled to within DATE of the establishment of the ORG .

Section CARDINAL(CARDINAL ) – as amended by DATE Amendments to LAW ( Zakon o izmjenama i dopunama PERSON o umirovljeničkom fondu , ORG no . CARDINAL ) , which entered into force on DATE provides that a member of the ORG may lodge a complaint ( prigovor ) with ORG against the information notice referred to in paragraph CARDINAL of the same section ( see the preceding paragraph ) within DATE from DATE he or she received it .

Section CARDINAL(CARDINAL ) provides that pensioners who have already been compensated on the basis of final and enforceable court decisions are not entitled to compensation from ORG .

Section CARDINAL(CARDINAL ) provides that pensioners involved in pending administrative proceedings or administrative - dispute proceedings ( judicial review before ORG ) , shall obtain compensation pursuant to LAW .

Section CARDINAL(CARDINAL ) provides that pensioners who brought civil actions for compensation may become members of ORG and obtain compensation pursuant to LAW if they withdraw their actions .

The relevant part of ORG ) of ORG DATE , which was , according to ORG , published on the web page of ORG on DATE , reads as follows :

Pensioners may obtain clarifications concerning the calculation of compensation [ payable to them ] exclusively from the employees of ORG on the premises of [ its ] regional offices ...

Pensioners who have received an information notice on membership [ of the ORG ] and the amount of compensation [ payable to them ] and who consider that the compensation has been incorrectly calculated may submit a request for re - calculation of the compensation .

Pensioners who have not received an information notice on the calculation of compensation but consider that they are entitled to ... compensation may submit a request for calculation of the amount of compensation [ payable to them ] .

ORG If a pensioner wishes to have the calculation verified he or she may make such a request at a regional office of ORG , at the counters specially designated for that purpose , or lodge a written complaint ( prigovor ) with ORG .

The Croatian Pension Fund shall communicate all its replies to complaints to ORG , which shall notify all pensioners who lodged complaints of new calculations .

Costs related to requests for calculation or re - calculation of compensation shall be borne by ORG only in respect of those pensioners whose compensation was incorrectly calculated by ORG .

Another complaint may not be lodged if an earlier one was refused but court proceedings may be instituted [ instead ] .

ORG has forwarded to ORG information on [ civil ] proceedings previously instituted against ORG by pensioners in [ civil ] actions . ORG shall obtain information on the remaining actions , on the basis of which civil proceedings have not yet been instituted , and forward it to ORG . ORG and ORG shall ensure that obtaining compensation on CARDINAL grounds , that is , in [ both ] civil proceedings and through ORG , is avoided . All pensioners who have brought [ civil ] actions shall be encouraged through the media to reconsider their position ... and to consider withdrawing their actions . ”

The Administrative Disputes Act ( Zakon o upravnim sporovima , ORG of ORG no . CARDINAL/CARDINAL , and ORG nos . CARDINAL , CARDINAL ) , which was in force DATE and DATE , in its relevant part , provides as follows :

Section CARDINAL(CARDINAL ) provided that administrative - dispute ( judicial review ) proceedings could be initiated only against an administrative act .

Section CARDINAL(CARDINAL ) defined an administrative act as an act whereby a ORG organ , in the exercise of public authority , decided on a right or obligation of an individual or organisation in an administrative matter .

Section CARDINAL provided that administrative - dispute ( judicial review ) proceedings were instituted by the bringing of an action .

DATE . Section CARDINAL provided that ORG had to declare an action inadmissible if , inter alia , the contested decision did not constitute an administrative act within the meaning of section CARDINAL of that Act ( see paragraph CARDINAL above ) .

LAW ( Zakon o obveznim odnosima , ORG of ORG nos . CARDINAL , DATE and DATE , and ORG nos . CARDINAL , CARDINAL , DATE , DATE , CARDINAL , CARDINAL , CARDINAL and DATE hereafter : “ the DATE LAW ” ) , which was in force between CARDINAL DATE and DATE , was the legislation governing contracts and torts . Its relevant provisions read as follows :

“ Damage is diminution of one ’s property ( actual damage ) or prevention of its increase ( lost profits ) ... ”

“ A legal entity shall be liable for damage caused by its organ to a third person in the exercise , or in relation with the exercise of its functions [ duties ] . ”

The text of sections DATE and CARDINAL ) of LAW ( Zakon o obveznim odnosima , ORG , ORG . CARDINAL/CARDINAL and TIME “ the DATE LAW ” ) , which entered into force on DATE , is nearly identical to the text of sections CARDINAL and CARDINAL ) of the former DATE LAW .

In the period between the adoption of ORG decision of CARDINAL DATE ( see paragraph CARDINAL above ) and the entry into force of LAW on DATE ( see paragraph CARDINAL above ) CARDINAL requests were filed with ORG regional offices by those seeking ( retrospective ) adjustment of their pensions in accordance with that decision , that is , in line with the increase in wages ( see paragraph CARDINAL above ) . ORG either : ( a ) did not decide on those requests , thus forcing the pensioners to lodge appeals and actions for failure to respond ( žalba zbog šutnje administracije , tužba zbog šutnje administracije ) , or ( b ) issued formal decisions whereby it dismissed such requests on their merits explaining that in the period DATE and DATE no relevant subordinate legislation was adopted enabling it to calculate the level of pensions in line with the increase in wages . On DATE ORG adopted the following practice direction ( zaključak ) which was followed in its subsequent judgments ( for example , in cases no . Us - M-CARDINAL/CARDINAL of DATE and no . Us - M-CARDINAL/CARDINAL of DATE ) :

“ On the appeals lodged in the [ administrative ] proceedings for adjustment of pensions following the adoption of ORG decision of CARDINAL DATE the competent authority [ i.e. ORG ] shall decide by applying the legislation in force after the adoption of that decision , which means that pensions should be adjusted [ only ] from DATE until DATE pursuant to section CARDINAL of the [ Basic Pension and Disability Insurance Act ] ... but having regard also to the provisions of [ LAW ] . ”

In decision no . Us-CARDINAL/CARDINAL of DATE ORG held that the calculation of the amount of the pension debt by ORG in respect of each eligible pensioner was not an “ administrative act ” within the meaning of section CARDINAL of LAW ( see paragraph CARDINAL above ) . It thus declared the plaintiff ’s action for judicial review brought against such calculation inadmissible . The relevant part of that decision reads as follows :

“ LAW paragraph CARDINAL of [ LAW ] provides that the difference between the pension to which a person was entitled and the pension actually received in the period DATE and DATE shall be established [ that is , calculated ] for each pensioner separately by ORG of its own motion and within DATE ( without issuing a special decision in administrative proceedings ) .

Section CARDINAL ) of LAW provides that administrative dispute proceedings may be initiated only against an administrative act . Under section CARDINAL of that Act , administrative dispute proceedings may also be initiated [ for failure to respond , that is ] when the competent [ administrative ] authority has not adopted the relevant administrative act [ that is , a decision ] at the request of or on an appeal by a party ...

Given that [ the plaintiff in the present case ] by her action contests an act that is not an administrative act and that [ the case ] concerns a matter in [ respect of ] which an administrative act [ would not , in any case ] be issued ... it was decided as indicated in the operative provisions . ”

In decision no . Us-CARDINAL/CARDINAL of DATE ORG held that ORG was not a public authority and that therefore the information notice on the amount of compensation owed to pensioners issued by that company was not an administrative act within the meaning of section CARDINAL of LAW ( see paragraph CARDINAL above ) .

NORP In decision no . U - III-CARDINAL/CARDINAL of DATE ORG dismissed a constitutional complaint lodged against a judgment of ORG dismissing an action brought against decisions of ORG declaring a pensioner ’s request for calculation of the amount of compensation inadmissible for lack of jurisdiction .

NORP In decision no . U - III-CARDINAL/CARDINAL of CARDINAL DATE ORG dismissed a constitutional complaint lodged against a decision of ORG declaring inadmissible an action brought by a pensioner against a notice from ORG informing her that she was not entitled to any compensation . Even though in her constitutional complaint the complainant relied on LAW paragraph CARDINAL ( equality before the law ) , LAW ( the right to appeal ) , LAW ( the guarantee of judicial review of decisions of administrative and other public authorities ) and LAW ( the right of ownership ) , ORG examined her case not only under those ORG , but also under LAW paragraph CARDINAL of the LAW ( see paragraph CARDINAL above ) as it found that from her submissions it followed that she was also complaining of a violation of her constitutional right of access to court . The relevant part of ORG decision reads as follows :

“ In substance [ the complainant ] argues that it is unacceptable that the right ... to compensation under LAW is not determined in administrative proceedings , that parties only receive an information notice without an instruction on legal remedies available , that ORG does not examine cases concerning compensation on their merits but declares actions inadmissible on the ground that they do not concern an administrative act and that ORG is not a ORG or public authority which can decide in administrative matters .

From the submissions and arguments the complainant has adduced in [ support of ] her constitutional complaint it follows that , by expressly complaining of a violation of her right to appeal guaranteed by LAW and in view of the fact that her administrative action was declared inadmissible , the complainant is also complaining of a violation of the right of access to court guaranteed by LAW paragraph CARDINAL of the LAW .

Procedural guarantees enshrined in LAW , in particular the right of access to court , are elements of the “ right to a court ” . Those guarantees secure the right of everyone to bring any claim relating to their rights or obligations before a court and [ the right ] to have that claim decided .

The right to a court is not an absolute right . Rather , it is subject to regulation by the competent ORG authorities , and as such , is subject to certain limitations which do not impair the very essence of the right and its legitimate aim , or which do not upset the relationship of proportionality between the means employed to restrict it and the aim sought to be achieved .

The present case concerns a constitutionally acceptable restriction of the right of access to court due to the legal nature of the document ( it is not an administrative act ) , the complainant contested before ORG . Besides , pursuant to LAW the calculation of the amount of compensation ( or denial of compensation ) is not an administrative matter within the meaning of section CARDINAL(CARDINAL ) of LAW in which an administrative or other public authority would decide on one ’s rights or obligations . [ Rather , ] it concerns direct execution , proprio motu , of LAW , which determines which categories of pensioners , depending on the type of pensions [ they receive ] , are entitled to compensation , as well as how [ that compensation ] should be calculated . That Act does not lay down an obligation to conduct administrative proceedings and render an administrative act [ i.e. a formal decision ] which would confer on citizens the rights it sets out . Therefore , the document [ in question ] ( the information notice ) on the calculation of compensation ( or the non - existence of the right to compensation ) is of a declaratory nature only .

Since the obligation to conduct administrative proceedings and issue an administrative act [ i.e. a formal decision ] is not prescribed ( in any event , ORG would not be entitled to conduct such proceedings or issue an administrative act as it is evidently not an administrative or other public authority but a commercial company ) there is no constitutive act [ i.e. a formal decision ] which would entail the right to appeal , within the meaning of LAW , whereas the right of access to court is limited only [ to the extent that ] the jurisdiction of ORG , which is prescribed by law , excludes ... non - administrative matters . That means that the right of access to court , or [ the possibility ] to resort to another legal avenue of redress or to other remedies is not excluded .

The Constitutional Court therefore finds that the complainant ’s constitutional rights guaranteed by LAW paragraph CARDINAL of the [ NORP ] LAW were not violated by the contested decision . ”

DATE . By decision no . U - I-CARDINAL/CARDINAL of CARDINAL DATE ( published in the Official Gazette CARDINAL of CARDINAL DATE ) ORG rejected CARDINAL petitions for ( abstract ) constitutional review and thus refused to institute proceedings to review the constitutionality of CARDINAL provisions of LAW , including sections CARDINAL and DATE ( see paragraphs CARDINAL above ) . The relevant part of that decision reads as follows :

“ The calculation of the amount of compensation contained in an information notice [ from ORG ] , may be contested by way of a complaint ( prigovor ) to [ ORG ] within DATE of the receipt of the notice ( section CARDINAL paragraph CARDINAL of LAW ) whereupon the possibility of judicial protection is also open . The commercial company [ i.e. ORG ] which operates and manages the [ Pensioners’ ] Fund within the meaning of CARDINAL of LAW has standing to be sued in [ such ] judicial proceedings .

As regards the ORG argument that section CARDINAL(CARDINAL ) of LAW [ is incompatible with LAW ] because ‘ the exercise of the right to be paid compensation is contingent on withdrawal of [ any civil ] action [ which may have been brought ] , which restricts the right to judicial protection’ ... ORG , having regard to the unquestionable power of the legislator to prescribe conditions for acquiring the right to membership of the [ Pensioners’ ] Fund , as well as to the fact that the impugned restriction does not prevent the addressees of [ LAW ] [ to exercise ] the right to judicial protection in a way that would impair the essence of that right but ‘ allows them to choose the way’ [ in which they ] ... exercise the right to be paid compensation , finds that the prescribed restriction is proportional to the aim sought to be achieved by the restriction . ”

By decision no . PERSON CARDINAL/CARDINAL of CARDINAL DATE ORG ruled that an ordinary ( civil ) court had jurisdiction in a case where the plaintiff sought payment of the pension debt , and thereby resolved a conflict of jurisdiction between that ordinary court and ORG .

In judgments nos . PERSON CARDINAL/CARDINAL of DATE and PERSON - x CARDINAL/CARDINAL of DATE ORG dismissed appeals on points of law ( revizija ) and upheld the lower courts’ judgments dismissing actions brought against ORG after the entry into force of LAW and LAW whereby the plaintiffs sought payment of ( compensation for ) the pension debt owed to them . In particular , ORG held that after these CARDINAL legislative acts had come into force on DATE and CARDINAL DATE respectively such compensation claims had to be adjudicated solely on the basis of that legislation . Since under those CARDINAL legislative enactments compensation for the pension debt could be obtained either as payment of CARDINAL of the compensation due over a period of DATE or as delayed payment of the entire amount of compensation due over DATE , awarding full and immediate compensation to those pensioners who had brought civil actions to that end would place them in a privileged position compared to other pensioners who had not brought such actions and thus had to obtain compensation through ORG . The relevant part of those judgments reads as follows :

“ The substantive - law issue raised by the plaintiff in his appeal on points of law is whether the plaintiff is entitled to be paid the difference in pension in accordance with ORG decision of CARDINAL DATE or [ whether he may exercise ] the right to be paid [ that difference ] only through ORG .

The lower - instance courts dismissed the plaintiff ’s claim by holding that the provisions of LAW applied only to those pensioners who had withdrawn their [ civil ] actions , which the plaintiff had not done , and therefore he had not acquired the right to compensation pursuant to that LAW and [ LAW ] ...

It is beyond dispute that the plaintiff falls within the category of pensioners who were by section CARDINAL(CARDINAL ) of [ LAW ] granted the right to compensation due to the partial adjustment of [ their ] pensions in the period DATE and DATE .

... LAW ... regulates the method of compensation of pensioners referred to in section CARDINAL ) of [ LAW ] and thereby fully implements the [ ORG ] decision [ of CARDINAL DATE ] .

The right to compensation under the [ Pensioners’ Fund ] Act belongs only to those pensioners who are the members of the ORG .

Pursuant to section CARDINAL(CARDINAL ) of LAW pensioners referred to in LAW of [ LAW ] who have brought civil actions for compensation may become members of the ORG and obtain compensation pursuant to that LAW if they withdraw their actions .

These [ civil ] proceedings in which the plaintiff seeks compensation ... were instituted after the entry into force of [ LAW ] and LAW . Given that the plaintiff ... had not , in accordance with the said provision , withdrawn his action [ he ] did not become a member of the ORG nor [ did he ] acquire the right to compensation under LAW .

The plaintiff seeks payment of the full amount of compensation , whereas LAW provides that compensation must be obtained by acquiring and disposing of the shares in the ORG in accordance with the prescribed standards and criteria , so that under section CARDINAL(CARDINAL ) sub - paragraph CARDINAL of LAW the right to the entire amount of compensation due belongs [ only ] to those members who opted for the right to acquire and dispose of the shares over DATE with a DATE delay where the amount of compensation is paid in CARDINAL DATE instalments .

After the entry into force of [ LAW ] and LAW the ORG claims for compensation for non - adjustment of [ their ] pensions in the period DATE and DATE must be decided exclusively on the basis of these legislative acts , which were adopted with a view to removing the effects of unconstitutional pension insurance legislation which had been invalidated by ORG .

Those legislative acts enabled pensioners who had brought civil actions for compensation to obtain it in the same way and under the same conditions as other pensioners who had not brought civil actions . The plaintiff was therefore not put in a disadvantaged position vis - à - vis those [ other ] pensioners .

By refusing compensation [ paid ] in accordance with LAW and maintaining his claim for a single payment of the full amount of the difference in pension owed to him , the plaintiff seeks to obtain compensation under conditions that are more favourable than those applied to pensioners who exercise that right as members of the [ Pensioners’ ] Fund . Therefore , to allow the plaintiff ’s claim would place him in a more favourable position than those [ other ] pensioners and thereby breach the constitutional guarantee of equality enshrined in LAW .

The plaintiff ’s claim is unfounded even if adjudicated on the basis of the legislation in force before the adoption of [ LAW ] and LAW because a [ civil ] court is not entitled to decide on rights arising from pension insurance as a preliminary issue .

The defendant [ i.e. ORG ] as the competent authority had rendered final decisions in the administrative proceedings on the amount of pension payable to ... the plaintiff and paid the pension on the basis of those decisions . The lawfulness of those decisions could have been examined in administrative proceedings .

Therefore , the legal basis for determining the ... amount of pension to be paid to the plaintiff , are the defendant ’s final decisions on the basis of which the pension was paid ... The court is not entitled to assess the lawfulness of the defendant ’s decisions nor to establish that the plaintiff was entitled to a higher pension than the CARDINAL paid on the basis of [ those ] final decisions .

The existence of that right is determined in administrative proceedings by a constitutive decision . [ However , ] a decision that could have represented a legal title rendering the claim for payment of the difference in pension sought by the plaintiff well - founded was not rendered in the present case .

In view of the above the second - instance court , in dismissing the plaintiff ’s claim , correctly applied the [ relevant ] substantive law . Therefore , the plaintiff ’s appeal on points of law has to be dismissed ... ”

In judgment no . PERSON CARDINAL of CARDINAL DATE ORG held that the same reasoning applied to those cases where an action for payment of ( compensation for ) the pension debt had been brought before the entry into force of LAW and LAW .

By judgment no . P-CARDINAL/CARDINAL of DATE ORG ordered ORG as the defendant to pay the plaintiff ( a pensioner ) the pension debt . The exact amount of the pension debt owed to the plaintiff the court ordered the defendant to pay was calculated on the basis of an opinion prepared by a financial expert .

By judgment no . Gž-CARDINAL/CARDINAL of DATE ORG reversed a first - instance judgment dismissing an action brought by CARDINAL pensioners as plaintiffs and ordered ORG as the defendant to pay them the pension debt . It held that because the plaintiffs had not withdrawn their action in accordance with section CARDINAL(CARDINAL ) of LAW ( see paragraph CARDINAL above ) , they had chosen to obtain compensation for the pension debt not through ORG but in civil proceedings .

By judgment no . ORG of CARDINAL DATE the ORG quashed a first - instance judgment and remitted the case where the first - instance court had dismissed an action for payment of compensation brought by a pensioner as the plaintiff against ORG for its failure to satisfy its statutory obligation CARDINAL of LAW ( see paragraph CARDINAL above ) and determine the amount of compensation owed to him . The plaintiff had brought his action because he had not received ORG information notice within the statutory time - limit , and ORG , in reply to his request for calculation of the compensation owed to him , had informed him that he was not eligible for compensation because he had been receiving a pension on account of his status as a former political prisoner . The ORG did so even though it had previously granted him a disability pension .

By judgment no . P-CARDINAL/CARDINAL of CARDINAL DATE ORG dismissed an action for payment of the pension debt brought by a pensioner as the plaintiff against the ORG as the defendant . The plaintiff brought her action after she had been informed via ORG information notice that she was not entitled to any compensation through ORG , and after ORG , in reply to her request for re - calculation of the compensation owed to her , had informed her that the compensation had been correctly calculated . The court did not accept the ORG ’s argument that it did not have jurisdiction in the matter . It held that it had jurisdiction precisely because ORG had not issued a formal decision ( an administrative act ) on the plaintiff ’s request for re - calculation , thus depriving her of the possibility to seek judicial review before ORG . The court eventually dismissed the plaintiff ’s claim because it held that she should have sued ORG instead of the ORG , and because she had refused to advance the fees of the financial expert the court had been prepared to call upon to verify the ORG ’s calculation of compensation .

By judgment no . Gž-CARDINAL/CARDINAL of CARDINAL DATE ORG upheld a first - instance judgment dismissing an action brought by a pensioner as the plaintiff against the ORG as the defendant for payment of compensation for the pension debt . The court held that the ORG had standing to be sued because LAW provided that ORG had been established by ORG on behalf of the ORG ( see paragraph CARDINAL above ) . The court dismissed the plaintiff ’s claim because a financial expert confirmed that ORG calculation , according to which the plaintiff was not entitled to compensation , was correct .

By judgment no . P-CARDINAL/CARDINAL of DATE ORG dismissed an action brought by a pensioner as the plaintiff against ORG and ORG as defendants whereby she sought : ( a ) declaration that she had become a member of ORG and acquired a certain number of shares in it corresponding to the pension debt owed to her , and ( b ) payment of compensation in accordance with Model B provided for by LAW . The plaintiff brought her action because she considered that the amount of compensation indicated in ORG information notice was too low . She did so only after ORG , in reply to her request for re - calculation of the compensation , had informed her that the compensation had been correctly calculated . The plaintiff specifically asked the court to establish the correct amount of compensation owed to her under LAW and LAW . The court dismissed her action because it held that it was not authorised to verify the accuracy of ORG calculation of the compensation . The court held , in particular :

“ This court considers that it has no power to establish whether the amount of compensation for the pension debt ... has been determined correctly . That is so because there is not a single legislative act in force which would entitle it to examine whether the amount of compensation determined by the first defendant [ i.e. ORG ] is correct and accurate , or to determine the amount of compensation and order it to be paid .

Namely , even though the case file does not contain any decision by the first or the second defendant adopted on the basis of [ LAW ] or LAW in the form of an administrative act , from [ their provisions ] it is evident that authorities other than this court are competent to decide on compensation and its amount . Therefore , the plaintiff should have requested those authorities to determine [ her right to compensation ] and its amount either in administrative proceedings or in administrative - dispute [ i.e. judicial review ] proceedings [ before ORG ] especially because the right to compensation for the pension [ debt ] owed to [ her ] is a right arising from pension insurance .

Given that from the aforementioned legislation it is evident that the first defendant [ i.e. ORG ] is competent to decide on the rights arising from the pension insurance and that [ LAW ] confers on it also [ the power ] to determine the amount of compensation payable for the pension debt , the plaintiff in the civil proceedings may claim payment of only the amount of the pension debt which was determined by the competent authority . That being so , the plaintiff should have obtained , either from the first defendant or by instituting administrative - dispute [ judicial review ] proceedings [ before ORG ] , a decision on the amount of compensation owed to her for the pension debt ... That is so because to obtain a court judgment ordering payment , the plaintiff must first have a title for it , and it is precisely a decision by the first defendant [ i.e. ORG ] which she does not have ... ”


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property)

Jon Fridrik Kjølbro;Georges Ravarani;Ksenija Turković

The applicant was born in DATE and lives in Split .

He is the owner of a flat in ORG with a surface area of QUANTITY . According to the applicant , that flat is the only real estate in his ownership and his only property of value .

It would appear that in DATE the housing authorities awarded a specially protected tenancy ( stanarsko pravo ) of the flat to a certain Ms ORG and her family .

On DATE ORG entered into force . It abolished the legal concept of the specially protected tenancy and provided that the holders of such tenancies in respect of , inter alia , privately owned flats were to become “ protected lessees ” ( zaštićeni najmoprimci ) . Under the Act such lessees are subject to a number of protective measures , such as the duty of landlords to contract a lease of indefinite duration , payment of protected rent ( zaštićena najamnina ) , the amount of which is set by the Government and significantly lower than the market rent ; and better protection against termination of the lease .

The applicant refused to conclude a lease contract with ORG under the protected lease scheme .

Therefore , on DATE she brought a civil action against him in ORG ( PERSON ORG ) with a view to obtaining a judgment in lieu of such a contract .

At the hearing held on CARDINAL DATE the applicant argued that PERSON was not entitled to protected rent because she owned a house in the tourist village of GPE , QUANTITY from Split .

At the hearing held on DATE the applicant submitted a counter - claim seeking to obtain a judgment ordering PERSON and her family to vacate the flat in question . He argued that he intended to move into the flat .

By a judgment of DATE ORG found in favour of ORG and imposed on the applicant a lease contract stipulating protected rent in the amount of MONEY ( HRK ) DATE .

On DATE ORG ( PERSON ) dismissed an appeal by the applicant and upheld the first - instance judgment .

The Municipal and ORG established that GPE was living in the flat with her son PERSON , her daughter - in - law and her grandson whereas the applicant was living with his mother in a flat located in the same building . His mother also owned an adjacent building where he was running his medical practice in CARDINAL of the flats . The court also found that ORG and her son PERSON indeed owned a small summer home in GPE surfacing QUANTITY only .

Against this factual background the Municipal and ORG held that the conditions provided in section CARDINAL(CARDINAL ) of ORG , as interpreted by ORG ( see PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE ) , had not been met and that the applicant was therefore not entitled to refuse to enter into a lease contract with ORG under the protected lease scheme . In particular , even though the applicant intended to move into the flat and had no other accommodation , he was neither entitled to permanent social assistance or was over DATE of age , nor was ORG ’s DATE home in LOC located in the same municipality or township .

Those courts also held that , apart from being protected from eviction , ORG was also entitled to protected rent ; the applicant thus having no right to charge her the market rent for living in his flat . That was so because they found that ORG DATE home did not constitute a habitable house within the meaning of section CARDINAL(CARDINAL ) of the Lease of Flats Act ( see PERSON , cited above , § CARDINAL ) .

By a decision of CARDINAL DATE ORG ( Ustavni sud PERSON ) dismissed the applicant ’s constitutional complaint against the judgments of the PERSON and ORG , and served its decision on the applicant ’s representative on DATE .


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

NORP The list of applicants and the relevant details of the applications are set out in the appended table .

The applicants complained of the non - enforcement or delayed enforcement of domestic decisions according to which the applicants were entitled to various pecuniary amounts and/or to have certain actions taken by ORG authorities in their favour .

In some of the applications , the applicants also raised complaints under other provisions of the Convention .