It is customary for the content of the text in this section to include legal advice on specific (legal) issues. This time, exceptionally, there is something that at first glance seems different, although in essence it is not. It is a presentation, based on a very concrete example accompanied by a final court decision and a decision of the Constitutional Court of the Republic of Croatia, of what the modus operandi of the Croatian legislator (one branch of government in the tripartite division of power – legislative) and the Government of the Republic of Croatia as the authorized proposer of more than 95% of adopted regulations (the second branch of government in the tripartite division of power – executive) is towards the presidents of courts as an essential part of the third branch of government – the judicial authority.
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Namely, when we see that relationship (and it is very hard to believe how the state’s relationship towards the presidents of courts, especially in lawsuits regarding their rights from employment, could be worse than the relationship towards any party) which is, at least judging by this specific example (which is anything but insignificant), catastrophic, it is easier to prepare for, and perhaps endure, the disappointments that await us in our own proceedings, even when the legal text is very clear in our favor.
The Question of Constitutionality
Almost twenty years ago (Narodne novine 10/1999) the legislator adopted a law on the salaries of judges and other judicial officials which granted presidents of courts a salary supplement dependent on the number of employees in a court or other body, specifically for a number from 11 to 20 it was at the level of three percent. Of course, the presidents of courts and other officials were extremely satisfied, and it is more than clear that this item could not objectively represent a problem for the state budget.
Although the legislative practice of long-term derogation of recognized rights is unacceptable in a democratic state based on the rule of law, all political options over the past eighteen years have participated in the game regarding the payment of salary supplements to the presidents of courts.
However, after only one year of application, the ‘game’ began, and it was a game in which all political options in power participated. Namely, someone during the left coalition that came to power in January 2000 came up with the ‘brilliant’ idea to first adopt a law amending and supplementing the law that prescribed the supplement and to repeat this as soon as the deferral approached its end. For reasons we can only speculate about, this ‘brilliance’ was accepted by the right option when it returned to power. The vast majority of presidents passively watched this, but there was one active individual who initiated legal proceedings against the Republic of Croatia, believing that he was being harmed every month based on a law that was not in accordance with the Constitution of the Republic of Croatia.
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The civil lawsuit initiated in 2014 was definitively concluded to the detriment of the plaintiff in 2018 by a ruling of the County Court in Zagreb, with an obligation to pay the state litigation costs of almost one thousand euros in equivalent. In fact, the factual situation, which is often a stumbling block in court proceedings, was not disputed here at all.
Thus, for example, in the first-instance ruling, the court very casually stated some facts that should greatly concern everyone, almost panic them: ‘This court holds that the defendant is entirely right when stating that the Constitutional Court treated the plaintiff’s proposals as an initiative based on which it submitted a Report to the Croatian Parliament, in which it determined that the legislative practice of long-term derogation of recognized rights is unacceptable in a democratic state based on the rule of law. Precisely because of such actions of the Constitutional Court, and based on the plaintiff’s proposal, this court holds that this proposal of the plaintiff has no impact on the decision-making regarding the plaintiff’s claim.’
Contested Argumentation
The key argument of the courts against the plaintiff was that his claim was time-barred because the deferral of application is not a reason for the course of that period to stop. The limitation period should not be calculated from the day the plaintiff submitted the first proposal to the Constitutional Court for initiating proceedings for assessing compliance with the Constitution.
In relation to the appeal statement that the defendant has since the conclusion of the Stabilization and Association Agreement with the European Union in 2005 and the accession to EU membership assumed the obligation to apply the legal acquis of the community, which includes the interpretation of regulations aimed at enabling the party to acquire, not lose rights, it is emphasized that in this case the application of the institute of limitation at the objection of the defendant, as well as the actions of the first-instance court, cannot be considered as preventing the acquisition of rights in favor of the plaintiff, because in the interest of legal certainty and the rule of law, the provisions on the limitation of claims from employment are clear and accessible to all, which is why no party should be prevented from exercising its rights, thus it cannot be considered that in this case the plaintiff was essentially denied the right to judicial protection of rights from employment.
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Paper obviously bears everything, but how is it that the deferral of application is not a hindrance to the realization of rights we cannot understand and refuse to accept, just as we refuse to accept that the Constitutional Court suspends proceedings because the law has not been in force for more than a year. This goes directly against its own very negative stance on the actions of the Croatian Parliament precisely in this specific example. However, what bothers the most is that no one except one among hundreds of distinguished experts has protested.
