Returnee to the Republic of Croatia, M.N. requested from the competent regional office of the Croatian Pension Insurance Institute (the Institute), a recognition of pension length of service as insurance period spent in employment with the employer in Vrginmost from October 8, 1991 to 5 August 1995 (application submitted on 10 September 2008) in accordance with the application of the Convalidation Act / OG 104/97 /.
The Convalidation Act (Official Gazette No. 104/1997) entered into force on 8 October 1997. The term convalidation means the subsequent strengthening of legal acts and decisions adopted or issued by various bodies or legal entities with public authority, in cases of judicial and administrative nature in the territories of the Republic of Croatia that were under the protection or administration of the United Nations.
The law understandably limits the scope of convalidation by prescribing as a condition for strengthening acts and decisions exclusively within the provisions of the Constitution of the Republic of Croatia, the Constitutional Law on Human Rights and Freedoms and the rights of ethnic and national communities or minorities in the Republic of Croatia.
Pursuant to the Convalidation Act, the competent ministry adopted an implementing regulation, i.e. the Ordinance on the procedure for convalidation of decisions and individual acts in the field of pension insurance (OG No. 53/08)
Article 4 paragraph 1 of the Ordinance stipulates that persons who have been employed will have their pensionable service recognized as insurance period, provided that they had the status of insured person recorded in the appropriate records of the pension and disability insurance body, while in paragraph 4 of the same article states that the rights are determined on the basis of the factual situation at the time of the creation of the validated act, register and register of the body that issued the act, other means of evidence, and witness statements as additional evidence.
Along with the request for recognition of insurance experience, the client – insured person attached a certified copy of the health card (health care beneficiary card, issued by the Health Care and Health Insurance Fund of SAO Krajina, Vrginmost Branch) from which the first and last employer certification is visible and proposed hearing witnesses. He also considers the fact of non-existence of records on the job termination of insurance as evidence.
During the processing of the request, the Institute basically maintains the position that there is not sufficient material evidence from which it could be concluded with sufficient certainty about the applicant’s employment in the period in question, and that there is no recorded status of the insured in the records of the “parafund” body. According to the Convalidation Act, these records had to be the subject of convalidation. The Institute considers the testimonies of the proposed witnesses only as additional evidence that does not have sufficient force in the absence of other material evidence. In this case, the lack of records for the period from October 8, 1991 until August 5, 1995.
Procedure:
A negative Decision on the request for recognition of the right to convalidation of length of service for the disputed period was issued by the Institute regional body during 2009. However, the client N.M. never received it. For this reason, he submitted a request for delivery of a certified copy of the Decision from 2009, and the same was delivered to him during 2017.
In the repeated administrative procedure, after the judgment of the Administrative Court in Zagreb annulling the first instance and second instance decisions of the Institute, the first instance body, deciding on the request, issues a negative decision and therefore the entire procedure is defined as repeated administrative procedure. However, according to the appeal, the Central Service of the Institute on July 27, 2020 issues a decision by which the pension length of service spent in the territory of the Republic of Croatia which was under the protection or administration of the UN in the period from 8 October 1991 to 5 August 1995 is recognized for M.N.
Therefore, deciding on the appeal, the Central Service of the Institute determined that the first-instance body stated the testimonies of witnesses who confirm the allegations of M.N. on the duration of his employment and referring to the instructions of the Administrative Court as well as related decisions of the Constitutional Court in similar cases, assesses that there is sufficient evidence to make a positive decision.
There is no doubt that the legal understandings of the Constitutional Court expressed in decisions on lawsuits against decisions of the High Administrative Court in similar cases played a decisive role in making a positive decision in the procedure of recognizing length of service for the period covered by the Convalidation Act. In this case, primarily it refers to the decision of the Constitutional Court number U-III-4670/2017 of 9 October 2019.
The mentioned decision, in addition to and regardless of its contribution to the lawful resolution of proceedings referred to in the Convalidation Act and the specific case of the client M.N., is an unequivocal instruction on how and in what way to interpret the powers and duties of administrative courts in the Republic of Croatia. Namely, contrary to the common understanding of administrative dispute as the realization of formal, constitutionally guaranteed, judicial protection that does not go beyond a kind of 3rd or 4th level of resolution in administrative proceedings, the Constitutional Court insists on exercising judicial protection through a dispute before a court of full jurisdiction. Therefore, no longer exclusively within the framework of the court review of the legality of the administrative act, as was the case until the amendments to the Law on Administrative Disputes of 1 January 2012, but required the Administrative Courts to independently establish the facts relevant to the decision on the merits on the basis of a public and adversarial hearing.
Time will show how the Administrative Courts will further adapt to the Constitutional Court’s understanding of the role of administrative courts in ensuring judicial protection of the rights of parties in administrative cases.
In conclusion, it is evident from our practice so far that applicants face legal obstacles to proving their length of service due to lack of written evidence and a large number of cases where parties encounter negative decisions of regional offices in the first instance. Experience has shown us that the competent offices of the Institute, regional services have uneven administrative practice and the free assessment of evidence lies with officials dealing with cases that give themselves too much discretion to decide.
However, this positive example gives hope that some future beneficiaries will be able to positively solve their problem of convalidation of length of service and thus create conditions for exercising the right to a pension – by adding necessary years of validated length of service, and consequently solve their existence.
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