The ECHR found a violation of the requirements of Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECHR found a violation of the requirements of Article 1 of Protocol No. 1 to the Convention for the Prot Сведения: 2018-12-11 07:04:49

Resolution of the ECHR of April 26, 2018 in the case of Чakarevic (Cakarevic) v. Croatia (Complaint N 48921/13).

In 2013, the applicant was assisted in the preparation of the complaint. Subsequently, the complaint was communicated to Croatia.

The case was successfully considered a complaint about the collection from the applicant in retrospective procedure of social benefits for unemployment, paid to her in error, which was her only source of income. The case has violated the requirements of Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms.


In 1996, the Employment Service ordered the applicant to pay unemployment benefits for a fixed period of time, which was subsequently extended until further notice. In March 2001, the Employment Service determined that the applicant had received a larger allowance for more than 12 months, established by law, and deprived the applicant of her right to benefits from June 1998. The employment service filed a civil suit against the applicant for illegal enrichment, demanding payment to the state of approximately EUR 2,600, as well as interest on this amount, based on unemployment benefits received by the applicant between June 1998 and March 2001. The domestic courts did not change the court order to charge the applicant retrospectively.


Regarding the application of Article 1 of Protocol No. 1 to the Convention. (a) Admissibility. A person must have the right to refer to the validity of an administrative decision that has entered into force in his or her favor, and to measures already taken to implement this decision, if neither the recipient of the payments, nor anyone on his or her behalf, contributed to this decision. in such a way that it was rendered or applied incorrectly. Consequently, if the administrative decision could be canceled in the future (ex nunc), the expectation that it would not be considered retrospectively (ex tunc) would be considered legitimate, if only there were good reasons for opposing the opinion in the public interest or in the interests of third parties.

Ex nunc (lat.) - from a certain point onwards. Ex tunc (lat.) - initially.

Several circumstances argued in favor of acknowledging that the applicant’s legal position was subject to “legitimate expectations” in order to apply Article 1 of Protocol No. 1 to the Convention. Firstly, nothing indicated that the applicant had contributed to receiving social benefits, which continued to be paid after the expiration of the statutory period. Secondly, the applicant in good faith received unemployment benefits. Thirdly, the administrative decision did not contain a direct reference to the fact that, in accordance with the relevant legislation, the right to receive benefits would cease to exist by a certain date. Fourthly, after the expiration of the statutory period, a long time elapsed, during which the authorities could not respond to the situation, continuing to make monthly payments. Such circumstances could lead the applicant to believe that she had the right to receive these payments. Therefore, given the nature of the social benefits used to meet basic daily necessities of life, the applicant could legitimately expect that she could consider the payments received to belong to her rightfully. Thus, the fact that the courts subsequently established that the payments were made without reference to any provisions of domestic legislation was not decisive. Accordingly, Article 1 of Protocol No. 1 is applicable to the present case.

(b) Compliance. In contrast to the case of “Moskal v. Poland”, the present case concerned not stopping the payment of unemployment benefits to the applicant, but imposing on her the obligation to return the amounts of benefits she had received with reference to an administrative decision.

As regards the proportionality of the interference, it was not claimed that the applicant had contributed to receiving social payments above the established amount. Since the authorities had decided in favor of the applicant and continued to make the appropriate payments to her, the applicant had legal grounds to assume that the payments she had received were legally correct. It would be unreasonable to believe that the applicant should have understood that she was receiving unemployment benefits outside the maximum statutory period.

The authorities of the respondent State have not fulfilled their duty to act in a timely, proper and consistent manner. Despite the fact that the payment of unemployment benefits, which the applicant should not have received, was solely a mistake on the part of state authorities, the applicant should have returned the entire amount of the overpaid amount to the state with the payment of bank interest on this amount. Consequently, the responsibility of the authorities of the respondent state was not established, and they avoided any consequences of their mistake, and the burden of rectifying the situation was solely placed on the applicant.

The applicant was offered to pay arrears in the amount of 60 installments. However, the amount awarded to the applicant for payment was significant for her, since the benefit was her only source of income, as well as taking into account the applicant's general financial situation. The amount received in the form of unemployment benefits was quite small and was spent on the applicant's necessary needs. In its decision on unjust enrichment, the domestic courts did not take into account the health of the applicant and her financial situation. The applicant suffered from a psychological disorder, could not work and was unemployed for a long time. She did not have a bank account, any income or property. In such circumstances, the payment by the applicant of the amount of the debt, even if on separate contributions, would mean a risk to pay for the applicant’s immediate needs.

As a result, the claim for the applicant to reimburse the amount of unemployment benefits erroneously paid to her by the authorities outside the maximum statutory benefit period entailed an excessive burden for the applicant.


The case was a violation of Article 1 of Protocol No. 1 to the Convention (adopted unanimously).


In application of Article 41 of the Convention. The European Court awarded the applicant EUR 2,600 in respect of non-pecuniary damage, the claim for pecuniary damage was rejected.


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