European Court of Human Rights

 

 

 

FIRST SECTION

 

 

 

 

 

 

CASE OF BANOVIĆ v. CROATIA

 

(Application no. 44284/10)

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

11 June 2015

 

 

 

 

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision




In the case of Banović v. Croatia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          Elisabeth Steiner, President,
          Khanlar Hajiyev,
          Paulo Pinto de Albuquerque,
          Linos-Alexandre Sicilianos,
          Erik Møse,
          Ksenija Turković,
          Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 19 May 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 44284/10) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Ms Maja Banović (“the applicant”), on 9 July 2010.

2.  The applicant was represented by Ms T. Starčević and K. Mikuličić, lawyers practising in Rijeka. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.

3.  The applicant alleged, in particular, that decisions of the domestic courts dismissing her application for recognition as the family member of a Homeland War veteran had deprived her of the right of access to a court.

4.  On 6 July 2011 the application was communicated to the Government.

5.  On 5 March 2014 the President of the First Section decided, under Rule 54 § 2 (c) of the Rules of Court, to invite the parties to submit further observations in respect of the issues concerning the applicant’s complaint.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

6.  The applicant was born in 1984 and lives in Čavle.

A.  Administrative proceedings concerning the status of the applicant’s father

7.  On 28 February 1997 the applicant’s father, G.B., applied to the Rijeka Office of the Department for Croatian Homeland War Veterans and their Family Members (Odjel hrvatskih branitelja i članova njihovih obitelji Primorsko-goranske županije, područna jedinica Rijeka; hereinafter “the Rijeka Office”) for recognition of the status of a disabled war veteran, on the grounds that he had contracted tuberculosis and developed psychosis during his military service in 1995.

8.  On 19 December 1997 G.B. died and the applicant took over the proceedings as his heir.

9.  On 24 September 1998 the Rijeka Office dismissed the application. The relevant part of that decision reads as follows:

“The case file was resubmitted to the Medical Committee, which established the following:

- G.B ... served in the Homeland War ... from 9 October 1991 to 15 July 1992, from 15 July to 3 November 1992 and from 9 June to 19 July 1995;

- during military service he contracted tuberculosis;

- his mental health issues had been recognised much earlier;

- the Medical Committee is of the opinion that his tuberculosis and psychosis have not been caused by his military service.”

10.  The applicant lodged an appeal against that decision. On 24 February 1999 the Ministry in charge of the Homeland War Veterans affairs (Ministarstvo hrvatskih branitelja iz Domovinskog rata; later Ministarstvo obitelji, branitelja i međugeneracijske solidarnosti; hereinafter: the “Ministry”) dismissed the applicant’s appeal holding that the proceedings should have been terminated as G.B. had meanwhile died.

11.  The applicant challenged that decision before the Administrative Court (Upravni sud Republike Hrvatske).

12.  On 19 July 2000 the Administrative Court accepted the applicant’s administrative action, quashed the decision of the Ministry and remitted the case.

13.  On 21 June 2001 the Ministry allowed the applicant’s appeal, quashed the decision of the Rijeka Office (see paragraph 9 above) but declared G.B.’s application inadmissible. It held that such application could only be lodged after a claimant had been discharged from the army, which was not the case in G.B.’s case.

14.  The applicant lodged an administrative action against that decision. On 26 January 2006 the Administrative Court quashed the decision of the Ministry and remitted the case. The relevant part of that judgment reads as follows:

“The administrative bodies’ decisions ... were rendered while the [old] Act on the Rights of Croatian Homeland War Veterans and their Family Members (Official Gazette nos. 108/96 and 23/01) was still in force.

In the meantime, since the action was lodged and before this judgment was rendered, a new Act on the Rights of Croatian Homeland War Veterans and their Family Members entered into force and was published in Official Gazette no. 174 of 10 December 2004.

Pursuant to section 158(2) of that Act, which entered into force on 1 January 2005, the proceedings instituted while the old legislation was still in force and in which the final decision has not yet been rendered should be decided under the new Act if more favourable for the Croatian Homeland War veteran.

In the present case, on 1 January 2005, the date the Act on the Rights of Croatian Homeland War Veterans and their Family Members entered into force, the disputed decision of the defendant body was not final. The court therefore finds that the defendant body must decide the application in accordance with section 158(2) ... It is a specific legislative provision which requires the impugned decision to be quashed ...

The defendant body shall decide, in the light of the provisions of the Act that govern the conditions and methods of recognition of disabled Croatian Homeland War veteran status, if more favourable for the claimant.”

15.  On 20 May 2006 the Ministry allowed the applicant’s appeal, quashed the decision of the Rijeka Office (see paragraph 9 above) and remitted the case for re-examination. The relevant part of that decision reads as follows:

“This Ministry has reconsidered the case and found that the appeal is well-founded, albeit for different reasons.

Section 14 of the by-law on the Procedure before the Medical Committee for the Determination of Rights under the Act on the Rights of Croatian Homeland War Veterans and their Family Members provides that the First-Instance Medical Committee shall issue its opinion after examining the person [concerned] and the relevant medical and other documentation ...

As [G.B.] was not examined in person before the First-Instance Medical Committee and cannot be examined, the first-instance body shall, in the fresh set of proceedings, terminate the proceedings relying on section 54 of the Administrative Procedure Act.”

16.  On 12 September 2006 the social services department of the Primorsko-Goranska County Office of State Administration (Ured državne uprave u Primorsko-goranskoj županiji, Služba za društvene djelatnosti; hereinafter “the County Office”), which meanwhile became competent to examine the case, terminated the proceedings concerning G.B.’s recognition as a disabled war veteran on the grounds that due to his death, certain relevant facts could no longer be established.

17.  The applicant appealed against that decision. On 21 April 2007 the Ministry allowed the applicant’s appeal and reversed the decision of the County Office. The relevant part of the decision reads as follows:

“III: The deceased G.B ... is hereby recognised as a fourth category disabled Homeland War [veteran], with 80% damage to his body ... on the grounds that he contracted tuberculosis while defending the sovereignty of the Republic of Croatia.

G.B. is entitled to:

1. Personal disability benefit

...

2. Supplementary benefit

...

IV. The application for recognition of Homeland War [veteran] status on the grounds of psychosis is hereby denied.

...

The case file was submitted to the competent Second-Instance Medical Committee on appeal which, in its opinion ... of 1 March 2007 established 80% permanent damage to the body ...”

18.  This decision was served on the applicant in June 2007.

19.  On 30 September 2011 the Supreme Court (Vrhovni sud Republike Hrvatske), in a single-judge formation, found a violation of the applicant’s right to a trial within reasonable time concerning the proceedings before the administrative authorities and the Administrative Court and awarded her compensation in the amount of 10,500 Croatian kunas (HRK). The applicant did not lodge further appeal against this decision before a panel of judges of the Supreme Court.

B.  Administrative proceedings concerning the applicant’s social benefits request

20.  On 2 July 2007 the applicant applied before the County Office for recognition as the family member of a fallen war veteran and family disability benefit.

21.  On 4 July 2007 the County Office declared the applicant’s application inadmissible as lodged out of time. The relevant part of that decision reads as follows:

“Upon examining the case file it was established that the claimant lodged her application after the time-limit [set forth in] section 124 of the Act [on the Rights of Croatian Homeland War Veterans and their Family Members] had expired.

Section 124(2) of the Act [stipulates that] where a Homeland War veteran has, before the entry into force of the Act, died of illness directly caused by his defence of the sovereignty of the Republic of Croatia, applications for recognition of status and ... disability benefit must be lodged within 12 months of the date of entry into force of the Act.

The Act entered into force on 1 January 2005, which means that the deadline for lodging the application expired on 31 December 2005.”

22.  The applicant appealed against that decision. On 20 December 2007 the Ministry dismissed the applicant’s appeal, endorsing the reasoning of the first-instance administrative body. The relevant part of that decision reads as follows:

“Upon appeal, and after examining the case file, it was established that the [first-instance] decision is valid and had a basis in law.

That is to say, after examining the evidence in the case file, it was established that the claimant lodged her application ... on 2 July 2007, arguing that her father died from TB, and from the death certificate it is clear that he died on 19 December 1997.

... section 124(2) of the Act stipulates that where a Homeland War veteran has, before the entry into force of the Act, died of illness directly caused by his defence of the sovereignty of the Republic of Croatia, applications for recognition of status and for disability benefit must be lodged within 12 months of the date of entry into force of the Act (that is to say, on 31 December 2005 at latest).

As the claimant lodged her request on 2 July 2007, that is to say after the (preclusive) statutory time-limit, which cannot be prolonged upon a party’s request or of [the administrative body’s] own motion, and the appeal reasons do not influence the reasoning in this case, the appeal is hereby dismissed.”

23.  The applicant challenged that decision before the Administrative Court, arguing that the decisions of the administrative bodies had been unfair and overly formalistic, effectively depriving her of her right to disability benefit. Specifically, she argued that the final decision on her father’s status had only been rendered on 21 April 2007 and had been served on her on 15 June 2007. In her view, she was only able to lodge her request after 15 June 2007, as an earlier request would have been premature and ill-founded.

24.  On 17 June 2009 the Administrative Court dismissed the applicant’s action, endorsing the reasoning of the administrative bodies. The relevant part of that judgment reads as follows:

“... the claimant lodged her application ... on 2 July 2007. Section 124(2) of the ... Act stipulates that where a Homeland War veteran has, before the entry into force of the Act, died of illness directly caused by his defence of the sovereignty of the Republic of Croatia, applications for recognition of status and for disability benefit must be lodged within 12 months of the date of entry into force of the Act. As the Act entered into force on 1 January 2005 the application could have been lodged by 31 December 2005. It was not disputed that the claimant lodged her application on 2 July 2007, that is to say after the expiry of the time-limit stipulated in section 124(2) of the Act, and therefore this Court finds that the decision of the defendant body was well-founded. The claimant’s allegations in her administrative action are therefore ill-founded and irrelevant.

In addition, it is noted that the claimant took over proceedings from her late father ... However, they were separate proceedings establishing the claimant’s late father’s status as a disabled Homeland War veteran, and not the proceedings establishing the status of a family member of a fallen Homeland War veteran and the right to family disability benefit ...”

25.  The applicant further lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) against that judgment. She reiterated her arguments from the administrative action, adding that the domestic authorities had spent ten years trying to establish her late father’s status, which could have only been used as the legal basis for her request after 15 June 2007. She also argued that her status was de facto recognised when she had been allowed to take over the proceedings after her late father, and that she was only lacking a declaratory recognition of her factual status.

26.  On 3 December 2009 the Constitutional Court, endorsing the reasoning of the Administrative Court, declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded. This decision was served on the applicant on 12 January 2010.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

A.  Relevant domestic law

1.  Act on the Rights of Croatian Homeland War Veterans and their Family Members

27.  The relevant provisions of the Act on the Rights of Croatian Homeland War Veterans and their Family Members (Zakon o pravima hrvatskih branitelja iz Domovinskog rata i članova njihovih obitelji; Official Gazette nos. 174/2004, 92/2005, 2/2007 and 107/2007; hereinafter: the “Veterans Act”), which entered into force on 1 January 2005, read as follows:

Section 3

“(1)  A fallen Homeland War veteran is a veteran who:

...

4.  died of illness, deterioration of an illness, or illness contracted in his defence of the sovereignty of the Republic of Croatia, and no later than on 31 December 1997 ...”

Section 5

“...

(2)  A [disabled war veteran] is a veteran with at least 20% of disability caused by illness, and the illness, deterioration of the illness or appearance of the illness is in the direct connection with the consequences of the participation in [the war].”

Section 75

“(1)  Family disability benefit is a basic right derived from the death of a family member and all other rights are acquired on basis of that right, if not otherwise provided by this Act.

(2)  Family members of a fallen Homeland War veteran are entitled to family disability benefit subject to the conditions and in the amounts laid down in this Act.”

Section 124

“(1)  Where a Homeland War veteran has died of illness and the deterioration, cause [or existence of the illness] was as a direct consequence of the [veteran’s] defence of the sovereignty of the Republic of Croatia, applications for [family member] status and ... family disability benefit may be lodged within twelve months of the death of that [veteran].

(2)  Where a Homeland War veteran has died of illness before the entry into force of this Act, and the deterioration, cause [or existence of the illness] was as a direct consequence of the [veteran’s] defence of the sovereignty of the Republic of Croatia, applications for [family member] ... status and ... family disability benefit may be lodged within twelve months of the entry into force of this Act ...”

Section 158

“...

(2)  Proceedings instituted under the legislation that preceded the entry into force of this Act, in which no final decision has yet been given, shall be conducted in accordance with the provisions of this Act, if that is more favourable for the Croatian Homeland War veteran.”

2.  Administrative Procedure Act

28.  The relevant provision of the Administrative Procedure Act (Zakon o općem upravnom postupku, Official Gazette, nos. 53/1991 and 103/1996), in force until 31 December 2009, reads as follows:

Section 144

“(1)  If the competent administrative body runs into an issue which has to be decided in order to finalise the proceedings, and the issue is in itself an independent legal unit within the competency of a court or another administrative body (preliminary issue), it can, subject to the conditions laid down in this Act, decide that issue or adjourn the proceedings until the competent body has made its decision. It is possible to appeal against the decision [zaključak] on adjournment, safe against such decision of the second-instance administrative body.”

B.  Relevant domestic practice

29.  The administrative case-law provided by the Government includes examples of adjournments under section 144 of the Administrative Procedure Act in the administrative proceedings concerning the entry of years of service into a person’s employment record; tourist tax; restitution; and cadastral entries.

30.  The Government also referred to another case before the domestic administrative authorities concerning a claimant’s request for the reopening of the proceedings by which his late father’s status of a disabled war veteran was established, and for establishing his right to family disability benefit. In that case, the first-instance administrative body on 21 October 1999 ordered the claimant to submit further material relevant to the request for the reopening of the proceedings concerning his late father’s status, and stayed the proceedings for establishing the claimant’s right to family disability benefit. Upon the claimant’s use of further administrative remedies, on 3 June 2004 the Administrative Court, in the case no. Us-2377/2000-6, pointed out that, in any case, the administrative bodies were obliged to decide on the claimant’s request for the family disability benefit. 

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

31.  The applicant complained that the manner in which the Veterans Act had been applied in the particular circumstances of her case had deprived her of the right of access to a court. She relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A.  Admissibility

1.  The parties’ arguments

32.  The Government argued that the applicant had failed to comply with the six-month time-limit. In particular, they submitted that she had known or ought to have known that the deadline for lodging her application for recognition as the family member of a Homeland War veteran had passed on 1 January 2006. In the Government’s view, on that date the running of the six-month time-limit for lodging the application to the Court had been triggered and had consequently expired on 1 July 2006.

33.  The applicant made no comment in this regard.

2.  The Court’s assessment

34.  The Court reiterates that the aim of the six-month time-limit under Article 35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time, and that past decisions are not continually open to challenge. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities, the period beyond which such supervision is no longer possible (see, amongst other authorities, Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I).

35.  As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002). Article 35 § 1 cannot be interpreted in a manner which would require an applicant to seize the Court of his or her complaint before his or her position in connection with the matter has been finally settled at domestic level (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 157, ECHR 2009).

36.  In the present case, the Court notes that the applicant’s complaint to the Court relates to her alleged inability to have access to a court concerning her request for recognition as the family member of a fallen war veteran and family disability benefit. With regard to that complaint the applicant used all available domestic remedies, including a complaint before the Administrative Court and the Constitutional Court (see paragraphs 23 and 25 above) and her complaint was finally determined on 12 January 2010 when the decision of the Constitutional Court was served on her (see paragraph 26 above). It follows that the six-month time-limit is to be calculated from the decision of the Constitutional Court served on the applicant on 12 January 2010. As the application with the Court was lodged on 9 July 2010, the Government’s objection must be rejected.

37.  The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The parties’ arguments

38.  The applicant submitted that due to the manner in which the proceedings concerning her late father’s status had been conducted, she had been deprived of the ability to obtain recognition as the family member of a fallen war veteran and to obtain family disability benefit. In particular, she argued that it first had to be established whether her father had died of an illness caused by his service in the war. Only after that matter had eventually been resolved could she have applied for recognition of her status. According to the applicant, even if she had instituted the administrative proceedings before the expiry of the statutory time-limit, she would not have been able to ask the County Office for an adjournment, as the administrative bodies rendered such decisions of their own motion and relying on their discretionary prerogatives. The applicant further submitted that she would have suffered irreparable damage if her request had been dismissed on the grounds that her father was not a fallen war veteran. In the applicant’s view, such a decision would have become res iudicata and she would never have been able to lodge a fresh request. Lastly, she argued that her request submitted within the statutory time-limit would have lacked any prospects of success as it would have been pending before the same administrative body and the same medical committee that had been consistently denying her father’s status as a fallen war veteran.

39.  The Government argued that the two sets of administrative proceedings in the present case had been separate and that there had been nothing to prevent the applicant from lodging her request before 1 January 2006. Moreover, she had had no reason to wait for her late father’s disability to be recognised before lodging a request for the status of a family member of a fallen war veteran and obtaining the related family disability benefit. In particular, the applicant’s late father’s status as a fallen war veteran could have been assessed only in the proceedings concerning the applicant’s status. Therefore, in such proceedings, there had been no reason to ask for the adjournment of the proceedings concerning the applicant’s father’s status of a disabled war veteran since the outcome of those proceedings had not been central for the applicant’s status. In any case, the applicant could have always brought her request within the statutory time-limit and asked for an adjournment of the proceedings.

2.  The Court’s assessment

(a)  General principles

40.  The Court notes at the outset that the applicant’s complaint concerns restriction on her ability to institute proceedings with the competent domestic authorities for the determination of her status of a family member of a fallen war veteran and to obtain the associated family disability benefit. It therefore relates to a claim of a pecuniary nature bringing the civil limb of Article 6 of the Convention into play (see Marku v. Albania, no. 54710/12, § 38, 15 July 2014).

41.  Article 6 § 1 of the Convention secures to everyone the right to have any claim relating to his or her civil rights and obligations brought before a court or tribunal (see, among many other authorities, Golder v. the United Kingdom, 21 January 1975, §§ 34 in fine and 35-36, Series A no. 18; Z. and Others v. the United Kingdom [GC], no. 29392/95, §§ 91-93, ECHR 2001-V; and Kreuz v. Poland, no. 28249/95, § 52, ECHR 2001-VI).

42.  The right of access to court is not, however, absolute. It may be subject to legitimate restrictions such as, inter alia, statutory limitation periods (see Golder, cited above, § 39; Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, §§ 62-67, Series A no. 316-B; and Stubbings and Others v. the United Kingdom, 22 October 1996, §§ 51-52, Reports of Judgments and Decisions 1996-IV). Where the individual’s access is limited either by operation of law or in fact, the Court will examine whether the limitation imposed impaired the essence of the right and, in particular, whether it pursued a legitimate aim and whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no. 93; Związek Nauczycielstwa Polskiego v. Poland, no. 42049/98, § 29, ECHR 2004-IX; and Szwagrun-Baurycza v. Poland, no. 41187/02, § 49, 24 October 2006). If the restriction is compatible with these principles, no violation of Article 6 will arise (see Z and Others, cited above, §§ 92-93).

43.  In particular, the existence of a limitation period per se is not incompatible with the Convention. What the Court needs to ascertain in a given case is whether the nature of the time-limit in question and/or the manner in which it was applied are compatible with the Convention (see Vrbica v. Croatia, no. 32540/05, § 66, 1 April 2010). This means, in particular, that the Court must satisfy itself that the application of the statutory limitation periods could be regarded as foreseeable for the applicants, having regard to the relevant legislation and case-law and the particular circumstances of the case (see Osu v. Italy, no. 36534/97, § 35, 11 July 2002; Vrbica, cited above, § 72; and Majski v. Croatia (no. 2), no. 16924/08, § 69, 19 July 2011).

(b)  Application of these principles to the present case

44.  The Court observes that the applicant’s access to the administrative bodies by which she sought to establish her status of a family member of a fallen war veteran, after the death of her father, and to obtain the associated family disability benefit, was restricted by the operation of the statutory limitation period under section 124 of the Veterans Act. This provision, in particular, provided time-limits related to the time of death of the war veteran and the entry into force of the Act. Under paragraph 1 of that provision, where a war veteran has died of illness as a direct consequence of his or her participation in the war, applications for family member status and family disability benefit should be lodged within twelve months of the death of the veteran. Paragraph 2 of the same provision further provided that when the veteran has died of illness related to his or her participation in the war before the entry into force of the Veterans Act, applications for family member status and family disability benefit may be lodged within twelve months of the entry into force of that Act (see paragraph 27 above).

45.  In the applicant’s case, her father died on 19 December 1997 (see paragraph 8 above) and the relevant Veterans Act entered into force on 1 January 2005 (see paragraph 27 above). The applicant brought her application with the domestic authorities for recognition of her status of a family member of a fallen war veteran and the related family disability benefit on 2 July 2007 (see paragraph 20 above), thus outside the above observed time-limits provided under the Veterans Act.

46.  The reason relied upon by the applicant for failing to meet the statutory time-limits at issue was that her late father’s status of a disabled war veteran was only established by a final decision of the administrative authorities on 21 April 2007 (see paragraph 17 above), which was, according to the applicant, a matter which needed to be resolved before she could apply for recognition of her status of a family member of a fallen war veteran and the related family disability benefit. The domestic authorities, however, disagreed with the applicant, holding that there was no reason for her to await the outcome of the proceedings concerning her father’s status before lodging an application concerning her personal status and the related family benefits within the relevant statutory time-limits. Accordingly, the domestic authorities, including the Administrative Court, declined to consider the applicant’s request on the merits, declaring it inadmissible as lodged out of time.

47.  In this connection, the Court firstly reiterates that it is in the first place for the national authorities, and notably the courts, to interpret and apply the domestic law. The Court’s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see, for example, Tejedor García v. Spain, 16 December 1997, § 31, Reports 1997-VIII, and Pérez de Rada Cavanilles v. Spain, 28 October 1998, § 43, Reports 1998-VIII).

48.  The Court observes that the relevant domestic law did not set out a requirement under which the outcome of proceedings concerning the recognition of the status of a disabled war veteran was a statutory precondition for claiming the status of a family member of a fallen war veteran and the related family disability benefit. It also follows from the practice of the administrative authorities that the status of a family member of a fallen war veteran and the related family disability benefit is a matter that has to be assessed irrespective of the recognition of the status of a disabled war veteran (see paragraph 30 above). There was therefore nothing preventing the applicant from lodging a request for recognition of the status of a family member of a fallen war veteran and the related family disability benefit within the relevant statutory time period, which would have obliged the domestic authorities to examine her request on the merits. It accordingly follows that she was not prevented from having recourse to the authorities competent to decide on her case.

49.  As regards the applicant’s argument that her request for the recognition of her status of a family member of a fallen war veteran and the associated benefits would not have had a prospect of success before the final determination of her father’s status of a disabled war veteran, the Court reiterates that neither Article 6 nor any other provision of the Convention can be interpreted as guaranteeing the right to a successful outcome of a private action in law (see Popivčák v. Slovakia, no. 13665/07, § 61, 6 December 2011). In any case, even if the Court would accept the applicant’s argument, it cannot overlook the fact that if she availed herself of the opportunity to institute proceedings concerning her status within the relevant time-limit, it would have opened for the possibility for adjournment of those proceedings until the final determination of her late father’s status (see paragraphs 28-30 above). Certainly, had there been any divergent or arbitrary conclusions of the competent administrative bodies, it would have been open for the applicant to contest those findings before the higher domestic authorities.

50.  However, by failing to avail herself of the opportunity to institute proceedings for recognition of her status of a family member of a fallen war veteran and related family disability benefit within the time-limits provided under the Veterans Act, the applicant prevented the domestic authorities from assessing her claim on the merits. This makes it impossible for the Court to speculate on what the approach of the domestic authorities would have been, or what their decision on the merits of the applicant’s request would have been had she lodged it as required under the relevant domestic law.

51.  The Court thus finds that by failing to lodge her request within the sufficiently clear and foreseeable statutory limitation periods under the Veterans Act (see paragraph 44 above), the applicant placed herself in a situation in which she risked having her request declared time-barred. Therefore, it cannot be said that the statutory limitation periods themselves, or the manner in which they were applied in this case, impaired the very essence of the applicants’ right of access to court (see, mutatis mutandis, Baničević v. Croatia (dec.), no. 44252/10, §§ 36-37, 2 October 2012).

52.  In the circumstances, the Court finds that there has been no violation of Article 6 § 1 of the Convention.

II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

53.  The applicant also made a number of other complaints, relying on Articles 6, 8 and 13 of the Convention, and Article 1 of Protocol No.1, concerning the proceedings before the domestic authorities. She complained, in particular, about the lack of fairness and outcome of the proceedings before the competent bodies, particularly the Constitutional Court; and lack of an effective domestic remedy in that respect; length of proceedings before the administrative authorities and the Administrative Court concerning the recognition of her father’s status of a disabled war veteran; and alleged violation of her right to respect for her private and family life and the protection of property.

54.  As regards the applicant’s complaint, under Articles 6 and 13 of the Convention, concerning the lack of fairness and outcome of the proceedings before the domestic authorities, the Court notes that the applicant participated effectively in the proceedings, that she was able to put forward all her arguments, which were duly taken into account by the domestic authorities, and that nothing in the decisions of the domestic authorities discloses any arbitrariness or unfairness.

55.  With regard, in particular, to the complaint about the lack of fairness of the proceedings before the Constitutional Court, the Court observes that the applicant essentially complains that the Constitutional Court failed to provide sufficient reasons for its decision. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that nothing in this respect discloses any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

56.  It follows that the applicant’s complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

57.  As regards the applicant’s complaint, under Article 6 of the Convention, about the length of the administrative proceedings, the Court notes that the applicant used the effective domestic length-of-proceedings remedy (see V.K. v. Croatia, no. 38380/08, § 71, 27 November 2012), and that on 30 September 2011 a single judge of the Supreme Court found a violation of her right to a trial within reasonable time and awarded her compensation in the amount of HRK 10,500 (see paragraph 19 above). However, in so far as the applicant was not satisfied with the amount of compensation she had been awarded for the finding of a violation of her right to a trial within reasonable time, the Court notes that she failed to  lodge an appeal against this decision before a panel of judges of the Supreme Court (see V.K., cited above, § 70). It follows that she did not exhaust all available domestic remedies concerning her complaints about the length of the administrative proceedings.

58.  The Court therefore finds that the applicant’s complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

59.  With regard to the applicant’s complaints under Article 8 of the Convention, the Court notes that the applicant merely cited this provision of the Convention reiterating her arguments concerning the length and lack of fairness of the domestic proceedings.

60.  The Court therefore finds the applicant’s complaint unsubstantiated and thus manifestly ill-founded. It must therefore be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

61.  As regards the applicant’s complaint under Article 1 of Protocol No. 1, the Court reiterates that although there is no obligation on a State under Article 1 of Protocol No. 1 to create a welfare or pension scheme, if a State did decide to enact legislation providing for payment of a welfare benefit or pension as of right, that legislation had to be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements (see, for example, Carson and Others v. the United Kingdom [GC], no. 42184/05, § 64, ECHR 2010). Against the circumstances of the case outlined under Article 6 § 1 above (see paragraphs 44-52 above), the Court observes that the applicant failed to apply for the family disability benefit within the relevant statutory time-limits for such a claim under the relevant domestic law. She thereby failed to satisfy the requirements for granting the welfare benefit at issue and thus she had no “possession” within the meaning of Article 1 of Protocol No. 1. Accordingly, the guarantees of that provision do not apply.

62.  It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

FOR THESE REASONS, THE COURT,

1.  Declares, unanimously, the complaint concerning the lack of access to a court admissible and the remainder of the application inadmissible;

 

2.  Holds, by five votes to two, that there has been no violation of Article 6 § 1 of the Convention.

Done in English, and notified in writing on 11 June 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Søren Nielsen                                                                    Elisabeth Steiner
       Registrar                                                                              President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Hajiyev and Dedov is annexed to this judgment.

E.S.
S.N.




JOINT DISSENTING OPINION OF JUDGES HAJIYEV AND DEDOV

We regret that we cannot share the conclusion of the majority that there has been no violation of the Convention in the present case. The rule of law and legal certainty require that national law should be foreseeable and predictable, especially in a situation of uncertain legal status which is still to be confirmed by the authorities.

The Act on the Rights of Croatian Homeland War Veterans and their Family Members applied to individuals whose status was confirmed as falling within its scope and it did not take account of pending cases concerning recognition of the status of disabled war veteran, such as the case of the applicant’s father. She was therefore unable to apply for social benefit as the above status was recognised by the Croatian courts only in 2007, after the expiry of the time-limit for her application. The national courts refused to assess the applicant’s individual circumstances, so her right to a fair hearing was breached. Her right under domestic law remained purely theoretical, not practical and effective, as required by the rule of law.

We cannot accept the majority’s idea that the Act did not set out a requirement under which disabled veteran status was a precondition for claiming the status of family member of such (fallen) veterans and the relevant social benefit (see paragraph 48 of the judgment). The Act sought to support the families of those who died of illness “contracted in the defence of the sovereignty of the Republic of Croatia” (see section 3 of the Act). That characterisation was precisely the subject of the administrative proceedings concerning the status of the applicant’s father, which the State authorities had refused to recognise (see paragraph 9 of the judgment).