European Court of Human Rights

 

 

 

SECOND SECTION

 

 

 

 

 

 

CASE OF LETINČIĆ v. CROATIA

 

(Application no. 7183/11)

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

 

3 May 2016

 

 

 

 

 

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 Letinčić v. Croatia,

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

          Işıl Karakaş, President,
          Julia Laffranque,
          Paul Lemmens,
          Valeriu Griţco,
          Ksenija Turković,
          Jon Fridrik Kjølbro,
          Georges Ravarani, judges,
and Abel Campos, Section Registrar,

Having deliberated in private on 12 January and 29 March 2016,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1.  The case originated in an application (no. 7183/11) 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, Mr Kristijan Letinčić (“the applicant”), on 13 December 2010.

2.  The applicant was represented by Mr V. Đurović, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3.  The applicant alleged, in particular, a violation of his right to a fair trial under Article 6 § 1 of the Convention.

4.  On 17 July 2013 this complaint was communicated to the Government and the remainder of the application was declared inadmissible.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

A.  Background to the case

5.  The applicant was born in 1988 and lives in Zagreb.

6.  In 1993 the applicant’s father, Ž.L., who was a war veteran, killed the applicant’s mother and her parents and then committed suicide.

B.  The applicant’s administrative proceedings

7.  In 1996 the applicant, represented by his grandmother, sought family disability benefit in connection with the suicide of his father, arguing that the suicide was a consequence of mental derangement caused by his participation in the war.

8.  On 19 June 1996 his request was dismissed by the competent Zagreb Office of the Ministry of Defence (Ministarstvo obrane) in charge of war veterans’ affairs on the grounds that the war veteran status of his father had not been established. In July 1996 the applicant challenged that decision before the Ministry of Defence, which accepted his appeal and on 12 December 1997 quashed the first-instance decision and remitted the case for re-examination on the grounds that the nature of the applicant’s request had not been adequately established.

9.  Following several procedural decisions of the Zagreb Municipality Office with responsibility for war veterans’ affairs (hereinafter: the “Zagreb Office”) and the Ministry in charge of war veterans’ affairs (Ministarstvo branitelja i međugeneracijske solidarnosti; hereinafter: the “Ministry”), on 3 June 2004 the Administrative Court (Upravni sud Republike Hrvatske) ordered the Zagreb Office and the Ministry to examine the applicant’s request for family disability benefit on the merits, which the applicant should have a possibility to challenge if he was not be satisfied with the outcome.

10.  On 8 November 2005 the Zagreb Office dismissed the applicant’s request on the grounds that nothing from the materials available in the case file suggested that the death of his father was a result of his participation in the war.

11.  The applicant challenged this decision before the Ministry, and on 15 January 2006 the Ministry found that the facts of the case connecting the suicide of the applicant’s father to his participation in the war had never been clearly established. It thus ordered the Zagreb Office to clarify the matter by commissioning an expert report from the competent medical institution and to obtain the relevant witness statements concerning the applicant’s father’s wartime service.

12.  On the basis of the Ministry’s instructions, the Zagreb Office commissioned an expert report concerning the question whether the suicide of the applicant’s father was related to his participation in the war from the Psychiatric Clinic of the Clinical Hospital Dubrava, Reference Centre of the Ministry of Health and Social Care for Stress-Induced Disorders, Regional Centre for Psychotrauma in Zagreb (Klinička bolnica Dubrava, Klinika za psihijatriju, Referentni centar Ministarstva zdravstva i socijalne skrbi za poremećaje uzrokovane stresom, Regionalni centar za psihotraumu Zagreb; hereinafter: the “Centre”), a public health care institution authorised by law to give expert opinions on matters related to war veterans’ psychiatric disorders (see paragraph 28 below). It also questioned two witnesses concerning the applicant’s father’s wartime service.

13.  In an expert report dated 10 June 2007 addressed to the Zagreb Office, the Centre concluded, on the basis of the available medical reports and the statements of witnesses, that the applicant’s father had not developed any symptoms resulting in a psychiatric diagnosis linked to his participation in the war and that his suicide could not be attributed to his wartime service. This expert report was not forwarded to the applicant.

14.  On 26 September 2007 the Zagreb Office dismissed the applicant’s request for the family disability benefit referring to the Centre’s expert report, which had not established any link between his father’s suicide and his participation in the war.

15.  The applicant challenged the above decision before the Ministry, seeking remittal of the case to the Zagreb Office for further examination. He alleged that the Centre’s report was superficial, since it had not been commissioned with regard to all aspects of the events, such as the triple murder committed by his father. The applicant also considered the report to be illogical, given that before the war his father had had no psychiatric problems whereas after his wartime activities he had committed a triple murder and suicide, which made it difficult to accept that he had not developed some mental condition. The applicant further contended that another expert report should be commissioned from one of the permanent court experts in psychiatry, since the report produced by the Centre raised the issue of its independence. He also stressed that any expert opinion on the matter should necessarily be forwarded to him for comments before the adoption of a decision.

16.  On 2 April 2008 the Ministry dismissed the applicant’s appeal on the grounds that the Centre’s report was conclusive that the suicide of his father had not been related to his participation in the war.

17.  The applicant lodged an administrative action in the Administrative Court against the above decision, asking the Administrative Court to decide the case on the merits instead of remitting it to the administrative bodies. He pointed out that the proceedings had already lasted excessively long and that the administrative bodies had failed to comply effectively with the previous instructions of the Administrative Court. He therefore considered that the Administrative Court should itself decide the case on the merits, as provided under section 63 of the Administrative Disputes Act (see paragraph 25 below). The applicant also contended that, if the Administrative Court did not decide the case on the merits, it should quash the Ministry’s decision and remit the case for re-examination.

18.  In his administrative action the applicant in particular pointed out that the Ministry had failed to reply to the specific arguments set out in his appeal against the first-instance decision of the Zagreb Office and had merely reiterated the findings of the first-instance decision. He also reiterated his appeal arguments that the Centre’s expert report was superficial and illogical, since it had not been commissioned with regard to all aspects of the events, such as the triple murder committed by his father, and that it had failed to take into account that before the war his father had had no psychiatric problems whereas after his wartime activities he had committed a triple murder and suicide. In these circumstances, the applicant stressed that under section 191 of the Administrative Disputes Act another expert report ought to be commissioned from the permanent court experts in psychiatry.

19.  On 4 December 2008 the Administrative Court dismissed the applicant’s action as ill-founded. In particular, it stressed:

“During the proceedings an expert report was commissioned, under section 123 § 1 (8) of the [Veterans Act], from the [Centre] and the report was produced on 10 June 2007. The report concluded that based on the relevant documents from the case file it did not find that Ž.L. had developed any symptoms resulting in a psychiatric diagnosis linked to his participation in the war ...

Having these facts in mind, this court is of the opinion that the defendant acted lawfully when dismissing the appellant’s appeal against the first-instance decision ... It should also be noted that this court already held that the formation of an expert team [competent to determine] a possible link [between death and participation in the war], which [provides for] a decisive evidence within the meaning of section 123 § 1 (8) of the [Veterans Act], is a precondition for any further proceedings concerning the status of the family member of a deceased war veteran.

The defendant therefore correctly dismissed the appeal against the first-instance decision and thereby it did not act contrary to the relevant law. This court did not find it necessary to act under section 63 of the Administrative Disputes Act given that, as already noted above, the administrative body complied with the instruction from the judgement no. Us-2377/00 [see paragraph 9 above] concerning the appellant’s request for family disability benefit, which is the subject matter of the proceedings at issue. Although the defendant did not expressly reply to the appeal arguments concerning the necessity to request a report with regard to [Ž.L.’s] act of triple murder, [the court finds] that it could not be a decisive factor for a decision in the proceedings at hand. This is because such a criminal act cannot be a basis for the establishment of a link between the death of the war veteran and his participation in [the war]...”

20.  On 18 February 2009 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) arguing that his right to a fair trial in the proceedings had been violated. He contended in particular that the administrative bodies and the Administrative Court had ignored his request for an expert report to be commissioned from the permanent court experts and that he had been offered neither the possibility of participating in the choice of experts nor the opportunity to take cognisance of and comment on the expert opinion before the adoption of a decision during the proceedings.

21.  On 27 May 2010 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded, noting that:

“In his constitutional complaint, the complainant was unable to show that the Administrative Court had acted contrary to the constitutional provisions concerning human rights and fundamental freedoms or had arbitrarily interpreted the relevant statutory provisions. The Constitutional Court therefore finds that the present case does not raise an issue of the complainant’s constitutional rights. Thus, there is no constitutional law issue in the case for the Constitutional Court to decide on. ...”

22.  The decision of the Constitutional Court was served on the applicant’s representative on 14 June 2010.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

A.  Relevant domestic law

1.  Constitution

23.  The relevant provision of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum), 76/2010, 85/2010 and 05/2014) reads:

Article 29

“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.”

2.  Administrative Procedure Act and the Administrative Disputes Act

(a)  Administrative Procedure Act

24.  The Administrative Procedure Act (Zakon o općem upravnom postupku, Official Gazette nos. 53/1991 and 103/1996) in its relevant parts provides:

Section 8

“(1) Before a decision is adopted, a party has to be provided with an opportunity to express his or her opinion about facts and circumstances important for adopting the decision.

(2) A decision may be adopted if a party has not expressed his or her opinion first only if so expressly permitted by law.”

Section 143

“(1) A party shall have the right to participate in the examination of evidence and, in order to achieve the aim of the proceedings, to provide the relevant information and to protect his or her rights and legal interests.

(2) A party shall have the right to put forward all the facts which could be relevant for the determination of the matter and to challenge submissions contrary to his or her arguments. ...

(3) The official conducting the proceedings shall ensure that a party can: comment on all the circumstances and facts raised in the proceedings [and] on the proposals and evidence; participate in the examination of evidence and question the other parties, witnesses and expert witnesses, either through the official conducting the proceedings or, with his or her permission, directly, and take cognisance of and have the opportunity to comment on all the evidence adduced. The competent body shall not adopt a decision before allowing the party an opportunity to comment on the facts and circumstances relevant for the decision in the case if the party has not already had an opportunity to do so.”

Section 185

“(1) When obtaining an expert report, the official conducting the proceedings shall, as a matter of course or at the request of the party concerned, commission such a report from one expert witness or, if the matter is complex, from two or more.

(2) [The expert report shall be commissioned from] experts who are competent in the matter, and primarily from experts who are specially authorised to give opinions on a specific matter.

(3) The party shall, in principle, be consulted as regards the choice of expert.”

Section 189

“(1) ... [T]he expert shall be instructed that he or she must carefully examine the object of the expertise and correctly state his or her findings in the report, as well as that his or her reasoned conclusions must be given impartially and in compliance with the relevant scientific and professional competences.

...”

Section 191

“(1) If the expert report is not clear or complete, ..., or if it is not sufficiently reasoned, or there is a reasonable doubt as to the accuracy of the findings, and these omissions cannot be remedied by a questioning of the expert witness, the expert report shall be commissioned again from the same or different expert ...”

Section 239

“...

(2) The second instance body may dismiss the appeal, quash the [impugned] decision wholly or in part, or reverse it.”

Section 242

“(1) When the second-instance body finds that facts were incompletely or erroneously established in the first-instance procedure, that the rules of the procedure that might have had an impact on the adjudication of the matter have not been taken into account in the procedure or that the operative part of the contested order is unclear or in contradiction with the explanation, it shall supplement the procedure and remedy the observed deficiencies either by itself or through the first-instance body or another requested body. If the second-instance body finds that based on the facts established in the additional procedure the matter has to be decided differently than in the first-instance order, it shall annul the first-instance order and decide the matter by itself.

(2) If the second-instance body finds that the deficiencies of the first-instance procedure would be remedied faster and more efficiently by the first-instance body, it shall by its order annul the first-instance order and return the matter to the first-instance body for a re-examination. In that case, the second-instance body is obligated to indicate to the first-instance body in its order in which way the procedure has to be supplemented, and the first-instance body is obligated to observe the second-instance order in all respects and without delay, at the latest within the period of thirty days from the date of receipt of the matter, adopt a new order. ...”

Section 243

“(1) If the second-instance body finds that in the first-instance procedure evidence was incorrectly assessed, that a wrong conclusion was drawn from the established facts with respect to the state of facts, that the relevant law on the basis of which the matter is being decided was erroneously applied, or if it finds that, on the basis of discretion, a different decision should have been adopted, it shall quash the first-instance decision and decide on the matter by itself.

(2) If the second-instance body finds that the decision is correct with respect to the established facts and with respect to the application of law, but that the purpose, because of which the decision was adopted may be achieved by other means that are more favourable for the party, it shall reverse the first-instance decision in that respect.”

Section 245

“ ...

(2) In the reasoning of the second-instance decision, all appeal arguments have to be assessed. If the first-instance body has correctly assessed the appeal arguments in the reasoning of its decision, the second-instance body may refer to the reasoning of the first-instance decision.”

(b)  Administrative Disputes Act

25.  The relevant provision of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/1992 and 77/1992) reads:

Section 39

“(1) The [Administrative] Court resolves the matter, in principle, on the basis of the facts established in the administrative proceedings.

(2) If the court finds that the dispute cannot be settled on the basis of the facts established in the administrative proceedings because there are inconsistencies related to the operative facts, or [the operative facts] are not fully or correctly established, or if [the administrative bodies] failed to observe the procedural rules of relevance for the outcome of the proceedings, the court shall adopt a judgment quashing the impugned administrative act. The administrative body is then obliged to comply with the findings in the judgment ...

(3) If the quashing of the impugned administrative act and re-examination of the case by the administrative body as provided under paragraph 2 of this section would cause serious damage to the claimant, or if it is obvious from the public documents or other evidence available in the case file that the facts are different from the one established during the administrative proceedings, or an administrative act in the same proceedings had already been quashed, and the competent body has failed to fully comply with the judgment, the court can establish the facts on its own and adopt a judgment or a decision on the basis of those facts.”

Section 42

“(1) The court adjudicates the matter by a judgment.

(2) By a judgment, [the court] upholds or dismisses as unfounded the [administrative] action. If the action is upheld, the court quashes the contested administrative act.

(3) When the court finds that a contested administrative act has to be quashed, it may adjudicate on the administrative matter by a judgment if the nature of things allows and if the information from the procedure provides a reliable basis. Such judgment replaces the quashed [administrative] act in all respects.

...”

Section 62

“(1) When the court quashes an [administrative] act against which an administrative dispute was initiated, the proceedings shall be reinstated to the stage in which they were prior to the adoption of the quashed act. If by the nature of the matter in dispute a new act has to be adopted instead of the annulled administrative act, the competent body is obligated to adopt it without any delay, at the latest within the period of thirty days from the day of service of the judgement.

(2) The competent body is bound by the legal standpoint of the court and by the comments of the court concerning the procedure.”

Section 63

“(1) If the competent body, after the annulment of an administrative act, adopts an administrative act contrary to the legal standpoint of the court or contrary to the comments of the court regarding the procedure, and the claimant therefore submits a new complaint, the court shall annul the contested act and, as a rule, adjudicate the matter on its own by a judgement. Such judgement replaces the act of the competent body in all respects.

...”

26.  The relevant provision of the amended Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 20/2010, 143/12 and 152/2014) provides:

Section 76

“(1) The proceedings terminated by a judgment shall be reopened upon a petition of the party:

1. if, in a final judgment, the European Court of Human Rights has found a violation of fundamental rights and freedoms in a manner differing from the [Administrative Court’s] judgment, ... “

3.  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”) read:

Section 2

“...

(2) Any armed resistance to the aggressor and any activity in the direct link with that resistance (assignment to a unit, combat position, as well as return from the exercise and preparation for the front) in the period between 5 August 1990 and 30 June 1996 shall be considered to constitute participation in the defence of the independence, territorial integrity, sovereignty of the Republic of Croatia, during the immediate danger for the sovereignty of the Republic of Croatia (hereinafter: the defence of the sovereignty of the Republic of Croatia).”

Section 3

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

...

5. committed a suicide as a result of mental illness caused by his participation in the defence of the sovereignty of the Republic of Croatia; ...”

Section 75

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

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

Section 123

“(1) Pursuant to this Act, the fact that a wound, injury or death occurred in the circumstances set out in section 2 paragraph 2 of this Act, can be proven only by written evidence, which, within the meaning of this Act, shall include:

...

8. Medical documentation attesting that ... death or suicide of the Homeland War veteran is the direct consequence of his or her participation in the [war], which must be issued by the medical institution, ambulance or head of the military health unit dating back to his or her participation in the [war] or ten years after the end of his or her participation in the [war], and exceptionally, after the expiry of this period, by the expert opinion provided by an expert team of a medical institution finding that the illness is a possible consequence of the participation in the [war]. Medical institutions as consultants for the expert opinions on the facts referred to in this section shall be appointed by the Minister of [war veterans], with the agreement of the Minister of health and social care.”

4.  Regulations authorising medical institutions to provide expert opinions

28.  The relevant provisions of the Regulations authorising medical institutions to provide expert opinions (Pravilnik o utvrđivanju zdravstvenih ustanova za vještačenje, Official Gazette no. 45/2005; hereinafter: the “Regulations”) adopted by the Minister for war veterans, with the agreement of the Minister for health and social care (see paragraph 27 above; section 123 § 1(8) - in fine of the Veterans Act), provide:

Section 1

“These Regulations establish the medical institutions which shall act as consultants for the purpose of providing expert opinions on facts suggesting that an illness, or the deterioration or appearance of an illness, or death after 31 December 1997 as a result of an illness ..., or the suicide of a Homeland War veteran might possibly be a consequence of his or her participation in the defence of the sovereignty of the Republic of Croatia, where the relevant medical documentation dates back more than ten years after the end of his or her participation in the defence of the sovereignty of the Republic of Croatia.”

Section 2

“(1) The following medical institutions shall act as consultants through their teams of experts for the purpose of providing the expert opinions on the facts referred to in section 1 of these Regulations:

1. - for emotional disorders: Clinical Hospital Centre Zagreb - Psychiatric Clinic

- for post-traumatic stress disorders and other anxious disorders:

Clinical Hospital Centre Zagreb - Clinic for Psychosocial Medicine;

Clinical Hospital Dubrava - Regional Centre for Psychotrauma;

Clinical Hospital Osijek - Regional Centre for Psychotrauma;

Clinical Hospital centre Rijeka - Regional Centre for Psychotrauma;

Clinical Hospital Split - Regional Centre for Psychotrauma;

- for other behavioural disorders, psychotic disorders, and other mental illnesses:

Psychiatric Hospital Vrapče.”

Section 3

“The expert analysis of the existence of a possible cause-effect relationship between ... the suicide of a Homeland War veteran and his or her participation in [the war] shall be conducted by a team of three authorised court experts, who are specialised physicians in the relevant medical field, with a professional experience of at least five years and who at least hold a master of science degree.”

Section 5

“The medical institutions set out in section 2 of these Regulations shall be remunerated on the basis of a special decision issued by the Minister ...”

Section 6

“The competent regional office of the state administration, ..., shall commission from one of the medical institutions set out in section 2 of these Regulations an expert report concerning the facts referred to in section 2 of these Regulations taking into account the type of illness with regard to which a Homeland War veteran has requested recognition of his status of a disabled Homeland War veteran or the illness from which the Homeland War veteran died.”

Section 8

“When producing an expert report concerning the relationship of ... a suicide of a Homeland War veteran and his or her participation in the [war], the experts shall [in their report] describe in detail the beginning, course and development of the illness and its consequences and shall competently and professionally [make their conclusions].”

B.  Relevant practice

29.  In its decision no. U-III-1001/2007 of 7 July 2010 the Constitutional Court elaborated on the applicability of the guarantees of a fair trial under Article 29 § 1 of the Constitution (see paragraph 23 above) in the administrative proceedings. The relevant part of the decision reads:

“10. The rules and means of proof are part of the overall procedural rules of the administrative proceedings set out in the Administrative Disputes Act and as such form an intrinsic part of the procedural guarantees of a fair trial, protected by the Constitution.

The Constitutional Court protects the guarantees of a fair trial (decision-making) by examining whether there have been possible procedural violations before the courts and other state bodies, that is to say bodies with public functions. When providing for such a protection, the Constitutional Court examines the proceedings as a whole and assesses whether they were conducted in a manner securing the fair trial (decision-making) to the appellant, that is to say whether during the proceedings there has been such a [procedural] breach that would render the proceedings as a whole unfair.

11. When examining the case at issue in the light of the above-noted considerations, the Constitutional Court finds that the conduct of the competent administrative bodies and the Administrative Court ... led to a violation of the appellant’s constitutional right to a fair trial (decision-making), guaranteed under Article 29 § 1 of the Constitution ...”

30.  In the decision nos. U-III-38107/2009 and U-III-41630/2009 of 10 September 2013 the Constitutional Court applied the above-noted principles concerning the applicability of the guarantees of a fair trial under Article 29 § 1 of the Constitution in the context of the impossibility for the parties to effectively participate in obtaining the expert report before the administrative authorities and the failure of the Administrative Court to remedy the situation at issue. It thus quashed the lower authorities’ decisions and remitted the case for a re-examination.

31.  In its judgment no. Us-5467/2011-5 of 3 September 2014 the High Administrative Court (Visoki upravni sud Republike Hrvatske) dealt with the question of the alleged procedural breaches before the administrative bodies concerning an appellant’s pension request. The relevant part of the judgment reads:

“In so far as the appellant was not provided with the expert report, the court would point out that under the Administrative Disputes Act the party should have a possibility to participate in the proceedings ... However, the procedural omission [complained of], related to the fact that the defendant did not give the appellant an opportunity to examine the case file ..., does not lead to unlawfulness of the impugned decision because in his appeal and the [administrative] action [against that decision] the appellant has challenged the correctness of the factual findings and his complaint was examined in the impugned decision and in this administrative dispute.”

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

32.  The applicant complained that there had been a lack of fairness in the proceedings concerning his family disability benefit request. He relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads:

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

A.  Admissibility

1.  Compatibility ratione materiae

(a)  The parties’ arguments

33.  The Government submitted that Article 6 of the Convention was not applicable in the circumstances of the present case concerning the proceedings relating to the applicant’s family disability benefit request. Those proceedings had not involved any contentious issue between two parties. They had been principally conducted by the administrative authorities and only later by the Administrative Court. In the Government’s view, Article 6 of the Convention could be applicable to proceedings before the administrative authorities in cases where there was a dispute between an applicant and the competent administrative body, but only with regard to complaints concerning the length of proceedings. In other situations, such as the instant case, which concerned a complaint about the lack of fairness in the proceedings, Article 6 of the Convention would not be applicable.

34.  The applicant argued that Article 6 of the Convention was applicable to the administrative proceedings at issue.

(b)  The Court’s assessment

35.  It is the Court’s well-established case-law that Article 6 § 1 of the Convention is applicable to proceedings relating to social insurance rights ‒ including welfare assistance rights ‒ whenever a dispute arises between the administrative authorities and an individual over such rights (see, for example, Feldbrugge v. the Netherlands, 29 May 1986, § 40, Series A no. 99; Schuler-Zgraggen v. Switzerland, 24 June 1993, § 46, Series A no. 263; Janssen v. Germany, no. 23959/94, § 40, 20 December 2001; and Božić v. Croatia, no. 22457/02, § 26, 29 June 2006).

36.  In the case at issue, the applicant’s request for family disability benefit was first dismissed in June 1996 by a decision of the competent Zagreb Office of the Ministry of Defence. The applicant challenged that decision in July 1996, which resulted in the ensuing proceedings before the Ministry and the Administrative Court (see paragraph 8 above). These proceedings, in the course of which numerous decisions were adopted and remitted for re-examination, resulted in the impugned determination of the applicant’s claim by the judgment of the Administrative Court of 4 December 2008 (see paragraph 19 above).

37.  There is thus no doubt in the case at issue that there was a dispute over the applicant’s right to family disability benefit, within the meaning of Article 6 § 1 of the Convention. This dispute was ultimately for the Administrative Court to resolve in accordance with the requirements of Article 6 § 1 of the Convention (see paragraph 46 below). The Court therefore rejects the Government’s objection.

2.  Exhaustion of domestic remedies

(a)  The parties’ arguments

38.  The Government submitted that during the proceedings before the Zagreb Office, the applicant should have been aware that the expert report would be commissioned from the Centre and thus ‒ if he believed that the issue of a lack of impartiality existed ‒ he should have asked for the experts to be excluded from the proceedings. However, he had failed to do that and then only broadly raised that issue in his appeal against the first-instance decision. Moreover, in his subsequent appeals, namely the administrative action and the constitutional complaint, he had not addressed that issue by providing specific arguments to support his complaints. Similarly, in his appeals against the first-instance decision of the Zagreb Office, the applicant had failed to raise properly his complaint that the Centre’s expert report had not been forwarded to him during the proceedings.

39.  The applicant argued that it would have been futile for him to have asked for the experts to be excluded when the Centre was prescribed by law as the only institution authorised to provide expert reports on the subject matter of the dispute in question. He also stressed that he had properly raised in his appeals before the domestic authorities ‒ including the Administrative Court and the Constitutional Court ‒ all his complaints concerning the alleged lack of fairness in the administrative proceedings

(b)  The Court’s assessment

40.  The Court reiterates that under Article 35 § 1 of the Convention, it may deal with an application only after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Mifsud v. France (dec.) [GC], no. 57220/00, § 15, ECHR 2002-VIII). The obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances. To be effective, a remedy must be capable of resolving directly the impugned state of affairs (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004).

41.  The Court notes that the central tenet of the applicant’s complaints relates to his alleged inequality vis-à-vis the State authorities, in the administrative proceedings, in respect of obtaining an expert report pertinent to the determination of his family disability benefit request. Throughout the proceedings the applicant expressed these complaints in his appeals before the competent domestic authorities, including the Administrative Court and the Constitutional Court (see paragraphs 11, 15, 17-18 and 20 above). As to the Government’s argument that he had not sought the exclusion of the experts from the proceedings, the Court notes that under the relevant domestic law only the specific public medical institutes, amongst which was the Centre, were authorised to provide expert reports on the matters at issue and that no dispensation to that effect existed (see paragraph 27 above, section 123 § 1 (8) of the Veterans Act; and paragraph 28 above, sections 2 and 6 of the Regulations). Accordingly, any request on the part of the applicant for exclusion of the experts would have been futile.

42.  Against the above background, the Court finds that the applicant sufficiently and appropriately provided the national authorities with the opportunity which is in principle intended to be afforded to Contracting States by Article 35 § 1 of the Convention, namely that of putting right the violations alleged against them (see, for example, Jaćimović v. Croatia, no. 22688/09, § 41, 31 October 2013). It therefore rejects the Government’s objection.

3.  Conclusion

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

B.  Merits

1.  The parties’ arguments

44.  The applicant contended that throughout the proceedings concerning his family disability request, the competent administrative authorities, including the Administrative Court, had ignored all his arguments relating to the commissioning and obtaining of the expert report which was of central importance for his case. He had not been provided with the opportunity to participate effectively in the proceedings and the competent administrative authorities and the Administrative Court had never provided adequate reasoning concerning his relevant arguments. In particular, the administrative authorities had not forwarded the expert report to him before the adoption of the decision on his request, which had prevented him from effectively taking cognisance of and commenting on its particular findings during the proceedings. The expert report had been obtained from the Centre, which was a public medical institute established by the Ministry to provide expert opinions on matters relating to the health issues of war veterans. At the same time, the Ministry’s Regulations excluded any possibility of having an expert report commissioned from any other expert or institute, thus precluding any possibility of his obtaining another expert report. In the applicant’s view, these shortcomings had prevented his effective participation in the proceedings and had rendered the proceedings, taken as a whole, unfair.

45.  The Government submitted that the applicant had had access to the Administrative Court, which had been competent to examine all aspects of the case and to decide the case on the merits. It had properly addressed the applicant’s complaints, dismissing them as ill-founded. Moreover, whilst it was true that the Centre had been part of a public health care institution from which the competent authorities were obtaining expert reports on matters relating to the health issues of war veterans ‒ as provided under the Ministry’s Regulations ‒ there had been no reason for the applicant to doubt the impartiality of the Centre’s experts or to call their expert opinion into question. According to the Government, the applicant had had all the relevant information regarding the manner in which the expert report had been commissioned. In particular, as of the date of the Ministry’s decision of 15 January 2006 (see paragraph 11 above), he should have been aware that the expert report would be commissioned from a public medical institute whose experts were employed by the State, since that was provided by the Regulations. He should have also been aware that his request for a family disability benefit would be dismissed if the Centre found no causal connection between his father’s suicide and his participation in the war. Accordingly, it could not be said that the facts relating to the expert report had not been known to the applicant. Moreover, after the first-instance decision had dismissed his request for family disability benefit, the applicant had had a genuine opportunity to challenge those findings, which could have resulted in a re-examination of his arguments.

2.  The Court’s assessment

(a)  General principles

46.  The Court reiterates that Article 6 § 1 of the Convention embodies the “right to court”, of which the right of access constitutes one aspect (see Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18). The decisions taken by administrative or other authorities which do not themselves satisfy the requirements of Article 6 must be subject to subsequent control by a “judicial body that has full jurisdiction”, including the power to quash in all respects, on questions of fact and law, the challenged decision (see Bistrović v. Croatia, no. 25774/05, § 51, 31 May 2007, and cases cited therein). Both the Commission and the Court have acknowledged in their case-law that the requirement that a court or tribunal should have “full jurisdiction” (“pleine juridiction” in French) will be satisfied where it is found that the judicial body in question has exercised “sufficient jurisdiction” or provided “sufficient review” in the proceedings before it (see Fazia Ali v. the United Kingdom, no. 40378/10, § 76, 20 October 2015, and cases cited therein). Accordingly, shortcomings with regard to the institutional or procedural requirements before an administrative or other authority may be remedied in the course of the subsequent control (see, for instance, Bistrović, cited above, §§ 51-53, concerning the institutional shortcomings; and Schuler-Zgraggen, cited above, § 52, concerning the procedural shortcomings).

47.  The Court further notes that according to Article 19 of the Convention, its duty is to ensure observance of the commitments undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see, amongst many others, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). However, the Court’s task is to ascertain whether the proceedings in their entirety ‒ including the way in which evidence was admitted ‒ were fair within the meaning of Article 6 § 1 of the Convention (see Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 31, Series A no. 274; and Van Kück v. Germany, no. 35968/97, § 47, ECHR 2003-VII)

48.  Article 6 § 1 of the Convention places the “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision (see, for instance, Perez v. France [GC], no. 47287/99, § 80, ECHR 2004-I; and Van Kück, cited above, § 48). It thereby embodies the principle of equality of arms which, with respect to litigation involving opposing private interests, implies that each party must be afforded a reasonable opportunity to present his case - including his evidence - under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, for example, Andrejeva v. Latvia [GC], no. 55707/00, § 96, ECHR 2009; and Dombo Beheer, cited above, § 33).

49.  Moreover, the concept of a fair hearing also implies the right to adversarial proceedings, according to which the parties must have the opportunity not only to make known any evidence needed for their claims to succeed, but also to have cognisance of, and comment on, all evidence adduced or observations filed, with a view to influencing the court’s decision (see Krčmář and Others v. the Czech Republic, no. 35376/97, § 40, 3 March 2000). It is left to the national authorities to ensure in each individual case that the requirements of a fair hearing are met (see Perić v. Croatia, no. 34499/06, § 19, 27 March 2008).

50.  In the context of expert evidence, the rules on the admissibility thereof must not deprive the party in question of the opportunity of challenging it effectively. In certain circumstances the refusal to allow further or an alternative expert examination of material evidence may be regarded as a breach of Article 6 § 1 (see Van Kück, cited above, § 55; and, mutatis mutandis, Matytsina v. Russia, no. 58428/10, § 169, 27 March 2014). In particular, where an expert has been appointed by a court, the parties must in all instances be able to attend the interviews held by him or her or to be shown the documents he or she has taken into account. What is essential is that the parties should be able to participate properly in the proceedings before the “tribunal” (see Mantovanelli v. France, 18 March 1997, § 33, Reports of Judgments and Decisions 1997-II).

51.  It should be also noted that Article 6 § 1 of the Convention guarantees a right to a fair hearing by an independent and impartial “tribunal” and does not expressly require that an expert heard by that tribunal fulfils the same requirements (see Sara Lind Eggertsdóttir v. Iceland, no. 31930/04, § 47, 5 July 2007). However, the opinion of an expert who has been appointed by the competent court to address issues arising in the case is likely to carry significant weight in that court’s assessment of those issues. In its case-law the Court has recognised that the lack of neutrality on the part of a court-appointed expert may in certain circumstances give rise to a breach of the principle of equality of arms inherent in the concept of a fair trial (see Bönisch v. Austria, 6 May 1985, §§ 30-35, Series A no. 92). In particular, regard must be had to such factors as the expert’s procedural position and role in the relevant proceedings (see Sara Lind Eggertsdóttir, cited above, § 47).

(b)  Application of these principles to the present case

52.  The Court notes that the applicant’s family disability benefit request was examined before several bodies, notably the Zagreb Office and the Ministry, as administrative authorities, and the Administrative Court, as a judicial authority with the power to review, in all respects, on questions of fact and law, the decisions of the Ministry.

53.  In particular, the Administrative Court, if it found that the administrative bodies failed to observe the relevant procedural rules or if it considered that the dispute could not be settled on the basis of the facts established in the administrative proceedings, could adopt a judgment quashing the impugned administrative act, with an obligation for the administrative bodies to comply with the instructions of the Administrative Court with regard to the identified shortcomings. However, if the quashing of the impugned administrative act and a re-examination of the case by the administrative body would cause serious damage to the claimant, or if it was obvious from the public documents or other evidence available in the case file that the facts were different from the ones established during the administrative proceedings, or an administrative act in the same proceedings had already been quashed, and the competent body had failed to fully comply with the judgment, the Administrative Court was empowered on its own to adopt a judgment or a decision on the merits of the case (see paragraph 25 above, section 39 of the Administrative Disputes Act). It would therefore follow that the Administrative Court, as an undisputedly independent and impartial judicial body, was capable of exercising “sufficient jurisdiction” or providing “sufficient review” concerning the matters examined by the administrative authorities in a particular administrative case (see paragraph 46 above).

54.  The Court also notes that according to the case-law of the Constitutional Court, the two-tier procedural design of the administrative proceedings, which are first conducted before the administrative authorities and then before the Administrative Court, from the perspective of the right to a fair trial under Article 29 § 1 of the Constitution, form a whole. Accordingly, the Constitutional Court emphasised that there would be a violation of the right to a fair trial only if a particular procedural defect complained of rendered the proceedings as a whole unfair (see paragraphs 29-30 above).

55.  In the case at issue the applicant did not complain that the Ministry, which decided upon his appeal against the decision of the Zagreb Office dismissing his request for family disability benefit, lacked the requisite institutional requirements under Article 6 § 1 of the Convention, or, for that matter, that there was no “judicial body that has full jurisdiction” able to subsequently review and remedy the possible shortcomings in the proceedings before the administrative bodies. The applicant rather complained that the procedural failures related to the manner in which the relevant expert report was commissioned, obtained and then used to determine the merits of his claim rendered the proceedings before the administrative and judicial authorities, taken as a whole, unfair. In these circumstances, the Court will examine whether the procedural shortcomings complained of rendered the impugned proceedings taken as a whole unfair (see Feldbrugge, cited above, §§ 44 and 46; and Schuler-Zgraggen, cited above, § 52).

56.  The Court notes that in order to determine the applicant’s request for family disability benefit the Zagreb Office commissioned an expert report from the Centre in order to investigate whether his father’s death was associated with his wartime service (see paragraph 12 above). It thereby complied with the order of the Administrative Court of 3 June 2004, as well as the Ministry’s order of 15 January 2006 accepting the applicant’s complaint by which he challenged the dismissal of his request for family disability benefit (see paragraphs 9 and 11 above).

57.  Based on the Centre’s report, finding that no such causality existed, the administrative authorities, and subsequently the Administrative Court, dismissed the applicant’s request for family disability benefit (see paragraphs 14, 16 and 19 above). The Centre’s report thus had a decisive role in the assessment of the merits of the applicant’s claim, as also noted by the Administrative Court (see paragraph 19 above).

58.  The Court observes that the Centre, as a public medical institution, is a reference body designated by the Ministry and is one of several medical institutions in Croatia which have the exclusive authorisation to provide expert opinions on matters relating to war veterans’ health disorders in cases concerning their social welfare rights. Consequently, the competent administrative bodies have no possibility of obtaining an assessment from another body or expert, and the findings of the authorised reference body are legally binding for them (see paragraphs 27 above section 123 1 (8) of the Veterans Act; and paragraphs 19 and 27 above).

59.  At the same time, as occurred in the present case, the Ministry and its agencies often found themselves in dispute with individuals over the existence of rights relating to the war veterans’ health disorders. Such disputes are then settled before the competent Administrative Court, which is then required to assess the Centre’s expert report in determining the matter. For the Administrative Court it remains open to reach a different conclusion on the merits of the case from the one provided by the authorised reference body (see paragraph 25 above), albeit in practice the decision of the Administrative Court would be decisively determined by the findings of the reference body (see paragraph 19 above).

60.  In the context of a similar system of commissioning and obtaining of opinions on matters of relevance for the determination of an administrative case, the Court has recently held in the Korošec v. Slovenia case that, although the opinions of the institution competent to provide expertise on a particular matter are not ordered by the domestic courts, when such opinions are treated as expert opinions in the pre-judicial administrative proceedings and, for all practical purposes, regarded by the domestic courts as expert medical evidence, similar questions arise as those related to the neutrality of court-appointed experts (see Korošec v. Slovenia, no. 77212/12, § 51, 8 October 2015).

61.  In this connection the Court reiterates that Article 6 § 1 of the Convention does not bar the national courts from relying on expert opinions drawn up by specialised bodies to resolve the disputes before them when this is required by the nature of the contentious issues under consideration (see Csősz v. Hungary, no. 34418/04, § 34, 29 January 2008, and Fazliyski v. Bulgaria, no. 40908/05, § 59, 16 April 2013). What it requires, however, is that the requirement of neutrality on the part of an appointed expert is observed, that the court proceedings comply with the adversarial principle and that the applicant be placed on a par with his or her adversary, namely the State, in accordance with the principle of equality of arms (see Sara Lind Eggertsdóttir, cited above, § 47; and Placì v. Italy, no. 48754/11, § 79, 21 January 2014).

62.  With regard to the question of neutrality of the experts who produced the Centre’s report, the Court notes that it is understandable that doubts could have arisen in the mind of the applicant as to their impartiality given that they were employed in the Centre, which was designated by the Ministry, his opponent in the administrative proceedings at issue, to provide the expert reports on the subject matter of the dispute. However, while the applicant’s apprehensions concerning the impartiality of the experts may be of a certain importance, they cannot be considered decisive as there is nothing objectively justifying a fear that the Centre’s experts lacked neutrality in their professional judgment. In the Court’s opinion the very fact that an expert is employed in a public medical institution, specially designated to provide expert reports on a particular issue and financed from the State budget, as is the case with the Centre, does not in itself justify the fear that the experts employed in such institutions will be unable to act neutrally and impartially in providing their expert opinions (compare Brandstetter v. Austria, 28 August 1991, §§ 44-45, Series A no. 211).

63.  This is particularly true in view of the fact that the Centre’s report is to be delivered by an expert team consisting of three authorised court experts, with a considerable professional and educational background (see paragraph 28 above, section 3 of the Regulations), and that the relevant domestic law sets out an overriding duty for the experts to provide their opinions impartially and relevantly within their area of expertise (see paragraph 24 above, section 189 § 1 of the Administrative Procedure Act).

64.  However, the Court does not lose sight of the fact that the competent administrative bodies had no possibility of obtaining an assessment from another body or expert and that the findings of the Centre were legally binding for them (see paragraph 58 above). It is also mindful that, although the Administrative Court was free to re-examine the findings of the Centre and to reach a different conclusion on the merits of the case, the Centre’s report was of a decisive relevance for the final decision in the present case (see paragraph 19 above; and for the relevant legislation paragraph 25 above; see also, by contrast, Feldbrugge, cited above, § 46). It therefore follows that the experts’ findings had a preponderant influence on the assessment of the facts by that court since it pertained to a medical field that was not within the judges’ knowledge (compare Mantovanelli, cited above, § 36).

65.  The Court notes however that the applicant was excluded from the procedure of commissioning and obtaining the Centre’s report and he learned of its substance only after the adoption of the decision of the Zagreb Office dismissing his claim for family disability benefit (see paragraphs 13 and 15 above).  In such circumstances, given that the question the Centre was instructed to answer was identical with the one that the administrative bodies had to determine, namely whether the suicide of the applicant’s father was associated with his wartime service, the Court concludes that the applicant’s position in the proceedings was seriously hampered by the fact that he was excluded from the procedure of commissioning and obtaining the expert report. He did not have an opportunity, as provided in the relevant domestic law, to have knowledge of and to comment on the documents taken into consideration by the experts or the possibility of examining the witnesses who gave evidence before the administrative authorities relevant for the expert opinion (see paragraph 24 above, section 143 of the Administrative Procedure Act; and paragraph 31 above).

66.  Moreover, the Court notes that once the applicant became aware of the Centre’s findings he attempted to challenge them before the Ministry and the Administrative Court. He argued in particular that he had not had an opportunity to effectively participate in the proceedings and that the Centre’s experts had failed to take into account the triple murder committed by his father before committing suicide, and thus he requested that the experts be ordered to re-examine their findings. However, without taking any further action in that respect such as by allowing him to question the witnesses or to put the relevant doubts before the same experts or commissioning another expert report, the Ministry ignored his specific complaints and the Administrative Court endorsed such conduct of the Ministry, considering the applicant’s specific complaints to be irrelevant for reaching a decision on his request for family disability benefit (see paragraphs 16-19 above). In view of the fact that the matter concerned a complex assessment of psychological consequences related to the applicant’s father’s wartime service and that the Centre’s findings were limited to the facts following from the material adduced before it (see paragraph 10 above), the Court has difficulties accepting that the Administrative Court had sufficient information for it to be able to adopt such a position (compare Mantovanelli, cited above, § 36; and Van Kück, cited above, § 62).

67.  It follows that the Administrative Court, acting in the last instance of the administrative proceedings as a judicial body that had full jurisdiction to examine all factual and legal questions arising in the context of the case, failed to critically approach and remedy the procedural shortcomings related to the applicant’s exclusion from the process of commissioning and obtaining of the expert report (see, by contrast, Schuler-Zgraggen, cited above, § 52). This failure of the Administrative Court was not subsequently adequately addressed and remedied by the Constitutional Court.

68.  In these circumstances the Court finds that there has been a violation of Article 6 § 1 of the Convention.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

69.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

70.  The applicant claimed 15,000 euros (EUR) in respect of pecuniary damage relating to his claim for family disability benefit and EUR 20,000 in respect of non-pecuniary damage.

71.  The Government argued that there was no causal link between the pecuniary damage claimed and the subject matter of the proceedings before the Court. They also contended that the applicant’s claim for non-pecuniary damage was excessive and unsubstantiated.

72.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 4,000 in respect of non-pecuniary damage.

B.  Costs and expenses

73.  The applicant also claimed EUR 4,413.64 for the costs and expenses incurred before the domestic authorities and before the Court.

74.  The Government considered the applicant’s claim to be unsubstantiated and unfounded.

75.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4,413.64 covering costs under all heads.

C.  Default interest

76.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the remainder of the application under Article 6 § 1 of the Convention admissible;

 

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

 

3.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Croatian kunas at the rate applicable at the date of settlement:

(i)  EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 4,413.64 (four thousand four hundred and thirteen euros and sixty-four cents), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 3 May 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Abel Campos                                                                        Işıl Karakaş
       Registrar                                                                              President

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

A.I.K.
A.C.

 




CONCURRING OPINION OF JUDGE LEMMENS

1. I agree with my colleagues that there has been a violation of Article 6 § 1 of the Convention. In my opinion, however, the judgment sets the fair-hearing requirements for the proceedings before the Administrative Court at a level that is too high, in the light of the nature of proceedings before that court.

This separate opinion is rather long, unfortunately. I nevertheless plead for some indulgence, having regard to the importance of the issues of judicial review of administrative action raised by the present case.

 

2. The starting point of my analysis is the Croatian system of dealing with requests for family disability benefits. Of relevance are the respective roles of the various bodies in the proceedings.

A request for a disability benefit, based on the suicide of a family member, can be put before the competent regional office of the State war veterans’ administration, in this case the Zagreb Office. The law states that, before arriving at its decision, the office must commission an expert report from a medical institution designated by the Minister for war veterans, in this case the Regional Centre for Psychotrauma of the Clinical Hospital Dubrava (the “Centre”). Only if that medical institution establishes a causal link between participation in the war and an illness leading to the suicide can the applicant receive the family disability benefit (Section 123 § 1(8) of the Veterans Act). The law apparently does not provide for adversarial proceedings before the expert institution.

The decision of the regional office can be appealed against to the Ministry in charge of war veterans’ affairs. The Ministry can dismiss the appeal or annul the contested decision; in the latter case it either sends the case back to the regional office or takes a new decision itself on the merits. In the present case the Ministry dismissed the appeal.

The decision of the Ministry can be challenged before the Administrative Court on various grounds of illegality, in law or in fact. The court either upholds the application for annulment or dismisses it; if it upholds the application, it annuls the challenged administrative act. If, according to the nature of the matter, a new act (on the merits) has to be adopted instead of the annulled administrative act, it will normally be for the competent administrative authority to adopt it. That body will then be bound by the legal standpoint of the court and by the court’s comments regarding the procedure (section 62 of the Administrative Disputes Act). However, the Administrative Court itself can take a decision on the merits if the nature of things allows for it and if the information from the procedure provides a reliable basis; in such a case, the court’s judgment will replace the annulled act in all respects (section 42 of the Administrative Disputes Act).

 

Section 39 of the Administrative Disputes Act deals with the establishment of the facts upon which the judgment of the Administrative Court is to be based. In principle, the court bases its decision on the facts as established by the administrative authority (section 39 (1)). If the court finds deficiencies with respect to the establishment of the facts by the administrative authority, it annuls that act, and it is then for the administrative body to take a new decision (on the merits), in compliance with the court’s findings (section 39 (2)). Exceptionally, however, the court can establish the facts on its own (section 39 (3)).

In the proceedings brought by the applicant, the Administrative Court apparently considered itself able to take a decision (on the application for annulment) on the basis of the facts as established by the Ministry. It dismissed the applicant’s application as being ill-founded. What the court did in this case thus seems to be a classical exercise of judicial review of an administrative act.

 

3. As is explained in the judgment, there was a dispute over a right, namely the right to a family disability benefit (paragraphs 36-37). Moreover, that right can be characterised as “civil” within the meaning of Article 6 § 1 (see the case-law referred to in paragraph 35 of the judgment). I agree with my colleagues that Article 6 § 1 applied to the dispute between the applicant and the public authorities.

 

4. However, the judgment is not explicit about the applicability or inapplicability of Article 6 § 1 to the various stages of the proceedings.

In the present case, the proceedings started with a request by the applicant to the Zagreb Office. Article 6 § 1 does not prohibit a system whereby a claim relating to a civil right is initially decided upon by an administrative authority, such as the Zagreb Office. As long as there was no (negative) decision by the Zagreb Office, there was no “dispute” for the purposes of Article 6 § 1. Obviously, Article 6 § 1 did not therefore apply at this stage of the proceedings (see Feldbrugge v. the Netherlands, 29 May 1986, § 25, Series A no. 99, and Van Marle and Others v. the Netherlands, 26 June 1986, § 31, Series A no. 101).

A dispute arose only after the Zagreb Office rejected the applicant’s request, when the applicant appealed against that decision to the Ministry. It was from that moment on that the applicant could invoke the right to bring the dispute before a “tribunal” (right to a court). Such a “tribunal” should be able to examine the lawfulness of the act. However, Article 6 § 1 does not preclude systems providing for an administrative appeal to an administrative body that will have to be exhausted before a judicial appeal can be brought before a court. What is guaranteed under Article 6 § 1 in such a system is (only) that in the end a court has jurisdiction to examine the lawfulness of the administrative act deciding on the civil right claimed by an individual.

 

In the present case, the Ministry clearly cannot be considered a “tribunal” within the meaning of Article 6 § 1; the guarantees of Article 6 § 1 therefore do not apply to the appeal proceedings before that body.

The fact that the decision on the merits of the applicant’s request for a family disability benefit was taken by an administrative body, which obviously did not meet the requirements of Article 6 § 1, is in itself not problematic from the point of view of the right to a court (see Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, § 51, a, Series A no. 43, and Albert and Le Compte v. Belgium, 10 February 1983, § 29, Series A no. 58). However, in such a situation Article 6 § 1 requires that the decision of the administrative body be subject to subsequent supervision by a judicial body that has “full jurisdiction”, in the sense of exercising “sufficient jurisdiction” (see Fazia Ali v. the United Kingdom, no. 40378/10, § 76, 20 October 2015), in order to review the “lawfulness” of the challenged act (see Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 84 and 86, Series A no. 52), and that the proceedings before the reviewing court themselves comply with the guarantees of Article 6 § 1 (see, among other authorities, Albert and Le Compte, cited above, § 29; Kingsley v. the United Kingdom [GC], no. 35605/97, § 32, ECHR 2002-IV; and Fazia Ali, cited above, § 75). On this point, I agree with paragraph 46 of the judgment.

The judgment goes on to find that the Administrative Court does have “sufficient jurisdiction”, in the sense that it can review in all respects, on questions of both fact and law, the decisions of the Ministry (paragraphs 52-53). Again, I agree. However, in my opinion it is not necessary to point here to the fact that the Administrative Court can - exceptionally - take a decision on the merits of the dispute between the applicant and the administrative authorities (paragraph 53). It is sufficient to note that the court has the power to annul the challenged administrative act; whether the merits of the dispute are then decided by the court itself or by the competent administrative body does not affect that conclusion (see Zumtobel v. Austria, 21 September 1993, § 32, Series A no. 268-A, and Sigma Radio Television Ltd v. Cyprus, nos. 32181/04 and 35122/05, § 153, 21 July 2011).

I should add that the proceedings before the Constitutional Court also fall within the application of Article 6 § 1, since that court’s decision can be decisive for the outcome of the case. In the present case, however, the proceedings before the Constitutional Court are not an issue.

 

5. The question is thus whether the proceedings before the Administrative Court satisfied the requirements of Article 6 § 1.

By contrast, the present case is not about the fairness of the proceedings before the Zagreb Office (or before the Centre, which acted as an expert for the Zagreb Office), nor about the fairness of the proceedings on appeal before the Ministry. Whether or not the Administrative Procedure Act guarantees fair proceedings before administrative bodies is not something this Court can be concerned about. In this respect, I find that the majority go too far in criticising certain aspects of the procedure before the Zagreb Office (see paragraph 65).

The majority hold that it is the Court’s task to ascertain whether “the proceedings before the administrative and judicial authorities, taken as a whole”, were fair (paragraph 55). This holding deserves, in my opinion, some qualification. Article 6 § 1 applies only to the judicial stages of the proceedings. Where the Court in its case-law refers to the proceedings “as a whole”, it generally refers to the judicial proceedings as a whole, and in particular to the possibility that later stages in the proceedings may have remedied the shortcomings in earlier stages (see the cases referred to in paragraph 55 of the judgment: Feldbrugge, cited above, § 46 (shortcoming not cured); and Schuler-Zgraggen v. Switzerland, 24 June 1993, § 52, Series A no. 263 (shortcoming cured)). It is true that Article 6 § 1 may be relevant before a case reaches the judicial stage of the proceedings if and in so far as the fairness of the trial before the court is likely to be seriously prejudiced by a shortcoming during the administrative stage (compare, with respect to the pre-trial stage and the trial stage in criminal proceedings, Imbrioscia v. Switzerland, 24 November 1993, § 36, Series A no. 275, and Salduz v. Turkey [GC], no. 36391/02, § 50, ECHR 2008). But even then, it is in my opinion the fairness of the proceedings before the court that is the ultimate yardstick.

 

6. When it comes to the analysis of the complaint, what has in my opinion to be examined is whether the applicant had a reasonable opportunity to present his case to the Administrative Court and whether that court conducted “a proper examination of the submissions, arguments and evidence” presented by the applicant (see paragraph 48).

It is for domestic law to determine the scope of a court’s jurisdiction. As indicated above, in cases such as the present, the jurisdiction of the Administrative Court is limited to reviewing the lawfulness, both in law and in fact, of the challenged administrative act. Only if the court finds that the act is unlawful, and therefore should be annulled, does the question arise whether it will or will not itself look into the merits of the dispute (i.e., into the question whether the request for a family disability benefit should be granted or rejected). If the act is considered lawful, it is not for the court to decide the dispute on the merits. In such a situation, the court cannot “reform” the decision taken by the competent administrative body by substituting its decision for that of the latter.

Having regard to the limits to the jurisdiction of the Administrative Court, I find it confusing to refer to our Court’s case-law with respect to the fairness of proceedings involving experts appointed by a court in the course of the proceedings before that court (see paragraphs 50-51). Indeed, it was not for the Administrative Court to appoint or re-appoint an expert in order to be able to assess the merits of the applicant’s request to obtain a family disability benefit. The Administrative Court only had to examine whether the Ministry, on the basis of the expert opinion given by the Centre, had lawfully arrived at its decision to reject the applicant’s request.

For the same reason, I would prefer to avoid language suggesting that the Administrative Court had to assess the merits of the applicant’s request (paragraph 57), had to assess the Centre’s expert report (paragraph 59), could rely on that expert report (paragraph 61), or could re-examine the findings of the Centre or re-assess the facts (paragraph 64). In particular, the link between the Centre’s expert opinion and the Administrative Court’s review of the legality of the Ministry’s decision is a more indirect one than that suggested by the majority.

The majority refer to the recent case of Korošec v. Slovenia (no. 77212/12, 8 October 2015) to find that, in the case of opinions of experts appointed in pre-judicial administrative proceedings, “similar questions” arise as with court-appointed experts (paragraph 60). It is true that the Court in Korošec sees “similarities” between the two types of situations (ibid., § 51). However, the social courts in that case were competent to decide on the merits of the claim initially brought by the applicant before an administrative body, thereby relying (or not) on the expert opinion obtained during the administrative proceedings. That was a situation quite different from the present one, and therefore the Korošec precedent should be treated with caution.

 

7. Turning to the proceedings before the Administrative Court, the applicant challenged the Ministry’s decision on the ground that it had not replied to some of his arguments, including those relating to the impossibility for him to comment on the conclusions of the experts before the Zagreb Office had taken its decision. He also reiterated that the Centre’s experts were biased and that their report was superficial, since it had not taken into account the fact that the applicant’s father had committed a triple murder, and illogical, given that the father had had no psychiatric problems before the war, whereas after the war he had murdered three people and committed suicide. Finally, the applicant invited the court to commission another expert report, from a different expert (see paragraph 18). It should be underlined that, apart from the invitation to appoint another expert, all these complaints concerned the fairness of the proceedings before the administrative bodies and ultimately the lawfulness of the decision of the Ministry. In other words, they concerned the lawfulness, including the procedural regularity, of the challenged decision under domestic law.

 

It was for the Administrative Court to review the decision of the Ministry from the perspective of these complaints. Under Article 6 § 1 of the Convention, the applicant had the right to obtain a proper examination of his arguments by the court (see Kraska v. Switzerland, 19 April 1993, § 30, Series A no. 254-B, Van de Hurk v. the Netherlands, 19 April 1994, § 59, Series A no. 288, and the case-law cited in paragraph 48 of the present judgment).

In its decision, the Administrative Court first of all held that the status of the family member of a deceased war veteran could be based only on a positive opinion by one of the expert institutions designated by the Minister for war veterans (see paragraph 19). I understand that this was an implicit rejection of the invitation to appoint another expert. Given the domestic rules relating to the award of a family disability benefit and the limitation of the jurisdiction of the Administrative Court to a review of administrative acts, I have no problem with this decision.

The Administrative Court further acknowledged that the Ministry had not explicitly replied to the argument relating to the need to request a report with regard to the fact that the applicant’s father had not only committed suicide, but had also committed a triple murder. It held, however, that this murder could not be a decisive factor for the decision on the applicant’s request for a family disability benefit, since such a criminal act could not be a basis for the establishment of a link between the death of the war veteran and his participation in the war (see paragraph 19).

I agree with the majority that such reasoning fell short of the requirements under Article 6 § 1 of the Convention (see paragraph 66). The Administrative Court, faced with a complaint that the experts were biased and that their opinion was superficial and illogical, should have examined the quality of that report and should have checked whether the applicant had had a meaningful opportunity to contest the findings of the experts before the administrative bodies, in particular the Ministry (as the second-instance body). The part of the reasoning relating to the insufficiency of any link between the triple murder and participation in the war cannot be considered an implicit answer to the applicant’s argument, since he had not argued that the fact of the murder entitled him to the family disability benefit. His argument was that this fact was an element that could show that his father suffered from a psychiatric illness linked to his participation in the war, with the result that such illness - and the ensuing suicide - would entitle him to the benefit.

Since the expert opinion was crucial - indeed decisive - for the decision to be taken by the administrative authorities, the right to a fair hearing required a careful examination by the Administrative Court of all the complaints directed against that opinion (contrast Rolf Gustafson v. Sweden, 1 July 1997, § 47 in fine, Reports of Judgments and Decisions 1997-IV). That court’s judgment does not show that such an examination took place.

 

8. It is on this basis, which is a more narrow one than that adopted by the majority, that I concur with the finding that there has been a violation of Article 6 § 1.