European Court of Human Rights

 

 

SECOND SECTION

CASE OF BOSILJEVAC v. CROATIA

(Application no. 3681/16)

 

 

 

 

JUDGMENT

STRASBOURG

18 April 2023

 

This judgment is final but it may be subject to editorial revision.

In the case of Bosiljevac v. Croatia,

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

          Pauliine Koskelo, President,
          Lorraine Schembri Orland,
          Davor Derenčinović, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 3681/16) 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”) on 17 December 2015 by a Croatian national, Mr Dario Bosiljevac (“the applicant”), who was born in 1984 and lives in Aljmaš and who was represented by Mr B. Kopf, a lawyer practising in Osijek;

the decision to give notice of the complaint concerning the unfairness in administrative proceedings to the Croatian Government (“the Government”), represented by their Agent, Ms Š. Stažnik, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 28 March 2023,

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

SUBJECT MATTER OF THE CASE

1.  The case concerns administrative proceedings in which the applicant sought, on account of his medical condition (cerebral palsy), to be granted a survivor’s pension following the death of his father.

2.  In order to decide on the applicant’s request, the administrative authorities commissioned two expert reports from their in-house medical experts. On the basis of these expert reports, which found that the applicant’s condition did not amount to a general inability to work (a statutory requirement for granting a survivor’s pension), the administrative authorities dismissed his request. His subsequent action for judicial review was dismissed by the High Administrative Court.

3.  Before the Court, the applicant complained, under Article 6 § 1 of the Convention, that the procedural shortcomings related to the manner in which the expert reports had been obtained and then used to determine the merits of his claim had rendered the proceedings before the administrative and judicial authorities, taken as a whole, unfair.

THE COURT’S ASSESSMENT

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

5.  The general principles relevant to the present case have been summarised in Letinčić v. Croatia (no. 7183/11, §§ 46-51, 3 May 2016, with further references therein).

6.  The Court notes that the findings of the in-house medical experts were legally binding for the administrative authorities (section 113(1) of the Croatian Pension Insurance Act as in force at the material time). The Court is also mindful that, although the High Administrative Court was free to reach a different conclusion on the merits of the case, the administrative authorities’ in-house expert reports were of a decisive relevance for the final decision in the case since they pertained to a medical field that was not within the judges’ knowledge (compare Letinčić, cited above, §§ 19, 25 and 64).

7.  The Court notes, however, that the applicant was unable to effectively participate in the procedure of obtaining those expert reports, and that the High Administrative Court failed to critically approach and remedy those procedural shortcomings.

8.  Notably, the first in-house expert report stated that the applicant had been examined in a lobby of the administrative authority’s premises, where he had arrived in a wheelchair, and that establishing his exact status in such conditions had not been possible. The second in-house expert report, which was never forwarded to the applicant, stated that the expert had examined the medical documentation in the file and that the applicant’s health condition did not amount to a general inability to work. Neither of the reports explained the reasons behind their conclusions. The applicant learned of the substance of those reports only after the adoption of the administrative authorities’ decisions dismissing his claim for a survivor’s pension.

9.  The High Administrative Court dismissed the applicant’s administrative action in a closed session. Instead of examining the quality of the administrative authorities’ experts reports and verifying whether the applicant had had a meaningful opportunity to contest the experts’ findings, the High Administrative Court considered the applicant’s specific complaints to be irrelevant for reaching a decision on his request for a survivor’s pension. Having regard to the fact that the matter concerned a complex assessment of the applicant’s medical condition following cerebral palsy, and noting the limited content of the administrative authorities’ expert reports, the Court has difficulties accepting that in the present case the High Administrative Court had sufficient information for it to be able to adopt such a position (compare Mantovanelli v. France, 18 March 1997, § 36, Reports of Judgments and Decisions 1997‑II; Van Kück v. Germany, no. 35968/97, § 62, ECHR 2003‑VII, and Letinčić, cited above, § 66).

10.  As to the Government’s argument that the applicant failed in his administrative action to propose obtaining a further expert report, or hearing the administrative authorities’ experts, the Court notes that the proceedings in the applicant’s case were conducted under the Administrative Disputes Act of 1977. Unlike the Administrative Disputes Act of 2010, under which the administrative court freely assesses the evidence and establishes facts, and under which the parties may propose evidence such as expert reports and witness testimonies (see Krunoslava Zovko v. Croatia, no. 56935/13, § 24, 23 May 2017), under the 1977 Administrative Disputes Act the administrative court in principle decided the case on the basis of the facts established in the administrative proceedings (see Letinčić, cited above, § 25). The Government did not submit any judgment rendered under the 1977 Administrative Disputes Act showing that the administrative authorities’ experts were heard or that an independent expert report was obtained following a party’s request.

11.  The present case should thus be distinguished from cases against Croatia in which the 2010 Administrative Disputes Act applied (see, for instance, Krunoslava Zovko, cited above, § 51; and Trbojević v. Croatia (dec.) [Committee], no. 57228/13, § 39, 15 May 2018), and in which the parties failed to appear at a hearing or to propose evidence in support of their arguments.

12.  Accordingly, in view of the procedural shortcomings related to the expert reports used to decide the merits of the applicant’s claim, which the High Administrative Court failed to remedy, the Court finds that in the present case there has been a violation of Article 6 § 1 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

13.  The applicant claimed 516,129.03 euros (EUR) in respect of pecuniary damage, EUR 4,000 in respect of non-pecuniary damage and EUR 830 in respect of costs and expenses.

14.  The Government considered the claims unsubstantiated and unfounded.

15.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it awards the applicant EUR 4,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

16.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 650 in respect of costs and expenses under all heads, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application 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, the following amounts:

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

(ii) EUR 650 (six hundred and fifty euros), 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 18 April 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

       Dorothee von Arnim                                             Pauliine Koskelo
          Deputy Registrar                                                      President