EHRM, 23-05-2017, nr. 56935/13

The Administrative Procedure Act (Zakon o općem upravnom postupku, Official Gazette no. 47/2009), which entered into force on 1 January 2010, in its relevant parts provides:

Section 30

Section 47

Section 51

Section 52

Section 58

Section 65

Section 66

Section 115

The relevant provisions of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette no. 20/2010), as in force from 1 January 2012 to 28 December 2012, provided:

Section 22

Section 32

Section 33

Section 34

Section 39

Section 55

Section 57

Section 58

Section 60

The Compulsory Health Insurance Act (Zakon o obveznom zdravstvenom osiguranju, Official Gazette nos. 150/2008, 94/2009, 153/2009, 71/2010, 139/2010 and 49/2011), as in force at the material time, provided that in the event that insured persons sustained a work-related injury they were entitled to medical protection and financial compensation (section 14.a). The right to financial compensation implied, inter alia, compensation for lost salary during the period of temporary inability to work caused by a work-related injury (section 24.a). Insured persons were entitled to compensation for lost salary during the entire period of sick leave, up to the time-limit provided for by law (section 32).

An insured person's entitlement to sick leave was established by that person's chosen general practitioner (section 33). The insured person was entitled to freely choose his or her general practitioner (section 110). In the event that the insured person was not satisfied with the general practitioner's assessment of his or her entitlement to sick leave, the insured person was entitled to lodge a complaint with the Fund, which would then issue a written explanation informing the insured person of the procedure for acquiring the right sought (section 34).

In proceedings concerning compulsory health insurance rights the Fund applied the provisions of the Administrative Proceedings Act (section 107). Such proceedings were conducted before two instances of the Fund. Against the second-instance decision of the Fund the insured person was entitled to initiate an administrative dispute (section 108).

The Ordinance on rights, conditions and the manner of acquiring the compulsory health insurance rights (Pravilnik o pravima, uvjetima i načinu ostvarivanja prava iz obveznog zdravstvenog osiguranja, Official Gazette no. 67/2009, with further amendments), as in force at the material time, provided that an insured person's chosen general practitioner should establish the start and the end of that insured person's sick leave (section 25.1). It further provided that in the event of the insured person [complaining] in that respect, the general practitioner should refer him or her to an authorised doctor of the Fund for an expert medical evaluation, enclosing his or her medical documentation with the referral (section 25.10).

The Ordinance on authorities and the manner of work of authorised doctors and medical commissions of the Croatian Health Insurance Fund (Pravilnik o ovlastima i načinu rada ovlaštenih doktora i liječničkih povjerenstava Hrvatskog zavoda za zdravstveno osiguranje, Official Gazette no. 113/2009, with further amendments), as in force at the material time, provided that the authorised doctors of the Fund and members of the medical commissions of the Central Office should be doctors of medicine with at least five years of relevant professional experience and a licence to work issued by the relevant authority (section 6.2).

At an insured person's request an authorised doctor was to provide an expert report concerning the general practitioner's assessment of his or her entitlement to sick leave (section 13.1.1). The authorised doctor delivered the expert report on the basis of the relevant medical documentation, and if necessary, on the basis of an examination of the insured person (section 13.3).

If the insured person was not satisfied with the authorised doctor's expert report, he or she was entitled to seek a first-instance written decision by the local office of the Fund on the matter (section 28). In second-instance administrative proceedings an expert report from a medical commission of the Central Office was to be obtained (section 20.3). This report was to be compiled on the basis of the relevant medical documentation (section 20.4).

The Government submitted that Article 6 of the Convention was not applicable to the proceedings before the Croatian Health Insurance Fund. Those proceedings had not involved any contentious issue between two conflicting parties. 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 relevant administrative body, but only with regard to complaints concerning the length of such proceedings. In other situations, such as the instant case, which concerned a complaint about the lack of fairness in the proceedings concerned, Article 6 of the Convention would not be applicable.

The applicant maintained her complaints under Article 6 of the Convention.

In the recent case of Letinčić v. Croatia (no. 7183/11, §§ 33–37, 3 May 2016) the Court has already dismissed similar objections made by the Government. It sees no reason to hold otherwise in the present case. The Court therefore dismisses the Government's objection.

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.

The applicant contended that the relevant administrative authorities had excluded her from the procedure of commissioning and obtaining the expert reports on the question of whether her sick leave from 27 October 2011 was linked to the work-related injury she had sustained in 2009. She further averred that her complaints in that respect had been ignored by the Zagreb Administrative Court, which had decided on the case by relying exclusively on the expert reports obtained by her opponent in the proceedings and which had refused to hear her and to obtain an independent expert medical report in order to establish the link between her work-related injury and her sick leave.

The Government submitted that in the proceedings at issue the applicant had benefited from all the guarantees of Article 6 § 1 of the Convention. In particular, she had had cognisance of and had been able to comment on all the documents in the file, and had had the opportunity to put forward all her relevant arguments. Further to this, the medical documentation she had submitted during the proceedings had been taken into account by the relevant expert medical bodies. The Government further stressed that the reason for the applicant's sick leave had primarily been assessed by her chosen general practitioner, whose opinion the Zagreb Administrative Court had taken into account when deciding the case. The Government held that in these circumstances the fact that the Zagreb Administrative Court had refused to obtain another (fourth) expert medical report on the matter had not rendered the proceedings unfair.

The general principles relevant for the present case have been summarised in the case of Letinčić (cited above, §§ 46–51, with further references).

The Court notes that the central tenet of the applicant's complaints concerns her alleged exclusion from the procedure of commissioning and obtaining the expert reports used to the decide the merits of her claim to sick leave entitlement, and the alleged bias of the experts who produced the reports on the matter.

The Court notes at the outset that the applicant's claim concerning her entitlement to sick leave was examined before several bodies — notably the Zagreb Office and the Central Office as administrative authorities, and the Zagreb Administrative Court as a judicial authority with the power to review in all aspects regarding questions of fact and law the decisions of the Fund (see paragraphs 13–20 above).

The Court further notes that in order to determine the applicant's claim the administrative authorities commissioned expert reports from their in-house expert medical bodies (see paragraphs 11 and 15 above). On the basis of these reports, which found no causal link between the applicant's work-related injury and her sick leave, the administrative authorities, and subsequently the Zagreb Administrative Court, dismissed the applicant's claim (see paragraphs 13, 16 and 20 above). In these circumstances the Court is ready to accept that the expert reports at issue had a decisive role in the assessment of the merits of the applicant's claim.

With regard to the applicant's complaint that the expert reports were obtained by the Fund as her opponent in the proceedings, the Court has recently held in the Letinčić case (cited above, §§ 62–63) that although the applicant's apprehensions concerning the impartiality of the experts might be of a certain importance, they could not be considered decisive if there was nothing objectively justifying a fear that the experts lacked neutrality in their professional judgment. The Court further held that the very fact that the experts were employed in a public medical institution especially designated to provide expert reports on a particular issue and financed from the State budget did not in itself justify the fear that those experts would be unable to act neutrally and impartially in providing their expert opinions.

In the present case the Court finds it understandable that doubts could have arisen in the mind of the applicant as to the impartiality of the medical experts whose reports were used to decide the merits of her claim, given that they were employed by the Fund — her opponent — in the proceedings. However, the Court observes that neither the contents of the case file nor the applicant's submissions disclose any evidence that the relevant medical experts lacked the requisite objectivity. This is supported by the fact that the expert reports were delivered by experts with a considerable professional and educational background (see paragraph 29 above) and that the relevant domestic law sets out an overriding duty for experts to provide their opinions impartially and relevantly within their own areas of expertise (see paragraph 23 above, section 66 (2) of the Administrative Procedure Act, and Letinčić, cited above, § 63).

With regard to the applicant's complaint that she was not able to effectively participate in the procedure of commissioning and obtaining the expert reports, the Court firstly observes that once the applicant had lodged a complaint against her general practitioner's assessment of the reason for her sick leave and was referred for an expert medical evaluation, the medical documentation she had submitted in support of her complaint was also forwarded for expert evaluation (see paragraph 10 above). It thus follows that the applicant had the opportunity to influence the expert's assessment through the arguments set forward in her complaint, as well as through the medical documentation she had enclosed with that complaint.

The Court further notes that once the authorised doctor of the Zagreb Office delivered the expert report finding no direct causal link between the applicant's work-related injury sustained in 2009 and her sick leave from 27 October 2011, that expert report was forwarded to the applicant with a notice to the effect that, if she so wished, she had the right to seek the delivery of a written decision on the matter (see paragraph 12 above). It thus follows that the applicant was made aware of the expert's findings before the first-instance decision on the matter was adopted. She was also given an opportunity to effectively challenge the expert's findings and she had used that opportunity by lodging an appeal against the first-instance decision and submitting further documents in support of her arguments (see paragraph 14 above).

Furthermore, the Court notes that in order to address the applicant's specific objections as to the authorised doctor's assessment of the reason for her sick leave, the Central Office, as the second-instance administrative authority, obtained an expert report from its in-house medical commission (see paragraph 15 above). The commission examined the applicant's overall medical documentation, including the documentation she had relied in support of her arguments, and reported that her sick leave from 27 October 2011 could not be granted on the basis of her work-related injury sustained in 2009.

It thus follows that after the assessment of the applicant's medical condition by her general practitioner, two expert medical reports were obtained in order to address the applicant's specific arguments as to the assessment of the reason for her sick leave, both of which took into account the arguments and documentation she had submitted during the proceedings.

The Court further notes that the applicant had an opportunity to challenge the expert reports and the relevant decisions of the administrative authorities before the Zagreb Administrative Court. Indeed, upon the applicant's administrative action, the Zagreb Administrative Court held a hearing at which it examined the applicant's arguments related to the findings of the expert reports. The Zagreb Administrative Court thereby held that the applicant had failed to put to doubt the findings of the expert reports and that it had been undoubtedly established that the applicant's sick leave was not linked to her work-related injury (see paragraphs 19 and 20 above).

With regard to the applicant's arguments that the Zagreb Administrative Court refused to hear her oral evidence, the Court notes that the applicant was duly invited to attend the hearing before the Zagreb Administrative Court but she failed to appear and instead sent her lawyer to represent her. Moreover, the Court has already recognised that disputes concerning benefits under social security schemes are generally rather technical and that their outcome usually depends on written opinions given by medical doctors. Accordingly, in view of the fact that the applicant did not adduce any relevant and decisive argument that would warrant an oral hearing, the Court does not find anything unfair in the decision of the Zagreb Administrative Court not to hear her oral evidence (see Pirinen v. Finland (dec.), no. 32447/02, 16 May 2006).

In view of the above considerations, the Court would reiterate that it is primarily for the national courts to assess the evidence they have obtained and the relevance of any evidence that a party wishes to have produced (see Elsholz v. Germany [GC], no. 25735/94, § 66, ECHR 2000-VIII, and Mantovanelli v. France, 18 March 1997, § 34, Reports of Judgments and Decisions 1997-II). It is normally not the Court's role to determine whether a particular expert report available to the domestic judge was reliable or not (see Matytsina v. Russia, no. 58428/10, § 169, 27 March 2014). The Court's task under the Convention is rather to ascertain whether the proceedings as a whole, including the way in which evidence was admitted, were fair (see Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 31, Series A no. 274).

Having regard to the circumstances of the present case, the Court is of the opinion that the applicant effectively participated in the procedure of commissioning and obtaining the expert reports used to decide the merits of her claim. In particular, she had cognisance of and was able to comment on all the documents taken into consideration by the experts, and was able to put forward all her arguments with the purpose of influencing the experts’ findings (see, by contrast, Letinčić, cited above, §§ 65–66). In the present case, there is nothing to prompt the Court to consider that the proceedings before the Zagreb Administrative Court concerning the applicant's claim for entitlement to sick leave were unfair, taking also into account the way the proceedings had been conducted in the pre-judicial proceedings before the administrative authorities of the Fund.

In the light of the foregoing considerations, the Court finds that there has been no violation of Article 6 § 1 of the Convention.