EHRM, 03-05-2016, nr. 7183/11

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

Section 8

Section 143

Section 185

Section 189

Section 191

Section 239

Section 242

Section 243

Section 245

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

Section 42

Section 62

Section 63

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

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.

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

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).

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).

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.

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.

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

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).

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.

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.

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).

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)

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).

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).

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).

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).

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.

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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

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.

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