FIRST SECTION

DECISION

Application no. 25824/14 Marjan TARABARIĆ against Croatia

The European Court of Human Rights (First Section), sitting on 29 September 2020 as a Committee composed of:

Pere Pastor Vilanova , President, Jovan Ilievski , Raffaele Sabato , judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 26 March 2014,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Marjan Tarabarić , is a Croatian national who was born in 1938 and lives in Velika Gorica . He was represented before the Court by Mr A. Šagovac , a lawyer practising in Velika Gorica .

2 . The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik .

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . When he was eight years old the applicant sustained a severe injury in a road-traffic accident. As a consequence of the accident, his right leg was amputated and he has walked with the aid of a crutch ever since.

5 . In 1998 the applicant lodged an application with the Zagreb Office of the Croatian Republic Workers ’ Pension and Disability Insurance Fund ( Republički Fond mirovinskog i invalidskog osiguranja radnika Hrvatske , Područna služba u Zagrebu –:“the Croatian Pension Fund”), seeking to be granted compensation for physical impairment ( naknada za tjelesno oštećenje ). By a decision of 16 March 1998, the Croatian Pension Fund established that the degree of the applicant ’ s physical impairment amounted to 100% but dismissed his request to be granted compensation, finding that he had not been insured at the time when the health impairment had occurred.

6 . On 21 February 2011 the applicant applied to the Velika Gorica Social Welfare Centre ( Centar za socijalnu skrb Velika Gorica – “the Centre”) seeking to be granted a personal disability allowance on account of his medical condition. He submitted that he was 100% disabled, that he had walked with the aid of a crutch for the previous sixty-six years and that he was still able to move and to do everything on his own. In support of his application he submitted, among other medical documentation, the 1998 decision of the Croatian Pension Fund (see paragraph 5 above).

7 . On 1 March 2011 the Centre asked its in-house expert commission (“the first-instance expert commission”) to conduct an expert assessment for the purposes of determining whether the degree of the applicant ’ s health impairment made him eligible for a personal disability allowance. Along with the request for an expert assessment, it enclosed the documentation submitted by the applicant, including the 1998 decision of the Croatian Pension Fund (see paragraph 5 above).

8 . According to the documents submitted by the Government, the first-instance expert commission was composed of a social worker and a general practitioner. The social worker took a statement from the applicant concerning his general living conditions, and the general practitioner questioned him about his health and examined the applicant in person and his medical documentation. The applicant reported to the social worker that he was capable of moving around with a crutch, that he used public transport, that he prepared meals and did the housekeeping on his own and that he maintained his personal hygiene independently.

9 . In its expert report of 30 May 2011, the first-instance expert commission stated that the applicant ’ s medical condition did not prevent him from independently engaging in activities suitable for a man of his age.

10 . Having been contacted, on 27 June 2011 the applicant went to the Centre, where he was informed of the results of the expert assessment. He signed a record confirming that he had been informed of the contents of the expert report and had objected to the experts ’ findings. The record was read out to the applicant and he did not object to its contents.

11 . On 1 July 2011 the Centre dismissed the applicant ’ s request. It based its decision on the expert report of 30 May 2011 (see paragraph 9 above), sections 55 and 147 of the Social Welfare Act (see paragraph 22 below ) , and section 38(2) of the Rules on the composition and working methods of expert bodies in proceedings relating to the exercise of social welfare and other rights under special regulations (see paragraph 24 below) .

12 . The applicant challenged that decision before the Ministry of Social Policy and Youth ( Ministarstvo socijalne politike i mladih – “the Ministry”), submitting further medical documentation and requesting that a second expert report be obtained.

13 . Following the applicant ’ s appeal, the Ministry asked its in-house expert commission (“the second-instance expert commission”) to conduct a second expert assessment into the matter.

14 . On 18 July 2012 the second-instance expert commission, composed of a social worker and a doctor specialising in occupational medicine, examined the applicant ’ s file and confirmed that his medical condition did not prevent him from independently engaging in activities suitable for a man of his age. Its report was not forwarded to the applicant.

15 . On 4 September 2012 the Ministry, relying on the two expert reports (see paragraphs 9 and 14 above), dismissed the applicant ’ s appeal.

16 . On 23 October 2012 the applicant brought an action for judicial review in the Zagreb Administrative Court ( Upravni sud u Zagrebu ) against the Ministry ’ s decision, contesting the findings of the expert commissions. He argued that he had been excluded from the proceedings before the administrative authorities, that an expert assessment had not been carried out in respect of him and that he had never been examined in person by the experts. He requested a hearing and to be examined in person by the experts.

17 . On 21 May 2013 the Zagreb Administrative Court held a public hearing, which the applicant attended. At the hearing the applicant reiterated that an expert assessment had not been carried out in respect of him. He further submitted that, in fact, an expert assessment had not been necessary in his case since in 1998 it had already been established that he was 100% disabled (see paragraph 5 above).

18 . On 28 May 2013 the Zagreb Administrative Court dismissed the applicant ’ s action, finding that the social welfare authorities had properly dismissed the applicant ’ s request for a personal disability allowance, relying on the findings of authorised expert bodies. As regards the applicant ’ s argument that another authority had already established that he was 100% disabled, the Zagreb Administrative Court held that the entitlement to a personal disability allowance was awarded under the criteria established by the Social Welfare Act and the related Rules. In the applicant ’ s case, two levels of authorised expert commissions had found that his medical condition did not reach the severity threshold set by section 38(2) of the Rules, given that the applicant was able to independently engage in activities suitable for a man of his age (see paragraphs 22 - 24 below). The Zagreb Administrative Court held, lastly, that under the relevant domestic law the second-instance expert commission had been under no obligation to examine the applicant in person (see paragraph 23 below).

19 . On 11 July 2013 the applicant lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ). He complained that he had not had a fair hearing because his request to be examined in person by the experts had been dismissed.

20 . By a decision of 18 September 2013, the Constitutional Court dismissed the applicant ’ s constitutional complaint, finding that the case did not raise any constitutional issue. The decision was served on the applicant on 1 October 2013.

21 . The applicant was self-represented throughout the proceedings before the domestic authorities.

22 . The Social Welfare Act ( Zakon o socijalnoj skrbi , Official Gazette no. 73/1997, with subsequent amendments ) , as in force at the material time, provided that a severely physically or mentally impaired person or a person with severe permanent changes to his or her health was entitled to a personal disability allowance if the health impairment occurred before the age of 18 and if he or she had not exercised the right to a personal disability allowance on any other basis (section 55). If it was necessary to determine the existence, type, degree and severity of the health impairment for the purposes of granting a social welfare right, an expert report was to be commissioned from an expert body (sections 59 and 147(1)). If an individual appealed against the first-instance decision concerning his or her entitlement to a social welfare right and challenged the findings in the expert report, the Minister for Social Affairs asked a second-instance expert body to conduct an expert assessment of the matter (section 147(2)).

23 . The Rules on the composition and working methods of expert bodies in proceedings relating to the exercise of social welfare and other rights under special regulations ( Pravilnik o sastavu i načinu rada tijela vještačenja u postupku ostvarivanja prava iz socijalne skrbi i drugih prava po posebnim propisima , Official Gazette nos. 64/2002 and 145/2011), as in force at the material time, provided that members of the first-instance expert commission were required to prepare their report on the basis of a direct examination and questioning of the person referred for examination, as well as on the basis of prescribed documentation and other documentation (section 10). The second-instance expert commission was required to prepare a report on the basis of medical and other documentation submitted during the first-instance proceedings, as well as other information (section 17).

24 . Section 38(1) defined the term “severity of the health impairment” as a physical or mental impairment or mental illness that prevented a person from independently engaging in activities suitable for his or her age. Section 38(2) laid down criteria for establishing the degree of physical impairment, such as: inability to move independently, even when using orthopaedic aids (for example, crutches), being fed via a feeding tube, and inability to maintain personal hygiene independently and to dress and undress oneself and others.

25 . The other relevant domestic law is set out in Krunoslava Zovko v. Croatia , no. 56935/13, §§ 23-24, 23 May 2017.

COMPLAINT

26 . The applicant complained that the proceedings concerning his request for a personal disability allowance had been unfair.

THE LAW

27 . The applicant complained, without relying on any particular Article of the Convention or its Protocols, that the principles of equality of arms and an adversarial hearing had not been observed with regard to the commissioning and obtaining of expert evidence for the purposes of determining his entitlement to a personal disability allowance. The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention, the relevant part of which reads as follows:

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

28 . The Government proposed to declare the application inadmissible for an abuse of the right of individual petition in so far as the applicant had mispresented the facts essential for the examination of the case. In particular, he had submitted that he had never been examined in person by the experts, nor had he been given a hearing in the proceedings complained of (see paragraph 33 below), whereas this was obviously not true. It was clear from the case file that the applicant had been examined in person by the first-instance expert commission, who had assessed his medical condition in the light of the criteria established by the relevant law for awarding a personal disability allowance (see paragraphs 8 ‑ 9 above), and that the second-instance expert commission had confirmed their assessment after examining all the documents in the case file, including those the applicant had submitted after his examination in person by the first-instance expert commission (see paragraph 14 above). It was also obvious that the applicant had been heard on several occasions during the proceedings: by the social worker and by the Centre before the first-instance decision had been delivered (see paragraphs 8 and 10 above), and by the Zagreb Administrative Court at the hearing held on 21 May 2013 (see paragraph 17 above).

29 . The Government further argued that, in the proceedings in issue, the applicant had had the benefit of all the guarantees of Article 6 § 1 of the Convention. He had had the opportunity to put forward all his relevant arguments and to propose evidence. He had also had cognisance of and had been able to comment on all the documents in the case file. Before the first-instance decision of the Centre had been delivered, he had been informed of the findings of the first-instance expert commission and had been given the opportunity to comment on them (see paragraph 10 above). He had also been able to lodge an appeal and challenge the first-instance expert commission ’ s findings, after which the Ministry had commissioned another expert assessment. Finally, he had been able to obtain a judicial review of his case and the Zagreb Administrative Court had examined his oral evidence before delivering its judgment (see paragraph 17 above).

30 . The Government noted that in his action for judicial review the applicant had requested to be examined in person by the experts (see paragraph 16 above). However, at a hearing held before the Zagreb Administrative Court, the applicant had contended that in fact an expert assessment had not been necessary in his case (see paragraph 17 above). In the Government ’ s view, such a statement constituted a withdrawal of his initial motion regarding the taking of evidence. In these circumstances the fact that the Zagreb Administrative Court had refused to obtain another expert report on the matter had not rendered the proceedings unfair.

31 . Lastly, the Government pointed out that the applicant could have hired a lawyer to represent him in the proceedings complained of, but had failed to do so. In any event, he had been duly informed by the administrative authorities of his rights to lodge an appeal and an action for judicial review, which remedies he had used.

32 . The applicant contended that the administrative proceedings concerning his application for a personal disability allowance had been unfair. He argued that he should have been granted the allowance in view of his 100% disability which had been recognised by the Croatian Pension Fund (see paragraph 5 above). If the social welfare authorities had had any doubts as to the quality of the decision of the Croatian Pension Fund, they should have obtained an expert assessment of his medical condition.

33 . In his application to the Court the applicant submitted that in the proceedings complained of he had never been examined in person by the experts. He contended that, in fact, no expert assessment of his medical condition had been conducted and that the domestic authorities had not heard his oral evidence.

34 . In his observations in reply to those of the Government submitted on 3 November 2016, the applicant contended that he had not had a fair hearing because he had been self-represented and had used the legal remedies in the proceedings without any legal assistance (see paragraph 21 above). He asked the Court to take this into account when examining the case.

35 . The Court does not find it necessary to address the Government ’ s objection regarding the applicant ’ s alleged abuse of the right of application given that the application is in any event inadmissible for the following reasons.

36 . The general principles relevant to the present case have been summarised in Letinčić v. Croatia , no. 7183/11, §§ 46-50, 3 May 2016 , with further references.

37 . The Court notes at the outset that the applicant ’ s claim concerning his entitlement to a personal disability allowance was examined before several bodies – notably the Centre and the Ministry as administrative authorities, and the Zagreb Administrative Court as a judicial authority with the power to review all factual and legal questions arising in the context of the case (see paragraphs 11 , 15 and 18 above).

38 . The Court further notes that once the applicant had lodged his application for a personal disability allowance he had been referred for an expert assessment for the purposes of determining whether his medical condition justified granting him a personal disability allowance. His medical documentation and the 1998 decision of the Croatian Pension Fund, which he had submitted in support of his application, were also forwarded for expert assessment (see paragraph 7 above). It thus follows that the applicant had the opportunity to influence the experts ’ assessment through the arguments put forward in his application, as well as through the documentation he had enclosed with that application (compare Krunoslava Zovko v. Croatia , no . 56935/13 , § 46, 23 May 2017) .

39 . The Court further notes that the first-instance expert report was commissioned from the Centre ’ s in-house expert commission composed of a social worker, who took a statement from the applicant, and a general practitioner, who examined him in person (see paragraph 8 above). The first-instance expert commission stated that the applicant ’ s medical condition did not prevent him from independently engaging in activities suitable for a man of his age (see paragraph 9 above). The Court observes that the applicant was invited to the Centre, where he was informed of the contents of the first-instance expert commission ’ s report and allowed to comment on them (see paragraph 10 above). It thus follows that the applicant was made aware of the experts ’ findings before the first-instance decision on the matter was adopted and was given an opportunity to challenge those findings (see Krunoslava Zovko , cited above , § 47).

40 . The Centre dismissed his application after examining the report of the first-instance expert commission, the applicant ’ s objections to it and the relevant domestic provisions (see paragraphs 22 and 24 above). The applicant then lodged an appeal against the first-instance decision and submitted further medical documentation in support of his arguments (see paragraph 12 above).

41 . The Court notes that in order to address the applicant ’ s objections as to the experts ’ assessment of his condition, the Ministry, as the second-instance administrative authority, obtained an expert report from its in-house second-instance expert commission (see paragraph 13 above). The commission examined all the applicant ’ s medical documentation, including the documentation he had submitted with his appeal, and endorsed the conclusion of the first-instance expert commission (see paragraph 14 above) .

42 . The Court observes that in his observations in reply to those of the Government, the applicant did not challenge the credibility of the documents submitted by the Government, according to which expert assessments had been carried out in his case. Therefore, there is no reason for the Court to doubt their authenticity and reliability. It thus follows that two expert assessments were carried out in order to address the applicant ’ s specific arguments as to his medical condition, both of which took into account the arguments and documentation he had submitted during the proceedings (see Krunoslava Zovko , cited above, § 49, and Trbojević v. Croatia ( dec. ) [Committee], no. 57228/13, § 37, 15 May 2018).

43 . The Court further notes that the applicant had an opportunity to challenge the expert reports and the decisions of the administrative authorities before the Zagreb Administrative Court by bringing an action for judicial review and participating in a public hearing (see paragraphs 16 - 17 above; see also Krunoslava Zovko , cited above , § 50, and Trbojević , cited above, § 38). The Zagreb Administrative Court examined the applicant ’ s arguments related to the findings of the expert reports. Ultimately, it dismissed his action as it established, relying on the findings of the expert commissions, that he had not complied with the statutory criteria for being granted a personal disability allowance (see paragraph 18 above).

44 . With regard to the applicant ’ s argument that the Zagreb Administrative Court had failed to obtain an expert report drawn up after he had been examined in person, 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).

45 . In this regard, the Court notes, firstly, that the applicant had already been examined in person in the proceedings before the administrative authorities (see paragraphs 8 - 9 and 14 above). In so far as the applicant ’ s proposal made in his action for judicial review was to be understood as a request for a further examination in person by the experts, the Court notes that subsequently, at the hearing held before the Zagreb Administrative Court, the applicant stated that in fact it had not been necessary to conduct an expert assessment in order to decide his case since the Croatian Pension Fund had already established that he suffered from a 100% disability (see paragraphs 16 - 17 above). In any event, the Court notes that the Zagreb Administrative Court refused to commission another expert report, finding that two levels of authorised expert commissions had assessed that the applicant ’ s medical condition had not made him eligible for the social welfare benefit he sought (see paragraph 18 above). In the circumstances of the present case, the Court does not find anything unfair in the Zagreb Administrative Court ’ s conclusion.

46 . As regards the applicant ’ s complaint concerning the lack of legal assistance in his case, the Court notes, firstly, that this complaint was lodged with it for the first time on 3 November 2016 (see paragraph 34 above), whereas the proceedings complained of ended on 1 October 2013 (see paragraph 20 above). Even assuming that the complaint had been lodged in time, the Court notes that the applicant never submitted, either in the domestic proceedings or in the proceedings before it, that he had wished to be represented by a lawyer but had been unable to hire one owing to a lack of financial means, or that he had asked for legal aid but that his request had been denied. In the Court ’ s view, the applicant cannot therefore argue that the domestic proceedings had been unfair owing to his lack of legal representation, since he himself chose to be self-represented. In any event, the Court notes that the applicant was informed of his procedural rights in the proceedings, and that he used those rights, submitted his arguments and documents in support of those arguments, and lodged an appeal, an action for judicial review and a constitutional complaint (see paragraphs 12 , 16 , and 19 above).

47 . In view of the above considerations, the Court is of the opinion that the applicant was awarded an opportunity to participate effectively in the procedure for the commissioning and obtaining of the expert reports used to decide the merits of his claim, an opportunity which he used to the extent that he himself considered necessary. Assessing the circumstances of the case as a whole, the Court finds no indication that the proceedings concerning the applicant ’ s claim for a personal disability allowance were unfair.

48 . It follows that the application is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 22 October 2020 .

Renata Degener Pere Pastor Vilanova Deputy Registrar President