FIRST SECTION

DECISION

Application no. 75112/14 Vedrana MATOZAN against Croatia

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

Aleš Pejchal , President, Pauliine Koskelo , Tim Eicke , judges , and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 25 November 2014,

Having regard to the observations submitted by the Croatian Government (“the Government”) and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Ms Vedrana Matozan , is a Croatian national who was born in 1978 and lives in Trogir . She was represented before the Court by Ms A. Karara Čović , a lawyer practising in Trogir .

2 . The Government were represented by their Agent, Ms Å . Stažnik .

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

4 . The applicant suffers from a mild mental disability. Owing to that, she completed elementary school in an educational programme for children with special needs.

5 . In 1993 an expert commission established that the applicant was unfit to attend a regular high school and recommended that she continue her education in an institution adapted to students with disabilities.

6 . In 1994 the applicant was enrolled in a professional rehabilitation programme and started training for a job as an assistant tailor. She completed the training programme in 1996.

7 . On 6 June 2011 the applicant applied to the Trogir Office of the Croatian Pension Fund ( Hrvatski zavod za mirovinsko osiguranje , Područna služba Split, Ispostava Trogir ), seeking to be granted, on account of her health condition, a survivor ’ s pension following the death of her father (see paragraphs 22 and 23 below). In support of her application she submitted medical documentation.

8 . The Pension Fund asked an in-house medical expert to conduct an expert evaluation for the purposes of determining whether the applicant ’ s medical condition amounted to a “general inability to work” ( opća nesposobnost za rad ). Along with the request for an expert evaluation, it enclosed the documentation submitted by the applicant.

9 . On 25 October 2011 T.S., an authorised doctor of the Split Office of the Croatian Pension Fund ( Hrvatski zavod za mirovinsko osiguranje , Područna služba Split – hereinafter “the Split Office”), reported, on the basis of the applicant ’ s medical documentation and her personal examination, that the applicant was incapable of working and that her general inability to work had arisen before her father ’ s death.

10 . On 27 December 2011 the Pension Fund ’ s Commission for the Review of Disability Reports ( Stručno povjerenstvo za reviziju nalaza i mišljenja o invalidnosti – hereinafter “the Commission”) found that it appeared from the scarce medical documentation submitted by the applicant that she suffered from a mild mental disability but that she did not suffer from any other severe physical or somatic diseases. It therefore held that the applicant ’ s medical condition did not amount to a general inability to work and disagreed with the findings of T.S. (see paragraph 25 below).

11 . On 4 January 2012 T.S. issued a new report, finding that the applicant ’ s medical condition did not amount to a general inability to work. In doing so, he relied on the evaluation of the Commission (see paragraphs 10 above and 25 below).

12 . On 6 February 2012 the Split Office dismissed the applicant ’ s request. It based its decision on the expert report of 4 January 2012 and on the provision of the Pension Insurance Act regulating entitlement to a survivor ’ s pension ( see paragraphs 11 above and 23 below).

13 . The applicant challenged that decision before the Central Office of the Pension Fund ( Hrvatski zavod za mirovinsko osiguranje , Središnja služba – hereinafter “the Central Office”), requesting that a second-instance expert report be obtained. She also submitted further documentation (see paragraphs 5 and 6 above), including an evaluation dated 22 February 2012 by a doctor specialised in occupational medicine concluding that she was unfit to work as a cleaner of public spaces.

14 . Following the applicant ’ s appeal, the Central Office asked a senior in-house medical expert to conduct an expert examination regarding the matter.

15 . On 27 March 2012 the senior medical expert examined the applicant ’ s file, including the documentation she had subsequently submitted (see paragraphs 5 , 6 and 13 above) and confirmed that the applicant ’ s health condition did not amount to a general inability to work.

16 . On 29 March 2012 the Central Office, relying on the two expert reports (see paragraphs 11 and 15 above), dismissed the applicant ’ s appeal.

17 . On 27 April 2012 the applicant brought an action for judicial review of that decision in the Split Administrative Court ( Upravni sud u Splitu ), contesting the findings of the experts. In particular, she alleged that the experts had wrongly established that her condition did not amount to a general inability to work and that they had relied on the fact that she had completed a professional rehabilitation programme. She argued that, despite having completed the training programme in question (see paragraph 6 above), she was unable to perform work-related tasks on her own, which was a prerequisite for a person to be considered fit for work. She further stated that, owing to her mental condition, she had not stood a chance of finding employment. She also referred to the specialist ’ s assessment of 22 February 2012 (see paragraph 13 above). Lastly, she asked to be given a hearing and to have a further expert report ordered from an expert in occupational medicine.

18 . On 23 October 2013 the Split Administrative Court held a public hearing, to which the applicant was duly summoned. She did not attend the hearing, but was represented by a lawyer. Her lawyer reiterated the arguments adduced and relied on the evidence proposed in the action for judicial review, which the representative of the Central Office contested. The Split Administrative Court then dismissed the lawyer ’ s motion to hear the applicant and to order a further expert medical report regarding the matter, and closed the hearing.

19 . On 31 October 2013 the Split Administrative Court dismissed the applicant ’ s action as unfounded. It stressed, in particular, that the administrative authorities had based their decisions on the findings of authorised experts (see paragraphs 11 and 15 above) and that the examination proceedings had been conducted in accordance with domestic law (see paragraphs 24 - 27 below). It therefore dismissed the applicant ’ s proposal to order a further expert report. The Split Administrative Court also dismissed the applicant ’ s request to be heard in person, finding that that evidence would not have contributed to assessing her ability to work.

20 . On 7 February 2014 the applicant lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ). She complained that she had not had a fair hearing, because the Split Administrative Court had refused to order a further expert report in her case and to hear her oral evidence.

21 . By a decision of 17 September 2014, the Constitutional Court dismissed the applicant ’ s constitutional complaint, finding that the case did not raise any constitutional issues.

22 . The Pension Insurance Act ( Zakon o mirovinskom osigranju , Official Gazette no. 102/98, with subsequent amendments), as in force at the material time, provided that a general inability to work existed where an insured person, owing to changes in his or her health condition which could not be treated, suffered a permanent loss of the ability to work (section 34(2)).

23 . Section 64(3) provided that a child for whom a general inability to work had arisen before the death of an insured person or pension beneficiary was entitled to a survivor ’ s pension if, until his or her death, the insured person or pension beneficiary had supported the child.

24 . Section 113(1) provided that for the purposes of granting pension insurance rights, a general inability to work was established on the basis of authorised expert reports.

25 . Section 116(1) provided that an expert report on the basis of which a pension insurance right was to be acquired was subject to review before the adoption of a decision granting the right in issue. The review was carried out by a commission composed of prominent experts in charge of assessing a person ’ s capacity for work (section 116(2)). Where an expert report had to be changed following the review, the expert was required to produce a new report in accordance with the instructions received in the review proceedings (section 116(4)).

26 . Section 120(4) provided that if the person concerned challenged the findings of the expert report in his or her appeal against the first-instance decision, the Central Office would ask a second-instance authorised expert to conduct an expert examination regarding the matter.

27 . The Decree on medical expert evaluations for pension insurance ( Uredba o medicinskom vještačenju u mirovinskom osiguranju , Official Gazette no. 73/2009), as in force at the material time, provided that reports in first-instance proceedings were to be drawn up by experts, and those in second-instance proceedings by senior experts ( viši vještaci ) (section 2(3)). In their work, experts and senior experts were required to apply the Pension Insurance Act, the Decree on medical expert evaluations for pension insurance and other regulations, as well as the principles of and developments in contemporary medical science (section 2(4)).

28 . The Administrative Disputes Act ( Zakon o upravnim sporovima , Official Gazette no. 20/2010 with subsequent amendments), as in force at the material time, provided that the judge assigned to hear the case would establish the presence of all the persons summoned to the hearing. In the event of their absence, the judge would establish whether they had been duly summoned and whether they could justify their absence (section 39(1)). When a party to the dispute failed to attend a hearing without a justifiable reason, the hearing could be held in his or her absence (section 39(2)).

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

COMPLAINT

30 . The applicant complained under Article 6 § 1 of the Convention that the proceedings concerning her request for a survivor ’ s pension had been unfair.

THE LAW

31 . The applicant complained that the principle of equality of arms had not been respected with regard to commissioning and obtaining the expert evidence for the purposes of determining her entitlement to a survivor ’ s pension. She relied on Article 6 § 1 of the Convention, the relevant parts of which read:

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

32 . The Government argued that the domestic proceedings in the applicant ’ s case had complied with the requirements of Article 6 § 1 of the Convention. She had had the opportunity to put forward all her relevant arguments and propose evidence. She had also been able to lodge an appeal against the medical expert ’ s findings, after which the Central Office had commissioned another expert examination. Moreover, she had been able to obtain a judicial review of her case before the Split Administrative Court, which had held an oral hearing before giving its decision (see paragraphs 13 , 17 and 18 above). Lastly, the Government pointed out that the Split Administrative Court had not been obliged to order a further expert report for the purposes of assessing the applicant ’ s ability to work. It had addressed the applicant ’ s proposal and found that another expert examination regarding the matter would not have been necessary as the findings of the medical expert had been reviewed by a senior medical expert.

33 . The applicant contended that the administrative proceedings concerning her application for a survivor ’ s pension had been unfair. She argued that the Split Administrative Court had refused to hear her oral evidence and to order a further expert report for the purposes of assessing her ability to work (see paragraph 19 above). That evidence would have been of particular importance in view of the fact that the medical expert had found in his first report that she had been unable to work, but had changed his assessment upon the instructions of the Commission (see paragraphs 9 ‑ 11 above).

34 . 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 therein.

35 . The Court notes that the applicant ’ s claim concerning her entitlement to a survivor ’ s pension was examined before several bodies – the Split Office and the Central Office as administrative authorities, and the Split 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 12 , 16 and 19 above).

36 . The Court further notes that once the applicant applied for a survivor ’ s pension, she was referred for an expert examination for the purposes of determining whether her health condition justified granting her a survivor ’ s pension. Her medical documentation was also forwarded for expert evaluation (see paragraph 8 above). It thus follows that the applicant had the opportunity to influence the expert ’ s assessment through the arguments put forward in her application and through the documentation she enclosed with that application (see Krunoslava Zovko v. Croatia , no . 56935/13 , § 46, 23 May 2017) .

37 . The Court further observes that the medical expert first stated that the applicant was incapable of working (see paragraph 9 above). However, following a review carried out by an expert commission, he changed his initial report and established that the applicant ’ s condition did not amount to a general inability to work (see paragraphs 10 , 11 and 25 above). Once the Split Office had dismissed the applicant ’ s claim on the grounds that its in ‑ house medical expert had found that her medical condition did not amount to a general inability to work (see paragraph 12 above), she was served with the decision and was made aware of the expert ’ s findings. She was therefore given an effective opportunity to challenge the expert ’ s findings, which she used by lodging an appeal against the first-instance decision and submitting further documents in support of her arguments (see paragraph 13 above).

38 . Furthermore, the Court notes that in order to address the applicant ’ s objections to the authorised expert ’ s assessment of her condition, the Central Office, as the second-instance administrative authority, obtained an expert report from its senior in-house medical expert (see paragraph 14 above). The senior medical expert examined the applicant ’ s overall medical documentation, including the documentation she had submitted with her appeal, and confirmed that the applicant ’ s medical condition did not amount to a general inability to work (see paragraph 15 above).

39 . It thus follows that three different expert bodies examined the applicant ’ s medical condition, all of which took into account the arguments and documentation she had submitted during the proceedings (see Krunoslava Zovko , cited above, § 49, and Trbojević v. Croatia ( dec. ) [Committee], no. 57228/13, § 37, 15 May 2018).

40 . 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 Split Administrative Court (see paragraph 17 above). Indeed, upon the applicant ’ s action for judicial review, the Split Administrative Court held a hearing at which it examined the applicant ’ s arguments related to the findings of the expert reports (see paragraph 18 above). Ultimately, it dismissed her action as it established, relying on the findings of the experts, that she did not meet the statutory criteria to be granted a survivor ’ s pension (see paragraph 19 above).

41 . With regard to the applicant ’ s arguments that the Split Administrative Court refused to hear her oral evidence, the Court notes that she was duly summoned to attend the hearing before the Split Administrative Court but that she failed to appear and instead had her lawyer to represent her (see paragraph 18 above). In this connection, it is to be noted that Article 6 of the Convention does not guarantee the right to appear before a civil court in person, but rather a more general right to present one ’ s case effectively (see Margaretić v. Croatia , no. 16115/13, § 127, 5 June 2014). 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 ’ s ability to work had been assessed by authorised medical experts and that the Split Administrative Court held a hearing where the applicant was represented by a lawyer, the Court does not find anything unfair in the decision of the Split Administrative Court not to hear her oral evidence (see also Pirinen v. Finland ( dec. ), no. 32447/02, 16 May 2006).

42 . With regard to the applicant ’ s argument that the Split Administrative Court had failed to order a further expert report for the purposes of assessing her ability to work, 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 . 2 5735/94 , § 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).

43 . In this respect, the Court notes that the Split Administrative Court refused to order another expert report, finding that two authorised experts had assessed that the applicant ’ s medical condition had not made her eligible for the pension insurance right she had sought (see paragraph 19 above). Having regard to its case-law on the matter (see paragraph 42 above) and the fact that the applicant was informed of the experts ’ findings and was able to challenge them (see paragraphs 13 and 17 above), the Court does not find anything unfair in the Split Administrative Court ’ s conclusion.

44 . 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 of commissioning and obtaining the expert reports used to decide the merits of her claim. Assessing the circumstances of the case as a whole, the Court finds no indication that the proceedings concerning the applicant ’ s claim for a survivor ’ s pension were unfair.

45 . 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 Aleš Pejchal Deputy Registrar President