FIRST SECTION

DECISION

Application no. 57228/13 Gordana TRBOJEVIĆ against Croatia

The European Court of Human Rights (First Section), sitting on 15 May 2018 as a Committee composed of:

Kristina Pardalos, President, Ksenija Turković, Pauliine Koskelo, judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 28 August 2013,

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, Ms Gordana Trbojević, is a Croatian and Norwegian national who was born in 1962 and lives in Oslo. She was represented before the Court by Mr K. Rognlien, a lawyer practising in Oslo.

2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. The Government of Norway, having been informed of their right to intervene (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), informed the Court that they did not wish to exercise this right.

A. The circumstances of the case

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

1. Background to the case

4. The applicant lived and worked in Croatia until 1991, when she moved to Norway and started working there.

5. On 3 July 2009 she applied to the relevant Norwegian authorities, seeking a disability pension on account of her health issues.

6. On 1 February 2010 the Norwegian authorities granted the applicant the disability pension. On 22 March 2010 they forwarded her application to the Croatian Pension Insurance Fund ( Hrvatski zavod za mirovinsko osiguranje – hereinafter “the Fund”), pursuant to an international agreement with Croatia on social insurance matters. Along with that application, they enclosed the applicant ’ s medical documentation.

2. Administrative proceedings in Croatia concerning the applicant ’ s entitlement to a disability pension

7. On 30 June 2011 the Pension Insurance Fund Central Office ( Hrvatski zavod za mirovinsko osiguranje, Središnja služba – hereinafter “the Central Office”) asked an in-house medical expert to conduct an expert examination of the applicant ’ s medical condition. Along with the request for an expert evaluation, it enclosed the applicant ’ s medical documentation forwarded by the Norwegian authorities, as well as their decision granting the applicant the disability pension.

8. On 13 April 2012 an authorised doctor from the Central Office, a specialist in anaesthesiology, examined the applicant ’ s medical documentation and reported that her condition did not warrant the finding of a disability on the basis of the applicable domestic criteria.

9. By a decision of 16 April 2012, relying on the expert report of 13 April 2012, the Central Office dismissed the applicant ’ s claim for a proportion of the disability pension.

10. The applicant appealed against that decision, contending that she did not agree with the medical expert ’ s finding and that she ought to have been granted the disability pension.

11. Following the applicant ’ s appeal, the Central Office asked a senior in-house medical expert ( ovlašteni viši vještak ) to conduct an expert examination regarding the matter.

12. On 25 May 2012 the senior medical expert examined the applicant ’ s medical documentation and her specific arguments and reported that her condition did not warrant the finding of a disability on the basis of the applicable domestic criteria.

13. On 30 May 2012 the Central Office, relying on the findings of the expert reports, dismissed the applicant ’ s appeal. It noted, in particular, that the legal and medical criteria for establishing disability differed in each particular country. Since, in the present case, both in-house medical experts had found that the applicant did not have a disability, she was not entitled to a proportion of the disability pension.

14. The applicant then lodged an administrative action with the Zagreb Administrative Court ( Upravni sud u Zagrebu ), contending that her health issues warranted the finding of a disability. She asked that the matter be re ‑ examined.

15. On 24 October 2012 the Central Office submitted a response to the applicant ’ s administrative action. This response was forwarded to the applicant.

16. On 13 December 2012 the Zagreb 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 put forward and asked to be served with the senior medical expert ’ s report in order to be able to comment on it. The lawyer was served with the report. She then asked that the senior medical expert be heard on account of not finding that the applicant had a disability in circumstances in which the Norwegian authorities had found that she did have a disability. The representative from the Central Office contested this proposal, arguing that the legal and medical criteria for establishing disability differed in each particular country, and that the senior medical expert had conducted her assessment applying the criteria applicable in Croatia. The Zagreb Administrative Court dismissed the proposal to hear the senior medical expert on the matter. Since the parties did not have any further proposals as to evidence, it closed the hearing.

17. On 20 December 2012 the Zagreb Administrative Court dismissed the applicant ’ s action as unfounded. It stressed, in particular, that two medical experts from the Central Office, applying the legal and medical criteria applicable in Croatia, had established that the applicant did not have a disability. The medical documentation forwarded by the Norwegian authorities did not contain any statement calling into doubt their findings. The court further stressed that there had been no need to hear the senior medical expert ’ s oral evidence, since her written report had been adequately and sufficiently reasoned, bearing in mind also the principle of efficiency in relation to the administrative dispute.

18. The applicant lodged a constitutional complaint, alleging that the proceedings had been unfair, in that she had been excluded from the procedure of commissioning and obtaining the administrative authorities ’ expert reports, whereas the Zagreb Administrative Court had dismissed her request to obtain an independent expert medical report on the matter.

19. On 28 March 2013 the Constitutional Court dismissed the applicant ’ s constitutional complaint as manifestly ill-founded.

B. Relevant domestic law

20. The Decree on medical expert evaluation in pension insurance ( Uredba o medicinskom vještačenju u mirovinskom osiguranju , Official Gazette no. 73/2009 – hereinafter “the Decree”), in force at the material time, provided that, for the purposes of granting pension insurance rights, disability was established on the basis of authorised expert reports (section 2(1)). Reports in first-instance proceedings were issued 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 ( Zakon o mirovinskom osiguranju ), the Decree and other regulations, as well as the principles of and developments in contemporary medical science (section 2(4)).

21. Experts and senior experts were appointed by the Fund ’ s Administrative Council following a public competition (section 3(1)). They had to be medical doctors with at least five years of relevant professional experience (section 3(3)). In addition to this, experts and senior experts who conducted medical expert evaluations on the basis of medical documentation forwarded by foreign pension insurance authorities, pursuant to an international agreement on social insurance, had to have knowledge of a foreign language (section 3(4)).

22. If a person subject to a medical expert evaluation was residing abroad, authorised experts issued their reports on the basis of the medical documentation forwarded by the foreign pension insurance authority, pursuant to an international agreement on social insurance. If necessary, the experts issued their reports on the basis of an examination in person of the insured individual (section 6(3)).

23. If the insured person lodged an appeal against the first-instance decision of the Fund, and in so doing challenged the findings of the expert regarding disability, the Central Office of the Fund would ask a senior expert to conduct a medical expert evaluation regarding the matter (section 27).

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

COMPLAINTS

25. The applicant complained that she had not had an effective opportunity to participate in the proceedings concerning her entitlement to a disability pension, and that the principle of equality of arms had not been respected with regard to commissioning and obtaining the expert evidence on the matter.

THE LAW

26. The applicant relied on Article 6 § 1 of the Convention, which reads:

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

A. The parties ’ arguments

1. The Government

27. The Government contended that Article 6 of the Convention was not applicable to the proceedings before the Central Office. Those proceedings had not involved any contentious issue between two conflicting parties. The applicant ’ s complaints concerning that stage of the proceedings were therefore incompatible ratione materiae with the Convention. They further submitted that the applicant had not exhausted domestic remedies, because in the proceedings before the Zagreb Administrative Court she had not complained that the experts from the Central Office had lacked impartiality. She had also failed to propose obtaining an independent expert report on the matter. Under the domestic law, the Zagreb Administrative Court had not been required to assess any lack of impartiality on the part of the experts or obtain an independent expert report regarding the matter on its own initiative.

28. The Government further argued that, in the proceedings at issue, the applicant had had the benefit of all the guarantees of Article 6 § 1 of the Convention. She had known about and been able to comment on all the documents in the file, and had had the opportunity to put forward all her relevant arguments and propose evidence. The Zagreb Administrative Court had held a public hearing, during which she had been represented by a lawyer. In the proceedings she could have proposed obtaining an independent expert report, but she had failed to do so. She had only asked that the senior medical expert be heard, which the Zagreb Administrative Court had refused, giving sufficient reasons.

2. The applicant

29. 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 her disability. She further asserted that the Zagreb Administrative Court had decided her case by relying exclusively on the expert reports obtained by her opponent in the proceedings. It had not allowed her to question the senior medical expert from the Central Office, and had refused to obtain an independent expert medical report on the matter. That report would have been of particular importance in circumstances in which the experts from the Central Office had reached a different conclusion from the Norwegian authorities regarding her disability.

B. The Court ’ s assessment

30. The Court notes at the outset that in the cases of Letinčić v. Croatia (no. 7183/11, §§ 33-37, 3 May 2016) and Krunoslava Zovko (cited above, §§ 34-37) it dismissed objections similar to those made by the Government regarding Article 6 of the Convention not being applicable to proceedings before the Central Office. It sees no reason to do otherwise in the present case.

31. The Court does not have to address all the remaining issues raised by the parties because, even assuming that the applicant properly exhausted the available domestic remedies, the application is in any event inadmissible for the following reasons.

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

33. The central tenet of the applicant ’ s complaints concerns her alleged exclusion from the procedure of commissioning and obtaining the expert reports used to decide the merits of her claim for a proportion of a disability pension, and the alleged bias of the experts who produced the reports on the matter.

34. The applicant complained that the expert reports had been obtained by the Central Office, her opponent in the proceedings. As regards that complaint, the Court held in the Letinčić and Krunoslava Zovko cases (cited above, §§ 62-63 and §§ 44-45 respectively) that, although an applicant ’ s concerns regarding the impartiality of experts might be of 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 designated to provide expert reports on a particular issue and financed from the State budget did not in itself justify a fear that those experts would be unable to act neutrally and impartially in providing their expert opinions.

35. In the present case, the Court observes, as it noted in the Krunoslava Zovko case (cited above, § 45), 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 medical experts with considerable professional and educational experience (see paragraph 21 above), and that the relevant domestic law sets out an overriding duty for experts to provide their opinions impartially and in a relevant manner within their own areas of expertise (see paragraph 24 above, section 66(2) of the Administrative Procedure Act).

36. 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 Central Office dismissed her claim on the grounds that its in-house medical expert had found that she did not have a disability, the applicant was served with the decision and was made aware of the expert ’ s findings. She was therefore given an opportunity to effectively challenge the expert ’ s findings, and she used that opportunity by lodging an appeal against the first-instance decision and submitting her specific arguments (see paragraph 10 above).

38. The Court further notes that the applicant had an opportunity to challenge the expert reports and the relevant decisions of the Central Office before the Zagreb Administrative Court by lodging an administrative action and participating in a public hearing (see paragraphs 14 and 16 above). The Zagreb Administrative Court examined the applicant ’ s arguments related to the findings of the expert reports. Ultimately, it dismissed her action, finding that two medical experts from the Central Office had established that she did not have a disability, whereas the medical documentation forwarded by the Norwegian authorities did not contain any statement calling into doubt their findings (see paragraph 17 above).

39. With regard to the applicant ’ s argument that the Zagreb Administrative Court refused to obtain a further expert report on the matter, the Court notes that she never proposed to the Zagreb Administrative Court that such evidence be obtained. Pursuant to the relevant domestic law, she ought to have proposed obtaining the evidence she considered necessary in her administrative action (see paragraph 24 above, section 34(1) of the Administrative Disputes Act).

40. As to the applicant ’ s argument that the Zagreb Administrative Court refused to hear the senior medical expert ’ s oral evidence, the Court takes into account: that the applicant was informed of the findings of the two medical experts from the Central Office and given an opportunity to submit arguments against those findings; that her submissions were directed primarily against the criteria which those experts had applied in assessing her medical condition, which, by itself, did not warrant their giving oral evidence; and that it is primarily for the national courts to assess the evidence they obtain 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). Consequently, the Court does not find anything unfair in the reasoned decision of the Zagreb Administrative Court not to hear the senior medical expert ’ s oral evidence.

41. Having regard to 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, an opportunity which she used to the extent that she herself considered necessary. In the present case, there is nothing to prompt the Court to consider that the proceedings concerning the applicant ’ s claim for a proportion of a disability pension were unfair.

42. It thus follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 7 June 2018 .

             Renata Degener Kristina Pardalos              Deputy Registrar President