SECOND SECTION

CASE OF KRUNOSLAVA ZOVKO v. CROATIA

( Application no. 56935/13 )

JUDGMENT

STRASBOURG

23 May 2017

FINAL

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Krunoslava Zovko v. Croatia ,

The European Court of Human Rights ( Second Section ), sitting as a Chamber composed of:

Işıl Karakaş, President, Nebojša Vučinić, Paul Lemmens, Valeriu Griţco, Ksenija Turković, Stéphanie Mourou-Vikström, Georges Ravarani, judges, and Stanley Naismith , Section Registrar ,

Having deliberated in private on 25 April 2017 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 56935/13) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Ms Krunoslava Zovko (“the applicant”), on 21 August 2013 .

2 . The applicant was represented by Mr T. Valičević, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3 . The applicant alleged, in particular, that the administrative proceedings concerning her entitlement to sick leave had been unfair.

4 . On 8 September 2015 the complaint concerning the lack of fairness of the administrative proceedings was communicated to the Government and the remainder of the application was declared inadmissible , pursuant to Rule 54 § 3 of the Rules of Court .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Background to the case

5 . The applicant was born in 1965 and lives in Samobor .

6 . On 20 April 2009 she sustained an injury in a car accident while returning home from work . On 8 May 2009 her injury was recognised as a work-related injury by the Croatian Health Insurance Fund for Health Protection at Work ( Hrvatski zavod za zdravstveno osiguranje zaštite zdravlja na radu ) . On the basis of her work-related injury t he applicant was granted sick leave between 21 April 2009 and 3 July 2009 .

7 . On 26 October 2011 the applicant visited the Emergency Medicine Centre of the University Hospital Centre Zagreb ( Centar za hitnu medicinu Kliničkog bolničkog centra Zagreb ) owing to the pain in her neck and back. There it was established that she was suffering from a severely sore spine with a deformity .

8 . The following day she visited her chosen general practitioner , who found that the applicant was unable to work and granted her sick leave starting from 27 October 2011 on the basis of an illness.

B. The applicant ’ s administrative proceedings

9 . On 3 November 2011 the applicant lodged a complaint against her general practitioner ’ s assessment of the reason for her sick leave . She argued that she should be granted sick leave entitlement on the basis of the work-related injury that she had sustained on 20 April 2009 . She submitted medical documentation in support of her argument .

10 . Following the lodging of the complaint, the applicant ’ s general practitioner referred the applicant for an expert medical evaluation , enclosing her medical documentation with the request for expert evaluation.

11 . On 6 December 2011 an authorised doctor of the Zagreb Office of the Croatian Health Insurance Fund ( Hrvatski zavod za zdravstveno osiguranje, Područni ured Zagreb – hereinafter “the Zagreb Office”) , specialised in physical medicine and rehabilitation, examined the applicant ’ s medical documentation and reported finding no direct causal link between the work-related injury sustained by the applicant in 2009 and the sick leave she had begun on 27 October 2011 .

12 . The Zagreb Office forwarded the report to the applicant and informed her of her right to seek the delivery of a written decision on the matter of her sick leave entitlement. The applicant availed herself of that right and asked for a written decision.

13 . By a decision of 23 January 2012 the Zagreb Office , relying on the report of 6 December 2011 , refused the applicant ’ s request that the sick leave from 27 October 2011 be granted on the basis of her work-related injury. It also dismissed her claim for compensation for lost salary during the period of sick leave .

14 . The applicant challenged this decision before the Central Office of the Fund ( Hrvatski zavod za zdravstveno osiguranje, Direkcija – hereinafter “the Central Office” ), submitting further medical documentation and requesting that her sick leave be granted on the basis of her work-related injury.

15 . Following the appeal by the applicant, the Central Office asked an in-house medical c ommission to conduct an expert examination regarding the matter . On 16 March 2012 t he medical c ommission, consisting of three doctors of medicine , examined the applicant ’ s overall medical documentation and reported that her sick leave from 27 October 2011 could not be granted on the basis of the work-related injury that she had sustained in 2009.

16 . On 5 April 2012 the Central Office, relying on the findings of the medical c ommission, dismissed the applicant ’ s appeal and upheld the decision of the Zagreb Office .

17 . The applicant then brought an administrative action in the Zagreb Administrative Court ( Upravni sud u Zagrebu ) . She contested the findings of the Fund ’ s expert medical bodies , reli ed on her medical documentation and alleg ed that it indicated a causal link between the work-related injury she had sustained in 2009 and her sick leave . She requested that she be heard and that a n expert medical report on the matter be o btained .

18 . On 27 June 2012 the Central Office submitted a response to the applicant ’ s administrative action . This response was forwarded to the applicant.

19 . On 27 August 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 adduced and evidence proposed in the administrative action . The representative of the Central Office contested this. The Zagreb Administrative Court then dismissed the proposal to hear the applicant and to obtain a further expert medical report on the matter and closed the hearing.

20 . On 31 August 2012 the Zagreb Administrative Court dismissed the applicant ’ s action as un founded . It stressed , in particular, that two expert medical bodies of the Fund , a s well as the applicant ’ s chosen general practitioner , had established without a doubt that the applicant ’ s sick leave beginning on 27 October 2011 was not linked to the work-related injury she had sustained in 2009 . It also stressed that the applicant, by the submissions in her administrative action , did not manage to put into doubt the findings of the expert medical bodies and that thus there was no need to hear her or to o btain a further expert medical report on the matter .

21 . The applicant lodged a constitutional complaint , alleging that the proceedings had been unfair in that she had been excluded from the proce dure of commissioning and obtaining the administrative authoritie s ’ expert report s, wh ereas the Zagreb Administrative Court had refused t o hear her and to o btain an independent expert medical report on the matter .

22 . On 6 February 2013 the Constitutional Court dismissed the applicant ’ s constitutional complaint as manifestly ill-founded. This decision was served on the applicant ’ s representative on 22 February 2013.

II. RELEVANT DOMESTIC LAW

A. Administrative Procedure Act and t he Administrative Disputes Act

1. Administrative Procedure Act

23 . 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

“(1) In the proceedings a party has to be provided with an opportunity to express his or her opinion about all the facts, circumstances and legal issues important for the determination of the matter .

(2) Proceedings may be conducted without a party first expressing his or her opinion only if his or her claim is being adopted , or if the decision in the proceedings does not have a negative effect on the party ’ s legal interests, or if so p rovided by law.”

Section 47

“(1) The official [of the relevant authority ] establishes all the facts and circumstances relevant for the determination of the matter.”

Section 51

“(1) An examination procedure ( ispitni postupak ) shall be conducted when this is necessary for the establishment of the facts and circumstances relevant for the clarification of the status of the matter [in question] , when in the proceedings there are two or more parties with conflicting interests, and in order to give the parties the opportunity to enforce and protect t heir rights and legal interests. ”

Section 52

“(1) A party has the right to participate in the examination procedure up to the point of adopting a decision on the matter , to submit statements and explanations, to put forward facts and circumstances relevant for the determination of the matter and to challenge the accuracy of submissions that are c ontrary to his or her submissions .

(2) The official is obliged to give the party an opportunity to express his or her opinion on all the circumstances and facts raised in the examination procedure [and] on the proposed and submitted evidence , to participate in the examination of evidence and to question the other parties, witnesses and expert witnesses, either through the official or, with his or her permission , directly, and t o t ake cognisance of and have the opportunity to express his or her opinion on the results of the evidence adduced.

(3) A party may submit his or her statements either orally for the record or in written form . ... ”

Section 58

“ (1) The official in the proceedings establishes the factual status by all appropriate means and for that purpose may obtain documents, hear witnesses, obtain an expert report and p erform an on-site investigation. ”

Section 65

“(1) When the establishment or assessment of a certain fact relevant for the determination of the matter requires special professional knowledge which the official does not possess, an expert report may be ordered .

(2) The official shall order an expert report as a matter of course or at the request of the party [ concerned ] . [The expert report shall be ordered from] an expert who is qualified in the matter and authorised to give opinions on issues of a specific matter , or from a person registered to provide expert reports . ... The parties shall always be consulted beforehand as regards [which] expert [to appoint] . ”

Section 66

“ (2) Before the expert report is ordered the expert shall be instructed that he or she must carefully examine the [subject matter of the expert report] and correctly state his or her findings in the report, and that he or she must give reasoned conclusions impartially and in compliance with the relevant scientific and professional rules .

...

(6) If the expert report is not clear or complete, or if the reports of two or more experts significantly diverge , or if the expert report is not sufficiently reasoned or there is a reasonable doubt as to the accuracy of the opinion , and these omissions cannot be remedied by questioning the expert witness, [a further] expert report shall be ordered from other expert s , and the opinion of a scientific or professional institution may be requested.

(7) The opinion of a scientific or professional institution may also be requested if the complexity of the case, or the need to perform an analysis, reasonably indicate s that in such a way a more accurate opinion would be obtained . ”

Section 115

“(4) The second-instance authority may dismiss the appeal, annul the [impugned] decision wholly or in part, or reverse it.”

2. Administrative Disputes Act

Section 22

“ (1) An administrative dispute is initiated by [bringing] an action.

(2) The following may be claimed [ by means of such] an action:

1. The annulment or declaration of an individual decision as null and void,

...

(3) In the cases stipulated in paragraph 2 (1 ) and (2) of this section, the court may be requested to adjudicate on a right , obligation or legal interest of a party.”

Section 32

“(1) The court serves the action and all its attachments o n the defendant and the interested persons [and invites them] to reply. ”

Section 33

“(1) The court freely assesses the evidence and establishes facts.

(2) The court takes into account the facts established during the procee dings [that led to the] adoption of the impugned decision, by which it is not bound, as well as facts that it established on its own.

(3) The parties may propose which facts are to be established and evidence by which they can be established, but the court is not bound by such proposals.

(4) Evidence includes documents, the hearing of the parties, witness testimonies, expert reports , on-site investigations and other means .

(5) The court adduces evidence in accordance with the rules governing the adducing of evidence in civil proceedings.”

Section 34

“(1) [By means of bringing] an action and responding to that action the parties are obliged to present all the facts on which they base their claims, propose evidence necessary for establish ing them , and express their opinion on the submissions of facts and proposals of evidence undertaken by the other parties.”

Section 39

“(2) The president of the panel or a single judge establishes the presence of all the persons summoned [ to the hearing ] , and in the event of their absence, establishes whether they were duly summoned and whether they justified their absence.

(3) When a party or an o ther participant in the dispute fails to attend the hearing without a justified reason, the hearing may be held in his or her absence.”

Section 55

“ (1) The court adjudicates the claim ... by means of a judgment.

...

(3) The court renders a judgment in accordance with its own belief and on the basis of an examination of all the legal and factual issues.

(4) A judgment may be based solely on the facts and evidence on which the parties were able to express their opinion .”

Section 57

“(1) The court shall dismiss a claim if it finds it unfounded. ”

Section 58

“(1) If the court finds an individual decision of the relevant body unlawful, it shall by means of a judgment uphold the claim, annul the impugned decision and adjudicate on the matter on its own, unless it is unable to do so due to the nature of the matter, or if the d efendant has resolved the matter [at its own discretion] .”

Section 60

“(4) In its reasoning [ in respect of a judgment], a court shall state the parties ’ claims, the submitted facts and proposed evidence, the facts it has established, the reasons and time of their establishment , and in the event that they were established on the basis of evidence, which evidence the court adduced and how that evidence w as assessed. The court shall state in particular which provisions it applied when adjudicating on the dispute and shall express its opinion regarding the parties ’ proposals and objections regarding which it did not express its opinion during the dispute.”

B. Other relevant domestic law

1. Compulsory Health Insurance Act

25 . The Compulsory Health Insurance Act ( Zakon o obveznom zdravstvenom osiguranju , Official Gazette no s . 150/ 20 08, 94/ 20 09, 153/ 20 09, 71/ 20 10, 139/ 20 10 and 49/ 20 11 ) , as in force at the material time, provided that in the event that insured persons su stained 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 ) . I nsured person s 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).

26 . 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).

27 . 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 instance s of the Fund. Against the second-instance decision of the Fund the insured person was entitled to initiate an administrative dispute (section 108).

2. Ordinance on rights, conditions and the manner of acquiring compulsory health insurance rights

28 . 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/ 20 09, 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 ).

3. Ordinance on authorities and manner of work of authorised doctors and medical commissions of the Croatian Health Insurance Fund

29 . 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/ 20 09, 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 a nd a licence to work issued by the relevant authority (section 6.2).

30 . 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 i f necessary, on the basis o f an examination of the insured person (section 13.3).

31 . 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) . I n 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 LAW

ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

32 . The applicant complained that she had not had an effective opportunity to participate in the proceedings concerning her entitlement to sick leave , and that the principle of equality of arms had not been respected with regard to the commissioning and obtaining of the expert evidence on the matter. She relied on Article 6 § 1 of the Convention, which reads as follows:

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

33 . The Government contested that complaint.

A. Admissibility

1. The parties ’ arguments

34 . 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.

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

2. The Court ’ s assessment

36 . 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.

37 . 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.

B. Merits

1. The parties ’ arguments

38 . The applicant conte nded 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 o btain an independent expert medical report in order to establish the link between her work-related injury and her sick leave.

39 . The Government submitted that in the proceedings at issue the applicant had benefi ted 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 i n these circumstances the fact that the Zagreb Administrative Court had refused to o btain another ( fourth ) expert medical report on the matter had not render ed the proceedings unfair.

2. The Court ’ s assessment

40 . The general principles relevant for the present case have been summari s ed in the case of Letinčić ( cited above, §§ 46-51 , with further references ).

41 . 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.

42 . The Court notes at the outset that the applicant ’ s claim con cerning 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) .

45 . 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 area s of expertise ( see paragraph 23 above, section 66 (2) of the Administrative Procedure Act , and Letinčić , cited above, § 63 ).

47 . 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. S he was also given an opportunity to effectively challenge th e 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).

48 . Further more, t he 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 reli ed in support of her a rguments , 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.

49 . 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.

50 . 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) .

51 . 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).

52 . In view of the above considerations, t he 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 ) . I t 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) .

53 . 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 , the re 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.

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

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

1. Declares the application admissible;

2 . Holds that there has been no violation of Article 6 § 1 of the Convention.

Done in English, and notified in writing on 23 May 2017 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Stanley Naismith Işıl KarakaÅŸ Registrar President