Published on 19 July 2021

SECOND SECTION

Application no. 24989/17 Milan ĐURIĆ against Serbia lodged on 23 March 2017 c ommunicated on 30 June 2021

SUBJECT MATTER OF THE CASE

The applicant maintains that at the age of thirteen he was severely injured by an unsecured explosive device, as a result of which he has lost his left eye and a part of his left hand and has also suffered significant damage to his right eye. The explosive device was left behind following an earlier armed conflict and the applicant came across it in his hometown.

The applicant subsequently sought recognition of his status as a civilian person disabled as a consequence of a war ( civilni invalid rata ), in order to obtain a number of related benefits, but his request was ultimately rejected by the domestic authorities.

Under Articles 6 and 14 of the Convention and Article 1 of Protocol No. 1, the applicant complains: (a) of the unfairness of the administrative and judicial review proceedings in his case, including the lack of an oral hearing and the legal obligation to use only written/documentary evidence in support of his arguments; (b) about the respondent State ’ s refusal to grant him the disability status in question and, consequently, the related benefits as well, through the placement of unreasonable evidentiary obstacles before him and despite his obvious eligibility; and (c) that as a member of a group of persons consisting of civilians disabled as a consequence of war he was procedurally discriminated against compared to all other persons seeking justice in so far as he was, unlike them, specifically obliged, ex lege , to only use written/documentary evidence dating back to the injury, notwithstanding the fact that “it had been up to the respondent State ’ s authorities themselves to secure this evidence at the relevant time”.

QUESTIONS TO THE PARTIES

1. Is the applicant ’ s complaint under Article 6 § 1 of the Convention, concerning the alleged lack of a public/oral hearing prior to May 2011, compatible with the provisions of the Convention ratione materiae , given that the Government ’ s reservation deposited upon ratification of the Convention, in 2004, read, inter alia , as follows: “The right to a public hearing enshrined in Article 6, paragraph 1, of the Convention shall be without prejudice to the application of the principle that courts in Serbia do not, as a rule, hold public hearings when deciding in administrative disputes”, i.e. in the course of judicial review proceedings. This reservation was withdrawn by the Government in May 2011 and the withdrawal was registered at the Secretariat General of the Council of Europe on 11 May 2011.

2. Did the applicant have a fair hearing in the determination of his civil rights and obligations in accordance with Article 6 § 1 of the Convention? In particular, was the general principle of procedural fairness, which encompasses the principle of equality of arms, respected: (a) in terms of the applicant being able to adduce and confront the relevant evidence in the course of the impugned administrative and judicial review proceedings (see Regner v. the Czech Republic [GC], no. 35289/11, § 146, 19 September 2017); and (b) as regards him being legally obliged to only use one kind of evidence, i.e. written/documentary evidence dating back to the injury, in support of his contention of when and how exactly he had been injured in order to obtain recognition of his disability status and secure payment of the related benefits (see Elsholz v. Germany [GC], no. 25735/94, § 66, ECHR 2000 ‑ VIII, and Devinar v. Slovenia , no. 28621/15, § 45, 22 May 2018)?

3. Also, has there been an oral hearing in the impugned proceedings and, if not, was this in breach of Article 6 § 1 of the Convention (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, §§187-192, 6 November 2018)?

4. Has the applicant suffered discrimination in the enjoyment of his right to a fair trial, contrary to Article 14 of the Convention, read in conjunction with Article 6 § 1 thereof (see, for example, Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, §§ 162-164, 29 November 2016)? In particular, was the applicant as a member of a group of persons consisting of civilians disabled as a consequence of war ( civilni invalidi rata ) discriminated against in the course of the impugned proceedings compared to other persons procedurally seeking justice in so far as he was, unlike them, legally obliged to only use one kind of evidence, i.e. written/documentary evidence, is support of his arguments (see, mutatis mutandis , Mizzi v. Malta , no. 26111/02, §§ 129-136, ECHR 2006 ‑ I (extracts), and Schuler- Zgraggen v. Switzerland , 24 June 1993, §§ 61 and 64-67, Series A no. 263)?

5. Is Article 1 of Protocol No. 1 applicable in the present case? In particular, did the applicant have a “legitimate expectation” that he would be recognised as a civilian disabled as a consequence of a war and as such granted the disability benefits in question (see, for example, Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, §§ 51-54, ECHR 2006 ‑ VI, and Fedulov v. Russia , no. 53068/08, §§ 65-67 and 69, 8 October 2019)?

6. Should Article 1 of Protocol No. 1 be deemed applicable, has there been a violation of this provision? In particular, was an excessive procedural/evidentiary burden imposed upon the applicant in the course of the impugned proceedings (see, mutatis mutandis , Bäck v. Finland , no. 37598/97, § 63, ECHR 2004 ‑ VIII, in so far as it concerns generally whether the procedure applied provided the applicant with a fair possibility of defending his interests)?