CONCURRING OPINION OF JUDGE LEMMENS

1. I agree with my colleagues that there has been a violation of Article 6 § 1 of the Convention. In my opinion, however, the judgment sets the fair-hearing requirements for the proceedings before the Administrative Court at a level that is too high, in the light of the nature of proceedings before that court.

This separate opinion is rather long, unfortunately. I nevertheless plead for some indulgence, having regard to the importance of the issues of judicial review of administrative action raised by the present case.

2. The starting point of my analysis is the Croatian system of dealing with requests for family disability benefits. Of relevance are the respective roles of the various bodies in the proceedings.

A request for a disability benefit, based on the suicide of a family member, can be put before the competent regional office of the State war veterans ’ administration, in this case the Zagreb Office. The law states that, before arriving at its decision, the office must commission an expert report from a medical institution designated by the Minister for war veterans, in this case the Regional Centre for Psychotrauma of the Clinical Hospital Dubrava (the “Centre”). Only if that medical institution establishes a causal link between participation in the war and an illness leading to the suicide can the applicant receive the family disability benefit (Section 123 § 1(8) of the Veterans Act). The law apparently does not provide for adversarial proceedings before the expert institution.

The decision of the regional office can be appealed against to the Ministry in charge of war veterans ’ affairs. The Ministry can dismiss the appeal or annul the contested decision; in the latter case it either sends the case back to the regional office or takes a new decision itself on the merits. In the present case the Ministry dismissed the appeal.

The decision of the Ministry can be challenged before the Administrative Court on various grounds of illegality, in law or in fact. The court either upholds the application for annulment or dismisses it; if it upholds the application, it annuls the challenged administrative act. If, according to the nature of the matter, a new act (on the merits) has to be adopted instead of the annulled administrative act, it will normally be for the competent administrative authority to adopt it. That body will then be bound by the legal standpoint of the court and by the court ’ s comments regarding the procedure (section 62 of the Administrative Disputes Act). However, the Administrative Court itself can take a decision on the merits if the nature of things allows for it and if the information from the procedure provides a reliable basis; in such a case, the court ’ s judgment will replace the annulled act in all respects (section 42 of the Administrative Disputes Act).

Section 39 of the Administrative Disputes Act deals with the establishment of the facts upon which the judgment of the Administrative Court is to be based. In principle, the court bases its decision on the facts as established by the administrative authority (section 39 (1)). If the court finds deficiencies with respect to the establishment of the facts by the administrative authority, it annuls that act, and it is then for the administrative body to take a new decision (on the merits), in compliance with the court ’ s findings (section 39 (2)). Exceptionally, however, the court can establish the facts on its own (section 39 (3)).

In the proceedings brought by the applicant, the Administrative Court apparently considered itself able to take a decision (on the application for annulment) on the basis of the facts as established by the Ministry. It dismissed the applicant ’ s application as being ill-founded. What the court did in this case thus seems to be a classical exercise of judicial review of an administrative act.

3. As is explained in the judgment, there was a dispute over a right, namely the right to a family disability benefit (paragraphs 36-37). Moreover, that right can be characterised as “civil” within the meaning of Article 6 § 1 (see the case-law referred to in paragraph 35 of the judgment). I agree with my colleagues that Article 6 § 1 applied to the dispute between the applicant and the public authorities.

4. However, the judgment is not explicit about the applicability or inapplicability of Article 6 § 1 to the various stages of the proceedings.

In the present case, the proceedings started with a request by the applicant to the Zagreb Office. Article 6 § 1 does not prohibit a system whereby a claim relating to a civil right is initially decided upon by an administrative authority, such as the Zagreb Office. As long as there was no (negative) decision by the Zagreb Office, there was no “dispute” for the purposes of Article 6 § 1. Obviously, Article 6 § 1 did not therefore apply at this stage of the proceedings (see Feldbrugge v. the Netherlands , 29 May 1986, § 25, Series A no. 99, and Van Marle and Others v. the Netherlands , 26 June 1986, § 31, Series A no. 101).

A dispute arose only after the Zagreb Office rejected the applicant ’ s request, when the applicant appealed against that decision to the Ministry. It was from that moment on that the applicant could invoke the right to bring the dispute before a “tribunal” (right to a court). Such a “tribunal” should be able to examine the lawfulness of the act. However, Article 6 § 1 does not preclude systems providing for an administrative appeal to an administrative body that will have to be exhausted before a judicial appeal can be brought before a court. What is guaranteed under Article 6 § 1 in such a system is (only) that in the end a court has jurisdiction to examine the lawfulness of the administrative act deciding on the civil right claimed by an individual.

In the present case, the Ministry clearly cannot be considered a “tribunal” within the meaning of Article 6 § 1; the guarantees of Article 6 § 1 therefore do not apply to the appeal proceedings before that body.

The fact that the decision on the merits of the applicant ’ s request for a family disability benefit was taken by an administrative body, which obviously did not meet the requirements of Article 6 § 1, is in itself not problematic from the point of view of the right to a court (see Le Compte , Van Leuven and De Meyere v. Belgium , 23 June 1981, § 51, a, Series A no. 43, and Albert and Le Compte v. Belgium , 10 February 1983, § 29, Series A no. 58). However, in such a situation Article 6 § 1 requires that the decision of the administrative body be subject to subsequent supervision by a judicial body that has “full jurisdiction”, in the sense of exercising “sufficient jurisdiction” (see Fazia Ali v. the United Kingdom , no. 40378/10, § 76, 20 October 2015), in order to review the “lawfulness” of the challenged act (see Sporrong and Lönnroth v. Sweden , 23 September 1982, §§ 84 and 86, Series A no. 52), and that the proceedings before the reviewing court themselves comply with the guarantees of Article 6 § 1 (see, among other authorities, Albert and Le Compte , cited above, § 29; Kingsley v. the United Kingdom [GC], no. 35605/97, § 32, ECHR 2002 ‑ IV; and Fazia Ali , cited above, § 75). On this point, I agree with paragraph 46 of the judgment.

The judgment goes on to find that the Administrative Court does have “sufficient jurisdiction”, in the sense that it can review in all respects, on questions of both fact and law, the decisions of the Ministry (paragraphs 52-53). Again, I agree. However, in my opinion it is not necessary to point here to the fact that the Administrative Court can – exceptionally – take a decision on the merits of the dispute between the applicant and the administrative authorities (paragraph 53). It is sufficient to note that the court has the power to annul the challenged administrative act; whether the merits of the dispute are then decided by the court itself or by the competent administrative body does not affect that conclusion (see Zumtobel v. Austria , 21 September 1993, § 32, Series A no. 268 ‑ A, and Sigma Radio Television Ltd v. Cyprus , nos. 32181/04 and 35122/05, § 153, 21 July 2011).

I should add that the proceedings before the Constitutional Court also fall within the application of Article 6 § 1, since that court ’ s decision can be decisive for the outcome of the case. In the present case, however, the proceedings before the Constitutional Court are not an issue.

5. The question is thus whether the proceedings before the Administrative Court satisfied the requirements of Article 6 § 1.

By contrast, the present case is not about the fairness of the proceedings before the Zagreb Office (or before the Centre, which acted as an expert for the Zagreb Office), nor about the fairness of the proceedings on appeal before the Ministry. Whether or not the Administrative Procedure Act guarantees fair proceedings before administrative bodies is not something this Court can be concerned about. In this respect, I find that the majority go too far in criticising certain aspects of the procedure before the Zagreb Office (see paragraph 65).

The majority hold that it is the Court ’ s task to ascertain whether “the proceedings before the administrative and judicial authorities, taken as a whole”, were fair (paragraph 55). This holding deserves, in my opinion, some qualification. Article 6 § 1 applies only to the judicial stages of the proceedings. Where the Court in its case-law refers to the proceedings “as a whole”, it generally refers to the judicial proceedings as a whole, and in particular to the possibility that later stages in the proceedings may have remedied the shortcomings in earlier stages (see the cases referred to in paragraph 55 of the judgment: Feldbrugge , cited above, § 46 (shortcoming not cured); and Schuler-Zgraggen v. Switzerland , 24 June 1993, § 52, Series A no. 263 (shortcoming cured)). It is true that Article 6 § 1 may be relevant before a case reaches the judicial stage of the proceedings if and in so far as the fairness of the trial before the court is likely to be seriously prejudiced by a shortcoming during the administrative stage (compare, with respect to the pre-trial stage and the trial stage in criminal proceedings, Imbrioscia v. Switzerland , 24 November 1993, § 36, Series A no. 275, and Salduz v. Turkey [GC], no. 36391/02, § 50, ECHR 2008). But even then, it is in my opinion the fairness of the proceedings before the court that is the ultimate yardstick.

6. When it comes to the analysis of the complaint, what has in my opinion to be examined is whether the applicant had a reasonable opportunity to present his case to the Administrative Court and whether that court conducted “a proper examination of the submissions, arguments and evidence” presented by the applicant (see paragraph 48).

It is for domestic law to determine the scope of a court ’ s jurisdiction. As indicated above, in cases such as the present, the jurisdiction of the Administrative Court is limited to reviewing the lawfulness, both in law and in fact, of the challenged administrative act. Only if the court finds that the act is unlawful, and therefore should be annulled, does the question arise whether it will or will not itself look into the merits of the dispute (i.e., into the question whether the request for a family disability benefit should be granted or rejected). If the act is considered lawful, it is not for the court to decide the dispute on the merits. In such a situation, the court cannot “reform” the decision taken by the competent administrative body by substituting its decision for that of the latter.

Having regard to the limits to the jurisdiction of the Administrative Court, I find it confusing to refer to our Court ’ s case-law with respect to the fairness of proceedings involving experts appointed by a court in the course of the proceedings before that court (see paragraphs 50-51). Indeed, it was not for the Administrative Court to appoint or re-appoint an expert in order to be able to assess the merits of the applicant ’ s request to obtain a family disability benefit. The Administrative Court only had to examine whether the Ministry, on the basis of the expert opinion given by the Centre, had lawfully arrived at its decision to reject the applicant ’ s request.

For the same reason, I would prefer to avoid language suggesting that the Administrative Court had to assess the merits of the applicant ’ s request (paragraph 57), had to assess the Centre ’ s expert report (paragraph 59), could rely on that expert report (paragraph 61), or could re-examine the findings of the Centre or re-assess the facts (paragraph 64). In particular, the link between the Centre ’ s expert opinion and the Administrative Court ’ s review of the legality of the Ministry ’ s decision is a more indirect one than that suggested by the majority.

The majority refer to the recent case of Korošec v. Slovenia (no. 77212/12, 8 October 2015) to find that, in the case of opinions of experts appointed in pre-judicial administrative proceedings, “similar questions” arise as with court-appointed experts (paragraph 60). It is true that the Court in Korošec sees “similarities” between the two types of situations (ibid., § 51). However, the social courts in that case were competent to decide on the merits of the claim initially brought by the applicant before an administrative body, thereby relying (or not) on the expert opinion obtained during the administrative proceedings. That was a situation quite different from the present one, and therefore the Korošec precedent should be treated with caution.

7. Turning to the proceedings before the Administrative Court, the applicant challenged the Ministry ’ s decision on the ground that it had not replied to some of his arguments, including those relating to the impossibility for him to comment on the conclusions of the experts before the Zagreb Office had taken its decision. He also reiterated that the Centre ’ s experts were biased and that their report was superficial, since it had not taken into account the fact that the applicant ’ s father had committed a triple murder, and illogical, given that the father had had no psychiatric problems before the war, whereas after the war he had murdered three people and committed suicide. Finally, the applicant invited the court to commission another expert report, from a different expert (see paragraph 18). It should be underlined that, apart from the invitation to appoint another expert, all these complaints concerned the fairness of the proceedings before the administrative bodies and ultimately the lawfulness of the decision of the Ministry. In other words, they concerned the lawfulness, including the procedural regularity, of the challenged decision under domestic law.

It was for the Administrative Court to review the decision of the Ministry from the perspective of these complaints. Under Article 6 § 1 of the Convention, the applicant had the right to obtain a proper examination of his arguments by the court (see Kraska v. Switzerland , 19 April 1993, § 30, Series A no. 254 ‑ B, Van de Hurk v. the Netherlands , 19 April 1994, § 59, Series A no. 288, and the case-law cited in paragraph 48 of the present judgment).

In its decision, the Administrative Court first of all held that the status of the family member of a deceased war veteran could be based only on a positive opinion by one of the expert institutions designated by the Minister for war veterans (see paragraph 19). I understand that this was an implicit rejection of the invitation to appoint another expert. Given the domestic rules relating to the award of a family disability benefit and the limitation of the jurisdiction of the Administrative Court to a review of administrative acts, I have no problem with this decision.

The Administrative Court further acknowledged that the Ministry had not explicitly replied to the argument relating to the need to request a report with regard to the fact that the applicant ’ s father had not only committed suicide, but had also committed a triple murder. It held, however, that this murder could not be a decisive factor for the decision on the applicant ’ s request for a family disability benefit, since such a criminal act could not be a basis for the establishment of a link between the death of the war veteran and his participation in the war (see paragraph 19).

I agree with the majority that such reasoning fell short of the requirements under Article 6 § 1 of the Convention (see paragraph 66). The Administrative Court, faced with a complaint that the experts were biased and that their opinion was superficial and illogical, should have examined the quality of that report and should have checked whether the applicant had had a meaningful opportunity to contest the findings of the experts before the administrative bodies, in particular the Ministry (as the second-instance body). The part of the reasoning relating to the insufficiency of any link between the triple murder and participation in the war cannot be considered an implicit answer to the applicant ’ s argument, since he had not argued that the fact of the murder entitled him to the family disability benefit. His argument was that this fact was an element that could show that his father suffered from a psychiatric illness linked to his participation in the war, with the result that such illness – and the ensuing suicide – would entitle him to the benefit.

Since the expert opinion was crucial – indeed decisive – for the decision to be taken by the administrative authorities, the right to a fair hearing required a careful examination by the Administrative Court of all the complaints directed against that opinion (contrast Rolf Gustafson v. Sweden , 1 July 1997, § 47 in fine , Reports of Judgments and Decisions 1997 ‑ IV). That court ’ s judgment does not show that such an examination took place.

8. It is on this basis, which is a more narrow one than that adopted by the majority, that I concur with the finding that there has been a violation of Article 6 § 1.