KOROSEC v. SLOVENIA - 77212/12 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2015] ECHR 865 (08 October 2015)

In the case of Korošec v. Slovenia,

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

          Angelika Nußberger, President,
          Boštjan M. Zupančič,
          Ganna Yudkivska,
          Vincent A. De Gaetano,
          André Potocki,
          Helena Jäderblom,
          Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 15 September 2015,

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

PROCEDURE

1. The case originated in an application (no. 77212/12) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Tadej Korošec (“the applicant”), on 29 November 2012.

2. The applicant was represented by Odvetniška družba Čeferin, a law firm based in Grosuplje. The Slovenian Government (“the Government”) were represented by their Agent, Ms J. Morela.

3. The applicant alleged under Article 6 of the Convention that the court proceedings to which he had been a party had been unfair.

4. On 2 October 2014 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1980 and lives in Ljubljana.

6. He suffers from progressive spinal muscular atrophy and needs twenty-four hour assistance with all his daily activities.

7. In 2006 the Pensions and Disability Insurance Institute of the Republic of Slovenia (“the Institute”) awarded the applicant an assistance and attendance allowance (hereinafter “the allowance”) of 70% of the reference amount.

8. On 28 May 2009 the applicant’s general practitioner applied for an increase in the allowance due to the applicant’s worsening condition, referring in particular to the deterioration of the applicant’s respiratory functions. In the application the general practitioner indicated that the applicant needed twenty-four hour assistance by a family member or a lay care assistant, along with permanent professional assistance. At that time the applicant organised his care by hiring students to assist him in his daily activities and to provide the necessary aid. He also relied significantly on the assistance of his family members.

9. On 9 July 2009 the first-instance disability commission of the Institute (“the commission”) reported that the applicant did not need permanent, professional, medical assistance. The commission was composed of F.V., an internal medicine specialist, and M.F.B., an occupational medicine specialist. It gave its opinion on the basis of an examination of the medical documentation provided by the applicant, specifically opinions of a doctor of internal medicine, a pulmonologist and a clinical neurologist. They also examined the applicant.

10. On 20 July 2009, the Ljubljana unit of the Institute, relying on the opinion of the commission, dismissed the request for an increase in the allowance.

11. On 28 July 2009 the applicant lodged an appeal.

12. On 23 September 2009 the second-instance disability commission (“the second-instance commission”) of the Institute examined the applicant’s file and again reported that he did not need permanent professional assistance and that he could be cared for by a combination of care assistants without specific medical knowledge and by members of his family. The second-instance commission was composed of L.S., an occupational medicine specialist, and M. G., a specialist neuropsychiatrist.

13. On 24 September 2009 the Institute, referring to the conclusions of the second-instance commission, dismissed the applicant’s appeal. The Institute further referred to the 1998 Decision on Assistance and Attendance Allowance for Beneficiaries Suffering from a Severe Disability (see paragraph 23 below), according to which beneficiaries were only entitled to a higher allowance if they were in need of twenty-four-hour assistance by family members and further professional medical assistance.

14. On 22 October 2009 the applicant instituted court proceedings against the Institute before the Ljubljana Labour and Social Court, requesting the appointment of an independent expert to examine his medical file.

15. On 30 September 2010 the Ljubljana Labour and Social Court heard the applicant’s testimony and reviewed the case file. Subsequently it dismissed the applicant’s claim. The court rejected the applicant’s request for the input of an independent expert, concluding that the opinions of the first- and second-instance disability commissions of the Institute together with other evidence sufficed to establish that the applicant did not need professional assistance. The relevant part of the decision read as follows:

“The court therefore fully accepts the opinions of the first- and second-instance disability commissions that the [applicant] did not require permanent professional care because the opinions of the disability commissions were in accordance with the other evidence adduced (the general practitioner’s request and the reports submitted by specialists).”

16. On 2 November 2010 the applicant lodged an appeal, challenging the conclusions of the court that he did not need professional assistance, and complaining that the court had failed to appoint an independent medical expert. The applicant highlighted that the court itself lacked the expertise to assess on its own the kind of assistance he was provided with and the kind he needed.

17. On 24 January 2011 the Higher Labour and Social Court dismissed the applicant’s appeal. It found that the first-instance court had based its decision on the opinions of the disability commissions of the Institute which had been composed of experts capable of assessing whether the applicant needed professional assistance. The relevant part of the decision reads as follows:

“The appeal is unfounded in claiming that the [first-instance court] had concluded, without outside reference, despite the fact that it had no medical knowledge, that the care received by the [applicant] had been adequate. The court based its decision on the above cited opinions of the disability commission that had been assembled for the purposes of the pre-judicial proceedings. The [applicant] was examined by the first-instance disability commission; in giving their opinions both commissions also took into consideration the medical records submitted by his general practitioner.”

18. On 9 March 2011 the applicant lodged an application for leave to appeal on points of law. He, inter alia, challenged the position of the lower courts that there had been no need to appoint an independent medical expert as being contrary to the established case-law of the Supreme Court. According to the Supreme Court the opinions of the Institute’s Disability Commissions could not be considered independent in proceedings instituted against the decisions of the Institute and thus should not be used as evidence in these proceedings (see paragraph 29 below).

19. On 17 May 2011 the Supreme Court dismissed the applicant’s application, holding that the challenged decisions had not departed from the established case-law.

20. On 28 July 2007 the applicant lodged a constitutional complaint.

21. On 11 June 2012 the Constitutional Court dismissed the applicant’s constitutional complaint with reference to section 55.b of the Constitutional Court Act (see paragraph 30 below).

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Provisions on assistance and attendance allowance

22. According to section 141 of the Pensions and Invalidity Insurance Act as in force at material time (Zakon o pokojninskem in invalidskem zavarovanju, consolidated version published in the Official Gazette no. 109/06) the assistance and attendance allowance for those in need of permanent assistance is set at 70% of the reference amount (set out under section 57 of the same act) for benefits other than pensions or rights provided for under the disability insurance scheme. It also provides that the Institute can award to those categories of beneficiaries who suffer severe impairment of faculties a higher figure than 70% of the reference amount. The criteria in the latter case are determined by the Minister for Health.

23. According to the Decision on Assistance and Attendance Allowance for Beneficiaries Suffering from a Severe Disability (Official Gazette no. 77/98) issued by the Ministry of Health, the assistance and attendance allowance for those suffering severe disability amounts to 100% of the reference amount. According to the criteria set by the Ministry, severe disability means those who are in need of twenty-four-hour supervision by their family members and in need of further professional assistance of at least one care assistant to provide them with permanent health care.

B. Rules on procedure

24. The decisions on the entitlement to assistance and attendance allowance are issued by the Pensions and Disability Insurance Institute through a two-level administrative procedure.

25. Judicial review of the decisions issued by the second-instance committee of the Pensions and Disability Insurance Institute is carried out by the social courts.

26. The special rules governing the procedure in disputes concerning social-security rights are laid down in section 58-82 of the Labour and Social Courts Act (Zakon o delovnih in socialnih sodiščih, Official Gazette no. 2/04). Apart from the special rules on procedure provided for in that act, the procedure of the social courts is governed by the provisions of the Civil Procedure Act (Zakon o pravdnem postopku, consolidated version in force at the relevant time published in the Official Gazette no. 36/20).

27. According to section 243 of the Civil Procedure Act, the court should obtain an expert opinion if it does not have the necessary expertise to establish or ascertain a particular fact.

C. Disability commissions of the Pensions and Disability Insurance Institute

28. Disability commissions assist the Institute in first- and second-instance proceedings by issuing opinions on disabilities and other matters relevant to decisions on rights to entitlements arising from pensions and disability insurance. According to the Rules on the organisation and method of operation of disability commissions and other expert bodies of the Pension and Disability Insurance Institute of Slovenia, as in force at material time (Pravilnik o organizaciji in načinu delovanja invalidskih komisij ter drugih izvedenskih organov Zavoda za pokojninsko in invalidsko zavarovanje Slovenije, published in the Official Gazette no. 118/05), members of the disability commissions are appointed, following nomination by the Director General, by the board of the Institute for a period of four years with the possibility of renewal of their period of appointment.

D. Decision of the Supreme Court of 7 November 2006

29. In its decision no. VIII Ips 3/2006 the Supreme Court held that the opinions of the Institute’s disability commissions could only be considered expert opinions in pre-judicial proceedings within the Institute itself. Such opinions could not be considered expert opinions for judicial proceedings since they would be the opinions of the representatives of one of the parties to the judicial proceedings. Accordingly, the Supreme Court held that the procedural rights of the appellant had been violated since the first-instance court had treated the opinions of the disability commissions as decisive pieces of evidence in dismissing her request to appoint an independent expert to assess her degree of disability.

E. The Constitutional Court Act

30. In so far as relevant, section 55b of the Constitutional Court Act (consolidated version published in the Official Gazette no. 64/2007), reads as follows:

“(1) A constitutional appeal shall be rejected:

i. if it does not concern an individual act by which a state authority, local authority, or a holder of a public position of authority decided on the rights, obligations or legal interest of the complainant;

ii. if the complainant does not have a legal interest in a decision on the constitutional appeal;

iii. if it is not admissible, except in the instance referred to in the third paragraph of the preceding section;

iv. if it was not lodged in due time;

...

(2) A constitutional appeal shall be accepted for consideration:

i. if there has been a violation of human rights or fundamental freedoms which has had significant consequences for the complainant; or

ii. if it concerns an important constitutional question which goes beyond the importance of the actual case ...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

31. The applicant complained that the fact that the courts had based their decisions on the opinions of the disability commissions violated his right to a fair hearing. He relied on Article 6 § 1 of the Convention, which in its relevant part reads as follows:

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

32. The Government contested that argument.

A. Admissibility

33. The Court notes that the application 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’ submissions

(a) The applicant

34. The applicant alleged that the fact that the courts had based their decisions on the opinions of the disability commissions of the Institute violated the principle of equality of arms.

35. He noted that the disability commissions were not independent bodies but were appointed by the opposing party (the Institute, see paragraph 28 above). Therefore there were reasonable grounds to suppose that the commissions had not acted impartially.

36. By citing the relevant parts of the first-instance court’s judgment (see paragraph 15 above), he argued that the first-instance court had attached special weight to the two opinions, using them as the decisive pieces of evidence - this had also been explicitly recognised by the higher court (see paragraph 17 above). He maintained that, according to the domestic case-law, the expert opinions should have only been considered as part of the submissions of the opposing party and not as independent evidence (see paragraph 29 above).

37. Referring to section 243 of the Civil Procedure Act (see paragraph 27 above) he further argued that the nature of the case was such that the courts could not have had the required medical knowledge to decide on the matters at hand without obtaining an independent expert opinion, and that therefore the court should have appointed such an expert to assess whether he needed professional medical assistance in the light of his state of health.

38. Finally, the applicant disagreed with the Government’s arguments that it had been prima facie evident from the case file that he did not need professional assistance and that his general practitioner had also not indicated such a need in the application to raise his allowance (see paragraph 41 below). He stressed that his general practitioner in this application had explicitly argued that he required permanent medical care by at least one care assistant (see paragraph 8 above).

(a) The Government

39. The Government argued that it was for the national court to assess the evidence before them and to decide which evidence would be produced for the establishment of facts. They referred to the domestic rules on civil procedure (see paragraphs 24-27 above) and stressed that the taking of evidence had been conducted in accordance with those rules.

40. They further considered that the domestic courts had given adequate and clear reasons for the dismissal of the applicant’s application to seek an expert opinion.

41. They rejected the applicant’s allegations that the court had reached a decision despite contradictory evidence in the case file. They maintained that the evidence before the court had clearly confirmed that the applicant did not require professional assistance. Nor had such requirements been outlined in the general practitioner’s application for an increase in the allowance (see paragraph 8 above).

42. They further averred that no special weight had been attached to the opinions of the expert commissions but that the court had carried out a comprehensive assessment of all the evidence proposed, giving significant weight to the testimony of the applicant, who had, inter alia, testified that he had not been receiving assistance from a professional.

43. Finally, they argued that the fact that the disability commissions had been linked to the opposing party in the proceedings had not in itself meant that they had been biased since their opinions had been issued in accordance with the rules of medical science and of their profession. They thus asked the Court to confirm that there had been no violation of Article 6 in the present case.

2. The Court’s assessment

(a) General principles

44. The Court wishes to reiterate firstly that, in so far as the parties’ arguments may be understood as concerning the assessment of evidence and the result of the proceedings before the domestic courts, it is not the Court’s function to deal with errors of fact or law allegedly committed by a national court, unless they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). Its jurisdiction in the present proceedings is therefore confined to determining whether the circumstances of the present case disclose a violation of the Convention, more specifically of Article 6 § 1 thereof.

45. While Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see, for instance, Schenk v. Switzerland, 12 July 1988, §§ 45-46, Series A no. 140). Article 6 § 1 of the Convention does not bar the national courts from relying on expert opinions drawn up by specialised bodies to resolve the disputes before them when this is required by the nature of the issues under consideration (see Csősz v. Hungary, no. 34418/04, § 34, 29 January 2008, and Fazliyski v. Bulgaria, no. 40908/05, § 59, 16 April 2013).

46. However, the principle of equality of arms, which is one of the elements of the broader concept of a fair hearing, requires each party to be given a reasonable opportunity to present its case under conditions that do not place it at a substantial disadvantage vis-à-vis its opponent (see, among many other authorities, Nideröst-Huber v. Switzerland, 18 February 1997, § 23, Reports of Judgments and Decisions 1997-I; Kress v. France [GC], no. 39594/98, § 72, ECHR 2001-VI; Yvon v. France, no. 44962/98, § 31, ECHR 2003-V; and Gorraiz Lizarraga and Others v. Spain, no. 62543/00, § 56, ECHR 2004-III).

47. The Court also reiterates that it has already held that an opinion of a medical expert, as it falls outside the probable area of expertise of judges, is likely to have a preponderant influence on the assessment of the facts and to be considered as an essential piece of evidence (see Feldbrugge v. the Netherlands, 29 May 1986, § 44, Series A no. 99; Mantovanelli v. France, 18 March 1997, § 36, Reports of Judgments and Decisions 1997-II; and Augusto v. France, no. 71665/01, § 51, 11 January 2007).

48. In this connection, the Court reiterates that it has recognised in its case-law that a lack of neutrality on the part of an appointed expert may in certain circumstances give rise to a breach of the principle of equality of arms (see, for instance, Sara Lind Eggertsdóttir v. Iceland, no. 31930/04, § 47, 5 July 2007; Placì v. Italy, no. 48754/11, § 79, 21 January 2014; and Sarıdaş v. Turkey, no. 6341/10, § 35, 7 July 2015).

(b) Application of these principles to the present case

49. The Court initially notes that the disability allowance claimed by the applicant was purely financial in nature; it was determined on the basis of specific criteria and not dependent on the discretion of a state authority. The Court considers that the domestic proceedings concerned the applicant’s civil rights within the meaning of Article 6 (see Feldbrugge, cited above, § 40; Deumeland v. Germany, 29 May 1986, § 74, Series A no. 100; Francesco Lombardo v. Italy, 26 November 1992, § 17, Series A no. 249-B; and Mihailov v. Bulgaria, no. 52367/99, § 34, 21 July 2005).

50. It also observes that under domestic legislation the social courts serve as judicial bodies which have full jurisdiction to review the decisions taken by the administrative authorities (see, mutatis mutandis, Grande Stevens and Others v. Italy, nos. 18640/10, 18647/10, 18663/10, 18668/10 and 18698/10, § 139, 4 March 2014).

51. The Court notes that in the present case the opinions of the Institute’s disability commissions were neither ordered by the domestic courts nor were they explicitly referred to by the domestic courts as expert opinions. They were, however, obtained and treated as such in the pre-judicial proceedings before the Institute (later the opposing party in the applicant’s judicial proceedings). Moreover, they were, for all practical purposes, regarded by the domestic courts as expert medical evidence. The present case therefore has similarities to those cases in which the Court examined the issue of neutrality of court-appointed experts (see Bönisch v. Austria, 6 May 1985, § 33, Series A no. 92; Sara Lind Eggertsdóttir, cited above, § 47; and Placì, cited above, § 79; see also, mutatis mutandis, Yvon, cited above, § 37).

52. The Court reiterates that in Sara Lind Eggertsdóttir (cited above, §§ 47-55) it found a violation of Article 6 § 1 on account of non-compliance with the principle of equality of arms by taking into account three factors: (1) the nature of the task entrusted to the experts; (2) the experts’ position within the hierarchy of the opposing party; and (3) their role in the proceedings, in particular the weight attached by the court to their opinions.

53. As to the first factor, the Court observes that the task of the disability commissions was to provide medical expertise to the administration of the Pensions and Invalidity Institute when deciding on claims for allowances based on national insurance schemes.

54. As to the second factor, the Court notes that the disability commissions were dependent on the Institute since their members were appointed by the board of the Institute following nomination by the Institute’s director (see paragraph 28 above). Therefore the method of their appointment justifiably gave rise to the applicant’s suspicion that they would not be able to act impartially (see, mutatis mutandis, Mihailov, cited above, § 37). While such suspicions may have a certain importance, they are not decisive; what is decisive is whether the doubts raised by appearances can be objectively validated (see Brandstetter v. Austria, 28 August 1991, § 44, Series A no. 211).

55. In this connection, and with reference to the third factor (the experts’ role in proceedings), the Court agrees with the applicant that it appears from both the first- and second-instance courts’ decisions that the first-instance court based its judgment on the opinions of the disability commissions (see paragraphs 15 and 17 above). It notes that in the proceedings before the Institute the task of the commissions was to examine whether the applicant’s condition had deteriorated to the extent that he would have been entitled to a higher allowance. They were not required to give general advice on a particular subject, but rather to make findings on specific facts and to assess the applicant’s state of health. The aim was to assist the Institute in deciding whether the applicant was entitled to a higher allowance with regard to his exact state of health at that time (see, similarly, Sara Lind Eggertsdóttir, cited above, § 51; Shulepova v. Russia, no. 34449/03, § 65, 11 December 2008; and Placì, cited above, § 77). The conclusions of the disability commissions were directly decisive in assessing the rights at issue (see, similarly, Mihailov, cited above, § 34).

56. The Court further notes that the applicant did not have the opportunity to challenge the findings of the commissions since his application to have the courts appoint an independent expert were dismissed on the grounds that the commissions had already made an adequate assessment of the documentation in the applicant’s medical file (see paragraph 15 above). The appellate court confirmed this decision of the first-instance court, also stating that it was based on the opinions of the commission. This left the opinions of the commission as the decisive evidence relied on by the courts to determine the issue in a case which certainly required expert knowledge, arguably not at hand in the court itself. Such reasoning by the domestic courts further highlights the dominant role of the Institute’s disability commissions (see, similarly, Placì, cited above, § 78). In this light, the fact that the domestic court also heard testimony from the applicant and had regard to other material in the file before dismissing the claim, is not sufficient for the Court to decide that the proceedings complied with the Convention requirements.

57. The Court is therefore unable to conclude that the applicant’s procedural position was on a par with that of his adversary, a State-run social protection body, as required by the principle of equality of arms.

There has accordingly been a violation of Article 6 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

58. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damages

59. The applicant claimed 76,717.08 euros (EUR) as a lump sum and a further EUR 6,126.77 per month from February 2015 in respect of pecuniary damage, and EUR 30,000 in respect of non-pecuniary damage.

60. The Government contested the claim. They argued that no causal link existed between the alleged violation and the pecuniary damages sought. They further argued that the applicant’s claim for non-pecuniary damages was unfounded and excessive.

61. The Court does not discern any causal link between the violation found and the pecuniary damages sought; it therefore rejects this claim. Concerning non-pecuniary damage, the Court considers that the applicant can be considered to have suffered a certain amount of distress on account of the violation found. Deciding on an equitable basis, it awards the applicant EUR 5,000 in this respect.

B. Costs and expenses

62. The applicant also claimed EUR 4,764.48 for costs and expenses incurred before the domestic courts and EUR 2,800 for those incurred before the Court.

63. The Government rejected the claim for costs and expenses incurred before the domestic courts and contested the claim for the proceedings before the Court as excessively high.

64. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and to the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 2,800 for the proceedings before the Court.

C. Default interest

65. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,800 (two thousand eight hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 8 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Angelika Nußberger
Registrar President

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