CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 9 juillet 2020

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CROATIA (Application no. 67705/14)         JUDGMENT   STRASBOURG 9 July 2020             This judgment is final but it may be subject to editorial revision.   In the case of Idžanović v. Croatia, The European Court of Human Rights (First Section), sitting as a Committee composed of:   Pere Pastor Vilanova, President,   Jovan Ilievski,   Raffaele Sabato, judges, and Renata Degener, Deputy Section Registrar, Having regard to: the application 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, Mr   Tomo Idžanović (“the applicant”), on 7 October 2014; the decision to give notice to the Croatian Government (“the Government”) of the complaint concerning the lack of an oral hearing and to declare inadmissible the remainder of the application; the parties’ observations; the Government’s objection to the examination of the case by a Committee, which has not been upheld; Having deliberated in private on 16 June 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     In his application, the applicant complained that he had been denied an oral hearing in the administrative proceedings instituted by him, whereby he sought to have an injury sustained at his workplace recognised as a work ‑ related injury and to obtain benefits for his inability to work (“health ‑ insurance benefits”). He relied on Article 6 § 1 of the Convention. THE FACTS 2.     The applicant was born in 1971 and lives in Zagreb. He was represented by Ms B. Šojić Mićunović, a lawyer practising in Zagreb. 3.     The Government were represented by their Agent, Ms Š. Stažnik. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5.     On 3 May 2010 the applicant, an engineer employed in a private construction company, sustained an injury while he was at work. 6 .     On 14 May 2010 he instituted proceedings before the Zagreb Office of the Croatian Fund for Health Insurance at Work ( Hrvatski zavod za zdravstveno osiguranje zaštite zdravlja na radu, Područna služba Zagreb – hereinafter “the Fund”) seeking to have his injury recognised as a work ‑ related injury and to be granted health-insurance benefits. He alleged that he had been loading an excavator onto a truck with his colleagues. Since he had left some work-related documents in the excavator (a work log, a worksheet and fuel invoices), he had climbed it to retrieve them and fallen on his arm on his way back down. 7 .     Meanwhile, he also lodged a complaint with the labour inspectorate and an inspection was carried out. The labour inspector took a statement from the applicant’s supervisor, who said that on the occasion in question the applicant had had to wait for a truck assigned to him to be prepared for departure to a construction site. He did not know why the applicant had climbed the excavator from which he had fallen since it had been loaded onto a truck assigned to another engineer for departure to a different construction site. The applicant’s supervisor further stated that he had not reported the applicant’s injury to the labour inspectorate as the applicant had been injured in a place where he had not been authorised to be. The labour inspector did not establish in his report why the applicant had climbed the machinery from which he had fallen. He did not take a statement from the applicant either. 8 .     In the proceedings before it, the Fund requested an expert report from an in-house medical board, which established that the applicant’s injury could have been caused by falling from the machinery as described by him. 9 .     The Fund also requested observations from the applicant’s employer concerning the circumstances in which his injury had occurred. In its submissions of 26 May and 13 October 2010, the employer company stated that: - the applicant had the necessary qualifications for his job as engineer, that he had been trained to perform his tasks safely, that there had been instructions for operating the machinery in question and that if the applicant had had to enter it for any reason, he should have known how to do it; - on the day in question the applicant had had to wait in a room for another truck (not the one on which the excavator from which he had fallen had been loaded) to be prepared for departure to a construction site; - the applicant had not performed any work on the machinery from which he had fallen for at least two weeks prior to the accident, so could not have left any work-related documents in it; - the applicant had neither been authorised to be where the injury had occurred, nor had climbing the machinery in question been in any way related to his work tasks. The employer also enclosed the labour inspector’s report in support of those allegations (see paragraph 7 above). The applicant was not asked either to comment on his employer’s observations or to give a statement on the matter. 10 .     In a decision of 29 November 2010 the Fund refused to recognise the applicant’s injury as a work-related injury and to grant him health-insurance benefits, finding that he should not have climbed the machinery since it had not been one of his work-related tasks. It based its decision on the applicant’s employer’s observations (see paragraph 9 above) and the labour inspector’s report (see paragraph 7 above), referring to section 6(1)(1) of the Occupational Health Insurance Act and section 3(1) of the Rules on the procedure for determining and recognising work-related injuries and occupational illnesses (see paragraph 19 below). 11 .     On 29 December 2010 the applicant brought an action for judicial review before the High Administrative Court ( Visoki upravni sud Republike Hrvatske ) against the Fund’s decision. He claimed that the Fund had failed to hear him in order to clarify why he had climbed the excavator, even though he had stated that he had left some work-related documents in it (see   paragraph 6 above). In a submission of 28 December 2012 he further claimed that he had been excluded from the taking of evidence in the proceedings before the Fund. Furthermore, he again stressed that the Fund had failed to hear him regarding the circumstances of the accident and explicitly requested an oral hearing. 12 .     On 3 October 2013 the High Administrative Court dismissed the applicant’s action, finding that the Fund had correctly established the facts of the case. Referring to section 34(1) to (3) of the Administrative Disputes Act in force at the material time (see paragraph 14 below), the court also dismissed the applicant’s request for an oral hearing, finding that, in view of the circumstances of the case, a hearing would not be justified. 13.     The applicant then lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ). He complained that, by refusing to hear him in person, the High Administrative Court had violated his constitutional right to a fair hearing. 14.     By a decision of 20 March 2014 the Constitutional Court declared inadmissible the applicant’s constitutional complaint, finding that the case did not raise any constitutional issue. RELEVANT LEGAL FRAMEWORK Administrative Disputes Act 15.     Section 34 of the Administrative Disputes Act 1978 ( Zakon o upravnim sporovima , Official Gazette nos. 53/91 with subsequent amendments), which was in force between 1 July 1978 and 31   December   2011, read as follows: “The [Administrative Court] shall decide administrative disputes in a closed session. The [Administrative Court] may decide to hold an oral hearing on account of the complexity of the dispute or if it otherwise finds it useful for better clarification of the matter at issue. For the same reasons, a party may request an oral hearing.” 16.     Section 76 of the Administrative Disputes Act 2010 ( Zakon o upravnim sporovima , Official Gazette nos. 20/10 with subsequent amendments), which has been in force since 1 January 2012, allows for the possibility to reopen proceedings on the basis of a judgment of the European Court of Human Rights. The text of that provision is reproduced in the case of Guberina v. Croatia (no. 23682/13, § 28, ECHR 2016). Occupational Health Insurance Act 17 .     Section 2 of the Occupational Health Insurance Act ( Zakon o zdravstvenom osiguranju zaštite zdravlja na radu , Official Gazette no.   85/06 with further amendments), which was in force between 3 August 2006 and 31 December 2010, provided that compulsory occupational health insurance was administered by the Fund. 18 .     Section 4(2) provided that compulsory occupational health insurance guaranteed rights in the event of a work-related injury or occupational illness. 19 .     Section 6(1)(1) provided that a work-related injury was an injury caused by direct and short-term mechanical, physical or chemical action and an injury caused by sudden changes in body position, sudden loading of the body or other changes in physiological condition of the body if there was a causal link between the injury and the performance of tasks and/or activities on the basis of which the injured person was insured. 20 .     Section 26(1) provided that insured persons exercised rights arising from compulsory occupational health insurance after the Fund had conducted proceedings for determining and recognising work-related injuries. Rules on the procedure for determining and recognising work ‑ related injuries and occupational illnesses 21.     Section 3(1) of the Rules on the procedure for determining and recognising work-related injuries and occupational illnesses ( Pravilnik o postupku utvrđivanja i priznavanja ozljede na radu i profesionalne bolesti , Official Gazette no. 125/07 with further amendments), which was in force between 1 January 2008 and 31 December 2010, provided that an injury was not recognised as work-related if it occurred as a result of wrongful, negligent or irresponsible conduct in the workplace or when performing business activities (for example, a fight in the workplace or during daily breaks, intentionally inflicting injuries on oneself or others, and so forth). Constitutional Court Act 22 .     Section 71(2) of the Constitutional Act on the Constitutional Court of the Republic of Croatia ( Ustavni zakon o Ustavnom sudu Republike Hrvatske , Official Gazette no. 99/99 with further amendments – “the Constitutional Court Act”), which has been in force since 24 September 1999, provides that a constitutional complaint will not be examined if it does not concern a violation of a constitutional right. THE LAW ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 23.     The applicant complained under Article 6 § 1 of the Convention that the above-mentioned proceedings had not been fair because an oral hearing had not been held. The relevant part of that provision reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent ... tribunal ...” Admissibility 24.     The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article   35 of the Convention. It must therefore be declared admissible. Merits The parties’ arguments (a)    The applicant 25 .     The applicant stated that his right to a fair hearing had been breached both in the proceedings before the Fund and in the subsequent judicial phase. He claimed that the Fund had not fully established the facts of the case since he had not been given an opportunity to comment on his employer’s observations. Nor had he been questioned as to why and/or on whose instructions he had climbed the excavator from which he had fallen. He also pointed to the fact that the Fund had assessed that climbing the machinery in question had not been one of his work-related tasks, even though it had not been determined what his work-related tasks had been. Subsequently, the High Administrative Court had failed to hold a hearing and question him regarding the circumstances in which his injury had occurred. (b)    The Government 26.     The Government submitted that the Court had given notice of the applicant’s complaint with a question specifically concerning the proceedings conducted before the relevant administrative authority, the Fund: “Did the fact that the applicant did not have an oral hearing in the administrative proceedings amount to a violation of the applicant’s right to a fair hearing as required by Article 6 § 1 of the Convention?” 27.     In this connection, the Government argued that, according to the well-established case-law of the Court, Article 6 of the Convention did not require that proceedings before administrative authorities comply with its institutional guarantees. In the present case, the Fund, which had dismissed the applicant’s request, could not be considered to be a court or a tribunal within the meaning of that provision. In particular, the Fund was a public authority that rendered decisions in unilateral proceedings which did not concern a “dispute over rights” or involve opposing parties. Therefore, in the Government’s view, Article 6 was not applicable to proceedings before the Fund. 28.     If the Court nevertheless found Article 6 applicable to the proceedings before the Fund, the Government argued that they had been conducted in accordance with domestic law and that the applicant had enjoyed all the procedural rights guaranteed by Article 6 of the Convention. He had had the opportunity to hire a lawyer, which he had done. At any time during the proceedings he could have inspected the case file or put forward additional arguments and evidence to prove the causal link between the injury he had sustained and his work-related tasks. 29 .     The Government emphasised that for the whole duration of the proceedings, including the judicial phase, the applicant had not denied that he had not been authorised to climb the excavator from which he had fallen. In his action for judicial review he had only reiterated that the reason he had climbed the excavator remained unestablished. However, in the Government’s view, that argument did not suggest that the applicant’s injury might have been related to his work-related tasks. Had the domestic authorities held a hearing and established that the applicant had indeed left some documents in the excavator, it would not have changed the fact that he had acted contrary to his work assignments. Such a finding would not therefore have led to a different conclusion as to whether the applicant’s injury could be recognised as a work-related injury. 30 .     In this connection, the Government concluded that the facts as established by the domestic authorities and those presented by the applicant did not contradict each other.   In addition, the applicant had failed to indicate any other crucial facts which remained undetermined or warranted further clarification. For that reason, since the relevant facts had been uncontested and sufficiently established, an oral hearing before the High Administrative Court would in no way have contributed to the case. On the contrary, it would have only unnecessarily prolonged the proceedings. Besides, neither the Fund nor the High Administrative Court had been required to hold a hearing under domestic law. The Court’s assessment 31.     As to the Government’s argument that notice of the applicant’s complaint was only given in respect of the above-mentioned administrative proceedings and not regarding the judicial phase, the Court notes that the applicant’s complaint, as seen from his submissions (see paragraph 27 above), concerns the entirety of the proceedings, including both the administrative and judicial phase. When giving notice of that complaint, the Court had no reason to limit the scope of the case to the proceedings before the Fund. The question posed at the communication stage must therefore be understood as also referring to the proceedings before the High Administrative Court. 32.     The Court first notes that it has already found violations of Article 6 § 1 of the Convention in cases raising similar issues (see Mitkova v.   the   former Yugoslav Republic of Macedonia , no. 48386/09, §§ 56-63, 15   October 2015; Mirovni Inštitut v. Slovenia , no. 32303/13, §§ 36-46, 13   March 2018; and Adžić v. Croatia (no. 2) , no. 19601/16, §§ 55-67, 2   May 2019). 33 .     In the present case, the Court observes that no oral hearing took place before the High Administrative Court or any other authority (see   paragraphs 8-10 and 12 above), and that the High Administrative Court acted as the first judicial instance. It was also the only judicial instance with full jurisdiction, that is to say jurisdiction that was not limited to questions of law, but that also extended to questions of fact (see paragraph 12 above). The scope of the judicial review before the Constitutional Court was, in contrast, limited to issues of constitutional law (see paragraph above 22 and likewise Mirovni Inštitut , cited above, §§ 36 and 39). 34 .     The Court further notes that medical experts established that the applicant’s injury could have been caused by falling from the machinery as described by him (see paragraph 8 above). However, the domestic authorities refused to recognise the injury as a work-related injury as they determined that it was not causally linked to his work assignments (see   paragraph 10 above). That conclusion was drawn on the basis of the employer’s observations and the report of the labour inspector, who did not take a statement from the applicant. After lodging his request with the Fund, the applicant was not asked to comment, either orally or in writing, on whether the manner in which he had been injured had been in connection with the performance of his work tasks (see paragraphs 6-10 above). 35 .     On the other hand, it should be noted that the applicant did provide an explanation as to why he had climbed the machinery from which he had fallen. In particular, he stated that he had left some work-related documents in it and expressly requested a hearing in order to clarify the circumstances in which the accident had occurred in view of that particular assertion (see   paragraphs 6 and 11 above). However, the High Administrative Court refused to schedule a hearing, referring to section 34 of the Administrative Disputes Act, on the grounds that a hearing would not be justified in the circumstances of the case (see paragraph 12 above). 36.     Having regard to the above considerations (see paragraphs 34 and 35 above), the Court cannot but note that the central issue in the proceedings in question was neither legal nor highly technical, but rather a purely factual issue which was disputed between the parties, namely whether at the time of the accident one of the applicant’s work-related tasks was to climb the machinery from which he had fallen (see paragraph 9 above). Therefore, although under domestic law the High Administrative Court was not required to hold an oral hearing (see paragraph 14 above), according to the well-established case-law of the Court, the applicant was in principle entitled to one. Only exceptional circumstances could have justified dispensing with a hearing (compare Stallinger and Kuso v. Austria , 23 April 1997, § 51, Reports of Judgments and Decisions 1997 ‑ II and see also paragraph 33 above in relation to Göç v. Turkey [GC], no. 36590/97, § 47, ECHR 2002 ‑ V, with further references). 37.     The Court notes that the High Administrative Court did not refer to any exceptional circumstances which would justify its refusal to hold an oral hearing. It also failed to provide reasoning as to why the applicant’s explanation for climbing the machinery in question lacked relevance for the adjudication of the case (see paragraph 12 above and contrast Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, §§ 18, 21 and 74, ECHR 2007 ‑ II). The Government, on the other hand, argued that the applicant had not contested the main allegation in the case, namely the lack of authorisation to climb that particular excavator at the time of the accident (see paragraph 9 above). For that reason, in the Government’s view, a hearing would not have contributed to establishing facts relevant to the merits of the case. Rather, it would have only delayed the proceedings (see   paragraphs 29 and 30 above). 38 .     While it is true that the applicant did not expressly object to his employer’s allegation that he had not been authorised to be where he had been at the time of the accident, it cannot be ignored that he did give an explanation for his presence there (see paragraphs 6 and 25 above). The plausibility of that explanation was not verified by the domestic authorities (see paragraphs 7 and 9 above). In the Court’s opinion, that disputed aspect of the case can be said to have been relevant to the outcome of the proceedings, especially in view of the fact that the employer itself stated in the proceedings before the Fund that the applicant was a qualified engineer and that if he had had to enter the excavator for any reason, he should have known how to do it (see paragraph 9 above). The Court therefore dismisses the Government’s argument that the relevant facts in the instant case were uncontested and sufficiently and clearly established and concludes that there were no exceptional circumstances which justified dispensing with an oral hearing in the administrative proceedings at issue (see likewise Mitkova , §§   60-64, and Mirovni Inštitut , §§ 42-45, both cited above). 39.     As to the Government’s argument concerning the delay in the proceedings, the Court reiterates that demands of efficiency and economy alone cannot justify dispensing with a hearing, unless the case concerns exclusively legal or highly technical questions, or where there are no issues of credibility or contested facts which necessitate a hearing and the courts may fairly and reasonably decide the case on the basis of the parties’ submissions and other written material (see Adžić , cited above, § 62, with further references). As already noted above (see paragraph 38 above), such exceptional circumstances did not exist in the present case. 40.     Lastly, the Government’s argument fails to take into account that an oral hearing is also an opportunity for the parties to exchange oral arguments, the importance of which should not be underestimated, and for the court to clarify both factual and legal issues, in direct communication with the parties (ibid., § 64). 41.     The foregoing considerations are sufficient to enable the Court to conclude that dispensing with a hearing was not justified in the proceedings complained of. 42.     There has accordingly been a violation of Article   6 § 1 of the Convention. APPLICATION OF ARTICLE   41 OF THE CONVENTION 43.     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.” Damage 44.     The applicant claimed 9,300 euros (EUR) in respect of pecuniary damage and EUR 26,700 in respect of non-pecuniary damage. 45.     The Government contested these claims. 46.     The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. 47.     As regards non-pecuniary damage, the Court first notes that, under domestic law, the applicant has the possibility to seek the reopening of the domestic proceedings (see paragraph 15 above). It also considers that he must have sustained non-pecuniary damage which cannot be sufficiently compensated by the reopening of the proceedings. In these circumstances, ruling on an equitable basis, the Court awards the applicant EUR 1,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. Costs and expenses 48.     The applicant claimed EUR 840 for the costs incurred before domestic courts and EUR 1,680 for those incurred before the Court. He also claimed EUR 140 for postal and translation expenses incurred in the proceedings before the Court. 49.     The Government contested these claims as unsubstantiated. 50.     Regard being had to the documents in its possession and to its case ‑ law, the Court considers it reasonable to award the amounts sought by the applicant in full, that is to say EUR 840 for costs in the domestic proceedings and EUR 1,820 for the costs and expenses before the Court. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible; Holds that there has been a violation of Article 6 § 1 of the Convention; Holds, (a)   that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Croatian kunas at the rate applicable at the date of settlement: (i)         EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)       EUR 2,660 (two thousand six hundred and sixty 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;   Dismisses the remainder of the applicant’s claim for just satisfaction. Renata Degener   Pere Pastor Vilanova Deputy Registrar   President