CASE OF KOROŠEC v. SLOVENIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Equality of arms)
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Vincent A. De Gaetano
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).