CASE OF T.G. v. CROATIA
Remainder inadmissible (Article 35-3-a - Manifestly ill-founded);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms)
Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković
6. The applicant was born in 1974. 7. In February 2011, after holding a firearms licence and a hunting permit for about ten years, the applicant asked the S. Police Department (hereinafter: “the police”) to renew his firearms licence for hunting purposes. He did not live in Croatia but went hunting when he spent holidays there. 8. When submitting his request the applicant relied on a certificate of the Ministry of Health (Ministartsvo zdravstva Republike Hrvatske) attesting that he was healthy and thus capable of carrying firearms. 9. Following the applicant’s request the police carried out a background check. A report of 22 February 2011, available in the file, contains a finding of the police that the applicant had often been under the influence of alcohol when visiting Croatia. 10. On 18 August 2011 the applicant was summoned by the police to give a statement concerning the intention of a weapons commission not to renew his firearms licence. The applicant denied any alcohol abuse and stated that he had been a hunter for several years and that, if necessary, he could undergo any test concerning his health and the alleged drinking problem. 11. In a further written statement dated 19 August 2011 the applicant contended that hunting was his hobby and that his membership of a hunting association was related to his social status. He denied any allegations of alcohol abuse and argued that there were no justified reasons for a refusal to renew his firearms licence. 12. On 23 August 2011 the applicant made the same objections through a lawyer. He stressed that his request for renewal of the firearms licence could not be refused merely because somebody had allegedly said that he was a drinker. 13. On the same day the police dismissed the applicant’s request for renewal of his firearms licence and ordered him to hand over his weapons on the grounds that a police inquiry had shown that he had a problem of alcohol abuse. 14. The applicant challenged this decision before the Ministry of the Interior (Ministarstvo unutarnjih poslova Republike Hrvatske, hereinafter “the Ministry”), arguing that he had been falsely accused by some neighbours and that there was no evidence of any drinking problem. He also stressed that hunting allowed him to see his friends, and that those who had made the allegations against him did not really know him. 15. On 11 October 2011 the Ministry ordered the police to produce a new assessment of the background check on the applicant, on the grounds that the report of 22 February 2011 (see paragraph 9 above) had not been substantiated with the relevant evidence. 16. On 9 November 2011 the police produced a new report on the background check on the applicant. The report, which was available in the file, provided further details on the applicant’s alleged alcohol abuse, which had been confirmed by his neighbours in Croatia. The report explained that all the relevant details concerning the sources of this information were classified as confidential information. 17. On 12 December 2011 the Ministry dismissed the applicant’s complaints, on the grounds that the documents from the case file suggested that he had a problem of alcohol abuse. 18. On 6 February 2012 the applicant lodged an administrative action in the Administrative Court challenging the Ministry’s decision. He contended that the refusal to renew his firearms licence had been based on mere insinuations, and that there had been no relevant evidence to support the findings of the police. In particular, he contended that he had never been registered as a person with a problem of alcohol abuse and he had never been convicted of an offence related to the abuse of alcohol. In his view, the police based its conclusion only on the basis of gossips of his neighbours in Croatia. 19. On 14 April 2012 the applicant asked the police to disclose the relevant reports containing the allegations against him, in particular the identity of those who had seen him under the influence of alcohol and the date and place when that had happened. On 1 March 2012 he received a reply that the information which he requested could not be disclosed since it was confidential (see paragraph 16 above), as provided under the relevant domestic law (see paragraphs 31-32 below). 20. On 26 April 2012 the Administrative Court held a hearing at which it heard the parties’ arguments. The applicant’s representative stressed that the police had failed to produce any credible evidence justifying the refusal to renew the applicant’s firearms licence. He also considered that it was not clear on which grounds the police had dismissed the applicant’s request. The Ministry’s representative explained that further details of the applicant’s background check, in particular the names of individuals from whom the relevant information had been obtained, were confidential as provided under the Confidentiality of Information Act. 21. As the parties did not have any further proposals for the examination of evidence, the Administrative Court concluded the proceedings and scheduled a hearing for the delivery of the judgment for 4 May 2012. 22. On 27 April 2012 the Administrative Court found that the judgment could not be delivered,, and ordered the Ministry to provide the confidential case file containing the details of the information on the applicant’s background check. It explained that the file at issue would be inspected by the judges and would not become part of the Administrative Court’s case file. 23. At a hearing on 17 May 2012 the Administrative Court examined the confidential file of the police without the presence of the parties. Afterwards, in the resumed hearing in the parties’ presence, the applicant’s representative reiterated his arguments that the applicant did not have a drinking problem. He did not seek examination of further evidence. 24. On 23 May 2012 the Administrative Court dismissed the applicant’s administrative action and upheld the decisions of the administrative bodies refusing to renew the applicant’s firearms licence. It explained that it was satisfied from the examination of the confidential reports that the reasons for the police’s refusal to renew the applicant’s firearms licence were well founded. It also held that the medical certificate attesting that the applicant was healthy and capable of carrying firearms did not call these findings into question, as that was only one element in the assessment of an individual’s suitability to be granted a firearms licence. The relevant part of the Administrative Court’s decision reads: “By examining the classified file of the defendant the court ... established that the police officer’s conduct, while searching for and collecting information from citizens, ... was in accordance with the By-law on the conduct of the police in the procedure for issuing a licence for the procurement of weapons to a natural person ... and, based on data and information collected from interviewed citizens, found that the plaintiff is prone to common and excessive alcohol abuse, which indicates a possibility of weapons abuse. ... Consequently, the plaintiff’s claim that the defendant wrongly applied the substantive law, is unfounded, while the plaintiff’s objection that the medical certificate is sufficient evidence showing that the defendant wrongly determined the facts of the case was not accepted by this court because the medical fitness for possessing and carrying weapons which is established through a certificate of medical fitness is only a special requirement for the weapons acquisition permit to natural persons within the meaning of section 10 paragraph 3(1) of the Weapons Act, while the defendant acting in accordance with the [above-cited] By-law ... established that the plaintiff does not meet the requirement of section Article 10(5) of the Weapons Act, as one of the general requirements which natural persons need to meet in order to be issued a firearms licence.” 25. The applicant challenged this decision before the Constitutional Court (Ustavni sud Republike Hrvatske), complaining that he had been denied access to the evidence containing allegations against him and that therefore he had been left without any opportunity to challenge those allegations. He also argued that his right to respect for his private life had been breached by the unjustified refusal to extend his firearms licence, which prevented him from hunting. In this connection he explained that he had been a hunter for over ten years, and that hunting was his way of maintaining contact with his friends. 26. In support of his constitutional complaint the applicant submitted a list of signatures of his neighbours attesting that he did not have a problem of alcohol abuse. He also submitted a medical certificate indicating that he had no problem of alcohol abuse. 27. On 6 February 2014 the Constitutional Court dismissed the applicant’s constitutional complaint as unfounded. It explained that it was primarily the function of the relevant authorities to examine the facts and apply the relevant law and that it was not its function to deal with alleged errors of law or fact, in so far as they had not infringed human rights and freedoms guaranteed under the Constitution. The Constitutional Court held that since the applicant had had access to the police reports on his background check, which contained details for dismissing his request (see Bakırcı the reports referred to in paragraphs 9 and 16 above), the fact that further details on which those report had been based, including personal details about individuals who had provided information to the police, had not been disclosed to him did not infringe any of his rights. 28. The decision of the Constitutional Court was served on the applicant’s representative on 18 February 2014.