CASE OF KRUNOSLAVA ZOVKO v. CROATIA
No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Equality of arms)
Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković
5. The applicant was born in 1965 and lives in Samobor. 6. On 20 April 2009 she sustained an injury in a car accident while returning home from work. On 8 May 2009 her injury was recognised as a work-related injury by the Croatian Health Insurance Fund for Health Protection at Work (Hrvatski zavod za zdravstveno osiguranje zaštite zdravlja na radu). On the basis of her work-related injury the applicant was granted sick leave between 21 April 2009 and 3 July 2009. 7. On 26 October 2011 the applicant visited the Emergency Medicine Centre of the University Hospital Centre Zagreb (Centar za hitnu medicinu Kliničkog bolničkog centra Zagreb) owing to the pain in her neck and back. There it was established that she was suffering from a severely sore spine with a deformity. 8. The following day she visited her chosen general practitioner, who found that the applicant was unable to work and granted her sick leave starting from 27 October 2011 on the basis of an illness. 9. On 3 November 2011 the applicant lodged a complaint against her general practitioner’s assessment of the reason for her sick leave. She argued that she should be granted sick leave entitlement on the basis of the work-related injury that she had sustained on 20 April 2009. She submitted medical documentation in support of her argument. 10. Following the lodging of the complaint, the applicant’s general practitioner referred the applicant for an expert medical evaluation, enclosing her medical documentation with the request for expert evaluation. 11. On 6 December 2011 an authorised doctor of the Zagreb Office of the Croatian Health Insurance Fund (Hrvatski zavod za zdravstveno osiguranje, Područni ured Zagreb – hereinafter “the Zagreb Office”), specialised in physical medicine and rehabilitation, examined the applicant’s medical documentation and reported finding no direct causal link between the work-related injury sustained by the applicant in 2009 and the sick leave she had begun on 27 October 2011. 12. The Zagreb Office forwarded the report to the applicant and informed her of her right to seek the delivery of a written decision on the matter of her sick leave entitlement. The applicant availed herself of that right and asked for a written decision. 13. By a decision of 23 January 2012 the Zagreb Office, relying on the report of 6 December 2011, refused the applicant’s request that the sick leave from 27 October 2011 be granted on the basis of her work-related injury. It also dismissed her claim for compensation for lost salary during the period of sick leave. 14. The applicant challenged this decision before the Central Office of the Fund (Hrvatski zavod za zdravstveno osiguranje, Direkcija – hereinafter “the Central Office”), submitting further medical documentation and requesting that her sick leave be granted on the basis of her work-related injury. 15. Following the appeal by the applicant, the Central Office asked an in-house medical commission to conduct an expert examination regarding the matter. On 16 March 2012 the medical commission, consisting of three doctors of medicine, examined the applicant’s overall medical documentation and reported that her sick leave from 27 October 2011 could not be granted on the basis of the work-related injury that she had sustained in 2009. 16. On 5 April 2012 the Central Office, relying on the findings of the medical commission, dismissed the applicant’s appeal and upheld the decision of the Zagreb Office. 17. The applicant then brought an administrative action in the Zagreb Administrative Court (Upravni sud u Zagrebu). She contested the findings of the Fund’s expert medical bodies, relied on her medical documentation and alleged that it indicated a causal link between the work-related injury she had sustained in 2009 and her sick leave. She requested that she be heard and that an expert medical report on the matter be obtained. 18. On 27 June 2012 the Central Office submitted a response to the applicant’s administrative action. This response was forwarded to the applicant. 19. On 27 August 2012 the Zagreb Administrative Court held a public hearing, to which the applicant was duly summoned. She did not attend the hearing, but was represented by a lawyer. Her lawyer reiterated the arguments adduced and evidence proposed in the administrative action. The representative of the Central Office contested this. The Zagreb Administrative Court then dismissed the proposal to hear the applicant and to obtain a further expert medical report on the matter and closed the hearing. 20. On 31 August 2012 the Zagreb Administrative Court dismissed the applicant’s action as unfounded. It stressed, in particular, that two expert medical bodies of the Fund, as well as the applicant’s chosen general practitioner, had established without a doubt that the applicant’s sick leave beginning on 27 October 2011 was not linked to the work-related injury she had sustained in 2009. It also stressed that the applicant, by the submissions in her administrative action, did not manage to put into doubt the findings of the expert medical bodies and that thus there was no need to hear her or to obtain a further expert medical report on the matter. 21. The applicant lodged a constitutional complaint, alleging that the proceedings had been unfair in that she had been excluded from the procedure of commissioning and obtaining the administrative authorities’ expert reports, whereas the Zagreb Administrative Court had refused to hear her and to obtain an independent expert medical report on the matter. 22. On 6 February 2013 the Constitutional Court dismissed the applicant’s constitutional complaint as manifestly ill-founded. This decision was served on the applicant’s representative on 22 February 2013.