CASE OF LETINČIĆ v. CROATIA
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing)
Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Georges Ravarani;Ksenija Turković
5. The applicant was born in 1988 and lives in Zagreb. 6. In 1993 the applicant’s father, Ž.L., who was a war veteran, killed the applicant’s mother and her parents and then committed suicide. 7. In 1996 the applicant, represented by his grandmother, sought family disability benefit in connection with the suicide of his father, arguing that the suicide was a consequence of mental derangement caused by his participation in the war. 8. On 19 June 1996 his request was dismissed by the competent Zagreb Office of the Ministry of Defence (Ministarstvo obrane) in charge of war veterans’ affairs on the grounds that the war veteran status of his father had not been established. In July 1996 the applicant challenged that decision before the Ministry of Defence, which accepted his appeal and on 12 December 1997 quashed the first-instance decision and remitted the case for re-examination on the grounds that the nature of the applicant’s request had not been adequately established. 9. Following several procedural decisions of the Zagreb Municipality Office with responsibility for war veterans’ affairs (hereinafter: the “Zagreb Office”) and the Ministry in charge of war veterans’ affairs (Ministarstvo branitelja i međugeneracijske solidarnosti; hereinafter: the “Ministry”), on 3 June 2004 the Administrative Court (Upravni sud Republike Hrvatske) ordered the Zagreb Office and the Ministry to examine the applicant’s request for family disability benefit on the merits, which the applicant should have a possibility to challenge if he was not be satisfied with the outcome. 10. On 8 November 2005 the Zagreb Office dismissed the applicant’s request on the grounds that nothing from the materials available in the case file suggested that the death of his father was a result of his participation in the war. 11. The applicant challenged this decision before the Ministry, and on 15 January 2006 the Ministry found that the facts of the case connecting the suicide of the applicant’s father to his participation in the war had never been clearly established. It thus ordered the Zagreb Office to clarify the matter by commissioning an expert report from the competent medical institution and to obtain the relevant witness statements concerning the applicant’s father’s wartime service. 12. On the basis of the Ministry’s instructions, the Zagreb Office commissioned an expert report concerning the question whether the suicide of the applicant’s father was related to his participation in the war from the Psychiatric Clinic of the Clinical Hospital Dubrava, Reference Centre of the Ministry of Health and Social Care for Stress-Induced Disorders, Regional Centre for Psychotrauma in Zagreb (Klinička bolnica Dubrava, Klinika za psihijatriju, Referentni centar Ministarstva zdravstva i socijalne skrbi za poremećaje uzrokovane stresom, Regionalni centar za psihotraumu Zagreb; hereinafter: the “Centre”), a public health care institution authorised by law to give expert opinions on matters related to war veterans’ psychiatric disorders (see paragraph 28 below). It also questioned two witnesses concerning the applicant’s father’s wartime service. 13. In an expert report dated 10 June 2007 addressed to the Zagreb Office, the Centre concluded, on the basis of the available medical reports and the statements of witnesses, that the applicant’s father had not developed any symptoms resulting in a psychiatric diagnosis linked to his participation in the war and that his suicide could not be attributed to his wartime service. This expert report was not forwarded to the applicant. 14. On 26 September 2007 the Zagreb Office dismissed the applicant’s request for the family disability benefit referring to the Centre’s expert report, which had not established any link between his father’s suicide and his participation in the war. 15. The applicant challenged the above decision before the Ministry, seeking remittal of the case to the Zagreb Office for further examination. He alleged that the Centre’s report was superficial, since it had not been commissioned with regard to all aspects of the events, such as the triple murder committed by his father. The applicant also considered the report to be illogical, given that before the war his father had had no psychiatric problems whereas after his wartime activities he had committed a triple murder and suicide, which made it difficult to accept that he had not developed some mental condition. The applicant further contended that another expert report should be commissioned from one of the permanent court experts in psychiatry, since the report produced by the Centre raised the issue of its independence. He also stressed that any expert opinion on the matter should necessarily be forwarded to him for comments before the adoption of a decision. 16. On 2 April 2008 the Ministry dismissed the applicant’s appeal on the grounds that the Centre’s report was conclusive that the suicide of his father had not been related to his participation in the war. 17. The applicant lodged an administrative action in the Administrative Court against the above decision, asking the Administrative Court to decide the case on the merits instead of remitting it to the administrative bodies. He pointed out that the proceedings had already lasted excessively long and that the administrative bodies had failed to comply effectively with the previous instructions of the Administrative Court. He therefore considered that the Administrative Court should itself decide the case on the merits, as provided under section 63 of the Administrative Disputes Act (see paragraph 25 below). The applicant also contended that, if the Administrative Court did not decide the case on the merits, it should quash the Ministry’s decision and remit the case for re-examination. 18. In his administrative action the applicant in particular pointed out that the Ministry had failed to reply to the specific arguments set out in his appeal against the first-instance decision of the Zagreb Office and had merely reiterated the findings of the first-instance decision. He also reiterated his appeal arguments that the Centre’s expert report was superficial and illogical, since it had not been commissioned with regard to all aspects of the events, such as the triple murder committed by his father, and that it had failed to take into account that before the war his father had had no psychiatric problems whereas after his wartime activities he had committed a triple murder and suicide. In these circumstances, the applicant stressed that under section 191 of the Administrative Disputes Act another expert report ought to be commissioned from the permanent court experts in psychiatry. 19. On 4 December 2008 the Administrative Court dismissed the applicant’s action as ill-founded. In particular, it stressed: “During the proceedings an expert report was commissioned, under section 123 § 1 (8) of the [Veterans Act], from the [Centre] and the report was produced on 10 June 2007. The report concluded that based on the relevant documents from the case file it did not find that Ž.L. had developed any symptoms resulting in a psychiatric diagnosis linked to his participation in the war ... Having these facts in mind, this court is of the opinion that the defendant acted lawfully when dismissing the appellant’s appeal against the first-instance decision ... It should also be noted that this court already held that the formation of an expert team [competent to determine] a possible link [between death and participation in the war], which [provides for] a decisive evidence within the meaning of section 123 § 1 (8) of the [Veterans Act], is a precondition for any further proceedings concerning the status of the family member of a deceased war veteran. The defendant therefore correctly dismissed the appeal against the first-instance decision and thereby it did not act contrary to the relevant law. This court did not find it necessary to act under section 63 of the Administrative Disputes Act given that, as already noted above, the administrative body complied with the instruction from the judgement no. Us-2377/00 [see paragraph 9 above] concerning the appellant’s request for family disability benefit, which is the subject matter of the proceedings at issue. Although the defendant did not expressly reply to the appeal arguments concerning the necessity to request a report with regard to [Ž.L.’s] act of triple murder, [the court finds] that it could not be a decisive factor for a decision in the proceedings at hand. This is because such a criminal act cannot be a basis for the establishment of a link between the death of the war veteran and his participation in [the war]...” 20. On 18 February 2009 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) arguing that his right to a fair trial in the proceedings had been violated. He contended in particular that the administrative bodies and the Administrative Court had ignored his request for an expert report to be commissioned from the permanent court experts and that he had been offered neither the possibility of participating in the choice of experts nor the opportunity to take cognisance of and comment on the expert opinion before the adoption of a decision during the proceedings. 21. On 27 May 2010 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded, noting that: “In his constitutional complaint, the complainant was unable to show that the Administrative Court had acted contrary to the constitutional provisions concerning human rights and fundamental freedoms or had arbitrarily interpreted the relevant statutory provisions. The Constitutional Court therefore finds that the present case does not raise an issue of the complainant’s constitutional rights. Thus, there is no constitutional law issue in the case for the Constitutional Court to decide on. ...” 22. The decision of the Constitutional Court was served on the applicant’s representative on 14 June 2010.