BILOGLAV v. CROATIA
Inadmissible
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Georges Ravarani;Ksenija Turković
1. The applicant, Mr Leonardo Biloglav, is a Croatian national who was born in 1965 and lives in Zagreb. He was represented before the Court by Mr M. Čaržavec, a lawyer practising in Zagreb. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant was a soldier in the Croatian Army. He was wounded in the war in 1991 but continued to serve in the army until he was honourably discharged in 2013. 5. On 11 September 2012 a medical board of the Ministry of Defence (Ministarstvo obrane Republike Hrvatske) declared the applicant medically unfit for military service. The decision was based on his medical records. He was informed that he could appeal against that decision to the Ministry’s second-instance medical board. 6. The applicant appealed. On 3 October 2012 he was summoned to appear before the second-instance medical board and to submit further medical documentation concerning his condition. The applicant failed to appear and did not provide any further medical documentation. 7. On 10 January 2013 the second-instance medical board dismissed his appeal as unfounded, on the grounds that given his failure to appear before the board and in view of the available documentation, there was no reason to call into question the existing medical assessment of his condition. The applicant was informed that he could challenge the Ministry’s decision by lodging an administrative action with the Administrative Court, which, however, did not have suspensive effect. 8. The decisions of the Ministry’s medical board became final and enforceable on 21 January 2013. 9. On 11 February 2013 the applicant lodged an administrative action with the Zagreb Administrative Court (Upravni sud u Zagrebu) challenging the decision of the Ministry’s medical board of 10 January 2013. He argued that the Ministry’s assessment of his fitness for military service was flawed and unfounded. He contended in particular that he had never been properly summoned or examined by the Ministry’s medical board and that their findings contradicted the fact that he had carried out all his military assignments efficiently and had even participated in a mission to Afghanistan. 10. On 13 September 2013, after hearing the parties’ arguments and examining further submissions from them, the Zagreb Administrative Court declared the applicant’s administrative action inadmissible on the grounds that the Ministry’s medical board was not a public authority against whose decisions an administrative action could be lodged, and that the applicant could only lodge an action against the Ministry’s decision to terminate his employment in the army. 11. The applicant then lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) complaining, in particular, that he did not have access to court concerning the assessment of his fitness for military service. 12. On 30 October 2013 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded. That decision was served on the applicant on 18 November 2013. 13. On 12 February 2013 the Ministry’s department for human resources terminated the applicant’s service in the army by an honourable discharge. It ordered that the discharge would take effect on 20 February 2013. The Ministry relied on section 189(1) of the Military Service Act, providing that military service would terminate ex lege thirty days after the decision of a medical board declaring a soldier medically unfit for military service became final (see paragraph 19 below). 14. The decision on the applicant’s discharge from the army was confirmed on appeal by a second-instance administrative body within the Ministry on 21 June 2013. 15. On 30 July 2013 the applicant lodged an administrative action in the Zagreb Administrative Court challenging the decision on the termination of his military service. He contended in particular that he had not been able to participate effectively in the proceedings before the Ministry’s medical board concerning the assessment of his fitness for military service. He also reiterated his complaints concerning the alleged failures of the medical board to properly assess his medical condition. 16. During the proceedings, the Zagreb Administrative Court heard the applicant and obtained the parties’ further written submissions on the matter of the termination of the applicant’s employment in the army. Concerning the applicant’s allegations of inadequacy of the assessment of his fitness for military service, the Administrative Court heard B.B., who had presided over the Ministry’s first-instance medical board. B.B. was also questioned by the applicant and his representative. He explained the methodology and procedures applied for the assessment of the applicant’s fitness for military service, and stressed that the available medical documentation in the applicant’s case had suggested that he was not medically fit for military service. 17. On 5 December 2014 the Zagreb Administrative Court dismissed the applicant’s administrative action. It examined in detail the manner in which the applicant’s unfitness for military service had been established and found that there was nothing in the procedure or findings of the medical board which would raise doubt as to the necessity of the applicant’s discharge from the army. 18. The relevant Military Service Act (Zakon o službi u oružanim snagama Republike Hrvatske, Official Gazette nos. 33/2002, 58/2002, 175/2003, 136/2004, 76/2007, 88/2009 and 124/2009) provided in section 188(1) that the military service could terminate only in the following circumstances: (1) ex lege under the conditions provided for in that Act; (2) on the basis of a personal request; (3) by the expiry of a term for which an individual was recruited; (4) by dismissal; (5) by the expiry of the probationary period; and (6) on the basis of an agreement. 19. In section 189(1) the Military Service Act provided: “(1) Military service shall terminate ex lege ... by a decision of a medical board declaring [a soldier] medically unfit for military service – thirty days after the decision becomes final.” 20. The Government provided several decisions of the Administrative Courts declaring inadmissible administrative actions against decisions of the Ministry’s medical board on the assessment of appellants’ fitness for military service (Us-894/2002-5 of 20 November 2002; Us-3009/2003-6 of 8 March 2007; UsI-3938/12-8 of 28 March 2013 and UsI-709/13-4 of 3 March 2014). 21. These decisions of the Administrative Courts are based on findings that the Ministry’s medical board was not a public authority against whose decisions an administrative action could be lodged, and that further administrative actions could be lodged against any further administrative decisions based on the findings of the medical board. 22. The parties also provided several decisions of the Administrative Courts upholding the findings of the Ministry’s medical board in administrative proceedings against decisions terminating appellants’ employment in the army (Us-2993/2002-5 of 20 November 2002; UsI-2619/13-10 of 25 February 2014 and UsI-2543/13-7 of 28 May 2014).