CASE OF BANOVIĆ v. CROATIA
Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court)
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
6. The applicant was born in 1984 and lives in Čavle. 7. On 28 February 1997 the applicant’s father, G.B., applied to the Rijeka Office of the Department for Croatian Homeland War Veterans and their Family Members (Odjel hrvatskih branitelja i članova njihovih obitelji Primorsko-goranske županije, područna jedinica Rijeka; hereinafter “the Rijeka Office”) for recognition of the status of a disabled war veteran, on the grounds that he had contracted tuberculosis and developed psychosis during his military service in 1995. 8. On 19 December 1997 G.B. died and the applicant took over the proceedings as his heir. 9. On 24 September 1998 the Rijeka Office dismissed the application. The relevant part of that decision reads as follows: “The case file was resubmitted to the Medical Committee, which established the following: - G.B ... served in the Homeland War ... from 9 October 1991 to 15 July 1992, from 15 July to 3 November 1992 and from 9 June to 19 July 1995; - during military service he contracted tuberculosis; - his mental health issues had been recognised much earlier; - the Medical Committee is of the opinion that his tuberculosis and psychosis have not been caused by his military service.” 10. The applicant lodged an appeal against that decision. On 24 February 1999 the Ministry in charge of the Homeland War Veterans affairs (Ministarstvo hrvatskih branitelja iz Domovinskog rata; later Ministarstvo obitelji, branitelja i međugeneracijske solidarnosti; hereinafter: the “Ministry”) dismissed the applicant’s appeal holding that the proceedings should have been terminated as G.B. had meanwhile died. 11. The applicant challenged that decision before the Administrative Court (Upravni sud Republike Hrvatske). 12. On 19 July 2000 the Administrative Court accepted the applicant’s administrative action, quashed the decision of the Ministry and remitted the case. 13. On 21 June 2001 the Ministry allowed the applicant’s appeal, quashed the decision of the Rijeka Office (see paragraph 9 above) but declared G.B.’s application inadmissible. It held that such application could only be lodged after a claimant had been discharged from the army, which was not the case in G.B.’s case. 14. The applicant lodged an administrative action against that decision. On 26 January 2006 the Administrative Court quashed the decision of the Ministry and remitted the case. The relevant part of that judgment reads as follows: “The administrative bodies’ decisions ... were rendered while the [old] Act on the Rights of Croatian Homeland War Veterans and their Family Members (Official Gazette nos. 108/96 and 23/01) was still in force. In the meantime, since the action was lodged and before this judgment was rendered, a new Act on the Rights of Croatian Homeland War Veterans and their Family Members entered into force and was published in Official Gazette no. 174 of 10 December 2004. Pursuant to section 158(2) of that Act, which entered into force on 1 January 2005, the proceedings instituted while the old legislation was still in force and in which the final decision has not yet been rendered should be decided under the new Act if more favourable for the Croatian Homeland War veteran. In the present case, on 1 January 2005, the date the Act on the Rights of Croatian Homeland War Veterans and their Family Members entered into force, the disputed decision of the defendant body was not final. The court therefore finds that the defendant body must decide the application in accordance with section 158(2) ... It is a specific legislative provision which requires the impugned decision to be quashed ... The defendant body shall decide, in the light of the provisions of the Act that govern the conditions and methods of recognition of disabled Croatian Homeland War veteran status, if more favourable for the claimant.” 15. On 20 May 2006 the Ministry allowed the applicant’s appeal, quashed the decision of the Rijeka Office (see paragraph 9 above) and remitted the case for re-examination. The relevant part of that decision reads as follows: “This Ministry has reconsidered the case and found that the appeal is well-founded, albeit for different reasons. Section 14 of the by-law on the Procedure before the Medical Committee for the Determination of Rights under the Act on the Rights of Croatian Homeland War Veterans and their Family Members provides that the First-Instance Medical Committee shall issue its opinion after examining the person [concerned] and the relevant medical and other documentation ... As [G.B.] was not examined in person before the First-Instance Medical Committee and cannot be examined, the first-instance body shall, in the fresh set of proceedings, terminate the proceedings relying on section 54 of the Administrative Procedure Act.” 16. On 12 September 2006 the social services department of the Primorsko-Goranska County Office of State Administration (Ured državne uprave u Primorsko-goranskoj županiji, Služba za društvene djelatnosti; hereinafter “the County Office”), which meanwhile became competent to examine the case, terminated the proceedings concerning G.B.’s recognition as a disabled war veteran on the grounds that due to his death, certain relevant facts could no longer be established. 17. The applicant appealed against that decision. On 21 April 2007 the Ministry allowed the applicant’s appeal and reversed the decision of the County Office. The relevant part of the decision reads as follows: “III: The deceased G.B ... is hereby recognised as a fourth category disabled Homeland War [veteran], with 80% damage to his body ... on the grounds that he contracted tuberculosis while defending the sovereignty of the Republic of Croatia. G.B. is entitled to: 1. Personal disability benefit ... 2. Supplementary benefit ... IV. The application for recognition of Homeland War [veteran] status on the grounds of psychosis is hereby denied. ... The case file was submitted to the competent Second-Instance Medical Committee on appeal which, in its opinion ... of 1 March 2007 established 80% permanent damage to the body ...” 18. This decision was served on the applicant in June 2007. 19. On 30 September 2011 the Supreme Court (Vrhovni sud Republike Hrvatske), in a single-judge formation, found a violation of the applicant’s right to a trial within reasonable time concerning the proceedings before the administrative authorities and the Administrative Court and awarded her compensation in the amount of 10,500 Croatian kunas (HRK). The applicant did not lodge further appeal against this decision before a panel of judges of the Supreme Court. 20. On 2 July 2007 the applicant applied before the County Office for recognition as the family member of a fallen war veteran and family disability benefit. 21. On 4 July 2007 the County Office declared the applicant’s application inadmissible as lodged out of time. The relevant part of that decision reads as follows: “Upon examining the case file it was established that the claimant lodged her application after the time-limit [set forth in] section 124 of the Act [on the Rights of Croatian Homeland War Veterans and their Family Members] had expired. Section 124(2) of the Act [stipulates that] where a Homeland War veteran has, before the entry into force of the Act, died of illness directly caused by his defence of the sovereignty of the Republic of Croatia, applications for recognition of status and ... disability benefit must be lodged within 12 months of the date of entry into force of the Act. The Act entered into force on 1 January 2005, which means that the deadline for lodging the application expired on 31 December 2005.” 22. The applicant appealed against that decision. On 20 December 2007 the Ministry dismissed the applicant’s appeal, endorsing the reasoning of the first-instance administrative body. The relevant part of that decision reads as follows: “Upon appeal, and after examining the case file, it was established that the [first-instance] decision is valid and had a basis in law. That is to say, after examining the evidence in the case file, it was established that the claimant lodged her application ... on 2 July 2007, arguing that her father died from TB, and from the death certificate it is clear that he died on 19 December 1997. ... section 124(2) of the Act stipulates that where a Homeland War veteran has, before the entry into force of the Act, died of illness directly caused by his defence of the sovereignty of the Republic of Croatia, applications for recognition of status and for disability benefit must be lodged within 12 months of the date of entry into force of the Act (that is to say, on 31 December 2005 at latest). As the claimant lodged her request on 2 July 2007, that is to say after the (preclusive) statutory time-limit, which cannot be prolonged upon a party’s request or of [the administrative body’s] own motion, and the appeal reasons do not influence the reasoning in this case, the appeal is hereby dismissed.” 23. The applicant challenged that decision before the Administrative Court, arguing that the decisions of the administrative bodies had been unfair and overly formalistic, effectively depriving her of her right to disability benefit. Specifically, she argued that the final decision on her father’s status had only been rendered on 21 April 2007 and had been served on her on 15 June 2007. In her view, she was only able to lodge her request after 15 June 2007, as an earlier request would have been premature and ill-founded. 24. On 17 June 2009 the Administrative Court dismissed the applicant’s action, endorsing the reasoning of the administrative bodies. The relevant part of that judgment reads as follows: “... the claimant lodged her application ... on 2 July 2007. Section 124(2) of the ... Act stipulates that where a Homeland War veteran has, before the entry into force of the Act, died of illness directly caused by his defence of the sovereignty of the Republic of Croatia, applications for recognition of status and for disability benefit must be lodged within 12 months of the date of entry into force of the Act. As the Act entered into force on 1 January 2005 the application could have been lodged by 31 December 2005. It was not disputed that the claimant lodged her application on 2 July 2007, that is to say after the expiry of the time-limit stipulated in section 124(2) of the Act, and therefore this Court finds that the decision of the defendant body was well-founded. The claimant’s allegations in her administrative action are therefore ill-founded and irrelevant. In addition, it is noted that the claimant took over proceedings from her late father ... However, they were separate proceedings establishing the claimant’s late father’s status as a disabled Homeland War veteran, and not the proceedings establishing the status of a family member of a fallen Homeland War veteran and the right to family disability benefit ...” 25. The applicant further lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) against that judgment. She reiterated her arguments from the administrative action, adding that the domestic authorities had spent ten years trying to establish her late father’s status, which could have only been used as the legal basis for her request after 15 June 2007. She also argued that her status was de facto recognised when she had been allowed to take over the proceedings after her late father, and that she was only lacking a declaratory recognition of her factual status. 26. On 3 December 2009 the Constitutional Court, endorsing the reasoning of the Administrative Court, declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded. This decision was served on the applicant on 12 January 2010.