Last Updated on September 26, 2023 by LawEuro
The case concerns administrative proceedings in which the applicant sought to obtain a disability pension in Croatia on account of the harm suffered during military combat in Bosnia and Herzegovina, pursuant to a bilateral agreement between the two countries.
CASE OF BULIĆ v. CROATIA
(Application no. 32997/15)
26 September 2023
This judgment is final but it may be subject to editorial revision.
In the case of Bulić v. Croatia,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Pauliine Koskelo, President,
Lorraine Schembri Orland,
Davor Derenčinović, judges,
and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the application (no. 32997/15) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 30 June 2015 by a national of Bosnia and Herzegovina and Croatia, Mr Davorin Bulić (“the applicant”), who was born in 1964 and lives in Čitluk (Bosnia and Herzegovina) and who was represented by Mr M. Bulić, his brother, and by Mr H. Vukadin, a lawyer practising in Zagreb;
the decision to give notice of the complaints under Article 6 § 1 of the Convention concerning the lack of fairness of the administrative proceedings to the Croatian Government (“the Government”), represented by their Agent, Ms Š. Stažnik, and to declare the remainder of the application inadmissible;
the decision of the Government of Bosnia and Herzegovina not to make use of their right to intervene in the proceedings (Article 36 § 1 of the Convention);
the parties’ observations;
Having deliberated in private on 5 September 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case concerns administrative proceedings in which the applicant sought to obtain a disability pension in Croatia on account of the harm suffered during military combat in Bosnia and Herzegovina, pursuant to a bilateral agreement between the two countries.
2. The applicant was a soldier of the Croatian Defence Council (Hrvatsko vijeće obrane) in Bosnia and Herzegovina. In 1994 a grenade exploded in his vicinity while he was on the front line of combat. He sustained injuries to his ribs and shoulder and suffered a psychological shock. On the basis of his injuries, in 2005 he was awarded the status of a disabled war veteran in Bosnia and Herzegovina and was granted a disability allowance in that country.
3. In 2006 he instituted administrative proceedings in Croatia, seeking to be granted a disability pension, reduced by the amount of the disability allowance granted in Bosnia and Herzegovina. He relied on a bilateral agreement concluded in 2005 between Croatia and Bosnia and Herzegovina which provided for such a possibility for soldiers of the Croatian Defence Council who had Croatian citizenship and whose disability had been caused by wounding or captivity (hereinafter: “the Agreement”).
4. The Croatian Pension Fund dismissed the applicant’s request relying on in-house expert reports which found that the applicant’s disability had been caused by his mental illness and “injuries” (povrede) and not “wounding” (ranjavanje), as required by the Agreement. On 24 June 2014 the Osijek Administrative Court upheld this decision.
5. On 11 December 2014 the Constitutional Court dismissed the applicant’s constitutional complaint as manifestly ill-founded. This decision was served on the applicant on 5 January 2015.
6. Before the Court the applicant complained, under Article 6 § 1 of the Convention, that he had not been afforded an effective opportunity to challenge the administrative authority’s expert reports used in determining the merits of his claim and that the domestic authorities’ decisions were arbitrary and lacked reasons with respect to the central issue of the case.
THE COURT’S ASSESSMENT
I. THE GOVERNMENT’S REQUEST TO STRIKE OUT THE APPLICATION UNDER ARTICLE 37 § 1 OF THE CONVENTION
7. After the failure of the attempt to reach a friendly settlement, on 24 April 2023 the Government submitted a unilateral declaration in which they acknowledged a violation of Article 6 § 1 of the Convention, offered to pay a sum of money to the applicant and invited the Court to strike the case out of the list of cases. The applicant requested the Court to continue the examination of his case, contending that the domestic proceedings, together with those before the Court, had already been pending too long.
8. Having regard to the criteria for assessment of unilateral declarations (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-76, ECHR 2003-VI; Gerasimov and Others v. Russia, nos. 29920/05 and 10 others, § 130, 1 July 2014; and Jeronovičs v. Latvia [GC], no. 44898/10, §§ 64-70, 5 July 2016), the Court considers that respect for human rights requires it to continue the examination of the case.
9. It notes that section 76(1) of the Croatian Administrative Disputes Act provides a possibility of seeking reopening of the proceedings solely on the basis of a judgment of the Court finding a violation of the Convention. There is apparently no domestic case-law on whether that possibility also exists in the event of a Court’s strike-out decision. Accordingly, the procedure for reopening proceedings, the most appropriate way of redressing the violation alleged in the present case, would not be available were the Court to accept the Government’s unilateral declaration (compare also Keskin v. the Netherlands, no. 2205/16, §§ 28-32, 19 January 2021 with further references; and contrast Alić v. Croatia (dec.) [Committee], no. 39158/21, 23 May 2023, concerning the newly introduced possibility to seek reopening of criminal proceedings on the basis of the Court’s strike-out decisions).
10. The Government’s request to strike the application out of the list must therefore be rejected.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
11. Without referring to any specific ground for inadmissibility, the Government objected that the signature on the application form by which the applicant had allegedly authorised his brother Mr. Bulić and lawyer H. Vukadin to represent him before the Court significantly differed from his signature on documents from domestic proceedings. The applicant replied that it was him who had signed the authority section of the application form and attached a copy of his signature verified by a public notary.
12. The Court considers that there is no reason to doubt that the applicant authorised his brother and lawyer to bring his case and represent him before the Court. The application is therefore compatible ratione personae with the provisions of the Convention for the purposes of Article 35 § 3(a) (compare and contrast Post v. the Netherlands (dec.), no. 21727/08, 20 January 2009).
13. It further finds that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.
14. The central question in the present case is whether the Croatian authorities’ conclusion that the harm suffered by the applicant during military combat in Bosnia and Herzegovina amounted to “injuries” and not “wounding” as required by the Agreement between the two countries in order to be awarded a disability pension in Croatia (see paragraph 4 above), could be considered as arbitrary or manifestly unreasonable (see López Ribalda and Others v. Spain [GC], nos. 1874/13 and 8567/13, § 149, 17 October 2019; De Tommaso v. Italy [GC], no. 43395/09, § 170, 23 February 2017, and Mont Blanc Trading Ltd and Antares Titanium Trading Ltd v. Ukraine, no. 11161/08, § 81, 14 January 2021).
15. The Court notes that in the applicant’s case neither the domestic authorities nor the expert reports on which they relied provided any reasons regarding the difference between “injuries” and “wounding”, nor why exactly the harm suffered by the applicant fell into the former category and not the latter.
16. In justifying the domestic authorities’ decisions, the Government advanced two arguments. Firstly, the decisions in the applicant’s case had been in line with the purpose of the Agreement and consistent with the domestic authorities’ practice on the matter. Secondly, the applicant’s disability had in any event been caused exclusively by his mental illness, implying that no issue arose from the fact that the authorities distinguished between “injuries” and “wounding”.
17. The Court notes at the outset that the Government’s latter argument is not supported by the expert reports, according to which both the applicant’s mental illness and his injuries sustained in military combat were causes of his disability (see paragraph 4 above).
18. The Court further notes that the Croatian law in force at the time stipulated that a Croatian war veteran could obtain a disability pension if his or her disability was caused by wounding, injury, captivity or illness. The law further stipulated that the rights of the members of the Croatian Defence Council would be regulated by an international agreement.
19. The Court observes that the Agreement concluded in 2005 between Croatia and Bosnia and Herzegovina stipulated that members of the Croatian Defence Council who had Croatian citizenship could obtain a disability pension in Croatia if their disability was caused by wounding or captivity. The Agreement did not define “wounding”.
20. The Government referred to several decisions of the administrative authorities and the administrative courts which held that “wounding” within the meaning of the Agreement was not the same as “injuries”, regardless of whether the harm was sustained in military combat. Specifically, in order to be considered “wounded”, one had to sustain “a penetration of a foreign object in bodily organs and/or cavities with consequent destruction of tissues and open communication of internal organs with the external environment”. Accordingly, contusions, blast injuries, bruising and bone fractures could not be considered “wounding”, but “injuries”, which fell out of scope of the Agreement.
21. It is not the Court’s task to establish whether the harm suffered by the applicant during military combat amounted to “wounding” within the meaning of the Agreement in order to be awarded a disability pension in Croatia, it being for the national courts to determine questions of that nature (see Hiro Balani v. Spain, 9 December 1994, § 28, Series A no. 303‑B).
22. In that connection, the Court notes that in a number of decisions the Constitutional Court found a breach of the complainants’ right to a fair trial holding that the interpretation making a distinction between “injuries” and “wounding” sustained as a result of enemy activity during military combat was artificial and therefore arbitrary, excessively formalistic and contrary to the purpose of the Agreement (see, for instance, U-III-4403/2018 of 11 September 2019, U-IIIA-2199/2020 of 10 June 2020, U-IIIB-4003/2020 of 1 October 2020, U-III-4438/2019 of 3 November 2020, U-III-1920/2019 of 10 March 2021, and U-III-4219/2019 of 22 April 2021).
23. The Court therefore cannot but conclude that such an interpretation in the case of the applicant, who was harmed in the first line of combat as a result of an enemy grenade exploding in his vicinity (see paragraph 2 above), was also arbitrary.
24. The foregoing considerations are sufficient for the Court to hold that in the present case there has been a violation of Article 6 § 1 of the Convention. It is therefore not necessary for the Court to examine whether the applicant was afforded an effective opportunity to challenge the administrative authority’s expert reports used in determining the merits of his claim, as required by Article 6.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
25. The applicant claimed 5,400 euros (EUR) as compensation without specifying whether that amount concerned pecuniary or non-pecuniary damage. He contended that the amount sought was fair since it represented “an equivalent of the three-year difference between his disability allowance in Bosnia and Herzegovina and the disability pension he would have received in Croatia”. He also claimed EUR 5,041 in respect of costs and expenses incurred before the domestic authorities and the Court.
26. The Government contested these claims.
27. The Court finds that in the present case the most appropriate way of repairing the consequences of the violation found is to reopen the proceedings complained of, a possibility available to the applicant under section 76(1) of the Croatian Administrative Disputes Act (see paragraph 9 above). Since in the reopened proceedings the applicant would be able to claim the difference between his disability allowance in Bosnia and Herzegovina and the disability pension in Croatia, there is no call to award the applicant any sum in respect of the damage claimed, which is in substance pecuniary damage only.
28. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 2,800 covering costs under all heads, plus any tax that may be chargeable to the applicant.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Rejects the Government’s request to strike the application out of its list of cases;
2. Declares the application admissible;
3. Holds that there has been a violation of Article 6 § 1 of the Convention;
(a) that the respondent State is to pay the applicant, within three months,
EUR 2,800 (two thousand eight hundred euros), plus any tax that may
be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 26 September 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Dorothee von Arnim Pauliine Koskelo
Deputy Registrar President