Last Updated on October 3, 2020 by LawEuro
FIRST SECTION
DECISION
Application no. 32132/12
Ilija KRSTANOVIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 11 September 2018 as a Committee composed of:
Kristina Pardalos, President,
Ksenija Turković,
Tim Eicke, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 7 May 2012,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Mr IlijaKrstanović, is a Croatian national who was born in 1972 and lives in Osijek. He was represented before the Court by Mr S. Baljak, a lawyer practising in Osijek.
2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
3. The applicant alleged, in particular, that in securing his personal disability benefit as a disabled war veteran on account of his mental disorder, he had been discriminated against in comparison to other war veterans whose disorders had allowed for a more timely diagnosis.
4. On 16 February 2015 the application was communicated to the Government.
A. The circumstances of the case
5. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background to the case
6. In the period between 1991 and 1995 the applicant participated in the war as a member of military and police formations. Afterwards he developed certain behavioural and psychological problems for which, in April 2007, he sought psychiatric help.
7. On 29 May 2007 the applicant was examined by a psychologist who found that he was suffering from chronic post-traumatic stress disorder (hereinafter: “PTSD”) and symptoms of an anxious-depressive disorder.
8. The applicant received psychiatric treatment. He complained to the psychiatrist of the deterioration of his condition and, on 19 June 2007, the psychiatrist advised him to apply for treatment at Vrapče Psychiatric Hospital (PsihijatrijskabolnicaVrapče).
9. From 27 June to 18 July 2007 the applicant was treated at Vrapče psychiatric hospital under a diagnosis of permanent personality changes following PTSD and anxious-depressive disorder.
10. On 15 November 2007 the Osijek Office of the Croatian Health Insurance Fund (Hrvatskizavodzazdravstvenoosiguranje, Područniured u Osijeku; hereinafter “the Fund”) recognised, on the basis of an expert report, that the applicant’s disorder (permanent personality changes following PTSD) had been a consequence of his participation in the war.
2. Proceedings for recognition of the status of disabled war veteran and grant of the related personal disability benefit
11. On 2 January 2008 the applicant lodged a request, on the grounds of his mental disorder, for recognition of the status of disabled war veteran and grant of the related personal disability benefit, before the Osijek State Administration Office (Ureddržavneuprave u Osječko-baranjskojžupaniji, Službazadruštvenedjelatnosti; hereinafter “the Osijek Office”).
12. On 3 January 2008 the Osijek Office declared the applicant’s request inadmissible as being lodged out of time. In particular, it found that under the Act on the Rights of Croatian Homeland War Veterans and their Family Members (Zakon o pravimahrvatskihbraniteljaizDomovinskog rata ičlanovanjihovihobitelji; Official Gazette no. 174/2004, hereinafter “the 2004 Veterans Act”), a request for recognition of the status of disabled war veteran and grant of the related personal disability benefit on the basis of an illness could have been lodged until 31 December 2005.
13. The applicant appealed to the Ministry in charge of Homeland War Veterans’ affairs (Ministarstvoobitelji, braniteljaimeđugeneracijskesolidarnosti; hereinafter “the Ministry”) arguing that he had become aware of his mental disorder only after the expiry of the statutory time-limit and that he could not, therefore, have submitted his request earlier. He asked the Ministry to examine his request, taking into account the particular circumstances of his case.
14. On 15 July 2008 the Ministry dismissed the applicant’s appeal and upheld the decision of the Osijek Office.
15. The applicant lodged an administrative action with the Administrative Court (UpravnisudRepublikeHrvatske) contending that before the expiry of the statutory time-limit he had not been aware of his condition. He had been fighting his disorder with more or less success, without even knowing that he actually had one. He had applied for the status of disabled war veteran when the doctors had officially identified his condition. In these circumstances, setting the time-limit at 31 December 2005 had been unfair.
16. On 25 May 2011 the Administrative Court dismissed the applicant’s administrative action, endorsing the reasoning of the lower bodies. It added that the status of disabled war veteran was recognised only in the proceedings before the bodies of the Ministry. The circumstance that his disorder had been recognised by the Fund as a consequence of his participation in the war had thus been irrelevant.
17. Subsequently, the applicant lodged a constitutional complaint before the Constitutional Court (UstavnisudRepublikeHrvatske), arguing that in obtaining the status of disabled war veteran and the related personal disability benefit he had been discriminated against in comparison to other war veterans whose disorders had manifested earlier, thus allowing them to regulate their status in due time.
18. On 11 January 2012 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded. That decision was served on the applicant on 8 February 2012.
19. Meanwhile, on 29 October 2008 the Osijek Office of the Croatian Pension Fund (Hrvatskizavodzamirovinskoosiguranje, Poručnaslužba u Osijeku) granted the applicant a disability pension after finding that he had a 50% “professional inability to work” (profesionalnanesposobnostza rad) caused by an illness contracted during his participation in the Homeland War.
B. Relevant domestic law
1. The 2004 Veterans Act
20. The relevant provision of the 2004 Veterans Act, which entered into force on 1 January 2005, reads as follows:
125
“The request for recognition of the status of a disabled war veteran on the basis of an illness, and the illness, deterioration of the illness or appearance of the illness is a direct consequence of the participation in [the Homeland War], may be lodged within twelve months of the entry into force of this Act.”
2. Draft proposal for passing a new Veterans Act
21. In August 2017 the Ministry of Homeland War Veterans (Ministarstvohrvatskihbranitelja; hereinafter “the Ministry”) published a draft proposal for the Act on Croatian Homeland War Veterans and their Family Members (Zakon o hrvatskimbraniteljimaizDomovinskog rata ičlanovimanjihovihobitelji). The draft noted that for some Homeland War veterans, the consequences of war trauma appeared much later, and that due to the time-limit for lodging the request for recognition of the status of disabled war veteran on the basis of an illness, those persons were unable to regulate their status and obtain the related rights. The Ministry therefore proposed to remove the time-limit for lodging the request on that ground.
3. The 2017 Veterans Act
22. The Act on Croatian Homeland War Veterans and their Family Members (Zakon o hrvatskimbraniteljimaizDomovinskog rata ičlanovimanjihovihobitelji: Official Gazette no. 121/2017, hereinafter: the “2017 Veterans Act”), which entered into force on 14 December 2017, lifted the temporal restriction for lodging the request for recognition of the status of disabled war veteran on the basis of an illness caused by participation in the war.
COMPLAINTS
23. The applicant complained that in securing his status of disabled war veteran and obtaining the related personal disability benefit he had been discriminated against on the grounds of the nature of his disorder. He also complained about the outcome of the proceedings.
THE LAW
A. Alleged violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 to the Convention
24. The applicant relied on Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1, which read as follows:
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
1. The parties’ arguments
(a) The Government
25. The Government submitted that, since the 2017 Veterans Act removed the time-limit for lodging the request for recognition of the status of disabled war veteran on the basis of an illness caused by participation in the war, the applicant was free to apply to the competent authorities and regulate his status on that ground. The matter giving rise to the present case had therefore been resolved and it was no longer justified to continue the examination of the application.
26. The Government further submitted that the applicant had failed properly to exhaust the domestic remedies when wishing to regulate his status; that the facts of the case did not fall within the ambit of Article 1 of Protocol No. 1 to the Convention and that accordingly there was no room for application of Article 14 of the Convention; that the applicant could not have been held to be in a comparable situation to those Homeland War veterans whose PTSD had been established in the relevant administrative proceedings as a direct consequence of their participation in the Homeland War; and that setting the time-limit for applying for the status of disabled war veteran on the basis of an illness by the 2004 Veterans Act had not been discriminatory.
(b) The applicant
27. The applicant contended that he had instituted the relevant proceedings as soon as he had become aware of his mental disorder. In those proceedings he had properly exhausted all the domestic remedies. He could not have applied for the status of disabled war veteran on the basis of an illness until he knew that he had actually developed one.
28. The applicant argued that it was not possible to set a time-limit on the onset of a mental disorder. He alleged that medical studies had confirmed that mental disorders could develop even twenty years after a trauma. By the operation of the time-limit under section 125 of the 2004 Veterans Act, those who had managed to identify their disorders in due time had been able to regulate their status and obtain benefits and he, who had also developed PTSD as a consequence of his participation in the war, which the doctors had only managed to diagnose later, was left to deal with his illness on his own. There had been no reasonable justification for such a discriminatory legislative solution.
29. The applicant lastly submitted that the purpose of his application to the Court was to remove the time-limit for applying for the status of disabled war veteran on the basis of an illness and to obtain a fair trial. He did not submit any just satisfaction claim under Article 41 of the Convention.
2. The Court’s assessment
30. The Court does not have to address all the issues raised by the parties. In the light of the new developments brought to its attention, it considers that, for the reasons set out below, there is no objective justification for continuing to examine the applicant’s complaints, and that it is thus appropriate to apply Article 37 § 1 of the Convention, which provides as follows:
“The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
31. In order to ascertain whether Article 37 § 1 (b) applies to the present case, the Court must answer two questions: firstly, whether the circumstances complained of directly by the applicant still obtain; and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see Pisano v. Italy (striking out) [GC], no. 36732/97, § 42, 24 October 2002; Sisojeva and Others v. Latvia, no. 60654/00, § 97, 16 June 2005; and Kaftailova v. Latvia (striking out) [GC], no. 59643/00, § 48, 7 December 2007).
32. The Court notes that, in the present case, the applicant complained that setting a time-limit for applying for the status of disabled war veteran on the basis of an illness by the 2004 Veterans Act had been discriminatory in respect of persons like him, who had managed to identify their disorders only later.
33. The Court notes that the 2017 Veterans Act, which came into force in December 2017, removed the time-limit complained of (see paragraph 22 above). Consequently, any war veteran, including the applicant, may lodge a request with the competent authorities and regulate his or her status.It therefore follows that the circumstances of which the applicant complained no longer obtain.
34. The Court notes further that removing the time-limit in question was precisely the purpose of the applicant’s application to the Court and that he did not seek any just satisfaction under Article 41 of the Convention (see paragraph 29 above). It therefore considers that, in the present case, the second criteria under Article 37 § 1 (b) of the Convention (see paragraph 31 above) has also been met.
35. In view of the above, the Court concludes that the matter has been resolved within the meaning of Article 37 § 1 (b) of the Convention. Furthermore, it is satisfied that respect for human rights as defined in the Convention and its Protocols does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).
36. Accordingly, this part of the application should be struck out of the Court’s list of cases.
B. Alleged violation of Article 6 of the Convention
37. The applicant also complained under Article 6 § 1 of the Convention about the outcome of the proceedings concerning his request for recognition of the status of disabled war veteran and the related personal disability benefit.
38. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3 (a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to strike the application out of its list of cases in so far as it concerns the complaint under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1;
Declares the remainder of the application inadmissible.
Done in English and notified in writing on 4 October 2018.
Renata Degener Kristina Pardalos
DeputyRegistrar President
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