CASE OF T.G. v. CROATIA

SECOND SECTION

CASE OF T.G. v. CROATIA

(Application no. 39701/14)

JUDGMENT

STRASBOURG

11 July 2017

FINAL

11/10/2017

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of T.G. v. Croatia,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Işıl Karakaş, President,
Julia Laffranque,
Paul Lemmens,
Valeriu Griţco,
Ksenija Turković,
Stéphanie Mourou-Vikström,
Georges Ravarani, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 13 June 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 39701/14) 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”) by a Croatian national, T.G. (“the applicant”), on 18 May 2014.

2. The applicant was represented by Mr Z. Stanković, a lawyer practising in Sisak. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3. The applicant complained under Articles 6 and 8 of the Convention that his firearms licence had not been renewed on the basis of police reports that had not been fully disclosed to him or his lawyer.

4. On 3 July 2014 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

5. It was also decided to grant the applicant anonymity under Rule 47 § 4 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1974.

7. In February 2011, after holding a firearms licence and a hunting permit for about ten years, the applicant asked the S. Police Department (hereinafter: “the police”) to renew his firearms licence for hunting purposes. He did not live in Croatia but went hunting when he spent holidays there.

8. When submitting his request the applicant relied on a certificate of the Ministry of Health (Ministartsvo zdravstva Republike Hrvatske) attesting that he was healthy and thus capable of carrying firearms.

9. Following the applicant’s request the police carried out a background check. A report of 22 February 2011, available in the file, contains a finding of the police that the applicant had often been under the influence of alcohol when visiting Croatia.

10. On 18 August 2011 the applicant was summoned by the police to give a statement concerning the intention of a weapons commission not to renew his firearms licence. The applicant denied any alcohol abuse and stated that he had been a hunter for several years and that, if necessary, he could undergo any test concerning his health and the alleged drinking problem.

11. In a further written statement dated 19 August 2011 the applicant contended that hunting was his hobby and that his membership of a hunting association was related to his social status. He denied any allegations of alcohol abuse and argued that there were no justified reasons for a refusal to renew his firearms licence.

12. On 23 August 2011 the applicant made the same objections through a lawyer. He stressed that his request for renewal of the firearms licence could not be refused merely because somebody had allegedly said that he was a drinker.

13. On the same day the police dismissed the applicant’s request for renewal of his firearms licence and ordered him to hand over his weapons on the grounds that a police inquiry had shown that he had a problem of alcohol abuse.

14. The applicant challenged this decision before the Ministry of the Interior (Ministarstvo unutarnjih poslova Republike Hrvatske, hereinafter “the Ministry”), arguing that he had been falsely accused by some neighbours and that there was no evidence of any drinking problem. He also stressed that hunting allowed him to see his friends, and that those who had made the allegations against him did not really know him.

15. On 11 October 2011 the Ministry ordered the police to produce a new assessment of the background check on the applicant, on the grounds that the report of 22 February 2011 (see paragraph 9 above) had not been substantiated with the relevant evidence.

16. On 9 November 2011 the police produced a new report on the background check on the applicant. The report, which was available in the file, provided further details on the applicant’s alleged alcohol abuse, which had been confirmed by his neighbours in Croatia. The report explained that all the relevant details concerning the sources of this information were classified as confidential information.

17. On 12 December 2011 the Ministry dismissed the applicant’s complaints, on the grounds that the documents from the case file suggested that he had a problem of alcohol abuse.

18. On 6 February 2012 the applicant lodged an administrative action in the Administrative Court challenging the Ministry’s decision. He contended that the refusal to renew his firearms licence had been based on mere insinuations, and that there had been no relevant evidence to support the findings of the police. In particular, he contended that he had never been registered as a person with a problem of alcohol abuse and he had never been convicted of an offence related to the abuse of alcohol. In his view, the police based its conclusion only on the basis of gossips of his neighbours in Croatia.

19. On 14 April 2012 the applicant asked the police to disclose the relevant reports containing the allegations against him, in particular the identity of those who had seen him under the influence of alcohol and the date and place when that had happened. On 1 March 2012 he received a reply that the information which he requested could not be disclosed since it was confidential (see paragraph 16 above), as provided under the relevant domestic law (see paragraphs 31-32 below).

20. On 26 April 2012 the Administrative Court held a hearing at which it heard the parties’ arguments. The applicant’s representative stressed that the police had failed to produce any credible evidence justifying the refusal to renew the applicant’s firearms licence. He also considered that it was not clear on which grounds the police had dismissed the applicant’s request. The Ministry’s representative explained that further details of the applicant’s background check, in particular the names of individuals from whom the relevant information had been obtained, were confidential as provided under the Confidentiality of Information Act.

21. As the parties did not have any further proposals for the examination of evidence, the Administrative Court concluded the proceedings and scheduled a hearing for the delivery of the judgment for 4 May 2012.

22. On 27 April 2012 the Administrative Court found that the judgment could not be delivered, as a further assessment of the relevant circumstances of the case was needed. It scheduled a hearing for 17 May 2012, and ordered the Ministry to provide the confidential case file containing the details of the information on the applicant’s background check. It explained that the file at issue would be inspected by the judges and would not become part of the Administrative Court’s case file.

23. At a hearing on 17 May 2012 the Administrative Court examined the confidential file of the police without the presence of the parties. Afterwards, in the resumed hearing in the parties’ presence, the applicant’s representative reiterated his arguments that the applicant did not have a drinking problem. He did not seek examination of further evidence.

24. On 23 May 2012 the Administrative Court dismissed the applicant’s administrative action and upheld the decisions of the administrative bodies refusing to renew the applicant’s firearms licence. It explained that it was satisfied from the examination of the confidential reports that the reasons for the police’s refusal to renew the applicant’s firearms licence were well founded. It also held that the medical certificate attesting that the applicant was healthy and capable of carrying firearms did not call these findings into question, as that was only one element in the assessment of an individual’s suitability to be granted a firearms licence. The relevant part of the Administrative Court’s decision reads:

“By examining the classified file of the defendant the court ... established that the police officer’s conduct, while searching for and collecting information from citizens, ... was in accordance with the By-law on the conduct of the police in the procedure for issuing a licence for the procurement of weapons to a natural person ... and, based on data and information collected from interviewed citizens, found that the plaintiff is prone to common and excessive alcohol abuse, which indicates a possibility of weapons abuse.

...

Consequently, the plaintiff’s claim that the defendant wrongly applied the substantive law, is unfounded, while the plaintiff’s objection that the medical certificate is sufficient evidence showing that the defendant wrongly determined the facts of the case was not accepted by this court because the medical fitness for possessing and carrying weapons which is established through a certificate of medical fitness is only a special requirement for the weapons acquisition permit to natural persons within the meaning of section 10 paragraph 3(1) of the Weapons Act, while the defendant acting in accordance with the [above-cited] By-law ... established that the plaintiff does not meet the requirement of section Article 10(5) of the Weapons Act, as one of the general requirements which natural persons need to meet in order to be issued a firearms licence.”

25. The applicant challenged this decision before the Constitutional Court (Ustavni sud Republike Hrvatske), complaining that he had been denied access to the evidence containing allegations against him and that therefore he had been left without any opportunity to challenge those allegations. He also argued that his right to respect for his private life had been breached by the unjustified refusal to extend his firearms licence, which prevented him from hunting. In this connection he explained that he had been a hunter for over ten years, and that hunting was his way of maintaining contact with his friends.

26. In support of his constitutional complaint the applicant submitted a list of signatures of his neighbours attesting that he did not have a problem of alcohol abuse. He also submitted a medical certificate indicating that he had no problem of alcohol abuse.

27. On 6 February 2014 the Constitutional Court dismissed the applicant’s constitutional complaint as unfounded. It explained that it was primarily the function of the relevant authorities to examine the facts and apply the relevant law and that it was not its function to deal with alleged errors of law or fact, in so far as they had not infringed human rights and freedoms guaranteed under the Constitution. The Constitutional Court held that since the applicant had had access to the police reports on his background check, which contained details for dismissing his request (see Bakırcı the reports referred to in paragraphs 9 and 16 above), the fact that further details on which those report had been based, including personal details about individuals who had provided information to the police, had not been disclosed to him did not infringe any of his rights.

28. The decision of the Constitutional Court was served on the applicant’s representative on 18 February 2014.

II. RELEVANT DOMESTIC LAW

A. Constitution

29. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette, nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) read as follows:

Article 29

“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”

Article 35

“Everyone has the right to respect for and legal protection of his or her private and family life, dignity, reputation and honour.”

Article 48

“The right of ownership shall be guaranteed ...“

B. Weapons Act

30. The relevant provisions of the Weapons Act (Zakon o oružju, Official Gazette, nos. 63/2007 and 146/2008) provide as follows:

Section l0

“(1) The competent body shall issue a licence for the procurement [of a weapon] to a natural person if he or she meets the general and special conditions.

(2) The general conditions ... are:

...

5) absence of other circumstances which suggest that weapons could be abused, and especially: frequent and excessive abuse of alcohol, ...

(3) The special conditions are:

1) that the medical examination confirmed that the individual is medically fit to hold and carry a weapon ...”

31. By-law on the conduct of the police in the procedure for issuing a licence for the procurement of weapons to a natural person (Pravilnik o načinu postupanja policijskih službenika u postupku za izdavanje odobrenja za nabavu oružja fizičkoj osobi, Official Gazette, no. 33/2008)

Section l

“This Ordinance governs the conduct of police officers during the search for and collection of data and information from citizens in order to determine the existence of requirements under section 10 paragraph 2 (5) of the Weapons Act ...”

Section 3

“During a field check, a police officer shall in a discreet manner search for and collect data and information from citizens who are acquainted with the applicant, as well as from all other citizens who could provide information necessary for the determination of the existence of requirements under section l0 paragraph 2 (5) of the Weapons Act ...

In cases where an enquiry under paragraph 1 of this section discloses information on the absence of requirements for issuing a licence for the procurement of weapons (circumstances which suggest that weapons could be abused, and especially: frequent and excessive abuse of alcohol ...) the police officer [conducting an inquiry] shall check this information [by questioning] at least two citizens he or she considers to be capable of objectively presenting their knowledge on the applicant.”

Section 4

“[On the performed inquiry] the police officer [conducting the inquiry] shall produce a report from which it will be clear whether the circumstances under section 10 paragraph 2 (5) of the Weapons Act have been established, thus from which it is clear that the conditions for issuing a [weapons licence] under the Weapons Act have not been met. This report, which must not contain data on the sources of the information collected, shall be forwarded to the competent authority [deciding upon a request for a weapons licence].

In addition to the report referred to in paragraph 1 of this section, the police officer shall produce a report on the field check performed, containing information from the report and information on the citizens from whom he or she has sought and collected data and information. This report will be made in a single copy, classified with the confidentiality degree “RESTRICTED” and filed in the field check case file.

The police officer shall be obliged to safeguard as official data all personal data of citizens from whom he or she has sought or collected data and information contained in the report referred to in paragraph 1 of this Article, as well as the content of data and information obtained from them, and shall not be allowed to communicate them to the applicant ... or to other unauthorised persons.”

C. Confidentiality of information

32. The handling of confidential information is regulated by the Confidentiality of Information Act (Zakon o tajnosti podataka, Official Gazette, no. 79/2007). Section 9 provides that the classification “restricted” shall be used to classify data the unauthorised disclosure of which would be damaging to the functioning and the performance of the tasks of State authorities.

33. In principle, access to confidential information is limited to holders of the requisite security clearance (section 18). Judges are authorised to have access to confidential information if they hold a security clearance or by signing a statement of confidentiality. On the basis of that statement they are obliged to keep confidential all data obtained by such access to confidential information (sections 19-28 of the Act).

34. According to the Access to Information Act (Zakon o pravu na pristup informacijama, Official Gazette, nos. 172/2003, 144/2010, 37/2011 and 77/11), applicable at the time, all public authorities were obliged to restrict access to classified information. Exceptionally, they were allowed to disclose classified information upon a request if disclosure was in the public interest, necessary for achieving the intended purpose under the law, and proportionate (section 8 paragraphs 1-4). However, section 1(3) provided that the Access to Information Act was not applicable to cases where access to information from judicial or administrative proceedings was regulated by special legislation.

D. Administrative Disputes Act

35. The applicable Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette no. 20/2010) provides:

Section 33

“(1) The court freely assesses the evidence and establishes facts.

(2) The court takes into account the facts established during the proceedings [that led to the] adoption of the impugned decision, by which it is not bound, as well as facts that it established on its own.

(3) The parties may propose which facts are to be established and evidence by which they can be established, but the court is not bound by such proposals.

(4) Evidence includes documents, the hearing of the parties, witness testimonies, expert reports, on-site investigations and other means.

(5) The court adduces evidence in accordance with the rules governing the adducing of evidence in civil proceedings.”

Section 34

“(1) [By means of bringing] an action and responding to that action the parties are obliged to present all the facts on which they base their claims, propose evidence necessary for establishing them, and express their opinion on the submissions of facts and proposals of evidence undertaken by the other parties.”

Section 39

“(2) The president of the panel or a single judge establishes the presence of all the persons summoned [to the hearing], and in the event of their absence, establishes whether they were duly summoned and whether they justified their absence.

(3) When a party or another participant in the dispute fails to attend the hearing without a justified reason, the hearing may be held in his or her absence.”

Section 55

“(1) The court adjudicates the claim ... by means of a judgment.

...

(3) The court renders a judgment in accordance with its own belief and on the basis of an examination of all the legal and factual issues.

(4) A judgment may be based solely on the facts and evidence on which the parties were able to express their opinion.”

Section 57

“(1) The court shall dismiss a claim if it finds it unfounded.”

Section 58

“(1) If the court finds an individual decision of the relevant body unlawful, it shall by means of a judgment uphold the claim, annul the impugned decision and adjudicate on the matter on its own, unless it is unable to do so due to the nature of the matter, or if the defendant has resolved the matter [at its own discretion].”

Section 60

“(4) In its reasoning [in respect of a judgment], a court shall state the parties’ claims, the submitted facts and proposed evidence, the facts it has established, the reasons and time of their establishment, and in the event that they were established on the basis of evidence, which evidence the court adduced and how that evidence was assessed. The court shall state in particular which provisions it applied when adjudicating on the dispute and shall express its opinion regarding the parties’ proposals and objections regarding which it did not express its opinion during the dispute.”

III. EUROPEAN UNION LAW

36. The relevant parts of the Council Directive 91/477/EEC of 18 June 1991 on control of the acquisition and possession of weapons, amended by the Directive 2008/51/EC of the European Parliament and of the Council of 21 May 2008, provide:

Article 5

“Without prejudice to Article 3, Member States shall permit the acquisition and possession of firearms only by persons who have good cause and who:

(a) are at least 18 years of age, except in relation to the acquisition, other than through purchase, and possession of firearms for hunting and target shooting, provided that in that case persons of less than 18 years of age have parental permission, or are under parental guidance or the guidance of an adult with a valid firearms or hunting licence, or are within a licensed or otherwise approved training centre;

(b) are not likely to be a danger to themselves, to public order or to public safety. Having been convicted of a violent intentional crime shall be considered as indicative of such danger. Member States may withdraw authorisation for possession of a firearm if any of the conditions on the basis of which it was granted are no longer satisfied.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

37. The applicant complained of a lack of fairness of the administrative proceedings concerning the refusal to renew his firearms licence on the basis of police reports that had not been fully disclosed to him or his lawyer. He relied on Article 6 § 1 of the Convention which, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A. Admissibility

1. The parties’ arguments

38. The Government argued that the applicant had never sought disclosure of the confidential information and had never complained that the information at issue had been classified as confidential. In particular, he had failed to ask for disclosure of information during the proceedings before the administrative authorities and the Administrative Court, and he had not sought disclosure of information in accordance with the Access to Information Act.

39. The applicant maintained that he had properly exhausted the domestic remedies.

2. The Court’s assessment

40. In accordance with Article 35 § 1 of the Convention, the Court may only deal with a matter after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right violations alleged against them before those allegations are submitted to the Court (see, for example, Gherghina v. Romania (dec.) [GC], no. 42219/07, § 84, 9 July 2015). Thus, a complaint submitted to the Court should first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014).

41. Nevertheless, the obligation to exhaust domestic remedies requires only that an applicant make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances (ibid., § 73). In the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance. In other words, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see, amongst many others, T.W. v. Malta [GC], no. 25644/94, § 34, 29 April 1999, and Jasinskis v. Latvia, no. 45744/08, § 50, 21 December 2010).

42. The Court notes in the case at hand that, contrary to what the Government have asserted, the applicant did ask for disclosure of the confidential information after he had instituted the proceedings in the Administrative Court. However, his request was refused on the grounds that the information at issue could not be disclosed under the Confidentiality of Information Act (see paragraph 19 above).

43. Moreover, in the course of the proceedings before the Administrative Court the applicant complained of a lack of clear information on the basis of which his request for the renewal of his firearms licence had been dismissed. However, the Ministry’s representative explained that the information in question was confidential under the Confidentiality of Information Act (see paragraph 20 above). This was eventually accepted by the Administrative Court, which ex parte examined the information at issue, refusing to include it in its case file (see paragraphs 23-24 above).

44. In view of the above, the Court finds that the applicant raised his complaints related to lack of disclosure of the confidential information in the relevant administrative proceedings. He was therefore not required, either under the Court’s case-law (see paragraph 41 above) or under the relevant domestic law (see paragraph 34 above), to seek disclosure of the confidential information by pursuing another remedy under the Access to Information Act.

45. The Court therefore rejects the Government’s objection. It notes that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ arguments

46. The applicant contended that the reports on his background check had been based on unverified and incorrect insinuations made by the police. Although he had asked for disclosure of the information on which the reports had been based, it had never been provided to him. Instead, the Administrative Court had reviewed it ex parte and thus prevented him from effectively arguing his case. In the applicant’s view, this had run counter to the requirements of equality of arms and adversarial trial under Article 6 of the Convention. The applicant also considered that he had sufficiently demonstrated that he had no problem of alcohol abuse and there had therefore been no reason not to renew his firearms licence.

47. The Government pointed out that the applicant had had access to the reports on his background check, and that those reports had been filed in the Administrative Court’s case file. It was true that he had not had access to the notes concerning the interviews of witnesses but, in the Government’s view, this had not infringed his right to a fair trial. The Government explained that this information needed to be classified as confidential in order to secure the proper functioning of the checks and the confidence of citizens in the work of the police. This was particularly true in the case at hand as to whether the allegations of alcohol abuse had actually been made. Thus, in the Government’s view, there had been a strong public interest in keeping the relevant information confidential. The Government also considered that the restrictions placed upon the applicant had been appropriately compensated for during the proceedings. In particular, the applicant had been duly informed of the reasons for the refusal to renew his firearms licence and he had had every opportunity to challenge those reasons by the examination of further evidence in his favour. However, he had not asked to be heard by the Administrative Court, nor had he asked that any of the witnesses be heard or that an expert report be commissioned concerning his alleged alcohol abuse. The Government thus contended that it could not be said that there had been a breach of his right to a fair trial.

2. The Court’s assessment

(a) General principles

48. Article 6 § 1 secures to everyone the right to have any claim relating to his or her civil rights and obligations brought before a court or tribunal. In this way it embodies the “right to court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect only (see Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18, and Baka v. Hungary [GC], no. 20261/12, § 120, 23 June 2016).

49. In the context of administrative proceedings, the Court has held that decisions taken by administrative or other authorities which do not themselves satisfy the requirements of Article 6 must be subject to subsequent control by a “judicial body that has full jurisdiction”, including the power to quash in all respects, on questions of fact and law, the challenged decision. This will be satisfied where it is found that the judicial body in question has exercised “sufficient jurisdiction” or provided “sufficient review” in the proceedings before it (see Letinčić v. Croatia, no. 7183/11, § 46, 3 May 2016, and cases cited therein).

50. The right to a fair hearing as guaranteed by Article 6 § 1 of the Convention includes, in particular, the right of the parties to submit any observations that they consider relevant to their case (see Paliutis v. Lithuania, no. 34085/09, § 39, 24 November 2015). It also places a “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision (see, for instance, Perez v. France [GC], no. 47287/99, § 80, ECHR 2004 I). It thereby embodies the principle of equality of arms which, as one of the elements of the broader concept of a fair hearing, requires each party to be given a reasonable opportunity to present his or her case under conditions that do not place the litigant at a substantial disadvantage vis-à-vis the opponent (see Užukauskas v. Lithuania, no. 16965/04, § 45, 6 July 2010, and Letinčić, cited above, § 48).

51. Moreover, the concept of a fair hearing implies the right to adversarial proceedings, according to which the parties must have the opportunity not only to make known any evidence needed for their claims to succeed, but also to have cognisance of, and comment on, all evidence adduced or observations filed, with a view to influencing the court’s decision (see Letinčić, cited above, § 49, and the authorities cited therein).

52. Nevertheless, as the Court first explained under the criminal limb of Article 6 (see Jasper v. the United Kingdom [GC], no. 27052/95, §§ 52-53, 16 February 2000) and then reiterated with regard to the civil limb of that provision (see Užukauskas, cited above, §§ 46-47, and Pocius v. Lithuania, no. 35601/04, §§ 52-53, 6 July 2010), the entitlement to disclosure of relevant evidence is not an absolute right. In any court proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of an individual. In some cases it may be necessary to withhold certain evidence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only such measures which are strictly necessary are permissible under Article 6 § 1. Moreover, in order to ensure that a person receives a fair hearing, any difficulties caused by a limitation on his or her rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities.

53. In cases where evidence has been withheld on public interest grounds, it is not the role of this Court to decide whether or not such non-disclosure was strictly necessary since, as a general rule, it is for the national courts to assess the evidence before them. In any event, the Court must scrutinise the decision-making process to ensure that, as far as possible, the procedure complied with the requirements of adversarial proceedings and equality of arms.

54. Moreover, when the necessity of withholding certain information constitutes a highly material aspect of the case, the right guaranteed to an applicant under Article 6 § 1 of the Convention to submit a dispute to a court or tribunal in order to have a determination of questions of both fact and law cannot be displaced by the ipse dixit of the executive (see Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom, 10 July 1998, § 77, Reports of Judgments and Decisions 1998‑IV). In order to enhance public confidence there must be a procedure, regardless of the framework used, which would allow an adjudicator or tribunal fully satisfying the Article 6 § 1 requirements of independence and impartiality to examine in complete cognisance of all relevant evidence, documentary or other, the merits of the submissions of both sides (see Devenney v. the United Kingdom, no. 24265/94, § 28, 19 March 2002, with further references).

(b) Application of these principles to the present case

55. The Court notes that there is no dispute between the parties as to the applicability of Article 6 § 1 of the Convention under its civil head in the proceedings at issue. The Court sees no reason to hold otherwise (see Pursiheimo v. Finland (dec.), no. 57795/00, 25 November 2003; Užukauskas, cited above, §§ 38-39, and Pocius, cited above, §§ 44-45).

56. Moreover, given the particular nature of the administrative proceedings, the Court finds that Article 6 § 1 of the Convention is applicable to proceedings relating to the applicant’s dispute with the relevant administrative authorities concerning the refusal to renew his firearms licence. This dispute was ultimately for the Administrative Court to resolve in accordance with the requirements of Article 6 § 1 of the Convention (compare Letinčić, cited above, §§ 35-37).

57. The Court further points out that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. The Court is not a court of appeal or a court of fourth instance above the national courts, and it is not its function to deal with errors of fact or law allegedly committed by those courts unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, for instance, Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, ECHR 2015; see also Galina Kostova v. Bulgaria, no. 36181/05, § 54, 12 November 2013).

58. It follows that the Court cannot, in the context of Article 6 § 1 of the Convention, determine whether the decision of the administrative authorities not to renew the applicant’s firearms licence was lawful or justified, or whether the Administrative Court’s ruling in relation to that decision was correct in terms of Croatian law. The Court’s task is confined to examining whether the domestic proceedings were fair and otherwise in compliance with the requirements of Article 6 § 1 of the Convention (see,for instance, Letinčić, cited above, § 47).

59. In this connection the Court observes that the applicant’s grievances relate to the fact that the relevant notes, containing names of witnesses and data and information obtained from them, on which the two reports on his background check were based (see paragraphs 9 and 16 above) were never disclosed to him or his representative during the proceedings by which he sought to challenge the police’s decision refusing to renew his firearms licence.

60. The restriction on access to the relevant information at issue followed from the domestic legislation concerning the assessment of an individual’s suitability for obtaining a weapons licence. In particular, the relevant by-law which regulated the manner of carrying out a background check provided that two types of report should be produced in that respect: one setting out the reasons preventing the issuing of a weapons licence, and the other providing details on the relevant sources of information, namely information on the citizens from whom the data and information had been sought and the data and information obtained from them. The former report is available to the parties as part of the administrative authorities’ case file, while the latter is confidential and cannot be disclosed in the proceedings (see paragraph 31 above).

61. The Court notes that confidentiality may be justified by the necessity of preventing unauthorised disclosure from causing damage to the proper functioning and the performance of police tasks in carrying out background checks for the purpose of obtaining a weapons licence (see paragraphs 31-32 above). While the Court reiterates that there is a wide margin of appreciation enjoyed by the States in matters related to gun control (see Bocek v. the Czech Republic (dec.), no. 49474/99, 24 October 2000), it notes that no relevant reasons were provided showing that the disclosure of the facts and information contained in the confidential reports on the applicant’s background check would cause damage to the proper functioning of the performance of police tasks.

62. In any case, without going further into the matter of justification for the confidentiality of information, and accepting that it is primarily for the national authorities to assess the necessity of withholding certain information from the applicant, in the present case the Court must examine whether the applicant received a fair hearing; in particular, whether he was sufficiently appraised of the allegations against him and whether difficulties caused by a limitation on his access to information were sufficiently counterbalanced by the procedure followed by the Administrative Court (see paragraphs 52-54 above).

63. In this connection, the Court firstly notes that the statement of reasons for which the police considered that the applicant should not be granted a firearms licence, as he allegedly had a problem of alcohol abuse, was set out only in general terms in the publicly available reports. It cannot be therefore said that the applicant was sufficiently appraised of the allegations against him which would allow him to effectively challenge those allegations by introducing evidence in his favour (see, mutatis mutandis, Užukauskas, cited above, § 50). Indeed, it is difficult to see how, with such limited information, the applicant could have prepared for the case in order to effectively challenge the legality of the Ministry’s decision in fact and in law by refuting the allegations contained in the reports.

64. In the Court’s view, such a limited extent of information available to the applicant required a particular care and attention on the part of the Administrative Court to ensure that its decision-making process, as far as possible, was in compliance with the requirements of adversarial proceedings and equality of arms (see paragraph 52 above).

65. However, in the case at issue the Administrative Court, in the absence of the parties, carried out an assessment of the evidence on which the police had based their reports on the applicant’s background check, and accepted their reports as a sufficient factual basis for the decision challenged before it, without taking into account the above-noted restrictions on the applicant’s rights (see paragraphs 22 and 24 above). Whereas the Court finds such an assessment of evidence by the Administrative Court to be an important safeguard of the applicant’s interests in the proceedings, it does not consider that this was in itself sufficient without an effective opportunity for the applicant to challenge the factual basis of the decision of the Ministry (see paragraph 63 above).

66. In view of the above, the Court finds that the procedure before the Administrative Court did not incorporate adequate safeguards to protect the interests of the applicant so as to ensure that he received a fair trial as guaranteed under Article 6 § 1 of the Convention.

67. It follows that there has been a violation of Article 6 § 1 in the present case.

II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

68. The applicant alleged that the refusal to renew his firearms licence on the grounds that he had a drinking problem prevented him from exercising his hunting activities and unjustifiably stigmatised him. He relied on Article 8 of the Convention, the relevant part of which reads as follows:

“1. Everyone has the right to respect for his private ... life, ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

69. The Government contested that argument. They argued in particular that Article 8 of the Convention was not applicable as there was no right to hold firearms under the Convention. In any case, the Government considered that the restriction of the applicant’s right to hold firearms had been justified and proportionate in the circumstances of the present case.

70. The Court has thus far not held that holding a weapons licence falls as such within the notion of private life under Article 8 of the Convention (see Bocek, cited above, where the Court, even assuming that there was an interference, found the complaint manifestly ill-founded on other grounds).

71. In the case at issue the applicant’s holding of a firearms licence is related to his hunting activities. The applicant argued that he had been a hunter for a number of years, and that hunting formed part of his social status and a means of maintaining contact with others; this was never contested by any of the domestic authorities (see paragraphs 10-11, 14 and 25 above). While the Court could accept that hunting came to assume importance in the applicant’s life, it does not consider that the non-renewal of the firearms licence, which did not generally prevent the applicant from engaging in hunting activities, in itself amounted to an interference with his private life under Article 8 of the Convention (compare Friend and Others v. the United Kingdom (dec.), nos. 16072/06 and 27809/08, §§ 40-41, 24 November 2009).

72. The Court therefore finds that the applicant’s complaint must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

73. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

74. The Court notes that the applicant failed to submit any claim for just satisfaction within the time-limit fixed therefor as required under Rule 60 of the Rules of Court. In the circumstances of the present case, the Court considers that there is no exceptional situation, within the meaning of its case-law (see Nagmetov v. Russia [GC], no. 35589/08, §§ 61 and 78-82, 30 March 2017), warranting the making of an award in that respect.

B. Costs and expenses

75. The applicant claimed 2,500 Croatian kunas (approximately 336 Euros (EUR)) for the costs of his representation before the Court.

76. The Government considered this claim as unsubstantiated.

77. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum claimed.

C. Default interest

78. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT,

1. Declares, unanimously, the applicant’s complaint concerning the lack of fairness of the administrative proceedings for the revocation of his firearms licence under Article 6 § 1 of the Convention admissible and the remainder of the application inadmissible;

2. Holds, by six votes to one, that there has been a violation of Article 6 § 1 of the Convention;

3. Holds, by six votes to one,

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amount, to be converted into Croatian kunas, at the rate applicable at the date of settlement:

EUR 336 (three hundred and thirty six 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.

Done in English, and notified in writing on 11 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan BakırcıIşıl Karakaş
Deputy RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Mourou-Vikström is annexed to this judgment.

A.I.K.
H.B.

DISSENTING OPINION OF JUDGE MOUROU-VIKSTROM

I am unable to follow the majority in finding that there has been a violation of Article 6 §1, for the following reasons:

The initial police procedure which led to the refusal to renew the firearms licence is based on a personality report. This procedure, which is intended to assess the potential danger posed by a given individual, is primarily based on witness statements. However, it is important that the witnesses are protected, something that is indeed guaranteed by the legislation. The applicant was informed from the outset that there existed a report indicating that he had been under the influence of alcohol on certain occasions. The report was submitted for evaluation by the judges of the Administrative Court, who considered that the information contained in it was such as to confirm the administrative authorities’ decision when refusing to renew the licence. The applicant chose not to request that the witnesses who had testified against him be heard by the administrative courts. Nor did he produce a medical certificate attesting to his alcohol consumption. Thus, he did not provide pertinent information which would have enabled adversarial proceedings to take place, save at the belated stage of the constitutional complaint.

Having regard to the need to reconcile protection of the witnesses and the search for judicial truth, it thus appears that the proceedings were conducted with sufficient safeguards and protected the applicant’s interests within the meaning of Article 6 § 1 of the Convention.

 

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