Communicated on 2 March 2016
FOURTH SECTION
Application no. 28621/15
Verena DEVINAR
against Slovenia
lodged on 9 June 2015
STATEMENT OF FACTS
The applicant, Ms Verena Devinar, is a Slovenian national, who was born in 1959 and lives in Nova Gorica. She is represented before the Court by Mr I. Makuc, a lawyer practising in Tolmin.
THE CIRCUMSTANCES OF THE CASE
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. Facts
The applicant suffers from a serious injury to both her wrists and the right shoulder joint and has as a result difficulties with performing her daily activities.
On 29 December 2011 the applicant requested that the Pensions and Disability Insurance Institute (“the Institute”) award her disability allowance for physical impairment (hereinafter “the allowance”).
On 12 March 2012 the first instance Disability Commission of the Institute established that the applicant did not suffer from a physical impairment.
On 15 March 2012 the Nova Gorica Unit of the Institute, relying on the opinion of the Disability Commission, dismissed the request for the allowance.
On 31 March 2012 the applicant lodged an appeal.
On 15 May 2012 the second-instance Disability Commission of the Institute examined the applicant’s file and again assessed that she was not entitled to the allowance as no physical impairment could be found.
On 7 June 2012 the Institute, referring to the conclusions of the Disability Commission, dismissed the applicant’s reasoning that the impairment the applicant has is not on the list of impairments for which the allowance can be awarded.
On 12 July 2012 the applicant initiated court proceedings against the Institute before the Ljubljana Labour and Social Court, requesting that the court appoint an expert to examine her.
On 6 September 2013 the Ljubljana Labour and Social Court dismissed the applicant’s claim after having heard the applicant and consulted the documents in the case file. The court dismissed the applicant’s request for an independent expert, concluding that the opposing party found that the impairment of the applicant’s health does not amount to a physical impairment within the meaning of the law.
On 17 October 2013 the applicant lodged an appeal, challenging the conclusions of the court that no physical impairment could be found, and complaining that the court had failed to appoint a medical expert. The applicant highlighted that the court itself lacked the expertise to assess whether she was physically impaired without appointing an expert.
On 6 February 2014 the Higher Labour and Social Court dismissed the applicant’s appeal. It found that the first instance court sufficiently determined the facts. It also pointed out that the first-instance court is not obliged to appoint an additional expert in the court proceedings if the facts had been sufficiently established in the pre-court administrative proceedings by the Institute’s disability commissions and it is possible conclude from the commissions’ opinions that the Institute decisions are well-founded.
On 10 April 2014 the applicant lodged a motion for leave to file an appeal on points of law. She, inter alia, challenged the position of the lower courts that there had been no need to appoint a medical expert, pointed out that courts are not qualified to established medical facts without appointing an independent expert and also drew attention to the fact that in numerous cases the experts appointed by courts found facts to differ from the facts established by the Disability Commission.
On 10 June 2014 the Supreme Court dismissed the applicant’s motion, holding that no grounds for allowing the appeal on points of law existed.
On 21 July 2014 the applicant lodged a constitutional complaint, alleging, inter alia, that the lower courts had based their decisions on the opinions of Disability Commissions of the Institute which never attempted to determine the extent of her impairment and that the first-instance court established medical facts without appointing an independent expert.
On 10 December 2014 the Constitutional Court dismissed the applicant’s constitutional complaint by reference to Section 55.b of the Constitutional Court Act, finding that it did not concern an important constitutional question or entail a violation of human rights which would have serious consequences for her.
B. Relevant domestic law and practice
1. Provisions on disability allowance for physical impairment
According to Section 144 of the Pensions and Invalidity Insurance Act as in force at material time, an insured person is under certain conditions entitled to the disability allowance for physical impairment, one of those conditions being the degree of physical impairment.
Under Section 143 of the same act “physical impairment” is defined as the loss, severe injury or significant incapacity of the insured person’s organs or body systems, because of which normal functioning of the organism is inhibited and greater efforts regarding the performing of vital necessities are required, which leads to a lower life quality of the insured. According to the act, the list of different types of physical impairment is to be set by the minister responsible for the health matters. However, the Self-management agreement on the list of physical impairments (Samoupravni sporazum o seznamu telesnih okvar), which was first adopted in 1983 and lastly amended in 1989, is used.
2. Rules on procedure
The decisions on the entitlement to disability allowance for physical impairment are issued by the Pensions and Disability Insurance Institute in a two-level administrative procedure.
Judicial review of the decisions issued by the second instance organs of the Pensions and Disability Insurance Institute is provided for by the social courts.
The special rules governing the procedure in the disputes concerning social security rights are laid down in Sections 58-82 of the Labour and Social Courts Act (Zakon o delovnih in socialnih sodiščih). Apart from the special rules on procedure provided for in the aforementioned act the procedure of the social courts is governed by the provisions of the Civil Procedure Act (Zakon o pravdnem postopku).
According to Section 243 of the Civil Procedure Act the court should obtain an expert opinion if it does not have the necessary expertise to establish or assert a certain fact.
3. Disability Commissions of the Pensions and Disability Insurance Institute
Disability Commissions assist the organs of the Institute in the first and second instance proceedings by issuing opinions on disabilities and other facts decisive for the decisions on the entitlements to rights arising from pensions and disability insurance.
According to the Rules on organisation and method of operation of Disability Commissions and other expert bodies of the Pension and Disability Insurance Institute of Slovenia as in force at material time (Pravilnik o organizaciji in načinu delovanja invalidskih komisij ter drugih izvedenskih organov Zavoda za pokojninsko in invalidsko zavarovanje Slovenije) members of the Disability Commissions are appointed by the Institute’ Board upon a nomination by the Director General of the Institute for a period of four years with the possibility of renewal of their function.
COMPLAINT
The applicant complained under Article 6 § 1 of the Convention about a violation of her right to a fair trial because the courts based their decisions on the opinions of the Disability Commissions and refused to appoint an independent expert. She noted that the opinions of the Commissions have been on several occasions found to be erroneous and that the only way challenge the opinions is by obtaining an opinion from an independent expert, which she was prevented from doing.
QUESTION TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 of the Convention?
2. In particular, having regard to the weight attached to the opinions of the Disability Commissions of the Pensions and Disability Insurance Institute in the court’s proceedings, was the principle of equality of arms respected in the present case?
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