Communicated on 2 October 2014
FIFTH SECTION
Application no. 77212/12
Tadej KOROŠEC
against Slovenia
lodged on 29 November 2012
STATEMENT OF FACTS
The applicant, Mr Tadej Korošec, is a Slovenian national, who was born in 1980 and lives in Ljubljana. He is represented before the Court by Odvetniška družba Čeferin, a law firm practising in Grosuplje.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant suffers from progressive spinal muscular atrophy and needs 24-hour assistance in all his daily activities.
In 2006 the Pensions and Disability Insurance Institute (“the Institute”) awarded the applicant assistance and attendance allowance (hereinafter “the allowance”) at the level of 70% of the reference amount.
On 28 May 2009 the applicant’s general practitioner applied for an increase in the allowance due to the applicant’s deteriorated condition, by referring in particular to a deterioration of the applicant’s respiratory functions.
On 9 July 2009 the first instance Disability Commission of the Institute established that the applicant did not need 24-hour professional medical assistance.
On 20 July 2009, the Ljubljana Unit of the Institute, relying on the opinion of the Disability Commission, dismissed the request for an increase in the allowance.
On 28 July 2009 the applicant lodged an appeal.
On 23 September 2009 the second instance Disability Commission of the Institute examined the applicant’s file and again assessed that he did not need 24-hour professional assistance and that he could be helped by personal assistants without specific medical knowledge and by members of his family.
On 24 September 2009 the Institute, referring to the conclusions of the Disability Commission, dismissed the applicant’s appeal. The Institute further referred to the 1998 Decision on Assistance and Attendance Allowance for Beneficiaries Suffering from a Severe Impairment according to which beneficiaries were only entitled to a higher allowance if they were in need of 24-hour assistance from family members and further professional medical assistance.
On 22 October 2009 the applicant instituted court proceedings against the Institute before the Ljubljana Labour and Social Court, requesting the court to appoint an independent expert to examine his medical file.
On 30 September 2010 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 opinions of the first and second instance Disability Commissions of the Institute sufficed to establish that the applicant did not need a professional assistance.
On 2 November 2010 the applicant lodged an appeal, challenging the conclusions of the court that he did not need professional assistance, and complaining that the court had failed to appoint an independent medical expert. The applicant highlighted that the court itself lacked the expertise to assess on its own the kind of assistance he was provided with and which he needed.
On 24 January 2011 the Higher Labour and Social Court dismissed the applicant’s appeal. It found that the first instance court had based its decision on the opinions of the Disability Commissions of the Institute which were composed of experts who were suitable to assess whether the applicant needed professional assistance.
On 9 March 2011 the applicant lodged a motion for leave to file an appeal on points of law. He, inter alia, challenged the position of the lower courts that there had been no need to appoint a medical expert as being contrary to the established case-law of the Supreme Court according to which the opinions of the Institute’s Disability Commissions could not be considered as independent expert opinions in the proceedings instituted against the decisions of the Institute and could not be used as evidence in these proceedings.
On 17 May 2011 the Supreme Court dismissed the applicant’s motions, holding that the challenged decisions had not departed from the established case-law.
On 28 July 2007 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 were not independent, in violation of the principle of equality of arms.
On 11 June 2012 the Constitutional Court dismissed the applicant’s constitutional complaint by reference to Section 55.b of the Constitutional Court Act.
B. Relevant domestic law and practice
1. Provisions on assistance and attendance allowance
According to Section 141 of the Pensions and Invalidity Insurance Act as in force at material time (Zakon o pokojninskem in invalidskem zavarovanju, consolidated version published in the Official Gazette no. 109/06) the assistance and attendance allowance for those in need of permanent assistance is set at the level of 70% of the reference amount foreseen under Section 57 of the same act for benefits other than pensions or rights provided for under the disability insurance scheme. It is further foreseen that the Institute can award to those categories of beneficiaries who are severely impaired a higher amount of the allowance for assistance and care then 70% of the reference amount. The criteria in the latter case are to be determined by the minister responsible for the health matters.
According to a Decision on Assistance and Attendance Allowance for Beneficiaries Suffering from a Severe Impairment (Official Gazette no. 77/98) the assistance and attendance allowance for those severely impaired amounts to 100% of the reference amount. According to the criteria of the Ministry of Health those beneficiaries are considered as severely impaired who are in need of 24-hour supervision by their family members and in need of a further professional assistance of at least a health technician (nurse) to provide them with permanent health care.
2. Rules on procedure
The decisions on the entitlement to assistance and attendance allowance 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, Official Gazette no. 2/04). 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, consolidated version in force at the relevant time published in the Official Gazette no. 36/20).
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, published in the Official Gazette no. 118/05) 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 his right to a fair trial. He alleged that the fact that the courts based their decisions on the opinions of the Disability Commissions violated the principle of equality of arms. He noted that the Commissions were not independent bodies but were appointed by the opposite party, the Institute, and that his request to appoint an independent expert in order to establish whether he needed professional assistance had been dismissed.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of his 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 (see the principles exposed in Sara Lind Eggertsdóttir v. Iceland, no. 31930/04, § 47, 5 July 2007)?
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