FIFTH SECTION
 
 
 
 
 
CASE OF KOROŠEC v. SLOVENIA
 
(Application no. 77212/12)
 
 
 
 
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
 
8 October 2015
 
 
FINAL
 
08/01/2016
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Korošec v. Slovenia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Angelika Nußberger, President,
 Boštjan M. Zupančič,
 Ganna Yudkivska,
 Vincent A. De Gaetano,
 André Potocki,
 Helena Jäderblom,
 Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 15 September 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 77212/12) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Tadej Korošec (“the applicant”), on 29 November 2012. 2. The applicant was represented by Odvetniška družba Čeferin, a law firm based in Grosuplje. The Slovenian Government (“the Government”) were represented by their Agent, Ms J. Morela. 3. The applicant alleged under Article 6 of the Convention that the court proceedings to which he had been a party had been unfair. 4. On 2 October 2014 the application was communicated to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1980 and lives in Ljubljana. 6. He suffers from progressive spinal muscular atrophy and needs twenty-four hour assistance with all his daily activities. 7. In 2006 the Pensions and Disability Insurance Institute of the Republic of Slovenia (“the Institute”) awarded the applicant an assistance and attendance allowance (hereinafter “the allowance”) of 70% of the reference amount. 8. On 28 May 2009 the applicant’s general practitioner applied for an increase in the allowance due to the applicant’s worsening condition, referring in particular to the deterioration of the applicant’s respiratory functions. In the application the general practitioner indicated that the applicant needed twenty-four hour assistance by a family member or a lay care assistant, along with permanent professional assistance. At that time the applicant organised his care by hiring students to assist him in his daily activities and to provide the necessary aid. He also relied significantly on the assistance of his family members. 9. On 9 July 2009 the first-instance disability commission of the Institute (“the commission”) reported that the applicant did not need permanent, professional, medical assistance. The commission was composed of F.V., an internal medicine specialist, and M.F.B., an occupational medicine specialist. It gave its opinion on the basis of an examination of the medical documentation provided by the applicant, specifically opinions of a doctor of internal medicine, a pulmonologist and a clinical neurologist. They also examined the applicant. 10. On 20 July 2009, the Ljubljana unit of the Institute, relying on the opinion of the commission, dismissed the request for an increase in the allowance. 11. On 28 July 2009 the applicant lodged an appeal. 12. On 23 September 2009 the second-instance disability commission (“the second-instance commission”) of the Institute examined the applicant’s file and again reported that he did not need permanent professional assistance and that he could be cared for by a combination of care assistants without specific medical knowledge and by members of his family. The second-instance commission was composed of L.S., an occupational medicine specialist, and M. G., a specialist neuropsychiatrist. 13. On 24 September 2009 the Institute, referring to the conclusions of the second-instance 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 Disability (see paragraph 23 below), according to which beneficiaries were only entitled to a higher allowance if they were in need of twenty-four-hour assistance by family members and further professional medical assistance. 14. On 22 October 2009 the applicant instituted court proceedings against the Institute before the Ljubljana Labour and Social Court, requesting the appointment of an independent expert to examine his medical file. 15. On 30 September 2010 the Ljubljana Labour and Social Court heard the applicant’s testimony and reviewed the case file. Subsequently it dismissed the applicant’s claim. The court rejected the applicant’s request for the input of an independent expert, concluding that the opinions of the first- and second-instance disability commissions of the Institute together with other evidence sufficed to establish that the applicant did not need professional assistance. The relevant part of the decision read as follows:
“The court therefore fully accepts the opinions of the first- and second-instance disability commissions that the [applicant] did not require permanent professional care because the opinions of the disability commissions were in accordance with the other evidence adduced (the general practitioner’s request and the reports submitted by specialists).”
16. 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 the kind he needed. 17. 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 had been composed of experts capable of assessing whether the applicant needed professional assistance. The relevant part of the decision reads as follows:
“The appeal is unfounded in claiming that the [first-instance court] had concluded, without outside reference, despite the fact that it had no medical knowledge, that the care received by the [applicant] had been adequate. The court based its decision on the above cited opinions of the disability commission that had been assembled for the purposes of the pre-judicial proceedings. The [applicant] was examined by the first-instance disability commission; in giving their opinions both commissions also took into consideration the medical records submitted by his general practitioner.”
18. On 9 March 2011 the applicant lodged an application for leave to appeal on points of law. He, inter alia, challenged the position of the lower courts that there had been no need to appoint an independent medical expert as being contrary to the established case-law of the Supreme Court. According to the Supreme Court the opinions of the Institute’s Disability Commissions could not be considered independent in proceedings instituted against the decisions of the Institute and thus should not be used as evidence in these proceedings (see paragraph 29 below). 19. On 17 May 2011 the Supreme Court dismissed the applicant’s application, holding that the challenged decisions had not departed from the established case-law. 20. On 28 July 2007 the applicant lodged a constitutional complaint. 21. On 11 June 2012 the Constitutional Court dismissed the applicant’s constitutional complaint with reference to section 55.b of the Constitutional Court Act (see paragraph 30 below). II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Provisions on assistance and attendance allowance
22. 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 70% of the reference amount (set out under section 57 of the same act) for benefits other than pensions or rights provided for under the disability insurance scheme. It also provides that the Institute can award to those categories of beneficiaries who suffer severe impairment of faculties a higher figure than 70% of the reference amount. The criteria in the latter case are determined by the Minister for Health. 23. According to the Decision on Assistance and Attendance Allowance for Beneficiaries Suffering from a Severe Disability (Official Gazette no. 77/98) issued by the Ministry of Health, the assistance and attendance allowance for those suffering severe disability amounts to 100% of the reference amount. According to the criteria set by the Ministry, severe disability means those who are in need of twenty-four-hour supervision by their family members and in need of further professional assistance of at least one care assistant to provide them with permanent health care. B. Rules on procedure
24. The decisions on the entitlement to assistance and attendance allowance are issued by the Pensions and Disability Insurance Institute through a two-level administrative procedure. 25. Judicial review of the decisions issued by the second-instance committee of the Pensions and Disability Insurance Institute is carried out by the social courts. 26. The special rules governing the procedure in disputes concerning social-security rights are laid down in section 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 that 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). 27. 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 ascertain a particular fact. C. Disability commissions of the Pensions and Disability Insurance Institute
28. Disability commissions assist the Institute in first- and second-instance proceedings by issuing opinions on disabilities and other matters relevant to decisions on rights to entitlements arising from pensions and disability insurance. According to the Rules on the 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, following nomination by the Director General, by the board of the Institute for a period of four years with the possibility of renewal of their period of appointment. D. Decision of the Supreme Court of 7 November 2006
29. In its decision no. VIII Ips 3/2006 the Supreme Court held that the opinions of the Institute’s disability commissions could only be considered expert opinions in pre-judicial proceedings within the Institute itself. Such opinions could not be considered expert opinions for judicial proceedings since they would be the opinions of the representatives of one of the parties to the judicial proceedings. Accordingly, the Supreme Court held that the procedural rights of the appellant had been violated since the first-instance court had treated the opinions of the disability commissions as decisive pieces of evidence in dismissing her request to appoint an independent expert to assess her degree of disability. E. The Constitutional Court Act
30. In so far as relevant, section 55b of the Constitutional Court Act (consolidated version published in the Official Gazette no. 64/2007), reads as follows:
 “(1) A constitutional appeal shall be rejected:
i. if it does not concern an individual act by which a state authority, local authority, or a holder of a public position of authority decided on the rights, obligations or legal interest of the complainant;
ii. if the complainant does not have a legal interest in a decision on the constitutional appeal;
iii. if it is not admissible, except in the instance referred to in the third paragraph of the preceding section;
iv. if it was not lodged in due time;
... (2) A constitutional appeal shall be accepted for consideration:
i.

Article of the Convention at issue: Article 6
Outcome: violation