TABAK v. CROATIA - 24315/13 (Judgment : No Article 6 - Right to a fair trial : First Section) [2022] ECHR 42 (13 January 2022)

In the case of Tabak v. Croatia,

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

          Péter Paczolay, President,
          Ksenija Turković,
          Alena Poláčková,
          Gilberto Felici,
          Erik Wennerström,
          Raffaele Sabato,
          Lorraine Schembri Orland, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 24315/13) 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, Mr Ivan Tabak (“the applicant”), on 27 March 2013;

the decision to give notice of the application to the Croatian Government (“the Government”);

the parties’ observations;

Having deliberated in private on 28 September 2021 and 23 November 2021,

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

INTRODUCTION

1. The case concerns the applicant’s complaint under Article 6 § 1 of the Convention that he did not have a fair hearing because the national courts based their judgments on the opinion of an expert who worked for the defendant company.

THE FACTS

2. The applicant was born in 1956 and lives in Ferdinandovac. He was represented by Mr Ž. Lacković, a lawyer practising in Đurđevac.

3. The Government were represented by their Agent, Ms S. Stažnik.

4. The facts of the case, as submitted by the parties, may be summarised as follows.

5. On 8 June 1995 the applicant was involved in a road traffic accident in which he sustained an injury to his knee.

6. On 1 January 1999 he was granted a disability pension.

7. In May 1999 he brought a civil action against the insurance company C.O. before the Đurđevac Municipal Court (Općinski sud u Đurđevcu), seeking compensation of damage in relation to the road traffic accident.

8. The case was assigned to Judge V.V. During the first-instance proceedings the applicant was represented by I.D., a lawyer from Đurđevac.

9. In July 2000 the first-instance court obtained an expert report from D.H., a surgeon and a permanent court expert, on the nature of the applicant’s injury and the intensity and duration of his physical and mental pain. D.H. stated, inter alia, that the reason for the applicant’s disability retirement had not been his knee injury sustained in the road traffic accident, but probably the changes to his spine. The applicant objected to D.H.’s expert report in the part which referred to the reason for his disability retirement.

10. In December 2002 the first-instance court obtained an expert report from F.R., a permanent court expert for road traffic matters. F.R. found, inter alia, that the road traffic accident had occurred due to inappropriate speed of driving of both parties. The applicant did not have objections to F.R.’s findings.

11. In its written submission of 29 March 2006, the defendant company proposed that an expert report be obtained from an occupational medicine specialist.

12. At a hearing held on the same day at which the applicant and his lawyer were present, and the defendant company was not, the first-instance court commissioned an expert report from V.B., an occupational medicine specialist and a permanent court expert. The task of V.B. was to assess the relationship between the injury the applicant had sustained in the road traffic accident and his capacity to work.

The relevant part of the minutes from the hearing read:

“I. [The court] will commission a medical expert report.

II. [The court] appoints as expert V.B., ..., occupational medicine specialist, permanent court expert.

III. [The expert] is to establish whether and to what extent [the applicant’s] capacity to work decreased owing to the consequences of the road traffic accident, other injury or illness, and establish the duration of his incapacity to work.

IV. The expert is required to submit her written expert report within thirty days ...”

13. On 23 June 2006 V.B. submitted her expert report to the first-instance court. She examined the applicant’s medical documentation and concluded that:

– the reason for the applicant’s incapacity to work (sick leave) from 9 June to 26 August 1995 had been the knee injury sustained in the road traffic accident;

– the reason for his sick leave from 28 August to 1 December 1995 had been the treatment of complications from the knee injury caused by an earlier knee illness, as well as the damage to his cervical nerves caused by the changes to his spine; and that

– his decreased working capacity had not been caused by the knee injury, but by his spinal illness and by the chronic damage to his cervical nerves.

14. On 11 August 2006 the defendant company proposed that V.B. be heard in respect of one part of her findings. The applicant agreed with this proposal.

15. On 25 October 2006 V.B. submitted an additional expert report in which she explained that the reason for the applicant’s sick leave from 28 August to 1 December 1995 had been the treatment of his knee illness which had developed before the accident, as well as his spinal pain.

16. At the hearing held on 28 December 2006, the applicant challenged V.B.’s findings.

17. At the hearing held on 5 February 2007, the court heard V.B. The relevant part of the minutes from the hearing reads:

“[The court] will hear expert V.B.

Court expert: Dr V.B., daughter of ..., born on..., residing in ..., occupational medicine specialist.

After being properly warned submits as follows ...”

V.B. then replied to the applicant’s questions as regards her findings in the expert report. In V.B.’s view, the knee injury aggravated the existing knee illness, and the knee illness prolonged the treatment of the knee injury. The applicant requested additional time in order to specify his claim.

18. In a submission of 15 February 2007, the applicant relied on V.B.’s oral evidence given at the hearing of 5 February 2007 to support his claim.

19. On 2 March 2007 the Đurđevac Municipal Court found, relying on expert report by F.R. (see paragraph 10 above), that the applicant bore 50% of the responsibility for the road traffic accident and thus granted him 50% of the amounts sought in respect of non-pecuniary damage and lost income for the period between 8 June 1995 until his retirement in January 1999. It assessed his claim for non-pecuniary damage relying on expert report by D.H. (see paragraph 9 above). It dismissed his claim for a monthly allowance, which the applicant sought as of 1 January 1999, relying on V.B.’s finding that the reason for the applicant’s disability retirement had not been the knee injury sustained in the road traffic accident.

20. In his appeal the applicant challenged the first-instance court’s conclusion that he bore 50% of the responsibility for the road traffic accident.

21. On 30 September 2008 the Koprivnica County Court upheld the part of the judgment dismissing the applicant’s claim and quashed the part of the judgment concerning awarding the applicant 50% of the amount sought in respect of lost income, and remitted that part of the case to the first-instance court. It found that the first-instance court had failed to explain why it had awarded the applicant lost income for the entire period until his disability retirement. Accordingly, in the remitted case the first-instance court was required to decide on the applicant’s claim in respect of lost income for the period between 8 June 1995 until his retirement in January 1999 in the amount of 54,684 Croatian kunas (HRK), plus statutory interest. The remainder of the first-instance judgment became final.

22. On 24 November 2008 the applicant lodged an appeal on points of law against the part of the first-instance judgment which became final. On 21 December 2011 the Supreme Court (Vrhovni sud Republike Hrvatske) dismissed his appeal on points of law as unfounded. It held, inter alia, that the lower courts had correctly dismissed the applicant’s claim for a monthly allowance, having regard that the expert report had confirmed that the reason for the applicant’s disability retirement had not been the knee injury sustained in the road traffic accident.

23. Meanwhile, in the remitted case, on 27 October 2009 the first-instance court gave judgment granting the applicant’s claim in respect of lost income for the period between 9 June and 26 August 1995 in the amount of HRK 1,131.52, plus statutory interest, and dismissing the remainder of his claim in the amount of HRK 53,552.48. In so doing it relied on V.B.’s findings that the reason for the applicant’s sick leave between 9 June and 26 August 1995 had been the knee injury sustained in the road traffic accident, whereas the reason for his further sick leave had been illnesses unrelated to the accident.

24. Following the applicant’s appeal, on 23 February 2010 the Koprivnica County Court quashed the part of the first-instance judgment dismissing the applicant’s claim.

25. On 30 June 2010 the first-instance court dismissed the applicant’s claim, stating that it was not possible to distinguish between the amounts which he had sought on various grounds in respect of lost income within the total amount of the claim in respect of lost income.

26. Following the applicant’s appeal, the Koprivnica County Court quashed the first-instance judgment and the case was assigned to Judge Z.S. She was required to decide on the applicant’s claim in respect of lost income for the period between 26 August 1995 until his retirement in January 1999 in the amount of HRK 53,552.48, plus statutory interest.

27. On 5 March 2012 the first-instance court dismissed the applicant’s claim as unfounded. It relied on V.B.’s report that the reason for the applicant’s sick leave after 26 August 1995 had been unrelated to the accident.

28. On 16 March 2012 the applicant lodged an appeal under section 354(1) of the Civil Procedure Act (see paragraph 44 below) in which he complained that there had been a serious breach of civil procedure on the grounds that the first-instance court had appointed as expert V.B. who, according to publicly available data, had worked as a medical examiner in the defendant company’s directorate general and was also the president of the management board of its subsidiary, C.Z.O. The first-instance court had based its judgment on V.B.’s opinion, whereas pursuant to sections 71 and 254 of the Civil Procedure Act, she ought to have been disqualified from the case (see paragraphs 35-36 below).

The applicant stated that he had appointed new lawyers to represent him in the appellate proceedings who had examined the case file and had found out about V.B.’s connection with the defendant company.

He lastly submitted that V.B.’s findings in his case were evidence of her bias; she had downplayed the impact of his injury on the deterioration of his health. To this appeal the applicant attached a copy of V.B.’s professional biography.

29. On 4 September 2012 the second-instance court dismissed the applicant’s appeal as unfounded.

It found that V.B.’s professional biography, which was attached to the appeal, indicated that at the time of submitting her expert report she had not been employed by the defendant company, but that she had been a medical examiner in its directorate general in 1995, and that from March 2004 until retirement, the date of which was unknown, she had been president of C.Z.O.’s management board.

It also held that the applicant was precluded from raising the objection regarding the expert’s impartiality in the appeal proceedings.

It lastly dismissed the applicant’s objections as to V.B.’s conclusions, finding that those objections had already been discussed and dismissed during the first-instance proceedings.

The relevant part of the second-instance judgment reads:

“The complaint concerning the expert was presented by the plaintiff for the first time in his appeal, whereas pursuant to section 352 (2) of the Civil Procedure Act, if during the first-instance proceedings a party does not put forward ... an objection regarding an issue which the first-instance court does not consider of its own motion, the party may not present this objection in the appeal.

Pursuant to section 254 of the Civil Procedure Act, an expert may be disqualified for the same reasons as a judge may be disqualified, and a party is obliged to submit a request for disqualification of the expert as soon as he or she learns of the reason for disqualification, and at the latest before the beginning of the hearing of evidence by the expert. If the party learned of the reason for disqualification after the expert report has been obtained and objects to the expert report for this reason, the court shall act as though the request for disqualification was submitted before the expert report was obtained.

Therefore, this is a procedural objection regarding an issue which the first-instance court does not consider of its own motion, so the objection cannot be presented in the appeal.”

30. The applicant lodged a constitutional complaint against the second-instance judgment, arguing that he had complained about V.B.’s lack of impartiality as soon as he had learned of the reason for which she ought to have been disqualified from the case. The second-instance court had refused to examine his complaint by relying on section 352(2) of the Civil Procedure Act. However, under section 352(1) of that Act, a party to the proceedings could rely in his or her appeal on new facts and evidence if they related to a serious breach of civil procedure as defined by section 354(1) (see paragraphs 41 and 44 below).

31. On 19 December 2012 the Constitutional Court dismissed the applicant’s constitutional complaint as manifestly ill-founded.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

I. Relevant domestic law

32. At the material time the position of court experts in civil proceedings was regulated under sections 251 to 262 of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/1991, 91/1992, 112/1999, 117/2003, 84/2008, 123/2008, 57/2011 and 148/2011).

33. Under section 251 of the Civil Procedure Act, the commissioning of an expert report was within the competence of the court conducting the proceedings. Before commissioning an expert report, the court was required to hear the parties with regard to the choice of expert (section 251(2)). The court was always allowed to commission a report from another expert (section 251 (4)).

34. When appointed by the court, experts had an obligation to submit an expert report (section 253(1)). At the expert’s request, the court was to discharge him or her from the obligation to submit an expert report for the same reasons a witness was allowed to refuse to testify or answer a particular question. When there were other justified grounds, the court was able, at the request of the expert or a legal person in which the expert was employed, to release him or her from the obligation to submit an expert report (section 253(2) and (3)).

35. Under section 254(1) of the Civil Procedure Act, an expert could be disqualified for the same reasons as a judge.

36. A judge was excluded from exercising his or her functions if he or she was employed, permanently or temporarily, by a legal person which was a party to the proceedings (section 71(2)). This was considered to be an absolute ground for a judge to be automatically disqualified from a case. As soon as a judge became aware of an absolute ground for disqualification, he or she was to take no further part in the case in question. The judge was obliged to bring the circumstances which disqualified him or her from sitting to the attention of the president of the court, who then designated another judge (section 72(1)).

A judge was excluded from exercising his or her functions where other circumstances were present which cast doubt on his or her impartiality (section 71(7)). A judge was obliged to inform the president of the court of any circumstances which he or she considered might cast doubt on his or her impartiality. The president of the court had then to make a decision regarding possible disqualification, taking account of the circumstances of the case (section 72(2)). The remaining relevant domestic law provisions concerning the disqualification of judges in civil proceedings is set out in the case of Ramljak v. Croatia (no. 5856/13, §§ 13-18, 27 June 2017).

37. Under section 254(2) of the Civil Procedure Act, a party was obliged to submit a request for disqualification of the expert as soon as he or she learned that there was a reason for disqualification and at the latest before the beginning of the hearing of evidence from the expert. In the request for disqualification, the party was obliged to state the circumstances on which the request was based (section 254(3)). If the party learned of the reasons for disqualification after the expert report had already been obtained and objected to the report for those reasons, the court was to act as though the request for disqualification had been submitted before the obtaining of the expert report (section 254(6)).

38. Deciding on the request for disqualification was within the competence of the civil court (section 254(4)). An appeal was not permitted against a decision accepting the request for disqualification, and a separate appeal was not permitted against a decision refusing the request (section 254(5)).

39. Experts were invited by written invitation indicating his or her name and occupation and the case in respect of which he or she was being invited as expert. The invitation contained a warning regarding unjustified absences and the right to compensation of costs (section 257).

40. Before submitting their expert report, experts were invited to carefully examine the matter, accurately state all their observations and give their opinion conscientiously and in accordance with the rules of science and expertise. They were also warned about the legal consequences of perjury (section 258(1)). Experts were then invited to state their name, surname, father’s name, occupation, residence, place of birth, age and their relationship with the parties (section 258(2)).

41. Under section 352(1) of the Civil Procedure Act, a party was not able to rely on new facts or adduce new evidence in an appeal against a first‑instance judgment, unless those facts and evidence related to serious breaches of civil procedure for which it was possible to lodge an appeal.

42. Under section 352(2) of the Civil Procedure Act, if during the first‑instance proceedings the party did not put forward an objection relating to the expiry of the statute of limitations period, an objection with a view to resolving the case by setting off mutual claims, or some other substantive or procedural objection regarding an issue which the first-instance court did not consider of its own motion, the party was not permitted to present this objection in the appeal.

43. Under section 353(1) of the Civil Procedure Act, it was possible to challenge the first-instance judgment on the grounds of a serious breach of civil procedure.

44. Under section 354(1) of the Civil Procedure Act, a serious breach of civil procedure arose if during the proceedings the court failed to apply, or incorrectly applied, a provision of this Act, which influenced, or could have influenced, the rendering of a lawful and just judgment.

45. In addition to the Civil Procedure Act, at the material time in the case at hand the position of court experts was regulated by two editions of the Court Experts Ordinance (Pravilnik o stalnim sudskim vještacima, Official Gazette no. 21/1998, and Pravilnik o stalnim sudskim vještacima, Official Gazette no. 88/2008, with further amendments). Both editions of the Court Experts Ordinance provided that court experts were required to give opinions that were objective and to the best of their knowledge true.

46. The duties of court experts in carrying out their work were also regulated by two editions of the Code of Ethics of Court Experts (Etički kodeks sudskih vještaka), adopted by the Croatian Association of Court Experts (Hrvatsko društvo sudskih vještaka) on 6 April 2002 and 12 February 2011. The latter edition provided that experts were required to avoid conflicts of interest caused by family relations, friendships and financial interests, and abstain from receiving any kind of payment which could affect their objectivity (section 4). They were required to give independent and impartial opinions (section 8). They were obliged to notify the court if there were justified grounds for their removal from the case (section 10).

II. Relevant domestic practice

47. The Government relied on the Supreme Court’s decision no. Rev‑x‑1115/13 of 10 December 2014 delivered in civil proceedings in which the plaintiffs had sought damages from a municipality.

48. In that decision the Supreme Court noted, inter alia, that the first‑instance judgment in the case had been based on an expert report submitted by a court expert in respect of whom during the first-instance proceedings the plaintiffs had submitted a request for disqualification for reasons which they had reiterated in their appeal and appeal on points of law, namely, that a company owned by the expert had been in an ongoing business relationship with the defendant. The Supreme Court held that if an expert was in an ongoing business relationship with a party to the proceedings, that could amount to circumstances which cast doubt on his or her impartiality under section 71(7) of the Civil Procedure Act. It noted that the first-instance court had dismissed the request for disqualification of the expert as unfounded and that the second-instance court had avoided considering the matter deeming, inter alia, that the plaintiffs had not submitted their request for disqualification within the time-limit set out in section 254(2) of the Civil Procedure Act (that is, before the expert report had been commissioned). The Supreme Court found that the second-instance court had failed to apply section 254(6) of the Civil Procedure Act, pursuant to which the request could also be submitted after the expert report had already been commissioned, if the party learned of the reasons for disqualification subsequently. The second-instance court had not taken into consideration when the plaintiffs had learned of the reason for the expert’s disqualification. In the second-instance proceedings there had therefore been a serious breach of civil procedure which could have influenced the rendering of a lawful and just judgment. On this ground the Supreme Court quashed the judgment of the second-instance court and remitted the case to it.

THE LAW

ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

49. The applicant complained that he had not had a fair hearing because the national courts had based their judgment on the opinion of an expert who had worked for the defendant company. The applicant relied on Article 6 § 1 of the Convention, which reads as follows:

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

A. Admissibility

50. The Court notes that the complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

51. The applicant argued that under the Civil Procedure Act, experts should inform the court if there were any circumstances calling his or her independence or impartiality into doubt. V.B. had failed to disclose her professional ties with the defendant company and had submitted an expert report on the basis of which the courts had dismissed an important part of his claim. This had violated the principle of equality of arms.

52. The applicant explained that I.D., the lawyer who had represented him during the first-instance proceedings, had not had any personal or professional contact with V.B., and had not been aware of her connection with the defendant company. In the appellate proceedings he had hired new lawyers who had found out about this connection and had raised the issue of the lack of impartiality in the appeal against the first-instance judgment. However, the second-instance court had refused to consider the matter and his constitutional complaint had been to no avail.

(b) The Government

53. The Government contended that there was nothing to indicate that the first-instance court judge had been aware of the connection between the defendant company and V.B. when appointing her as expert in the applicant’s case. V.B. was a permanent court expert specialising in occupational medicine. The list of permanent court experts only contained the experts’ personal information and their specialisation. It did not contain information regarding their employment. Had V.B.’s professional connection with the defendant company been a generally known fact in Đurđevac, then I.D., who had represented the applicant during the first-instance proceedings, would also have been aware of it. The judge who had appointed V.B. as expert in the case had not been the same judge who had adopted the final judgment on the basis of her report.

54. The Government further submitted that although the commissioning of an expert report was within the competence of the court conducting the proceedings, the parties had sufficient procedural safeguards to ensure the impartiality of experts. They had the possibility to object to a particular person being appointed as expert in their case. They were also able to submit a request for the disqualification of an expert, who could be disqualified for the same reasons as judges, such as permanent or temporary employment by a legal entity which was a party to the proceedings.

55. The Government noted that the applicant and his lawyer had had no objections to V.B.’s impartiality during a period of six years. They had obviously not acted diligently since, as pointed out by the applicant’s lawyers in the appeal proceedings, the information on V.B.’s connection with the defendant company had been “publicly available”.

56. The Government argued that the national law did not oblige judges to consider the existence of reasons for disqualification of experts of their own motion. Otherwise judges would have to examine private, professional and other possible connections between the experts and parties to the proceedings.

57. In the Government’s view, even if the first-instance court judge had found out about V.B.’s connection with the defendant company after appointing her as expert in the case, he could not have raised the issue of his own motion. Only the party concerned was able to ask for the expert’s disqualification. Furthermore, unlike judges, who under the domestic law were obliged to recuse themselves from the case if they discovered grounds for their exclusion or circumstances which called their impartiality into doubt, experts did not have this obligation.

58. Relying on the Supreme Court’s decision outlined in paragraphs 47-48 above, the Government stressed that a request for disqualification of an expert could be submitted only during the first-instance proceedings. The conduct of the first-instance court upon that request was then open to examination by the higher courts. The applicant had complained about V.B.’s lack of impartiality for the first time in the appeal proceedings, thus the second-instance court had been precluded from examining the matter.

59. The Government lastly contended that the fact that the domestic courts’ judgments in the applicant’s case had been based on V.B.’s expert report had not breached the principle of equality of arms. V.B. had been one of three experts commissioned in the case, and part of the applicant’s claim had actually been granted.

2. The Court’s assessment

60. The Court reiterates that Article 6 § 1 of the Convention guarantees a right to a fair hearing by an independent and impartial “tribunal” and does not expressly require that an expert heard by that tribunal fulfils the same requirements (see Sara Lind Eggertsdóttir v. Iceland, no. 31930/04, § 47, 5 July 2007, and Letinčić v. Croatia, no. 7183/11, § 51, 3 May 2016). However, the opinion of an expert who has been appointed by the competent court to address issues arising in the case is likely to carry significant weight in that court’s assessment of those issues. The requirement of independence is particularly important when obtaining medical reports from expert witnesses, who must have formal and de facto independence from those implicated in the events (see Bajić v. Croatia, no. 41108/10, § 95, 13 November 2012). In its case-law the Court has recognised that the lack of neutrality on the part of a court-appointed expert may in certain circumstances give rise to a breach of the principle of equality of arms inherent in the concept of a fair trial (see Bönisch v. Austria, 6 May 1985, §§ 30-35, Series A no. 92, and Brandstetter v. Austria, 28 August 1991, § 33, Series A no. 211). In particular, regard must be had to such factors as the expert’s procedural position and role in the relevant proceedings (see Sara Lind Eggertsdóttir, cited above, § 47, and Letinčić, cited above, § 51).

61. In the present case, the matter to be determined by the domestic courts was whether the defendant company was liable to pay damages to the applicant on account of an injury he had sustained in a road traffic accident (see paragraph 7 above).

62. The domestic courts obtained expert reports from three experts (see paragraphs 9-10 and 12 above) and issued several judgments. Relying on the expert report by D.H., they assessed the applicant’s claim for non-pecuniary damage. Relying on the expert report by F.R., they held that the applicant bore 50% of the responsibility for the road traffic accident and thus granted him 50% of the amount sought in respect of non-pecuniary damage. Relying on the expert report by V.B., they granted the applicant’s claim concerning lost income for the period between 9 June and 26 August 1995 and dismissed his claim concerning a monthly allowance for the period after January 1999 (see paragraphs 19-24 above).

63. Those judgments became final. The applicant’s claim concerning lost income for the period between 26 August 1995 until his retirement in January 1999 in the amount of HRK 53,552.48, plus statutory interest (see paragraph 26 above), which is the subject matter of the case before the Court, remained to be examined by the domestic courts.

64. In March 2012 the first-instance court rejected the outstanding part of the applicant’s claim on the basis of V.B.’s expert report prepared in 2006 and February 2007, in which she held that the applicant’s decreased capacity to work after 26 August 1995 was unrelated to the road traffic accident (see paragraphs 13, 15, 17 and 25 above).

65. In these circumstances the Court is ready to accept that V.B.’s expert report had a decisive role in the assessment of a significant part of the applicant’s claim, notably that concerning lost income for the period between 26 August 1995 until his retirement in January 1999 in the amount of HRK 53,552.48, plus statutory interest (see paragraph 64 above). The Court notes that in 1995 V.B. was employed as a medical examiner in the defendant company’s directorate general and that, at the time of submitting her expert opinion in the applicant’s case (2006 and February 2007), she was the president of the management board of the defendant company’s subsidiary (see paragraph 29 above).

66. Accordingly, given the subject matter of the domestic proceedings, the role V.B.’s report played in those proceedings and her senior position in the defendant company and its subsidiary, the Court considers that V.B.’s neutrality was capable of being, or at least appearing, open to doubt, and that the applicant’s fears in this respect can be considered reasonable and objectively justified (compare Sara Lind Eggertsdóttir, cited above, §§ 51 and 53).

67. However, the second-instance court refused to examine the applicant’s complaint in that regard on the ground that he had raised the issue for the first time in his appeal against the first-instance judgment (see paragraph 29 above).

68. At this juncture, the Court would emphasize that the issue here is not the content of V.B.’s expert report or the question of whether the applicant’s decreased capacity to work after 26 August 1995 was truly related to the road traffic accident, but whether V.B. as the expert in the civil proceedings could have been seen as objectively impartial. What is at stake in such situations is the trust of the public in the justice system, where appearances have a high importance (see Bajić, cited above, § 102).

69. The Court will thus first examine whether the fact that V.B.’s lack of neutrality was not raised during the proceedings before the first-instance court can be imputed mainly and objectively to the applicant (see, mutatis mutandis, Zubac v. Croatia [GC], no. 40160/12, §§ 114 and 121, 5 April 2018).

70. The Court notes that Croatian law lays down several safeguards designed to ensure formal and de facto independence and impartiality of experts and the reliability of expert evidence (see Jurica v. Croatia, no. 30376/13, §§ 93-94, 2 May 2017). These safeguards concern the procedural rights of the parties in the proceedings, as well as the duties of the expert and the court conducting the proceedings. The Court shall examine whether those safeguards were properly applied in the present case.

71. The Court notes that under section 253(3) of the Civil Procedure Act experts, as well as the legal persons in which they were employed, could have requested the judge who had appointed them to discharge them from the obligation to submit an expert report in a case (see paragraph 34 above).

72. Having regard that being employed, permanently or temporarily, by a legal person which was a party to the proceedings disqualified an expert from participating in a case (see paragraphs 29-30 above), the Court is of the view that V.B., who was at one point employed as a medical examiner in the defendant company’s directorate general and at the time of submitting her expert opinion in the applicant’s case was the president of the management board of the defendant company’s subsidiary, had every reason to report this circumstance to the first-instance court. Yet, she did not do so.

73. The Court further notes that under section 251 of the Civil Procedure Act, as in force at the time, the commissioning of an expert report was within the competence of the court conducting the proceedings (see paragraph 27 above).

74. Further to this, even though at the hearing held on 5 February 2007 the judge warned expert V.B. about the legal consequences of perjury (section 258(1) of the Civil Procedure Act), he failed to invite her to state her relationship with the parties to the proceedings (see paragraph 17 above). The Court observes that this amounted to information which under section 258(2) of the Civil Procedure Act the judge was expressly required to ask the expert (see paragraph 40 above).

75. At the same time, there is no indication that the first-instance court judge who appointed V.B. as expert (see paragraph 12 above), or the judge who finally adjudicated the case (see paragraph 26 above), were aware of her professional ties with the defendant company (see, by contrast, Sara Lind Eggertsdóttir, cited above, § 24, and Bajić, cited above, § 33, where the domestic courts were aware of the connection between the experts and the defendants but concluded that the connection did not affect the experts’ impartiality).

76. V.B. was a permanent court expert for matters of occupational medicine and, according to the Government, the list of permanent court experts did not contain information as to the experts’ employment or other professional engagements (see paragraph 53 above). It is hard to criticize the judges’ lack of knowledge in this regard in a situation in which the lawyer representing the applicant in the first-instance proceedings, a professional whose task was to assert his client’s position in the case, was also not aware of it.

77. The Court further notes that Section 254 of the Civil Procedure Act sets out the possibility for a party to request the disqualification of an expert (see paragraph 37 above). In the present case it is undisputed that during the proceedings before the first-instance court the applicant did not request that V.B. be disqualified from the case.

78. In this connection the Court observes that the applicant did not inquire about V.B. or her possible relationship with the defendant company until the first-instance judgment of 5 March 2012 was rendered. Altogether, this concerned a period of six years. At the same time, he had ample opportunity to do so. He was present at the hearing when she was appointed as expert in his case (see paragraph 12 above). He was made aware of her report and questioned her at the hearing (see paragraph 17 above). The first-instance judgment relying on V.B.’s findings was quashed several times by the second-instance court (see paragraphs 19-26 above). In his appeal against the first-instance judgment adopted on 5 March 2012, in which he raised the issue for the first time, he admitted that the information on V.B.’s connection with the defendant company had been publicly available (see paragraph 28 above). He did not argue, either before the domestic courts or before the Court, that the latter information became available only after the first-instance proceedings had ended (see paragraphs 28 and 52 above).

79. It can therefore be said that the applicant, who was legally represented in the first-instance proceedings, failed to act with the necessary diligence concerning the person who had been appointed as an expert in his case, and failed to use his procedural rights in that regard. Indeed, in such an important matter for the applicant it would be expected, and in terms of the national law and practice required, that the applicant inquire about the person appointed as expert in his case and submit a request for the expert’s disqualification during the first-instance proceedings (see, mutatis mutandis, Zahirović v. Croatia, no. 58590/11, §§ 35-36, 25 April 2013).

80. Since the matter was not raised during the first-instance proceedings, the second-instance court was precluded from examining it (see paragraph 29 above). Given that the situation was mainly and objectively imputable to the applicant, in the Court’s view the adverse consequences of that situation should rest on the applicant (see, mutatis mutandis, Zubac, cited above, § 121).

81. The Court further notes that the domestic courts did not simply allow the report drawn up by V.B., but also invited her to submit a supplementary report in order to shed further light on points which had remained unclear, as well as heard her in open court in the presence of the parties, who were able to put questions (see paragraphs 15 and 17 above). In a submission of 15 February 2007, the applicant even relied on V.B.’s oral evidence given at the hearing to support his claim (see paragraph 18 above). The domestic courts also duly scrutinised the expert evidence and, on the basis of V.B.’s finding that there had been no connection between the road traffic accident and the applicant’s decreased capacity to work after 26 August 1995, dismissed the outstanding part of the applicant’s claim (see paragraphs 27 and 29 above). Therefore, the domestic courts cannot be faulted for the manner in which they assessed V.B.’s expert report.

82. In sum, the Court considers that the applicant effectively participated in the procedure of commissioning and obtaining the expert reports used to decide the merits of his claim and that the fact that the second-instance court did not examine the complaint concerning expert V.B.’s neutrality, a situation caused mainly and objectively by the applicant (see paragraph 80 above), did not breach his right to a fair hearing under Article 6 § 1 of the Convention.

83. Accordingly, the Court finds that there has been no breach of Article 6 § 1 of the Convention.

FOR THESE REASONS, THE COURT,

1. Declares, unanimously, the application admissible;

2. Holds, by four votes to three, that there has been no violation of Article 6 § 1 of the Convention.

Done in English, and notified in writing on 13 January 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Liv Tigerstedt Péter Paczolay
Deputy Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) Concurring opinion of Judge Sabato;

(b) Joint Dissenting opinion of Judges Turković, Paczolay and Felici.

P.P.C.
L.T

CONCURRING OPINION OF JUDGE SABATO

84. While I fully agree with the conclusion of the majority that there has been no violation of Article 6 § 1 of the Convention and with many of the reasons on which my distinguished colleagues of the same majority base that conclusion, I respectfully disagree with some other findings.

85. The Chamber was faced with a rather peculiar case, in which over six years (see paragraphs 11-13 and 28 of the Chamber judgment (“the judgment”)) four first-instance (see paragraphs 19, 23, 25, and 27 of the judgment) and four appellate court judgments (see paragraphs 22, 24, 26 and 28 of the judgment) were rendered. There had been no challenge or other issue raised by the applicant concerning the neutrality of the court-appointed expert, whose report had played a decisive role in the assessment of a part of the applicant’s claim (see paragraph 65 of the judgment). Eventually, after the lawyer representing the applicant changed, that issue was raised as part of a procedural ground of appeal against the fourth first-instance judgment (see paragraph 28 of the judgment).

86. Under the applicable domestic civil procedural law (Croatia’s Civil Procedure Act (“the Act”) referred to in paragraphs 32 and following of the judgment) a court-appointed expert is selected, pursuant to section 252 of the Act, primarily from approved lists of permanent court experts, a system which is widespread in Europe in order to provide the public with prior information on eligible appointees, so that possible issues as to their professionalism and neutrality can be resolved in good time.

87. Furthermore, the domestic Act - again in line with several other European systems of civil procedure - establishes time-limits on the raising of doubts as to the expert’s neutrality.

Thus, pursuant to section 254(2) of the Act,

“the party challenging the court-appointed expert is obliged to submit a request for disqualification as soon as he or she learns that a ground for disqualification exists, and at the latest before the beginning of the hearing of evidence from that expert. If the court hears the parties regarding the character of the expert before selecting him or her, the parties are obliged to make a statement regarding disqualification at that time”.

Additionally, under section 254(6) of the Act,

“If a party discovers reasons for disqualification after that evidence from the expert has been collected and therefore objects to the expertise, the court shall act as though the request for disqualification had been submitted before the obtaining of the expert evidence”.

Under section 254(5) of the Act,

“No appeal is permitted against a ruling allowing a request for disqualification, and no separate appeal is permitted against a ruling refusing the request”.

Under section 352(2) of the Act

“If during the first instance proceedings the party did not put forward ... some ... substantive law or procedural law objection regarding a question which is not the concern of the first instance court sua sponte, the party may not present this objection in the appeal”.

Pursuant to section 377(1) of the Act, concerning remittal to the court of first instance after quashing of a judgment by the appellate court,

“The court of first instance shall take all procedural actions and hear all disputable issues to which the court of second instance referred in its ruling.”

88. Bearing the above in mind, I consider that the challenge brought by the applicant against the expert’s appointment, for the first time in his fourth appeal lodged on 16 March 2012, was clearly invalid under domestic law. In this regard, I fully agree with paragraphs 79-80 of the judgment, according to which “the applicant ... failed to act with the necessary diligence ... and failed to use his procedural rights”, in a system which required that the issue of the expert’s neutrality be raised during the first-instance proceedings”, being “the second-instance court ... precluded from examining it”. This set of rules, as I already mentioned, is also consistent with a European consensus resulting from comparative analysis of civil procedures, which is highly relevant to subsidiarity-based supervision of human rights: a domestic system cannot be found in violation of Article 6 § 1 for the lack of neutrality of a court-appointed expert on whose report the judge has relied if effective remedies existed for disqualifying such an expert but no request for disqualification had been filed within a reasonable procedural deadline (the same would apply, mutatis mutandis, to issues involving a lack of impartiality on the part of an individual judge, but in this area I would see some limited exceptions - see my dissenting opinion in Škrlj v. Croatia, no. 32953/13, § 14, 11 July 2019).

89. What is important is also that no arbitrariness can be seen in a system, such as the Croatian one, requiring that a challenge to a court-appointed expert should be submitted as soon as possible, and even where the report has already been filed, and providing that, in the absence of a challenge, the objection is declared invalid and, crucially, cannot be filed on appeals. No violation of Article 6 § 1 can be envisaged, since the possible flaw linked to the expert’s alleged lack of neutrality has in any event been cured because of the applicant’s inaction on that matter. If the Court had maintained that such a system was not compliant with Article 6 § 1, the functioning of deadlines, which are an essential part of an orderly civil procedure, would be totally disrupted.

90. On account of this same danger, I previously dissented in another Croatian case (see the dissenting opinion in Škrlj v. Croatia, cited above), in which no challenge had been submitted against the judge, and yet the majority nonetheless found a violation. I pointed to the risk that litigants who had not duly submitted any challenge under domestic system might raise issues of bias directly before the Court, even on the basis of minor suspicions, which the Court would then be required to assess, adopting a fourth-instance role which I consider unacceptable. I then referred to the principle that “... when the domestic law offers a possibility of eliminating the causes for concerns ... , it would be expected (and in terms of the national law required) of an applicant who truly believes that there are arguable concerns on that account to raise them at the first opportunity” (see Zahirović v. Croatia, no. 58590/11, § 35-36, 25 April 2013 referring, obviously, to the judge, but a fortiori applicable to the issue under consideration here).

91. Against this background I am now glad to note that the judgment, in its core paragraphs 79-80, by recognising the role of procedural deadlines in preventing delayed discussions concerning the neutrality of court-appointed experts, has implicitly disavowed Škrlj, mutatis mutandis, and that this has been done inter alia by referring to the Zahirović principle (see, in particular, paragraph 79 of the judgment).

92. I would, moreover, consider that, accordingly, the rationale of the Croatian second-instance court’s judgment, as upheld in the higher courts and cited in the final part of paragraph 29 of the Chamber judgment, was fully compliant with Article 6 § 1 of the Convention.

93. One may perhaps also note that, given that no issue concerning the expert’s neutrality had been raised when the first appeal (of four) had been lodged, the Croatian system of civil procedure seems to allow parties to submit, by way of further appeals after remittals (and here we had three more), new challenges concerning previous sets of proceedings of first instance, against which an appeal had already been lodged. Other systems would not allow this, as the “issues” not raised, but which could have been raised, would be covered by res judicata, within the so-called limits of the devolutive effects of appeals (see Article 377(1), cited above, which refers to “issues”).

94. As a consequence, the majority judgment could just as well have ended here, that is to say, by determining the case reiterating and, if necessary, restoring the Zahirović rule vis-à-vis the opposite approach taken, mutatis mutandis, in Škrlj. The judgment does not, however, go that way, as it additionally develops a number of findings, both in fact and in law, which are of course mere obiter dicta given the absorbing nature of the Zahirović principle. Ay, there’s the rub: since these obiter dicta deal with important features concerning the interpretation and application of legal standards concerning experts’ neutrality, such additional (and in my view unnecessary) findings not only create confusion with respect to the ratio decidendi of the judgment, but also weaken the Zahirović rule and therefore reinforce dissent against it. I will therefore try to pinpoint these unacceptable (obiter) parts of the judgment, explaining why they are unacceptable. In this exercise I will, if need be, recall some relevant items of domestic legislation.

95. I will start by reiterating (see paragraphs 35-36 of the judgment) that, once appointed, experts may be disqualified under section 254(1) of the Act on the same grounds as a judge; however, while under section 71 a judge may be challenged if he or she has served as a witness or an expert in the proceedings, this does not apply to court-appointed experts, a rule which is consonant with the well-established concept that experts’ “neutrality” has a place which ranks lower than judges’ “impartiality”, and which also explains why an expert’s competence is usually more important than a total distance from the subject matter of the case and its parties.

Be that as it may, because of the reference made in section 254(1) of the Act to section 71, an expert may be disqualified, inter alia,

“if he or she is permanently or temporarily employed by a legal person which is a party in the proceedings” (emphasis added).

Based on this provision, on 4 September 2012 the second-instance court dismissed the applicant’s fourth appeal as unfounded, considering (in addition to the procedural invalidation of the disqualification request, which is the rationale of the judgment as indicated above) that there were no real grounds for such disqualification since the expert - “at the time of submitting her .. report ... had not been employed by the defendant company, but that she had been a medical examiner in its directorate-general in 1995, and that from March 2004 until retirement ... she had been president of the ... management board” [of one of the defendant company’s subsidiaries] (see paragraphs 28-29 of the judgment, also containing information as to the subsidiary; emphasis added).

I consider that this finding of the domestic court, upheld in further instances, is central to the assessment of the expert’s neutrality. In my view, the domestic court’s reasoning shows no flaws with respect to the facts and the content of the applicable legal standards set out by the joint operation of sections 254 (1) and 71 of the Act. I am consequently rather surprised that the majority’s judgment did not emphasise the role of the domestic court’s finding. To cut a long story short, I would have expected that, since the disqualification of an expert was possible only “if he or she is permanently or temporarily employed by a legal person which is a party in the proceedings” (emphasis added), my distinguished colleagues would acknowledge the correctness of the domestic judges’ approach. Surprisingly, they did not share this view, and - in paragraph 66 of the judgment, with which I am therefore unable to agree - the majority accepted that the expert had “a senior position in the defendant company and its subsidiary” so that her “neutrality was capable of being, or at least appearing, open to doubt”.

The expert, indeed, as the domestic court correctly explained, was not “permanently or temporarily employed by a legal person which is a party in the proceedings” since, at the time of the expertise, she had a professional relationship with another company which was not a party (although the latter was a subsidiary of the defendant, it was not to be identified with the “legal person” party in the proceedings), whereas a direct employment relationship with the defendant dated back to 1995, eleven years before the appointment.

While it would have been open to the applicant to challenge the expert’s neutrality on other bases under section 71 of the Act (which did not transpire), I wish to recall that here only the above-mentioned wording of section 71 is at stake, and that the rules on disqualification, being exceptions to the general rule of acceptability of experts admitted into court lists, are subject to strict interpretation; hence, any doubt should have been resolved in favour of the general provision and against the exception. The expert was - at least under the wording of the provision in issue– to be deemed neutral.

96. Likewise, it seems to me incorrect that in paragraphs 71 and 72 of the judgment the majority finds that the expert, in relation to the provisions of section 253(3) of the Act, “had every reason to report” her lack of neutrality and even to request to be discharged from her task. Since there was no ground for disqualification, there was no reason to report any circumstance (accordingly, the implicit reference to obligations to report conflicts of interest stemming from ethical rules - also mentioned as relevant legal material in the judgment - appears to me inappropriate, since no legal conflict of interest existed, nor have any other factual elements indicating bias been proved).

97. While reiterating my difficulty in understanding the above two findings of the majority (see paragraphs 12 and 13 of this opinion), the suspicion arises that an explanation may be found for them in the fact that paragraph 36 of the judgment refers to section 71 of the Act indirectly, without citing the relevant provision literally; it is therefore arguable that the use of the past tense in that passage has generated confusion, thereby convincing the majority that previous employments were equally relevant, which is, however, clearly excluded by the use of the present tense in the original provision. Even if this were the explanation, there was nonetheless an inadvertent error in the majority’s reasoning.

98. In a similar vein, in order to express my disagreement with another rather ambiguous finding in paragraph 73 of the majority’s judgment, I wish to recall that section 251 of the Act stipulates, inter alia, that

“Before it decides which persons it shall take to be expert witnesses, the court shall hear the parties on the matter. In urgent cases, the court may select expert witnesses even though the parties have not been heard”.

In the present case a party submission was made on 29 March 2006 suggesting the appointment of an expert (see paragraph 11 of the judgment), and a hearing took place on the same date (see paragraph 12 of the judgment).

This being the background, and although the wording of paragraph 12 of the judgment shows that no direct question was put by the court to the parties concerning the expert’s character, one has to conclude that, for the purposes of the aforementioned section 251, the parties had been duly heard on the request to appoint an expert: the domestic court had received the defendant party’s written request, and it convened a hearing in which the applicant party appeared, so that the proceedings were adversarial. Of course, in such circumstances there is no need for the minutes of the hearing to record the full range of issues covered by the hearing. Also, as a rule, if an issue is passed over in silence “in the minutes of the hearing”, there is no reason to consider that the parties have not been heard on the matter, if the same matter was among those to be discussed because of a petition, to which no party objected, such that it was granted. At any rate, should such a procedural flaw have occurred, it was again the parties’ responsibility - under the relevant rules of civil procedure - to raise an objection as soon as possible, whereas in this case six years passed without any one voicing doubts about the manner in which this hearing had been conducted. The applicable rules of civil procedure are in the hands of the parties and, if they have something to say, they should do so, as I mentioned before with reference to the Court’s case-law.

Bearing this in mind, and given that the Court cannot reproach the domestic court with failing to “explicitly” hear the parties on the appointment of the expert, although a hearing was convened in which a written submission was examined and granted, I (once more) cannot understand the content of paragraph 73 of the judgment, which - after citing section 251 of the Act - refers to the commissioning of an expert report as a matter “within the competence of the court conducting the proceedings”. Whatever that may mean, in my view, no flaw can be inferred from the domestic court’s conduct of the procedural steps leading to commissioning of the expert.

99. Lastly, I must emphasise that in paragraph 74 the judgment also expresses the view that the domestic court “was expressly required” by the Act, but “failed”, to invite the expert “to state her relationship with the parties”, even though she was warned about the legal consequences of perjury. The majority refer to the provision of section 258 of the Act, in the part in which it reads:

“[The expert] shall be cautioned regarding the consequences of perjury. After this, the expert shall be asked to give his or her name and surname, his or her father’s name, address, place of birth, age and relationship to the party.”

100. Again, the above passage of the majority’s reasoning appears obscure to me. In my view, whatever the domestic law may treat as perjury, omitting to state a relevant relationship may be relevant only if such a relevant relationship existed. Otherwise, courts’ minutes are usually short and sparing. What is material to our case is that no relevant employment relationship existed, as the domestic court unambiguously explained.

101. To conclude, for the purposes of developing the Court’s case-law on the procedural aspects of requesting the disqualification of court experts, the findings of the judgments have strong merit; however, some other, sometimes obscure, findings - although they should be considered as obiter dicta - are unacceptable and need clarifications.

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You are here: BAILII >> Databases >> European Court of Human Rights >> TABAK v. CROATIA - 24315/13 (Judgment : No Article 6 - Right to a fair trial : First Section) [2022] ECHR 42 (13 January 2022) URL: http://www.bailii.org/eu/cases/ECHR/2022/42.html Cite as: [2022] ECHR 42