SECOND SECTION

DECISION

Application no . 58411/12 Nikola KOVAČEVIĆ against Croatia

The European Court of Human Rights (Second Section), sitting on 28 March 2017 as a Chamber composed of:

Işıl Karakaş, President, Julia Laffranque, Nebojša Vučinić, Paul Lemmens, Ksenija Turković, Jon Fridrik Kjølbro, Stéphanie Mourou-Vikström, judges, and Stanley Naismith, Section Registrar .

Having regard to the above application lodged on 14 August 2012,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Nikola Kovačević, is a Croatian national who was born in 1966 and lives in Zaprešić. He was represented before the Court by Mr M. Čičković, a lawyer practising in Zagreb.

2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

The circumstances of the case

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

A. Background to the case

4. On 17 August 2002 the applicant was physically attacked by a certain M.M. Following the said event, on 25 November 2002 M.M. was found guilty in minor offence proceedings for breaching public order and peace and ordered to pay a fine.

B. Civil proceedings for damages

5. On 21 July 2003 the applicant lodged a civil action with the Zagreb Municipal Court ( Općinski sud u Zagrebu ) against M.M., claiming damages in connection with the physical attack on him. He submitted medical documentation in relation to the injuries he had sustained and requested that an expert report be obtained detailing the duration and intensity of his physical pain and mental suffering as a result of the attack on him.

6. On 23 August 2005 the Zagreb Municipal Court declared that it lacked jurisdiction to examine the applicant ’ s case. The case was referred to the Dubrovnik Municipal Court ( Općinski sud u Dubrovniku ) as the competent court.

7. At a hearing held on 6 December 2005 the trial judge informed the applicant of the possibility of hiring a lawyer to assist him in the proceedings. The applicant maintained that he wished to represent himself.

8. At a hearing held on 14 June 2006 the applicant and M.M. ’ s representative agreed that the trial court should question the parties and three witnesses, and should order an expert medical report detailing the means of infliction, the duration and the intensity of the applicant ’ s physical pain and mental suffering as a result of M.M. ’ s attack on him.

9. On 6 September 2006 the trial court heard evidence from the applicant.

10. On 27 October 2006 the trial court heard two witnesses, as well as the applicant (the plaintiff) and the defendant. It dismissed the applicant ’ s proposal for the police records of action undertaken in relation to the attack on him to be obtained. The applicant then stated that he had no further proposals for evidence. The relevant part of the record of the hearing reads as follows:

“The plaintiff proposes in the next part of the proceedings to seek from the police their records of action undertaken, but the judge dismisses that evidence proposal, given that the minor offence proceedings file has been obtained ...

The plaintiff does not have any further evidence, or any proposal to adduce further evidence. The judge explains what evidence he can propose in the proceedings and in what manner, and warns him of the repercussions of applying the burden of proof rule.

...

The Court renders a

decision

Given that the parties do not have any further proposals for evidence, even after a warning of the repercussions of applying the burden of proof rule, the court, which cannot itself propose evidence in these proceedings, closes the hearing.”

The applicant signed the record of the hearing without expressing any objections.

11. On 3 November 2006 the Dubrovnik Municipal Court dismissed the applicant ’ s civil action on the grounds that the scope and intensity of the consequences of the attack on him by M.M. had not been proven as he had not proposed the gathering of the necessary evidence, that is to say the obtaining of a medical expert report. The relevant part of the judgment reads as follows:

“The medical documentation in question was included in the civil action, the credibility of which was undisputed ... The court does not have the expertise to establish facts on the basis of medical documentation – that requires the expertise of a medical expert. However, in order to use the assistance of an expert in proving a fact or clarifying the real nature of the matter, it is necessary that a party, in this case the plaintiff, proposes doing so. It is only then that the court can order an examination and an expert report on the question of whether the plaintiff sustained injuries in the incident concerned, and if so, which and of what kind, and also whether he experienced mental suffering and physical pain, and if so, of what intensity and duration...

Therefore, there was neither any evidence as to the viability and the extent of the consequences, nor any proposal to adduce such evidence (obtaining the medical expert report), as the damage caused by the defendant to the plaintiff ...

The court warned the plaintiff of the repercussions of applying the burden of proof rule at a hearing held on 7 October 2006 ‒ after he [the plaintiff] stated that he had neither any further evidence nor any proposals to adduce further evidence ‒ and informed him that he could be represented by a lawyer ... which he [the plaintiff] disregarded.”

12. The applicant appealed against this judgment, alleging in particular that his statement concerning the obtaining of a medical expert report had been incorrectly entered into the record of the hearing. The relevant part of his appeal reads as follows:

“...the statement which appears in the reasoning of the first-instance judgment to the effect that the plaintiff did not propose the obtainment of an expert report is incorrect, because the plaintiff ’ s statement in that respect was not correctly entered in the records. In particular, the plaintiff stated that, if the court could not establish the facts on the basis of the offered evidence, and if the presence of the plaintiff ’ s witness (N.I.) could not be ensured, then, if necessary, [the court should] supplement the evidence as to the facts with an expert report.

The court misinterpreted the plaintiff ’ s statement in that respect and therefore came to the wrong conclusion ...”

13. 16 On July 2009 the Dubrovnik County Court ( Županijski sud u Dubrovniku ) dismissed the applicant ’ s appeal as ill-founded, holding that the first-instance court had duly examined all the parties ’ relevant submissions. It noted in particular that the record of the hearing held before the first-instance court indicated that the trial judge had warned the applicant of the repercussions of failing to propose the gathering of relevant evidence, and that the records had been signed without any objections.

14. The applicant lodged an appeal on points of law with the Supreme Court ( Vrhovni sud Republike Hrvatske ), alleging in particular that the lower courts should not have dismissed his civil action merely because no expert report had been obtained in the proceedings.

15. On 30 March 2011 the Supreme Court dismissed the applicant ’ s appeal on points of law as ill-founded. It held, in particular, that the lower courts had correctly dismissed the applicant ’ s civil action by applying the burden of proof rule, given that the applicant, although warned, had failed to propose that an expert medical report be obtained.

16. The applicant then lodged a constitutional complaint before the Constitutional Court ( Ustavni sud Republike Hrvatske ), challenging the decisions of the lower courts. He alleged, in particular, that the courts had dismissed his civil action on the grounds that he had failed to propose that the expert medical report be obtained, even though he had expressly proposed that such evidence be obtained at the hearing held on 14 June 2006.

17. On 25 January 2012 the Constitutional Court declared the applicant ’ s constitutional complaint inadmissible as manifestly ill-founded. This decision was served on the applicant ’ s representative on 15 February 2012.

COMPLAINT

18. The applicant complained, under Article 6 § 1 of the Convention, that the domestic courts had dismissed his civil action on the grounds that he had failed to propose to the trial court that the expert medical report be obtained, even though he had expressly proposed that such evidence be obtained.

THE LAW

19. The applicant relied on Article 6 § 1 of the Convention, the relevant part of which reads:

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

A. The parties ’ arguments

20. The Government submitted that the applicant had not exhausted the domestic remedies, because in his appeal on points of law lodged with the Supreme Court he had failed to complain, either expressly or in substance, that the domestic courts had manifestly erroneously disregarded his proposal that the medical expert report be obtained.

21. The Government further submitted that at a hearing held on 27 October 2006 the applicant had expressly and unequivocally stated that he had no further evidence proposals, even though the trial judge had warned him of the repercussions of applying the burden of proof rule and had explained the evidence he could have proposed in support of his claim. Therefore, in the Government ’ s view, the applicant had clearly renounced his previous proposal to obtain an expert medical report. The Government further argued that, since the first-instance court had not been able to adduce the relevant evidence proprio motu , the domestic courts had done everything in their power to protect the applicant ’ s procedural rights. In particular, the trial court had instructed the applicant to seek the assistance of a lawyer, and finally, had explicitly warned him of the repercussions of his failure to propose that the relevant evidence be obtained.

22. The applicant replied that even if he had failed to put forward the aforementioned complaint before the appellate court or the Supreme Court, such failure would be irrelevant given that both the appellate court and the Supreme Court were obliged to refer to the violation on their own motion.

23. The applicant also submitted that he had proposed that the expert medical report be obtained in his civil action, as well as at the hearing held on 14 June 2006. He further argued that at the hearing held on 27 October 2006 he had not renounced any of his previous evidence proposals, but had merely alleged that he did not have any further ones. Therefore, his proposal to obtain the expert medical report had remained valid throughout the proceedings.

B. The Court ’ s assessment

24. The Court does not have to address all the issues raised by the parties because, even assuming that the applicant properly exhausted the available domestic remedies, the application is in any event inadmissible for the following reasons.

25. The applicant in the present case complained that the domestic courts had manifestly erroneously disregarded his express proposal to obtain the relevant expert medical report, and subsequently dismissed his civil action on the grounds that he had failed to propose that that evidence be obtained.

26. The Court reiterates that Article 6 § 1 of the Convention places the “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, and Van de Hurk v. the Netherlands , 19 April 1994, § 59, Series A no. 288). Further to this the Court reiterates that it is not its function to deal with errors of fact or law allegedly made by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention. The Court should not act as a fourth instance and will not therefore question under Article 6 § 1 the judgment of the national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 90, ECHR 2016 (extracts)).

27. The Court notes in the present case that in his civil action, as well as at the hearing held on 14 June 2006, the applicant requested that the relevant expert medical report be obtained (see paragraphs 5 and 8 above). The Court also observes that at the hearing held on 27 October 2006, after the trial court had questioned two witnesses and the parties and had dismissed the applicant ’ s proposal to obtain police records on action undertaken, the applicant expressly stated that he did not have any further proposals for evidence (see paragraph 10 above). According to the record of the hearing, the trial judge then explained what evidence the applicant could propose and in what manner, and expressly warned him of the repercussions of applying the burden of proof rule. However, the applicant maintained that he did not have any further proposal for evidence and the trial judge closed the hearing. The Court notes that the applicant signed the record of the hearing without putting forward any objection as to the accuracy of its content.

29. It thus follows that the domestic courts did not act erroneously in finding that the applicant had failed to propose that the relevant expert medical report be obtained.

30. Accordingly, the applicant ’ s complaint concerning the lack of fairness of the civil proceedings is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, by a majority,

Declares the application inadmissible.

Done in English and notified in writing on 4 May 2017 .

             Stanley Naismith Işıl KarakaÅŸ Registrar President