SEPARATE CONCURRING OPINION OF JUDGE DE GAETANO

1. While I agree that in this case there was no violation of Article 6 § 1 of the Convention, in my view the most important point which had to be addressed was not so much “whether the proceedings as a whole were fair” – an expression into which one may read a lot depending on the sophistication or otherwise of the legal system involved (see passim , albeit in the context of criminal proceedings, Al-Khawaja and Tahery v. the United Kingdom [GC] nos. 26766/05 and 22228/06, 15 December 2011; see also the joint dissenting opinion in Scholer v. Germany no. 14212/10, 18 December 2014), but rather the underlying question of the role of expert evidence in the determination of the overall fairness of the proceedings.

2. The decision in Letinčić , quoted extensively in the judgment, cannot be of much help here. In Letinčić the Court found a violation of Article 6 § 1 because of a number of procedural shortcomings both in the course of the administrative proceedings as well as before the Administrative Court. On the contrary, in the instant case no procedural shortcomings were alleged to have occurred either before the first-instance disability commission or the second-instance disability commission (the administrative or “pre-judicial” proceedings), nor before the Ljubljana Labour and Social Court or the Higher Labour and Social Court (the judicial, or “judicial-review”, proceedings). The applicant simply did not agree with the findings of the medical experts of these two commissions, upon which findings the administrative decision was taken that the applicant did not qualify for the requested disability allowance. In the judicial proceedings the evidential burden was upon the applicant to show, even if only on a prima facie basis, that the Institute ’ s decision was flawed because of some shortcoming in the experts ’ assessments. This she could have done by producing ex parte evidence in the form of medical documentation, as correctly indicated in paragraph 56 of the judgment. She failed to do so. In these circumstances, to hold that the Labour and Social Courts were obliged to appoint additional experts would have been tantamount to holding that there is an automatic right to such additional experts irrespective of the state of the evidence before those courts.

3. Of course, had the Labour and Social Courts declared in some way that they were “bound” by the findings of the medical experts of the commissions, or had they requested additional expertise from medical experts linked to the commissions or the Institute, the case-law mentioned in paragraphs 32 to 34 of the judgment would have kicked in.

DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE

1 . This case is about the equality of arms in judicial proceedings, and specifically the different treatment of litigants in the acquisition of evidence. In itself, the topic is evidently of the utmost importance. The importance of this case is further enhanced by the fact that the majority departed, without good reason, from the recent and consistent case-law of the Slovenian Supreme Court and Constitutional Court. Even worse, the majority overruled the Court ’ s own solid case-law with regard to the respondent State (see Korošec v. Slovenia , no. 77212/12, 8 October 2015) and to another State (see Letinčić v. Croatia , no. 7183/11, 3 May 2016, and Krunoslava Zovko v. Croatia , no. 56935/13, 23 May 2017), thereby disregarding Article 30 of the Convention. These reasons alone would have led me to vote against the majority. There is however an additional reason, of a more general nature, which warrants my dissent, namely the distortion of the technique of distinguishing in the present case. This evidently triggers the burning issue of the consistency, or lack of it, of the Court ’ s case-law.

2 . The applicant complained about the objective impartiality of the disability commissions of the Pensions and Disability Insurance Institute (“the Institute”), which was the respondent in the judicial proceedings. According to her, her case had been decided on the basis of expert opinions prepared by the disability commissions, the domestic courts having refused her request for the appointment of an independent expert. The majority did not dispute these facts and even found it understandable that doubts could have arisen in the mind of the applicant as to the experts ’ impartiality (see paragraph 51 of the judgment). Nevertheless, they concluded that there had been no violation, because “the applicant failed to submit any argument questioning the disability commissions ’ findings, other than disputing them” (see paragraph 57 of the judgment).

3 . To my mind, the objective impartiality of the disability commissions is highly questionable, in view of the fact that their members are either employed or appointed for a period of four years by the same Institute that is the respondent in the judicial proceedings (see paragraph 29 of the judgment). The possibility of renewal of the experts ’ appointment leaves them even more susceptible to the interests of the Institute (see paragraph 29). Furthermore, these experts are embedded in the organisational structure of the Institute and are bound by, inter alia , its acts, recommendations and practice (see paragraph 30 of the judgment). Their neutrality can be seriously called into question for these reasons even in the absence of any concrete evidence of actual bias on their part. The majority simply disregarded these facts. They also disregarded the judgments delivered by the Slovenian Supreme Court and Constitutional Court in cases similar to the present one (see paragraphs 32 and 33 of the judgment), in which both courts found that the experts of the disability commissions were not impartial, in the light of their legal and factual position within the Institute.

4 . The majority missed the point when they argued that “the applicant failed to submit any argument questioning the disability commissions ’ findings, other than disputing them” (see paragraph 57 of the judgment). The applicant did not raise an issue regarding the subjective impartiality of the individual experts, but clearly raised an issue about the lack of objective impartiality of the disability commissions or, to put it differently, about the lack of institutional impartiality of the experts working in these commissions, which had impacted on their assessment of her physical disability. Throughout the domestic proceedings the applicant disputed the findings of the disability commissions and alleged that her condition amounted to a physical impairment, an assertion which she intended to prove by way of the appointment of an independent expert (see paragraphs 9, 12, 15 and 18 of the judgment). Her request that the domestic court appoint an independent expert was therefore not frivolous. The Labour and Social Court ’ s refusal on the grounds that the appointment of an independent expert would be unnecessary (see paragraph 14 of the judgment) meant that the applicant, herself lacking the necessary medical knowledge, was left with no opportunity to substantiate her application for a disability allowance. The Higher Labour and Social Court ’ s confirmation of that refusal on the grounds that the decision on disability would have been the same had an expert been appointed (see paragraph 16 of the judgment) assumed, to the detriment of the applicant, what had to be demonstrated. This is precisely the type of presumption in favour of the disability commissions ’ opinions that the Constitutional Court criticised (see paragraph 33 of the judgment).

5 . The majority sought to distinguish this case from Korošec by pointing out that the applicant had not supported her view by submitting an opinion from her general practitioner or any other physician treating her, or any other evidence for that matter (see paragraph 56 of the judgment). The practice of distinguishing is a rather subtle technique which does not allow for boundless judicial discretion. In law, to distinguish a case means that a rule or principle set out in a similar precedent case will not apply due to significantly different facts between the two cases.

According to Korošec , the case should be decided by “taking into account three factors: (1) the nature of the task entrusted to the experts; (2) the experts ’ position within the hierarchy of the opposing party; and (3) their role in the proceedings, in particular the weight attached by the court to their opinions” (see Korošec , cited above, § 52). Hence, the fact that the applicant had or had not submitted a medical opinion or any other evidence was irrelevant for the decision of the Court. Let me put this even more clearly. In Korošec , the Court was crystal-clear about the unacceptable role of the experts of the disability commissions, and in particular the decisive nature of their opinions. On this basis alone the Court found a violation of Article 6 of the Convention. The fact that in Korošec the applicant had submitted an opinion by a general practitioner was not a decisive, important, significant fact. It was not even mentioned, let alone evaluated, in the reasoning of the “Court ’ s assessment” part of the judgment (see Korošec , cited above, §§ 49-57).

6 . Distinguishing one case from another involves showing the relevant dissimilarities between the two, not that the cases are different on the basis of an unimportant, peripheral, marginal, incidental fact. That is exactly what the majority failed to do, and by failing to do so they delivered a serious blow to the consistency and coherence of the Court ’ s case-law. Worse still, they overruled valid case-law delivered by this Court against the respondent State and later confirmed against another State (see Letincic , cited above, and Krunoslava Zovko , cited above ), without any regard for Article 30 of the Convention. This blunt inconsistency in the case-law warrants the intervention of the Grand Chamber. If this case is not referred to the Grand Chamber and accepted by its panel under Article 43 (3) of the Convention, the domestic authorities will find themselves lost in the middle of confusing and contradictory case-law of the Court, and even worse, the authority of the Grand Chamber and ultimately of the Court will be seriously damaged (on the respect due to the precedential force of the Court ’ s judgments see my separate opinion in Herrmann v. Germany [GC], no. 9300/07, 26 June 2012).

7 . Moreover, the majority failed to see that the applicant was raising the issue of the lack of objective impartiality of the disability commissions per se and its impact on her own case . The argument as to the lack of impartiality of in-house experts working in these commissions is even more compelling when the extra-judicial evidence they produce is accorded decisive weight by the courts. In the present case the majority conceded that the expert opinions provided by the disability commissions had had a decisive role in the domestic courts ’ assessment of the merits of the applicant ’ s case (see paragraph 50 of the judgment). Having no medical qualifications, the domestic judges were bound to attach significant weight to the disability commissions ’ opinions on a medical issue decisive for the outcome of a case (see Korošec , cited above, § 56).

Furthermore, I observe that the Ljubljana Labour and Social Court based its decision on the opinions of the disability commissions and the judge ’ s own observation of the applicant at the hearing. Given the lack of any explanation as to the judge ’ s medical expertise regarding the disability issue at stake, it is rather odd that the domestic court was ready to replace the opinion of an independent expert with the judge ’ s own observations (see paragraph 13 of the judgment; see also the Constitutional Court ’ s opinion in the similar case referred to in paragraph 33 of the judgment). The Ljubljana Labour and Social Court furthermore referred to certain findings in proceedings that had taken place more than five years prior to the applicant ’ s request for a disability allowance. However, as the applicant highlighted in her appeal, those proceedings concerned a different issue. Unfortunately, this point remained unaddressed by the Higher Labour and Social Court.

8 . Having regard to the foregoing, I cannot but conclude that the refusal by the Ljubljana Labour and Social Court to appoint an independent expert, which was upheld on appeal, meant that the applicant ’ s procedural position was not put on a par with that of her adversary, the Institute, as it was required to be by the principle of equality of arms. What is more, the fairness of the judicial proceedings was itself compromised by the domestic courts ’ reliance on the disability commissions ’ opinions as decisive evidence in the case, given the Institute ’ s role in the judicial proceedings (see, mutatis mutandis , Sara Lind Eggertsdóttir v. Iceland , no. 31930/04, § 54, 5 July 2007).

9 . Hence, I conclude that there has been a breach of Article 6 § 1 of the Convention. This was an opportunity for the Court to state urbi et orbi that precedents mean something in Strasbourg; however, it missed that opportunity. If referred to the Grand Chamber under Article 43 of the Convention, this case should indeed be accepted by the Grand Chamber panel in order to reinstate the relevant precedent of Korošec . Judicial consistency oblige .