CONCURRING OPINION OF JUDGE SABATO

1. 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.

2. 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).

3. 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.

4. 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.”

5. 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).

6. 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.

7. 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).

8. 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).

9. 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.

10. 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”).

11. 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.

12. 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.

13. 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).

14. 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.

15. 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.

16. 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 .”

17. 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.

18. 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.