JOINT DISSENTING OPINION OF JUDGES TURKOVIĆ, PACZOLAY AND FELICI

1. We regret that we cannot share the majority’s view in the present case that there has been no violation of Article 6 § 1 of the Convention.

2. We agree with the majority that it can 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, the applicant did not enquire about V.B. or her possible relationship with the defendant company until the first-instance judgment of 5 March 2012 was rendered, by which time a total of six years had passed. However, he had ample opportunity to do so. Firstly, he was present at the hearing at which V.B. was appointed as an expert in his case (see paragraph 12 of the judgment) and was made aware of her report and questioned her at the hearing (see paragraph 17 of the judgment). Secondly, the first-instance judgment relying on V.B.’s findings was quashed several times by the second-instance court (see paragraphs 19-26 of the judgment). Lastly, in his appeal against the first-instance judgment adopted on 5 March 2012, in which he raised the issue for the first time, the applicant admitted that the information on V.B.’s connection with the defendant company had been publicly available (see paragraphs 28 and 78 of the judgment).

3. However, in our view the above considerations cannot be held against the applicant to the extent that he should suffer adverse consequences, in circumstances in which the expert witness was aware from the beginning of the serious conflict of interests she faced and failed to declare it.

4. In the present case V.B. had been employed at one point 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 (see paragraph 65 of the judgment). According to the law, 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 35-36 of the judgment). Thus V.B. had every reason to report this circumstance to the first-instance court, and in fact under the Code of Ethics of Court Experts was required to do so. Furthermore, since according to the law expert witnesses were to be treated in the same way as judges, she was obliged by law to report this fact (see paragraphs 36 and 46 of the judgment), but failed to do so.

5. The court had every reason to disqualify her, but it did not do so because the applicant raised the issue only during the second-instance proceedings. For a judge this would be considered an absolute ground for automatic disqualification at any stage of the judicial proceedings (see paragraph 36 of the judgment). In our view expert witnesses should be treated in the same way as judges in circumstances where there is a serious conflict of interests, as in the present case, in order to preserve the integrity of judicial proceedings and public confidence, even if this means that the effectiveness of the judicial proceedings has to suffer to some degree.

6. We further note 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 33 of the judgment). It does not appear from the minutes of the hearing at which the court appointed V.B. as an expert that the judge heard the applicant with regard to the choice of expert, as stipulated by the relevant provision , or gave him any say in that regard (see paragraphs 12 and 33 of the judgment). It appears that V.B. was the judge’s choice and we find it understandable that the applicant had confidence in her neutrality.

7. 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 of the judgment). We observe that this constituted information which under section 258(2) of the Civil Procedure Act the judge was expressly required to obtain from the expert (see paragraph 40 of the judgment).

8. Thus, the first-instance court failed to implement a rule aimed at eliminating possible causes for concern regarding the neutrality of experts participating in proceedings. In other words, it failed to afford an opportunity to the expert to expressly deny or disclose her relationship with the defendant company, which would have given the applicant the possibility of requesting her removal from the case on that basis.

9. Lastly, under section 251(4) of the Civil Procedure Act the first ‑ instance court was always allowed to commission a report from another expert (see paragraph 33 of the judgment). We are therefore not entirely convinced by the Government’s assertion that the judge was prevented from raising the issue of his own motion even if he discovered circumstances calling the expert’s impartiality into doubt.

10. In the light of the above circumstances, we are of the view that the fact that V.B.’s lack of neutrality was not raised during the first-instance proceedings cannot be mainly and objectively imputed to the applicant (see, conversely, Zubac v. Croatia [GC], no. 40160/12, § 121, 5 April 2018).

11. We note that the reason advanced by the second-instance court for not examining the applicant’s complaint was that under section 352(2) of the Civil Procedure Act a party could not present for the first time in an appeal an objection regarding an issue which the first-instance court was not competent to consider of its own motion (see paragraph 29 of the judgment).

12. We observe that the second-instance court did not consider whether the applicant had been aware of V.B.’s connection with the defendant company during the proceedings before the first-instance court and therefore whether he had had the possibility of submitting an objection at that time. Given that in his appeal the applicant submitted that he had learned about this circumstance only after the first-instance judgment had been delivered, it cannot be said that he tacitly agreed to the appointment of an expert whose impartiality was open to doubt (compare, mutatis mutandis , Beg S.p.a. v. Italy , no. 5312/11, § 138, 20 May 2021).

13. Furthermore, the second-instance court did not consider whether the first-instance court had failed to apply the procedural rules regarding the commissioning of an expert report, such as its duty under section 258(2) of the Civil Procedure Act to invite the expert to state her relationship with the parties (see paragraph 40 of the judgment), and how that circumstance could have influenced the rendering of a lawful and just judgment (see section 354(1) of the Civil Procedure Act, cited in paragraph 44 of the judgment).

14. Accordingly, we are of the view that in a situation such as the one in the present case – where an important part of the applicant’s claim was decided on the basis of the opinion of an expert who had a strong professional connection with the opposing party but who failed to disclose that connection on her own initiative and whom the court failed to invite to disclose it as required by the national rules, and the applicant learned of it only belatedly – the impossibility for the applicant to have his complaint concerning the expert’s lack of neutrality examined by the domestic courts cannot be regarded as complying with the requirements of a fair hearing under Article 6 § 1 of the Convention.