JOINT DISSENTING OPINION OF JUDGES TURKOVIĆ AND SCHEMBRI ORLAND

1. The applicant in this case complained that the administrative proceedings denying him a disability pension had been unfair. The central tenet of the applicant’s complaints concerns the alleged lack of competence and neutrality on the part of the experts who produced the reports on his disability and the related breach of the principle of equality of arms under Article 6 § 1 of the Convention. It is undeniable that these expert reports played a decisive role in the assessment of the merits of the applicant’s claim (see paragraph 44 of the judgment).

2. We respectfully disagree with the finding of a non-violation of Article 6 § 1. The applicant in this case had suffered the trauma of three months in a concentration camp during the war in Bosnia and Herzegovina (see paragraph 5 of the present judgment). As a result, he was diagnosed in Germany with post-traumatic stress disorder (PTSD) resulting in a total incapacity for work and was, on that basis, granted a disability pension. The medical documents were duly transmitted to Croatia and submitted to the administrative authorities pursuant to an international agreement with Croatia on social insurance matters (see paragraph 7), in order that Croatia could examine the possibility of granting him, on a proportional basis, part of the disability pension.

3. We recognise that the domestic system provides for a list of in-house experts working for the Pension Insurance Fund (Fund), an administrative authority examining entitlement to the disability pension. Those experts must be medical doctors specialising in areas such as occupational or general medicine, psychiatry, neurology, orthopaedics and rheumatology, with at least five years’ relevant professional experience; from this list, the Fund can draw and appoint experts for a particular case (see paragraphs 25 and 45 of the judgment). The applicant does not challenge the viability of this system, provided safeguards are in place to ensure the competence and neutrality of the experts. The basis of his complaint is rather two-fold, resting on: (i) the lack of relevant competence of the experts appointed in this case; and (ii) their (lack of) neutrality. In these circumstances, the Court examined whether the procedural shortcomings complained of rendered the impugned proceedings taken as a whole unfair (see Letinčić v. Croatia , no. 7183/11, § 55, 13 May 2016.).

4. In the present case we cannot agree with the conclusion that the Administrative Court’s decision to base its findings on the reports by the Fund’s expert, without additional assessment of the applicant’s medical documentation and ability to work by a psychiatric specialist, as requested by him, did not constitute a violation of his right to fair trial. While we agree with the majority that there are no objective reasons in the present case to fear that the expert lacked neutrality in his or her professional judgment (see paragraph 45 of the judgment) we regret that the majority failed to opine in more depth on the expert’s lack of specific knowledge in the complex field of psychiatry.

5. The German authorities found that the applicant had total incapacity for work, primarily on the basis of his PTSD (see paragraph 6 of the judgment). PTSD was also the main ground on which he sought a disability pension in Croatia. In the proceedings before the Croatian authorities, the Fund’s experts concluded that the applicant’s illnesses as diagnosed by specialists in Germany, taken separately and together, did not affect his ability to work to such an extent that it amounted to general or professional incapacity for work, as required by the Croatian Pension Insurance Act in order to grant a disability pension. They provided no explanation on how and to what extent the criteria between Germany and Croatia differ, or on how they arrived at a diametrically opposed conclusion as to the effects and consequences of his illness from that of the German authorities.

6. It is noted that the appeals expert expressly stated that he believed that PTSD, both in this particular case and in general in most cases, could not lead to disability, and that a neurotic disorder should not be the subject of an expert report. However, he confirmed that he is not an expert in psychiatry (see paragraph 17 of the judgment). We have no information as to whether or how many of the 10,987 individuals granted a disability pension by the Croatian Pension Insurance Fund in 2007 were granted it on the basis of PTSD. However, given that in 2007 mental illnesses such as depression and reaction to severe stress were among the most common diagnoses for the 325,770 people registered by the Croatian Pension Insurance Fund as suffering from a disability, and that the Fund introduced special criteria for establishing disability for war veterans, among whom the most common cause of disability was PTSD (see paragraph 28), we consider it significant that the applicant, albeit not a war veteran, was suffering from PTSD because of the various traumatic events to which he had been exposed in a prison camp during the war in Bosnia and Herzegovina and that, in spite of this fact, he was denied the possibility of being assessed by an expert in psychiatry and, more specifically, PTSD. In these circumstances, we find, unlike the majority, that the applicant’s doubts concerning the lack of appropriate expertise of the Fund’s experts and the quality of their professional judgment appear to have been justified (see paragraph 52).

7. It is true that, as explained by the domestic authorities, each country has its own criteria for awarding a disability pension. However, what is at stake in the instant case is not whether the applicant’s medical condition truly amounted to a disability within the meaning of the Croatian Pension Insurance Act, but rather whether the Fund’s experts could be considered as having the necessary competence and neutrality to give an opinion on the matter. In this regard, the domestic courts should have been mindful of the fact that neither of the two experts whose opinion was decisive for the applicant’s case was a specialist in psychiatry. Unlike the majority, we find it evident that a proper assessment of the effect of the applicant’s PTSD on his ability to work necessarily required special medical knowledge and expertise in the complex field of psychiatry, together with a complex assessment of the psychological consequences arising from his exposure to various traumatic events in the prison camp (see, mutatis mutandis , Van Kück v. Germany , no. 35968/97, § 55, ECHR 2003-VII), which fell outside these particular experts’ areas of expertise, namely anaesthesiology and general medicine. The Croatian experts, who lacked any psychiatric expertise, concluded that the applicant had no functional psychic deficiencies and that his neurotic disorder could have been treated (see paragraph 51 of the judgment). In this situation, the Croatian courts should have sought further expertise from an appropriate medical specialist (see Van Kück , cited above.). We note that on the Fund’s list of experts there were those who were specialised in psychiatry (see paragraph 3 above), and which could have been appointed in the applicant’s case.

8. We further note that under the Administrative Disputes Act, the Administrative Court – as a judicial body with full jurisdiction to examine all factual and legal questions arising in the context of the case – was not bound by the facts established by the Fund, and was entitled to adduce evidence, for example by hearing the parties and taking witness statements, obtaining expert reports and conducting on-site investigations (see paragraph 23 of the judgment). However, when dismissing the applicant’s request for an expert report from an independent psychiatric expert, the Administrative Court held, inter alia , that it was permitted to grant a disability pension only on the basis of reports by the Fund’s in-house experts establishing a disability (see paragraph 18). By dismissing on these grounds the applicant’s request for the appointment of an independent expert specialised in psychiatry, the Administrative Court denied him any real opportunity to comment effectively on and to challenge the findings of the Fund (see Mantovanelli v. France , no. 21497/93, § 36, Reports 1997-II). This left the Fund’s opinions as the decisive evidence relied on by the courts to determine the issue in a case which certainly required expert knowledge, arguably not at hand in the court itself. Such reasoning by the domestic courts further highlights the dominant role played by the Fund (see Korošec v. Slovenia , no. 77212/12, § 56, 8 October 2015). In this light, the fact that the domestic court also heard testimony from the applicant and had regard to other material in the file before deciding the case should not be sufficient for the Court to hold that the proceedings complied with the Convention requirements (see, similarly, Korošec , cited above).

9. In sum, we find it problematic that the domestic authorities relied on the appeals expert’s opinion when deciding the applicant’s case, without seeking any additional verification of his condition by a specialist in psychiatry, as requested by him. Whilst it is within the purview of the domestic authorities whether or not to grant such a request, the lack of expertise in the field of psychiatry was self-evident. In such a situation, the courts’ failure to accede to this request impacted on the fairness of the proceedings. We seriously doubt that without an additional assessment of the documents submitted and the applicant’s condition by a psychiatric specialist the Administrative Court had sufficient information to be able to adopt its position (compare Mantovanelli , cited above, and Van Kück , cited above, § 62). We are also unable to conclude that the applicant’s procedural position was on a par with that of his adversary, a State-run Fund, as required by the principle of equality of arms (see Korošec , cited above, §§ 56 and 57). Finally, in our view the Administrative Court failed to approach critically and to remedy the procedural shortcomings related to the lack of relevant competence of the Fund’s experts. Nor was this situation subsequently remedied by the Constitutional Court (see Ramos Nunes de Carvalho e Sa v. Portugal [GC], nos. 55391/13 and 2 others, § 132, 6 November 2018).

10. In this case the domestic authorities had before them a particularly vulnerable person, suffering from PTSD as a result of traumatic war experiences. His vulnerability was neither addressed adequately by those authorities, nor sufficiently taken into consideration by the majority.

11. In view of the foregoing, we are of the opinion that the lack of additional verification of the applicant’s condition by a specialist in psychiatry, as requested by him, constituted a violation of his right to a fair trial.