By Claude Vallet
Angela Scala sent us an ECHR ruling issued on 2022 13 01 in a case Tabac v. Croatia on which we think useful to draw your attention in that it deals with Article 6§1 of the European Convention applied to impartiality of a court expert.
The integral version of this decision, available only in English, is jointed as attachment.
We are proposing here an abstract of it, as objective as it may be.
This ruling will undoubtedly give raise to a debate.
Your comments are welcomed .
Facts and procedural steps
On 8 June 1995 Mr. Tabak was involved in a road traffic accident in which he sustained an injury to his knee. On January 1999 he was granted a disability pension. In 1999, he brought a civil action against the insurance company O seeking compensation of damages in relation with the accident. The court obtained a report from an expert who stated that the reason for the applicant’s disability retirement had not been his knee injury but probably the changes to his spine.
In 2006, the defendant company claimed that an expert report be obtained from an occupational medicine specialist. The court of first instance appointed such a specialist e.i. Ms V.B. who is a permanent court expert. She concluded that:
- The reason for the sick leave of the applicant from 6 June to 26 August 1995 had been the knee injury,
- The reason for the sick leave from 28 August 1995 to 1st. December 1995 had been the treatment of complications from the knee injury caused by an earlier knee illness, as well as the damage to his cervical nerves caused by the changes of his spine
- His decreased working capacity had not been caused by the knee injury but his spinal illness and by the chronic damage to his cervical nerves.
The first-instance court followed the expert opinion.
On 2012 16 03 Mr. Tabak lodged an appeal based on Article 354(1) of the Civil Procedure Act in which he complained that there had been a serious breach of procedure on the grounds that the first-instance court had appointed an expert who had worked as medical examiner in the defendant company’s directorate general and was also the president of the management board of its subsidiary.
The appeal court dismissed the appeal as unfounded. It held in particular that the applicant was precluded from raising the objection against the expert’s impartiality in the appeal proceedings. Under the Civil Procedure Act, the request for disqualification of an expert should be submitted as soon as the party learns of the reasons for disqualification, and at the latest before the hearing of evidence by the expert. If the party learned of reasons after the expert report has been obtained, the court shall act as though the request for disqualification was submitted before the report was obtained. If the first-instance court did not consider the issue of its own motion, the objection cannot be presented in the appeal.
Mr Tabak lodged a constitutional complain against this last ruling which was rejected as manifestly ill-founded.
At this stage, all domestic procedural remedies having being exhausted, Mr Tabak lodged a recourse before the ECHR based on Article 6§1 of the European Convention, which ensures the right to a fair trial.
The application was unanimously declared admissible, but the ECHR founded, by four votes to three that there had been no violation of Article 6§1 of the Convention.
In essence, the Court considered that the expert was in a situation of conflict of interest due to the positions she had in the defendant company.
However it held that under the Croatian law the applicant was offered a legal mean in order to claim for disqualification of the expert,
The applicant was in a position to know about the professional position of the appointed expert whose data were publicly available.
He did not act within the time limit imposed by the Civil Procedure Act.
He is thus not well-founded to claim he had suffered for a violation of the right to a fair trial
Concurring opinion (Judge Sabato)
In addition to the ruling itself, the judgement contains the opinion of a judge who, although approving the ruling, would have followed a different reasoning.
He expressed the view that the case did not show a situation of conflict of interest on the part of the expert because the assessment should be based on a narrow interpretation of the domestic law. Actually at the time he had been designated the expert was not employed any more in the defendant company for 11 years and more over not member of the direction board of that company but of member of the direction board of its subsidiary, thus a legal person which is not the defendant.
Three judges disapproved of the ruling. They were of the view that Article 6§1 had been violated against the applicant on the grounds that the appointed expert was aware from the beginning of the serious conflict of interests she faced and failed to declare it, against the requirements of the Code of Ethics of Court Experts. Moreover, the first instance court did not invite the expert to state her relationship with the defendant, which was required by the domestic law (Art. 258 Civil Procedure Act). The applicant has been deprived of the opportunity to have his complaint examined by domestic courts. This amounts to a breach of fair trial.
The theory of appearance, established in the ECHR case law under the well known adage « Justice should not only be done it should also be seen to be done » versus compliance with procedural rules, those opposite poles appear to have been the core of the debates among the European Judges.
Is this decision to be seen as a sustainable victory of the second? An issue to follow.