Judicial and private expert report. Taking into account by the courts of the expert report of the psychiatrist appointed by the authorities and the rejection of the report of the private psychiatrist violated the principle of equality of arms by creating an unfair disadvantage against the accused


Hodžić v. Croatia 04.04.2019 (no. 28932/14)

see here


The case concerned the proceedings for the applicant’s confinement in a psychiatric hospital.

The Court found in particular that, without obtaining another expert report addressing Mr Hodžić’s
objections or giving him an opportunity to examine an “expert” on his behalf, his possibility to
challenge the conclusions of an expert report commissioned by the prosecution had been
significantly hampered.

It further noted that in the subsequent proceedings for Mr Hodžić’s committal to a psychiatric
hospital, he had been unable to adduce any evidence in his favour challenging the necessity and
grounds for his placement there.


Important  decision on the evidence of equality between psychiatric expert opinions conducted by a designated psychiatrist and an individual appointed by the accusedt.  A very useful position of the ECtHR on the practice of national courts and on their obvious (and largely unjustified) preference to judicial experts.


Article 6


The applicant, Šemso Hodžić, is a dual national of Bosnia and Herzegovina and Croatia who was born
in 1952.

In May 2012 Mr Hodžić was arrested and detained in connection with a suspicion of making two
threats by telephone against two persons. In the course of the investigation conducted by the
relevant State Attorney’s Office a psychiatric expert, E.S., submitted her report on the applicant’s
mental health, which stated that he suffered from paranoid schizophrenia. She found that he posed
a danger to others which warranted his being placed in a psychiatric facility.

In August 2012 E.S. had to produce a supplement to her report which included more medical
documentation concerning Mr Hodžić’s previous psychiatric treatment. She obtained the medical
record by the applicant’s general practitioner, but was unable to contact his psychiatrist, V.G. She
reiterated her previous opinion on the basis of the new records.

Meanwhile, Mr Hodžić was released from pre-trial detention because the maximum period had
expired. At a hearing before the Zagreb Municipal Criminal Court in December 2012, he asked that
V.G., his general practitioner and other witnesses also be heard since they could give evidence about
his mental state. During the proceedings Mr Hodžić also presented two medical reports produced by
V.G. which stated that he did not suffer from paranoid schizophrenia.

However, in January 2013 the court decided that he should be placed in a psychiatric hospital for six
months as he had committed the offence of making serious threats while lacking mental capacity. It
found that the medical reports produced by V.G. were unreliable as they contradicted the findings of
the expert witness E.S. and had been produced by a privately paid doctor.

An appeal by Mr Hodžić and a constitutional complaint were both rejected.

After the Zagreb court’s judgment became final, Mr Hodžić went to Sarajevo in Bosnia and
Herzegovina, where he was examined by two experts in forensic psychiatry and a psychologist. They
found he had various mental disorders, but not paranoid schizophrenia. In October 2013 a judge at
Zagreb County Court ordered that he be sent to the psychiatric hospital. He appealed, referring to
the new expert report, but the court dismissed his appeal as there was nothing in his arguments to
raise doubts about the necessity for his committal, as established by the Municipal Criminal Court.
Mr Hodžić is still at large as the domestic authorities have not been able to locate him.

Article 6 § 1 (criminal limb)

Concerning the criminal proceedings, the Court noted that the domestic courts had accepted the
reasons cited for E.S.’s inability to contact V.G. in an uncritical fashion without looking into the
reliability of her submission. Moreover, the accuracy of V.G.’s two written reports had been rejected
by the courts as they had contradicted E.S.’s findings and had been produced by a private doctor.
The Court reiterated that the forms in which the defence may seek the assistance of experts may
vary. It found, however, that by unconditionally relying on E.S.’s expert evidence and refusing the
evidence on behalf of the defence the domestic courts had created an unfair disadvantage for Mr
Hodžić. In a field as complex as an individual’s mental condition and predicting how dangerous that
person was, it could be hard to challenge a report without the help of another expert. Placing the
defence in such a disadvantageous position in relation to the prosecution could not be reconciled
with the principle of equality of arms in trials.

There had accordingly been a violation of the criminal limb of Article 6 § 1.

Article 6 § 1 (civil limb)

Concerning the proceedings for Mr Hodžić’s placement in a psychiatric hospital, the Court reiterated
that a measure leading to a deprivation of liberty should be determined on the basis of sufficiently
recent medical expertise. It also stressed that the question whether such expertise was sufficiently
recent could not be answered in a static way.

The Court noted that at the committal stage of the procedure he had been unable to adduce any
evidence in his favour to challenge the necessity for his placement in a hospital, despite the fact that
almost 13 months had passed following the production of E.S.’s report and that V.G. and the group
of psychiatrists from Sarajevo had raised questions about her findings.

Moreover, the Zagreb County Court had failed to consider the fact that following Mr Hodžić’s release
from pre-trial detention there had been no indication that he had been involved in any incident
whereby he had posed a threat to himself or others.

The Court found that imposing a general restriction on the applicant’s ability to adduce any evidence
at that stage of the proceedings, even when a considerable time had passed since the initial
committal order, could not be reconciled with the requirements of a fair trial and the duty of the
courts to conduct a proper examination of the parties’ submissions, arguments and evidence.
There had been accordingly a violation of Article 6 § 1 under its civil limb.

Just satisfaction (Article 41)

The Court held that Croatia was to pay the applicant 4,000 euros (EUR) in respect of non-pecuniary
damage and EUR 3,732.43 in respect of costs and expenses(echrcaselaw.com editing).


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