Strasbourg, 20 December 2013

CEPEJ-GT-QUAL(2013)7Rev

EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE

(CEPEJ)

WORKING GROUP ON QUALITY OF JUSTICE

(CEPEJ-GT-QUAL)

QUESTIONNAIRE ON THE ROLE OF EXPERTS IN JUDICIAL SYSTEMS OF THE COUNCIL OF EUROPE MEMBERS STATES

Document prepared by Gar Yein Ng

INTRODUCTION

This questionnaire has been developed to be filled out by personnel working in pilot courts, in relation to their experiences with court experts.

The Working Group on the quality of justice (CEPEJ-GT-QUAL) of the European Commission for the Efficiency of Justice (CEPEJ) decided at its 14th meeting (Strasbourg, 19-20 September 2013) to prepare to the attention of the members of the CEPEJ Network of Pilot Courts a questionnaire pertaining to the various aspects of “The role of the experts in the quality of justice”.

The purpose of the questionnaire is to collect information on the diverse approaches used and solutions developed by the courts concerning the status and the role of experts, the procedure of appointment as well as the management and the regulation of their activity.

The information thus collected will serve as a basis for the work on the future CEPEJ study on the role of judicial experts in the European judicial systems.

QUESTIONNAIRE

Country:

Court level:

More than one may be chosen. If you choose more than one, please specify in the questionnaire, which one you refer to:

Civil                  Criminal Administrative               Other: please state………..

           

I.              GENERAL ORGANISATION

A.    Please specify the title and number of the law and the articles that regulate court experts,[1] both in original language and in English.

B.    Does this law define the role of experts as:

                                      i.        Auxiliary to the judge?

                                     ii.        Auxiliary to the parties?

                                    iii.        Or both?

                                    iv.        Other: Please briefly describe:

C.    Please describe briefly the role of the expert in your court (in any jurisdiction).

           

D.    Is the expert considered an officer of the court, with the same rights and duties as other officers of the court?               Yes      No

E.    Does your legal system have “assessors” who, rather than testifying or reporting to the court, assist the judge in understanding technical evidence?[2]

F.    What are expert witnesses called in your legal system? Please choose from the following (more than one may be chosen, but please specify which sector if you do):

                                      i.        Forensic experts

                                     ii.        Expert-witnesses

                                    iii.        Expert-referees

                                    iv.        Judicial experts

                                     v.        Other: Please state: …………….

G.    Can a corporate body (private or public laboratory) be appointed as an expert in litigation?          Yes            No

H.    Can the expert be assisted by another expert?    Yes      No

I.      What is the technical term/legal name given to the report that experts present to the court/judge? Please choose from the following (you may choose more than one option)

                                      i.        Testimony

                                     ii.        Findings

                                    iii.        Conclusions

                                    iv.        Technical opinion

                                     v.        Other: Please briefly describe

J.     Use of Experts:

                                      i.        How many experts have been used in cases, on average every year over the last 5 years, in the pilot court?

                                     ii.        Please give the ratio of cases requiring experts to those not for the last 5 years in the pilot court.

                                    iii.        Please describe which categories of experts are required most frequently? (in percentage of the total number of experts used in the last 5years)

a)  Medical

b) Construction

c)  Automobile

d) Research

e)  Scientific

f) Other:

                                    iv.        How many requests are rejected per year in the pilot court due to lack of resources?

           

K.    Are there experts’ representative bodies in the country of the pilot court?[3]               Yes     No

L.     Is there any multidisciplinary evaluation of expert reports?           Yes      No

M.   Are judges involved in the evaluation of experts?  Yes    No

If yes, please briefly describe how

N.    Remuneration for the expert:

                                              i.        Who sets the fees in criminal and civil cases?

a)  Court

b) Ministry of Justice

c)  Legislator

                                             ii.        Who pays the fees in criminal and civil cases?

a) Court

b) Ministry of Justice

c) Parties

d) Other: please briefly describe

O.    Please briefly provide any additional information that may be useful to understand the above issues

            II.        EXPERTS AND PROCEDURAL LAW

A.    Expert evidence in the law

                                          i.    Is expert evidence legally binding on the courts?

Yes      No

                                         ii.    What is the evidentiary value of expert reports to the court (More than one choice may be made, if it is, please indicate the jurisdiction)

a)     Forms the basis for judicial decision making in cases

b)    Informs the court on how to interpret evidence presented to it

c)     Other: please briefly describe….

                                        iii.    Are the following or other steps are taken in your legal system to ensure that the role of the judge in coming to a decision is protected from over reliance on the expert? (More than one may be chosen)

a)     The judge must explain which parts of the decision used the expert testimony presented at court

b)    The judge must explain why expert testimony was not used in coming to a decision

c)     Sanctions where the judge fails to explain the role of expert reports in their decisions

d)    Other: please briefly explain….

                                        iv.    Can the admissibility of a report be waived on the following bases (more than one may be chosen):

a)     Bias has been shown by the expert

b)    The expert has been shown to use unreliable techniques in coming to their conclusions.

c)     Where the expert him/herself has been shown to be unreliable

d)    Other: please briefly explain….

B.    Is it possible to order new expert witness in a different area of specialisation in the course of proceedings?    Yes      No

C.    Can expert opinions be ordered prior to any proceedings by a judge at the request of the parties?                       Yes      No

D.    On the adversarial principle of equality of arms[4]  protected in court procedures involving experts:

                                          i.        During the work of the expert, and under the supervision of the judge, is there regular reporting to the parties on the progress of work, in order to accommodate criticisms, and concerns in respect to preliminary findings, in order to better establish the final opinion? (Supporting the principle of refutability in science)                               Yes      No

                                         ii.        Is there a right of cross-examination? Yes      No

                                        iii.        Is there a right of parties to set terms of reference for a court appointed expert?

Yes      No

                                        iv.        Is there a right of parties to hire or propose their own experts?             Yes      NO

                                         v.        If so, are their reports given equal weight as a court appointed expert?            Yes       No

                           If not, please describe briefly, why not?

 

Please briefly provide any additional information that may be useful to understand the above issues

E.    Court appointed experts.

                                              i.        In proceedings before a court, who appoints the expert? (more than one may be chosen)

a.     Judge

b.    Parties

c.     Joint appointment

d.    Other: please briefly explain

                                             ii.        Are the parties permitted to rely on their own expert chosen by themselves?  Yes      No

                                            iii.        Is there a licensing or system of accreditation?    Yes               No

                                            iv.        Are there lists for courts to choose experts from?     Yes      No       

If so Is it obligatory for courts to use these lists?   Yes         No

                                             v.        Can the court appoint a single joint expert?  Yes      No

                                            vi.        How and when does the assignment of an expert appointed by the judge end? (more than one choice may be made)

a)     Written report

b)    Oral testimony        

c)     Confrontation with the parties at the hearing....

d)    Other, please state…………….

           III.        SANCTIONS AND LIABILITIES

A.    Do sanctions for non-performance[5] of experts exist in your legal system, please choose from the following (you may choose more than one option):

                              i.        Disallowing evidence in court

                             ii.        Fining the late party

                            iii.        Strike the expert off the official list of experts

                            iv.        Reducing expert fees

                             v.        Criminal sanctions

                            vi.        Civil liability

                           vii.        Fining the expert

                          viii.        Other: Please state

B.    Can the expert be held responsible for any eventual errors or mistakes committed in the performance of their services?  Yes     No

If so, is their responsibility be defined by :

                              i.        Criminal law

                             ii.        Civil (either contractual or tortious)

                            iii.        Other : Please state………..

     If so, which entity is responsible for verifying the existence of this liability? (More than one    

     option  may be chosen)

                              i.        The judge   

                             ii.        The parties to the case       

                            iii.        Others, please state:…………..

C.    Are experts obliged to cover this liability through specific insurance?    Yes   No

If so, which entity is responsible for verifying the existence of this insurance cover?

D.    Does the status of the expert have impact for civil and criminal liability of the expert?

Yes         No

            If yes, please briefly describe how.

IV.           THE PRINCIPLE OF EXPEDITIOUSNESS

A.    Are there procedural or managerial means to control the length of preparation of expert reports/assessments (as regards the requirements of Art. 6 ECHR): please choose from the following (more than one choice may be made):

                                                  i.     Pre-trial case management by judges to set deadlines for expert preparation of reports

                                                 ii.     Procedural law setting deadlines for expert witnesses

                                                iii.     Judicial discretion on extensions/postponements and possible sanctions

                                                iv.     Judicial discretion to order the filing of expert reports

                                                 v.     Other: please briefly describe

B.    If there is a written report, is there a compulsory or recommended structure for the report?     Yes      No

C.    Delays:

                                                  i.     What are the main causes of delay for expert work (more than one maybe chosen):

a)     Lack of experts

b)    Technology

c)     Rules of procedure

d)    Challenges to expert competence

e)     Continuous instructions to experts

f)     Other: please briefly describe

                              

D.    What percentage of cases using experts experience undue delays in your jurisdiction?

E.    Please briefly describe the average duration required for experts used in court.

F.    Have the courts established systems to manage the submission of expert reports?                                 Yes      No

If so, does this supervision extend to the expert opinions ordered prior to any proceedings by a judge, where such expert opinions exist?       Yes      No

G.    Managing expert reports: Is there:

                      i.        an office supervising the return of reports? Yes  No

                     ii.        a computer system comprising alerts in the event of delay beyond the set date?             Yes      No

If so, does this system inform the court regarding the number of examinations assigned to each expert? Yes No

a)     Their average duration?                    Yes     No

b)    Their cost?                          Yes      No

H.    Is a judge specifically given control over the management of expert opinions?

I.      Has the judge, or another judge, power (also at the request of the parties):

                      i.        To grant extensions of time limits?         Yes      No       

                     ii.        To broaden or restrict the expert’s assignment?  Yes      No

                    iii.        To rule on incidents occurring in the course of operations such as those relating to the coerced production of documents held by a party or an outsider?            Yes      No

                    iv.        To order ex officio the expert’s replacement, particularly in case of delay or breach of obligations such as failing in the duty of impartiality?       Yes      No

Please briefly provide any additional information that may be useful to understand the above issues

V.            GOOD PRACTICES

A.    On expectations between courts and experts, Please provide a rank of 1-5 for the following statements: (1 being a low incidence, 5 being of high incidence)

                                               i.    On reviewing appeals against decisions on the basis of the experts reports, is it found that there is a tendency of judges to rely overly much on expert witnesses :

1          2          3          4          5

                                              ii.    Judges and legal professions receive training to gain perspective of expert testimony

1          2          3          4          5

                                             iii.    Experts receive training on the legal standards expected of them

1          2          3          4          5

Please briefly provide any additional information that may be useful to understand the above issues

B.    How is the initial and continued quality of experts guaranteed in your system in order to maintain neutrality and balance between legal (transparency/objectivity) and scientific (reliability/testability) admissibility by the expert:

Please choose from the following (you may choose more than one option):

                                              i.        Accreditation

                                             ii.        Licensing

                                            iii.        Professional Organisation’s standards

                                            iv.        Experts’ regulator

                                             v.        Other: Please briefly state

C.    Is the quality and delay of experts being currently discussed in your country? Please choose from the following (you may choose more than one option)

                                               i.    Policy makers

                                              ii.    Courts (individual courts or governance level)

                                             iii.    Practice (legal professions and experts)

                                            iv.    Academic

D.    Do the following represent problems regarding quality of experts in your legal system? You may choose more than one option:

                                                i.    Lack of experts (please describe which briefly list which fields are most problematic)

                                               ii.    Lack of reliability

                                              iii.    Lack of neutrality

                                             iv.    Other. Please briefly describe

E.    Please briefly give any details of proposed solutions or best practices

F.    Bibliography : Which recent books deal with judicial expertise in proceedings in the country? Are there specialised journals and websites?