Expert opinion plays a key role in legal proceedings, enabling courts to properly clarify facts that require expert knowledge not available to the court.
According to Article 243 of the Civil Procedure Act (ZPP), the court obtains evidence through an expert if expert knowledge that is not available to the court is required to establish or clarify a particular fact. This means that an expert is appointed to express an opinion on a particular issue based on their expertise, for example in the field of medicine.
Exclusion of an expert
The exclusion of an expert is an important aspect of the procedure as it ensures that the expert maintains their impartiality. In this respect, it follows from Article 247 of the ZPP that an expert may be excluded on the same grounds as a judge or a juror. A party must request the exclusion of an expert as soon as it becomes aware of the ground for exclusion, but at the latest before the expert evidence is taken. If the court has given the party an opportunity to be heard before the expert is appointed, the party must state its exclusion request on that occasion. In the request for the exclusion of the expert, the party must state the circumstances on which it relies for the exclusion request. For example, the mere fact that two doctors in Slovenia know each other is not, according to case law, sufficient to require the appointment of another expert.
The impartiality of experts is crucial, as experts, like judges, must be neutral and must not have any relationship with the parties or the subject matter of the dispute such as to cause, or must not create a reasonable doubt that they cannot give an expert opinion objectively, impartially and with exclusive regard to the rules of science and profession. It is therefore of particular importance that the parties to the proceedings be guaranteed objective, impartial expert evidence, which is further reflected in an impartial trial, as is clear from the established case law.
For example, this year the High Court in Maribor ruled that if there are so few doctors in Slovenia in a particular field that they cooperate with each other regularly, this may cast a doubt about their impartiality if they are placed as forensic experts and have previously cooperated regularly and concretely with a particular doctor whose conduct is assessed as a possible professional error.
Expert opinion
According to Article 251 ZPP, before expert evidence is taken, the expert must be instructed to examine the subject matter carefully, to state in detail everything they observe and perceive, and to give their opinion conscientiously and following the rules of science and profession. The expert should also be warned about the consequences of perjury.
The court has the right to ask the expert questions and to require explanations concerning his report and opinion. At the request of the expert, additional evidence may be taken in order to establish the circumstances relevant to his opinion.
Multiple experts
If the opinions of the experts differ substantially or are incomplete, the evidence may be repeated with other experts if the deficiencies cannot be remedied by additional hearings of the original experts in accordance with Article 254 ZPP.
European Court of Human Rights
In a number of cases, the European Court of Human Rights (ECtHR) has considered whether the manner in which expert opinions are obtained and taken into account respects the equality of arms of the parties to the proceedings. The ECtHR emphasises that experts must be impartial and that the parties to the proceedings must be given the opportunity to participate in the preparation of expert opinions if it is crucial to the case.
The lack of neutrality of an expert may lead to a violation of the principles of impartiality of the court and the equality of arms of the parties to the proceedings. The ECtHR has already found violations of rights when courts have strictly followed the opinions of experts which were not independent or impartial.
Impartiality of experts
The latter was discussed in the case of Letinčić v Croatia, where the domestic authorities decided on the eligibility for a family disability allowance based on whether the father’s suicide could be considered a consequence of his participation in the war. The opinion on the eligibility for this allowance was provided by the ministry’s reference centre at the request of the Ministry of Health. The ECtHR decided that, while the impartiality or neutrality of the reference centre was not in itself sufficiently questionable, the applicant, given that the opinion was decisive, should have been able to participate in its preparation, should have known which documents the experts had taken into account and should have been given the opportunity to comment on them, to questions the witnesses or to successfully propose that a second opinion be obtained, given that the opinion was decisive.
Fairness of the procedure
As regards the position of experts in the proceedings, the ECtHR has taken the view that their role in the evidentiary proceedings and their relationship to the parties are relevant in assessing the fairness of the proceedings. The lack of neutrality of a court-appointed expert whose opinion holds particular weight in establishing the facts may lead to a violation of the principles of impartiality of the court and/or the equality of arms of the parties to the proceedings, although more often the latter than the former.
Infringement of rights
In Sara Lind Eggertsdóttir v Iceland, the ECtHR found a violation of Article 6 of the European Convention on Human Rights because the Icelandic Supreme Court, in reversing a lower court’s judgment against the applicants, had relied primarily on the opinion of experts who were employed by the hospital whose negligence was at issue in the domestic proceedings, and who had thus assessed the work of their colleagues. The ECtHR reached a similar conclusion in Shulepova v. Russia and Placì v. Italy. In all three of these cases, the experts appointed by the court were at issue.
Neutrality of the expert
The ECtHR has also already taken the stance that the requirement of impartiality and independence applicable to courts does not apply in the same way to experts. The ECtHR therefore assesses in each proceeding whether doubts as to the neutrality of an expert are objectively justified. In the ECtHR’s view, a contrary view would unreasonably restrict the possibility of obtaining expert opinions in many cases.
Experts in preliminary proceedings
The above position on the status of experts also applies to experts who are not appointed by the court but are involved in the preliminary administrative procedure. In Korošec v. Slovenia, the ECtHR, applying the above principles, concluded that Slovenia had violated the principle of equality of arms in proceedings by relying primarily on the opinion of the Disability Commission and by failing to appoint an independent expert to assess whether the applicant required permanent professional medical care. The ECtHR based its decision on (1) the position of the Disability Commission, (2) the decisive role of its opinion in the assessment of the case, and (3) the fact that the applicant did not have the opportunity to challenge the Commission’s findings.
In practice, in the assessment of damages or, for example, in the field of medical law, the appointment of an expert is practically unavoidable. Expert opinions play a key role in court proceedings, as they are often relied upon by the courts, but it is important to ensure their impartiality and the equality of arms of the parties to the proceedings, which is in line with the principles of due process. Parties must be aware of their rights and obligations to ensure fair and efficient litigation. Parties should consult a lawyer when dealing with issues related to expert opinions and the litigation process in general. This will enable the parties to better prepare for the hearing in the court proceedings and to represent their interests more effectively.
Written by: Katarina Emeršič Polić, mag. prav.