Findex II – Recommendations of the Jury
During the consensus conference on the 2nd June at the Cologne’s Higher Regional Court, the jury was able to attend the presentations of work packages 2 and 3, as well as the public debate on the various topics.
Based on the various conclusions reached by the working groups, the task of the jury was to indicate which points or subjects should be adopted, rejected or amended, after resolving any controversies that may have arisen within or between the groups.
Recommendations towards the creation of a European register of qualified judicial experts previously recognized by the Member States
Introduction
The aim of the EEEI and EE project is to identify the definition of minimum criteria for qualifying a person as a “judicial expert” in terms of competence and specific knowledge of procedural rules and ethics, in order to draw up a list of standards for the bodies responsible for maintaining the registers of experts in each Member State, and to facilitate the convergence of expert nomenclatures in order to maintain and update the fields of expertise at European level.
It is therefore not proposed to establish a new profession, that of “expert”, but to acquire, from all the professional sectors that have gradually been formed in the market, people who are defined as “professionals”, i.e., people who, in order to acquire their qualification, have obtained an academic title or have done professional practice or, have passed a qualifying examination, and do continue to update their competence, who are also specialised and capable to act as judicial experts for the court.
Within the Member States, traditional and long-established professions (lawyers, doctors, engineers, architects, etc.) coexist with more recently developed professions. In order to liberalise the professional markets, the European Union has struck a balance between economic interests in widening access to the market to facilitate competition and lower prices for services, and the interests of the community in the proper and qualified performance of the professions.
Professionals are represented and controlled by professional bodies that may be free associations, or public institutions, established or recognised by the State. The existence of such institutions does not preclude professionals from associating freely, possibly according to their specialisations.
Judicial experts are professionals chosen for the performance of their activities to support judiciary procedures.
The choice of a judicial expert is regulated by the Member States in various ways.
The activity — intellectual or technical — performed by professionals, including their activities as judicial experts, is considered to be the performance of services in the free market and is subject to the rules of free competition. Professional service activities are regulated by Directives 2006/123 (the so-called Bolkestein Directive) and 2005/36 on professional qualifications (EQF). Freedom of exercise and freedom of establishment are the principles that govern the internal market1.
The Member States have implemented the two directives, and within these frameworks, have introduced specific regulations for many professions. Indeed, professional activity is not only the expression of the economic freedom to carry out independent work, the protection of which is guaranteed by the European Charter of Fundamental Rights.
Furthermore, judicial expertise is an activity that, being in contact with the public, prosecutors and courts, must ensure that the recipients of the services receive a safe and appropriate service.
Judicial experts may therefore only use the title if they have obtained it in accordance with the rules laid down by their national legislations. Usually, such experts are entered into a register (or other list) kept by a body relevant to their basic professions, or the judicial expertise as such.
Registration bodies of judicial experts usually draw up a code of ethics. The registration of judicial experts, their suspensions, and cancellations, as well as the sanctions imposed by the body are generally recorded in the register.
Judicial experts are usually bound by their code of ethics and cannot escape compliance with it, on pain of sanctions imposed by the body that supervises them. Member States may even provide for criminal sanctions for violating the rules on the misuse of the qualification, or the abusive exercise of a profession.
The necessity of a European framework for judicial experts is today increasing. Due to the ever-increasing complexity of issues in many fields, judges, and prosecutors within the different Member States could face difficulties to find within their own jurisdiction judicial experts with the appropriate expertise; a European list of judicial experts would help the judges and prosecutors.
The following recommendations of the jury are based on the results of the working groups concerning the definition of criteria for judicial experts, the criteria for the registration bodies, the requirements for registration and the nomenclature, as presented and discussed at the Consensus Conference in Cologne on June 2nd 2022. The results of the working groups are attached as appendices.
1 – CJUE, 4e ch., 17 mars 2011, Josep. Peñarroja Fa, aff. jtes C-372/09 et C-373/09, Rec. CJUE I-01785.
Part 1: Criteria for qualified judicial experts2
Judicial experts must disclose high standards of technical knowledge and
practical experience
| Initial Professional education or qualifications | Judicial experts shall possess initial professional qualifications and/or professional education to guarantee the necessary level of theoretical knowledge, according to their specific field of expertise. This can be verified/proved by higher education or vocational education and training3. In order to support their application, candidates shall be able to submit diplomas, certificates and/or a CV with a number of years of experience in their profession and/or references of employers, clients, etc. |
| Professional experience | Experts shall have professional practical experience of at least three years in their field of expertise. The position of a judicial expert is, generally, considered less suitable for beginners. Membership in a professional body should not be mandatory. However, membership of such a professional body can be supportive to the application. |
| Experience in Expertise | To give evidence of expertise experience as judicial expert shall not be mandatory to apply for registration4. However, experience as judicial expert can be supportive to the application. |
| Ability to present clearly and intelligibly an expert opinion that may be readily understood by a non-expert or adequate level of linguistic ability, especially in oral and written expression. | Experts shall be able to present the results of their assessment in a comprehensible manner and in a structured way, towards the parties, the lawyers and the judge. An evaluation may be organised by the registration body in order to verify this ability. |
| Continuous professional education | Experts shall follow continuous professional development (CPD)5 |
| Knowledge of procedural rules | Judicial experts shall be aware of the requirements of procedural rules in the jurisdiction of their country of register. Knowledge of the law and proceedings in the legal system of the country of registration is of significant value. Experts shall have knowledge of procedural aspects at least regarding their rights and obligations and their function within the legal system6. However, to demonstrate such a knowledge also for acting in another Member state should not be mandatory to be listed at EU level7. |
Judicial experts must be “fit and proper”
Ethics
Ethical behavior is fundamental to build the desired level of confidence in any expertise service. Therefore, judicial experts must always guarantee8:
- Independence
- Impartiality
- Objectivity
- Integrity
| Independence | Judicial experts shall not do anything in the course of their function that, in any manner, compromises or impairs or is likely to compromise or impair their independence |
| Impartiality | Judicial experts shall not do anything in the course of their function that, in any manner, compromises or impairs or is likely to compromise or impair their impartiality. Judicial experts shall form their own independent view on the matter. They should be resilient to any pressure from any side. Their opinions must be fact driven and based upon their own investigation. |
| Objectivity | Judicial experts shall not do anything in the course of their function that, in any manner, compromises or impairs, or is likely to compromise or impair their objectivity. |
| Integrity and conflicts of interest | For judicial experts, acting ethically implies being free of any conflict of interests. Judicial experts shall not accept assignments without full disclosure to the court and parties of any actual or potential conflict of interests. If any conflict of interest occurs after the assignment has been accepted, judicial experts shall immediately notify the court and, in appropriate cases, ask for resigning the appointment. In any case, judicial experts should carry out a routine risk identification prior to the acceptance of assignments9. |
| Duty to the court | There is an overriding duty to the court to provide independent, impartial and objective expert evidence10. |
| Confidentiality and professional secrecy | Judicial experts shall not do anything in the course of their function that, in any manner, compromises or impairs or is likely to compromise or impair their duty to maintain confidentiality. Judicial experts are subject to professional secrecy. They shall not reveal any relevant information11 that may come to their knowledge in the course of their work, including any findings and conclusions. The information intended for the parties and/or the judge shall not be disclosed to the public or third parties outside the legal proceedings, unless authorized by the court. |
| Duty for on-Time delivery | Timely completion of the task given to them is essential for judicial experts to guarantee reliability. Therefore, judicial experts should have a realistic overview of their deadlines and commitments in order to meet them, within agreed budget, when applicable. Judicial experts shall respect deadlines set by the court to guarantee an efficient trial12. |
| Verification of the ethical criteria | In order to favor the understanding, the adherence and the implementation of the ethical principles required from judicial experts, they should adhere to a code of conduct13 through a formal act14. Judicial experts should have no relevant criminal record, nor be susceptible to bribes or inducements other than the fees as allowed by the law or the judge15. Moreover, the ethical criteria can be verified by asking any applicant to produce an official (State issued) proof of good conduct or equivalent, and/or references delivered for instance by judges, prosecutors, lawyers, or already registered experts. |
| No age limit | There should not be an age limit for judicial experts, neither a minimum nor a maximum age for registration. |
| Transparency of expert procedure | Judicial experts shall fully assess the situation and conduct a structured and transparent reasoning supporting their conclusions. In particular, possible existing discussions and even controversies in the field of the expertise must be exposed. Judicial experts shall differentiate between facts and assumptions (and, where relevant, any underlying scientific or in any other way acknowledged methodology) upon which their findings are based. Judicial experts should also identify and overcome possible implicit bias. |
2 National legal regimes can provide for experts to be individuals or legal entities (public or private laboratories, universities, etc.) as long as, for the latter, at least one private individual within the legal entity is a Judicial Expert and takes on the responsibility for the report and as long as the organisation of the legal entity guarantees the independence of the expert who is signing the report.
Guide to Good Practices in Civil Judicial Expertise in the European Union, Chapter I, Definitions 1.6.
3 The Bologna Process 2020 — The European Higher Education Area in the new decade. See:
4 If this were required, there would be literally no chance for aspiring experts to create a career entry. In case applicants for registration have expertise experience (for example: outside of courts, private assignments) this would be an add-on.
5 As technology and scientific methods develop faster and faster, experts constantly shall be expected to
adapt their working methods. It is therefore important to make sure they have regular learning time built into their schedule.
6 If applicants cannot demonstrate a knowledge of the procedural aspects within their home jurisdictions, they should follow a training on these aspects, with a test at the end.
7 If the judicial expert has no such procedural knowledge, the judge may, for example, decide to appoint at least two judicial experts: the foreign judicial expert with a very focused technical knowledge and a local judicial expert with a more general technical knowledge but with the procedural knowledge.
8 See also: European Guide for Legal Expertise (EGLE), Guide to Good Practices in Civil Judicial Expertise
in the European Union, European Expertise & Expert Institute (EEEI) 2015
(https://rm.coe.int/168074827a).
9 This analysis should include conflict of interest, legal risks, liability as well as accountability. It is up to the Member State whether to require or to forbid an insurance policy.
10 This duty, however, should not be misunderstood as an anticipatory obedience for state authorities or as a recipient of politically driven orders.
11 Such as AML disclosure which is subject to specific EU rules.
12 Of course, this requirement can be adapted if the deadlines imposed are too short, for example considering the complexity of the case, or due to unforeseen circumstances, or if the parties in the proceedings do not allow experts to work effectively (for example, by not providing documents in time).
13 The code of conduct developed in the EGLE project (https://experts-institute.eu/wp- content/uploads/2018/03/2016-01-07-eeei-guide-to-good-pratices-egle-en-brochure.pdf) and also the Code of practice of EuroExpert can be used as examples (https://euroexpert.org/standards/code-of- practice).
14 In some member states, this act could be an oath.
15 For example, due to personal high, disproportionate debts.
Part 2: Standards to be met by bodies in charge of registration and to be followed in the process and procedures of registration
To ensure high common criteria of judicial experts in the European Union, we recommend the following requirements for the organisation of the registration bodies and the registration process:
1. Recommendations concerning the Registration Bodies: General and Functions
To ensure harmonization and thus mutual recognition of judicial experts, every member state shall have a body responsible for the registration of judicial experts.
In order to satisfy the imperatives of transparency and good administration of justice as well as to ensure the public acceptance of the bodies and their decisions, the organisation of the bodies, the rules and processes they follow, as well as the decisions they take shall be transparent to the judicial experts, courts and prosecutors, and the public.
The primary functions of registration bodies are creating and managing registers of judicial experts. The registration bodies may also contribute to the education of (future) judicial experts or advise on topics like the framework of fees for judicial experts.
The registration body
| 1.1. shall draw up and document rules and regulations concerning its structure, policies and responsibilities and publish them, as well as keep them publicly available and easily accessible, |
| 1.2. shall define the policies and procedures for the registration as well as for re- registration or deregistration through withdrawal, not fulfilling the requirements or disciplinary measures when needed. These policies and procedures shall be published as well as kept publicly available and easily accessible. |
| 1.3. shall receive applications from any person interested in being registered as a judicial expert and ensure that the registration process is fair and impartial among all applicants, |
| 1.4. shall examine and approve the technical, professional, procedural and ethical competence of an applicant16, |
| 1.5. shall be responsible for re-registration and verify periodically17 that the registered experts still fulfil the registration requirements18, |
| 1.6. shall maintain confidentiality and comply with the laws and regulations governing the process of personal data, including, but not limited to Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (the “GDPR”), |
| 1.7. shall set up a publicly accessible register of judicial experts with their specific competences based on the nomenclature, |
| 1.8. shall ensure that the areas of expertise included in the nomenclature are reviewed, updated and validated on an ongoing, systematic basis. |
| 1.9. should support continuous professional development and exchange for judicial experts and between judicial experts and other stakeholders19. |
| 1.10. can contribute in discussions20 concerning the advancement and promotion of the interests of judicial experts |
2. Recommendations for the Assessment Process and Procedures
| 2.1. The assessment process shall include the stakeholders of trials such as judges, prosecutors, experts, lawyers with competence relevant to performing the assessment. |
| 2.2. The assessment shall be planned and structured in a way that ensures that the criteria of judicial experts are objectively verified and documented in order to ascertain the competence of an applicant |
| 2.3. The registration body shall ensure that applicants are provided with documentation of the process and the motivations, in order to evaluate the decisions of the body. The decisions can be subject to reconsideration and are subject to appeal |
| 2.4. The registration shall be subject to review by the registration body within a period of no longer than five years. The registration shall remain in force unless this review leads to a decision of deregistration |
3. Recommendations for Publication
| 3.1. Registers of judicial experts shall be made public and easily accessible. |
| 3.2. Published data shall include: surname, first name, professional address, contact information, areas of expertise (according to the nomenclature) and working languages. They can include a unique registration number if issued by the registration body, academic title(s), and a link to the expert’s website. |
| 3.3. Updates of the published data, including registrations and deregistrations, shall be done regularly, at least monthly. |
16 This can be done following the criteria for the evaluation of judicial experts according to the recommendations made by the European Commission for the Efficiency of Justice (CEPEJ, Guidelines on the Role of court-appointed experts in Judicial proceedings of Council of Europe’s Member States, CEPEJ(2014)14, approved on the 12th December 2014 (https://experts-institute.eu/europe-de-la-justice/cooperation-entre-cepej-leeei/).
17 Five years at the latest.
18 See part 1.
19 This can be implemented by offering training courses, recognizing courses run by universities and other appropriate institutions and by facilitating or promoting meetings among judicial experts or between judicial experts and judges, prosecutors, lawyers, court clerks etc.
20 E.g. concerning remuneration issues and payment systems that are established in some member states
Nomenclature
Given the complexity of society and its rapid pace of change, a magistrate may be faced with an extremely wide range of issues that go beyond his or her area of expertise. They may be faced with relatively technical issues that cut across several disciplines. In this context, it is necessary for them to select a competent expert with extensive knowledge in a selected discipline. This choice can only be made by implementing a nomenclature grouping the main disciplines. This tool therefore contributes to the quality of legal expertise by facilitating the selection of an expert with the knowledge best suited to the dispute submitted.
After studying the categories in the nomenclature submitted to the Consensus Conference, the jury notes on the one hand that drawing up such a nomenclature requires extensive knowledge of a wide field of domains and on the other hand that the whole nomenclature obeys to an inherent logic and structure, implying that any change would require adopting corresponding
changes elsewhere. For these reasons, the jury does not intend to make any changes. The jury however, welcomes the announced intention to refine the nomenclature with third-level precisions.
The jury furthermore considers useful that a European-wide mechanism could be drawn up in order to regularly review and update the proposed nomenclature.
The jury does, however, propose adding the category of translators-interpreters. It is true that translators have certain particularities, in that they work almost exclusively in the criminal field and do not draw up reports. Nevertheless, they are expected to meet the same ethical criteria as legal experts from other professions (independence, impartiality, absence of conflicts of interest, etc.). Furthermore, in the interests of consistency and the proper administration of justice, it would seem preferable to include this category in the nomenclature that has been drawn up.
A. Human Health
| A.1. Medicine | A.1.1. Allergology A.1.2. Pathological anatomy (pathology), cytology and histology A.1.3. Anaesthesiology, intensive care A.1.4. Developmental and reproductive biology and medicine A.1.5. Oncology A.1.6. Cardiology (diagnostic and interventional) A.1.7. Dermatology (incl veneral diseases) A.1.8. Endocrinology and metabolic diseases A.1.9. Gastroenterology and hepatology A.1.10. Clinical genetics A.1.11. Medical gynecology A.1.12. Hematologic – transfusion (incl. Oncology) A.1.13. Infectious diseases A.1.14. Family medicine – Geriatrics – Palliative care, general medicine A.1.15. Internal medicine A.1.16. Physical medicine and rehabilitation A.1.17. Occupational medicine and health A.1.18. Vascular medicine A.1.19. Emergency and disaster medicine A.1.20. Nephrology A.1.21. Neurology A.1.22. Medical ophthalmology A.1.23. Medical oto-rhino-laryngology A.1.24. Parasitology and mycology A.1.25. Pediatrics A.1.26. Pharmacology, pharmaceutical technologies and drug sciences A.1.27. Pneumology A.1.28. Rheumatology A.1.29. Environmental medicine A.1.30. Evaluation of physical impairment A.1.31. Medicine (other) |
| A.2. Psychiatry | A.2.1. Child psychiatry A.2.2. Adult psychiatry A.2.3. Psychiatry (other) |
| A.3. Surgery | A.3.1. Digestive surgery A.3.2. Pediatric surgery A.3.3. Maxillofacial surgery, facial traumatology and oral surgery A.3.4. Traumatology and orthopedic surgery A.3.5. Plastic, reconstructive and aesthetic surgery A.3.6. Cardiac and vascular surgery A.3.7. Thoracopulmonary surgery A.3.8. Gynecological and obstetric surgery A.3.9. Ophthalmology surgery A.3.10. ENT surgery and neck surgery A.3.11. Urological surgery A.3.12. Cranio and medullary neurosurgery (incl. spine) A.3.13. Surgery (other) |
| A.4. Medical and biophysical imaging | A.4.1. Biophysics – nuclear medicine A.4.2. Radiology and medical imaging (for diagnostic and interventional purposes) |
| A.5. Medical biology and pharmacy | A.5.1. Bacteriology – virology – hospital hygiene A.5.2. Biochemistry A.5.3. Cellular and molecular biology A.5.4. Biostratics – Medical informatics and communications technologies A.5.5. Epidemiology – health economics A.5.6. Immunology A.5.7. Nutrition – prevention – public health |
| A.6. Odontology | A.6.1. Odontology A.6.2. Orthodontics A.6.3. Dentistry, dental technician |
| A.7. Psychology | A.7.1. Neuropsychology A.7.2. Adult psychology A.7.3. Child psychology A.7.4. Psychology (other, incl pedagogics) |
| A.8. Psychotherapy | |
| A.9. Health care, paramedical, midwives, and auxiliaries | |
| A.10. Medical devices | |
| A.11. Human Heath (other) |
B. Natural sciences
| B.1. Biology |
| B.2. Chemistry |
| B.3. Physics |
| B.4. Mathematics, statistics |
| B.5. Meteorology |
| B.6. Astronomy |
| B.7. Nutritional science |
| B.8. Geography |
| B.9. Natural sciences (other) |
C. Agriculture, forestry, fishery
| C.1. Agriculture |
| C.2. Forestry |
| C.3. Fishery |
| C.4. Agriculture, forestry, fishery (other) |
D. Environment
E. Vehicles, transport, accident analysis
| E.1. Vehicles |
| E.2. Transport |
| E.3. Accident analysis and reconstruction (accidentology, incl. traffic, navigation). |
| E.4. Vehicles, transport, accident analysis (other) |
F. Economy, finances
| F.1. Economics, business (incl fiscal economy) |
| F.2. Accounting, Accountancy, auditing, taxes |
| F.3. Intellectual property |
| F.4. Trade |
| F.5. Insurance |
| F.6. Economy, finances (other) |
G. Engineering, machinery
| G.1. Machinery |
| G.2. Electronics |
| G.3. Energy, power plants |
| G.4. Commodities, materials |
| G.5. Production, goods |
| G.6. Engineering, machinery (other) |
H. IT, Telecom
| H.1. IT |
| H.2. Telecommunication |
| H.3. IT, telecommunication (other) |
I. Construction
| I.1. Building, Building crafts |
| I.2. Public infrastructure |
| I.3. Building materials |
| I.4. Architecture |
| I.5. Surveying |
| I.6. Construction (other) |
J. Arts, antiques, archeology, jewelry
| J.1. Arts |
| J.2. Antiques |
| J.3. Archeology |
| J.4. Jewelry |
| J.5. Arts, antiques, archeology, jewelry (other) |
K. Crafts, services and other professions
L. Real estate
M. Veterinary medicine
N. Safety
| N.1. Safety (i.e. fire protection) |
| N.2. Nuclear/radiations |
| N.3. Weapons, ammunition |
| N.4. Explosives |
| N.5. Safety (other) |
O. Leisure, sports, tourism
P. Forensics
| P.1. Forensic medicine (incl. forensic psychiatry, forensic pathology) |
| P.2. Forensic science |
| P.3. Forensics (other) |
Q. Media
| Q.1. Print media |
| Q.2. Digital media |
| Q.3. Photography |
| Q.4. Books, publishing |
| Q.5. Media (other) |
R. Translators, languages
