Why court experts are important for the rule of law – A view from Austria
A well-functioning judiciary is the foundation of a well-balanced society. In our day and age, it has also become a guarantee - making sure not only that violations of the law are sanctioned but also, and equally important, that legal and economic differences are balanced. In a multi-strata society and an innovative economy, these will always arise and have to be resolved. Impartial institutions which can be relied upon are needed to reconcile or reduce differences. In the final analysis, this is the role which the independent judiciary is playing. However, on its own, the independent judiciary is not in a position to deal with, let alone decide in complex subject matters from various technical fields, for example business, technology or science.
In our judicial system, it usually requires court experts to assist judges in getting the correct impression of the context as well as of the consequences a situation in dispute comes with. There is no doubt that such experts called in by the courts must not only be absolutely independent, but also have excellent training. Furthermore, they must also ensure that they have the specialist knowledge required in the cases on hand.
Given the requirements which come with this job profile, it is easy to see that court experts must have excellent training and broad experience. If the national judiciaries want their work to be truly independent and high-quality, they must therefore safeguard a court expert system which meets these high standards.
At this point, I would like to use the Austrian system as an example as I explain how valuable a high-quality system of court experts is and how it has been possible to develop it.
In Austria, the Main Association of Generally Sworn and Court-Certified Experts acts as an independent body representing experts; almost 90% of the experts on the court lists are members of the Association.
The Austrian judiciary has in turn worked with the Main Association, thus contributing to building up a complex expert system which ensures the quality of court expert services. The Main Association of Generally Sworn and Court-Certified Experts developed the important executive access points, certification examinations and recertifications in cooperation with the judiciary, thus setting high quality standards as well as creating a close-meshed network for the purpose.
In my 30-year presidency of the Main Association, I have not only been able to raise the number of members from about 3,000 to almost 10,000 members – and it should be noted that membership is voluntary, and members may resign at any time - I have also joined forces with the judiciary in implementing a complete certification system for all experts. Recertification takes place every five years to ensure that the experts continue to meet the certification standard thanks to the continuing education they have to undergo. Our Main Association has also built an extensive network which provides comprehensive and sound support for court experts.
Why do I mention this?
I do that because in most court cases in the country, so much is decided based on the opinions of our experts, legally and economically.
Let us take a closer look at the economic implications of our expert opinions. In the small country of Austria, it is estimated that decisions with legal and economic effects to the tune of several billion euros are handed down every year. Moreover, these decisions often have serious longer-term economic impacts, future effects which show in a very striking manner how serious and grave many decisions can be for business and society. In this context, I am not speaking about the craftsman running a small business and suing for payment of his invoice.
No, I am referring to large-scale proceedings about tenders in the construction industry, to use just one example, and there are countless other instances of legal disputes about economic aspects of the business world. This goes to show how important it is to ensure excellent experts for the judiciary and for the work of the courts. Of course, this also presupposes that the remuneration for these expert services is appropriate and usually also somewhat elevated.
Again, the Main Association and I have worked to establish a high-quality remuneration system corresponding to the task or the responsibility involved, a system which has not only proven itself, but also one which enables the judiciary to access the best, and if necessary, the most expensive experts. This system thus makes it possible for the judiciary to ensure that not only highly qualified, but also truly independent experts are available.
The situation is not much different in the criminal justice system.
In criminal cases, the questions requiring a response are primarily about the responsibility and culpability of one or more persons as case are assessed and perpetrators are convicted, but there are economic consequences, too, and professional livelihoods or even personal freedom can be at stake.
This is yet another reason why it makes sense to ensure that a judge’s decision is supported by an expert opinion drawn up by an excellent independent expert. Matters need not always involve the collapse of a large bridge.
I am proud to say that during my 30-year presidency of the Main Association of Generally Sworn and Court-Certified Experts in Austria, I have been able to build such a system - a very complex one - and it is largely satisfactory for our society, supporting our sound and independent judiciary. While there is nothing that cannot be improved, our judiciary and our experts are very satisfied with the system. It would be a beautiful thing to see a system like this or similar to it being developed in other EE member states because it would be a contribution to improving efficient and independent judiciaries.
Dr. Matthias Rant, Past President of Hauptverband der allgemein beeideten und gerichtlich zertifizierten Sachverständigen Österreichs