The quality of the evidence, the long process for the preparation of the finding, the contradictions in the content and the deficit of experts in specific areas are among the biggest challenges facing the expertise. All of this is in some way an “aggravating circumstance” for this means of evidence, which is aimed at finding out legally relevant facts through experts, who possess expert knowledge that the court or other authority conducting the procedure does not have.
The expert Pero Stefanovski says that for a quality expert opinion, it is necessary for the experts to be provided with the complete documentation compiled by the authorities.
“Usually, in a criminal procedure, there is a greater comprehensiveness of the evidence where, in addition to the inspection report, the scene sketch, there are also statements, a photo album, a record of the technical inspection of the vehicles, possibly a video recording, as well as other evidence. In civil proceedings, there is usually only the police report and a sketch of the scene, while other evidence could rarely be obtained, except at the request of the Civil Court, through the Basic Public Prosecutor’s Office, the Ministry of the Interior or by obtaining the criminal case. Although the inspection record states that the photo album is an integral part of the inspection record, it can rarely be obtained. It follows from this that the issuance of an inspection report without a photo album is the issuance of incomplete inspection documentation by the competent services. Such a situation, given the lack of complete evidence, opens a relatively larger space for performing different analyses by different experts, he clarifies.
Judge Nenad Saveski from the Basic Criminal Court Skopje singles out the duration of preparation of expert testimony, unclear or ambiguous opinions in the content, an appropriate expert from the required area, as well as the availability of relevant evidence on both sides as the biggest challenges in expert testimony in court practice.
Judge Ljubica Kolic from the Basic Civil Court Skopje, says that the first challenge from judicial practice concerns the defendant in the procedure who, according to the legal solution, can submit an expert report with an answer to the lawsuit. This, according to her, is the short term provided for a response to a lawsuit of a maximum of 30 days in which, for many objective or justified reasons, such as voluminousness and inaccessibility of evidence, the expertise cannot be prepared and submitted in a timely manner.
“In this way, the defendant is placed in a less favorable position than the plaintiff.” Therefore, in judicial practice, it happens that the defendant announces the expert report in the response to the lawsuit, but is unable to submit it, so the court in each specific case should assess whether there is a justified reason for delaying the expert report and whether it will additionally be allowed as evidence at a later stage of the procedure, although it was not submitted with the response to the lawsuit,” she says.
For Judge Gabriela Gajdova from the Veles Basic Court, the most pressing issue is how the courts should act when one of the parties requests the expert to come to the main hearing, and the expert dies, becomes permanently mentally ill or becomes unavailable, because according to Article 387 paragraph 3 of the Civil Code, if the expert is not questioned at the hearing, the expert report cannot be accepted as evidence.
“This hopeless situation has no current legal solution. A solution has been offered by the amendments to the Law on Criminal Procedure, which have not yet been adopted, and which provide that, as an exception, if the expert or technical advisor dies, becomes mentally ill or becomes unavailable to the state authorities, the finding and opinion, at the proposal of the party, with the decision of the court, can be read by the party who proposed it, but the conviction cannot be based on this expert opinion in its entirety or to a decisive extent”, Gajdova clarifies.
Lawyer Martin Boskovski says that most of the time the expert opinions in the procedure are subjective and do not really delve professionally into issues that are not known to a person who does not have technical knowledge.
“Instead, expert reports are merely a confirmation of facts that are obvious and visible from other evidence (eg a debt report, where the opinion is the sum of the two invoices). In addition to this, especially accounting financial expertise is used as a confirmation of the existence of a basis, and not an analysis of the amount for a certain debt or damage,” he says.
The Public Prosecutor’s Office replied that what can be seen and pointed out as an indisputable weakness of the existing system is the small number of licensed experts for certain more specific areas.
The super-expertise as a reason for further delaying the procedure
When all of the above leaves the procedure unresolved, the court resorts to a super expert. This expert opinion of a higher level is performed by a team consisting of at least three experts from the relevant field.
Judge Kolic says that the super-expertise has become a rule in a larger number of cases in court practice, especially because the majority of expert reports submitted by the parties are opposed, i.e. contradictory, and rarely reconciled, which further burdens the procedure with large costs and makes it uneconomical and it further causes a delay in hearings which is contrary to the intention of the legislature for trial within a reasonable time.
According to Gajdova, preventing the prolongation of the procedure can be ensured if the court treats the determination of a super expert as an opportunity and not an obligation. Then, the court should determine a reasonable deadline for preparation and any failure to comply with that deadline should be punished, and also correctly prepare and issue an Expert Order that will contain all the issues that are important for making a court decision.
Judge Savevski emphasizes that in order to prevent procrastination, the expert should have clear qualifications, that is, appoint a person who will give the most appropriate skilled finding and opinion.
Stefanovski says that anyone with an expert’s license can be on the team producing the super-expert, which can be a problem in terms of their level of expertise, experience and skill.
“Namely, in practice, there are cases where two experienced experts with many years of experience, knowledge, and skill, have conflicting expert opinions, that is, opinions in court proceedings. Each of these experts has made an analysis, explanation, and theory of the case based on the evidence they had and they cannot fully or partially reach an agreement in conditions where everyone has their own opinion about certain circumstances. In such situations, the court determines a super expert opinion, where experts with a lower level of knowledge, experience and skill will participate in the team than the experts who prepared the initial expert opinions”, explains Stefanovski.
With proactive action of the court to a certain extent, according to him, the number of super-expertises can be reduced and in such a way this situation can be at least partially prevented.
Boskovski adds that in the procedure before the super-expert, the experts, because they are hired by their parties, do not change their position even in the case of additions.
“All these steps that lead to super-expertise are only done procedurally until super-expertise is reached. Then, the procedure is again complicated by the fact that the parties are delivered invoices that they have to pay, and the skilled persons do not work (even though they have a court order) until the expenses are paid. “The case is being re-analyzed, although the experts should focus only on the differences between the expert reports,” he says.
Through the inspection of experts, to more relevant evidence
Gajdova says that in the case of serious crimes, it is usual and advisable to call in skilled persons for inspection.
“This is very important because the skilled person on the spot has the opportunity to notice the traces immediately after the crime has been committed and possibly propose certain clarifications,” she says, adding that it would be most advantageous in the expert examination to trust the expert who was present at the inspection.
The Public Prosecutor’s Office points out that in certain cases, the public prosecutors, if they judge that there is a need, also require experts – experts to attend the inspection.
“However, even when this is not the case, the expert is presented with all the relevant evidence provided by the prosecution in order to make a judgment. “Based on additional requests from the experts, the Prosecutor’s Office supplements the evidentiary material in order to obtain an expert opinion,” they say.
Judge Kolic emphasizes that the court should be careful and, if there is an opportunity, to provide all the necessary evidence before determining the super-expert, so that the hearings would not be further delayed.
The relationship between the “commissioner” of the expertise and its objectivity
Savevski is concise that the court should not participate in the hiring of experts and should not leave its neutral position in the proceedings.
“It should be up to the parties in the procedure, and transparency in the expertise should be the responsibility of the experts,” he says.
The OJO also says that a possible possibility for the court to engage all the experts in the case goes beyond the principles on which the criminal procedure is based.
“The fact that the parties in the procedure hire experts to prove their theory of the case in no way affects the transparency of the expert opinion procedure. Moreover, the expert findings are an important segment on which the entire investigative procedure is based and could not be excluded from the investigation and transferred to the judicial procedure,” they said.
Gajdova, on the other hand, says that the practice shows that there are cases where “commissioned” expert reports are prepared by the defense, and that is why he believes that if the court orders the expert report, it would be more objective.
“These are all those cases where the expert testimony of the defense is not accepted by the court and such decisions of the first-instance courts are confirmed by the higher courts. For those reasons, I believe that if the court is the one who orders expert testimony, the expert testimony would be more objective, but at the moment it is not in accordance with the Law on Criminal Procedure, she says.
Boskovski continues by saying that if the prosecution and the defense do not have contact with the experts and the court hires them, it will contribute to transparent expert opinion, however, he believes that such a rule is not a complete solution when the dispute involves persons who, as he says, do not possess integrity and are willing to demand that expert opinion be produced in one way or another.
For Stefanovski, the contact of the prosecution and the defense or the court with the experts in itself does not have to be problematic if all participants in the procedure act conscientiously.
“Mutual communication could lead to the clearing up of certain circumstances, and if communicated transparently and conscientiously, it should not be problematic.” Through my many years of experience, I believe that experts need more education and training in the field of law. The judicial procedure is a legal procedure in which experts are an integral part, so as part of that procedure they should have a greater knowledge of the law and the procedure itself”, he says, adding that the process must be two-way, i.e. judges, prosecutors and lawyers. to possess certain literacy in the field of expertise.
Through concrete steps to better functionality of the expert witness in court proceedings
Part of Judge Saveski’s recommendations for better expertise requires greater responsibility and consideration of all relevant evidence available to both sides of the proceedings.
According to Stefanovski, several things could affect the functionality of the expert witness, among which he lists a proactive role of the court to determine the factual situation and make the legal decision based on the facts and two-way education, education of the teams for conducting inspections and their up-to-date equipment to obtain the highest possible quality inspection documentation and evidence.
The recommendation of the lawyer Boskovski is that the experts should be selected exclusively by the court and by electronic (random) selection. According to him, it should be avoided, especially in civil proceedings, to make expert reports on circumstances and facts that can be concluded from other evidence.
Gajdova appeals not to determine expert opinion at any cost and to entrust expert opinions to higher education, scientific and professional institutions, because, according to her, they are better staffed and technically equipped, which, as she says, is very important for quality expert opinion.
“Do not determine a super expert opinion if one of the two expert opinions is incomplete, unclear, contradicting itself or the presented evidence. To apply the legal provisions that foresee criminal liability for giving a false finding and opinion and to apply the provisions of the new Law on Expertises, which foresees disciplinary responsibility for experts, for which a disciplinary measure can be imposed – Permanent revocation of their licenses, and when necessary, to call the experts for an on-site inspection, as they could suggest which evidence and information to provide, which will avoid omissions that, if made during the on-site inspection phase, further during the procedure they cannot or can be very difficult to remove,” she emphasizes.