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Italy

Civil legal expert examination in Italy

Extract from the final Eurexpertise report

All rights reserved EEEI © 2012

Contributing correspondents

  • Rocca ANTONELLA, Secretary General of the Supreme Court
  • Ulpiano MORCAVALLO, Judge at the Supreme Court
  • Enzo VINCENTI, (civil) Expert
  • Gastone ANDREAZZA, (criminal) expert
  • Françoise TRAVAILLOT, French liaison magistrate in Rome

Authors

  • Alain NUEE, First President of the Versailles Court of Appeals (France)
  • Patricia GRANDJEAN, Councilor at the Versailles Court of Appeals (France)

Other Administrative order

YES

I. Procedural rules in calling for an expert examination

I. 1) On the initiative of

Decision exclusively made by the judge when he believes it necessary, according to unspecified forms (it appears to be decided on a case by case basis).

In civil law, the jurisprudential restriction to appointing an expert covers the prohibition to remedy the shortcomings of one litigant in producing evidence unless this piece of evidence cannot be obtained through normal means, to establish the scope of the law or avoid establishing facts that have not been pleaded by the litigants.

I.2) Mandatory expert examinations

YES

I. 3) Decision-maker

The judge

I.4) Is a pre-trial expert examination possible ?

NO

II. Choice and appointment of the expert(s)

II. 1) Register

The registers are established by jurisdictions whose offices base their decision on the curriculum vitae and documents provided by the applicant.

The registers can list civil servants who work as experts when this is not contrary to their statutes and who are preferably chosen for criminal cases.

In civil law, the judge must ensure a reasonable rotation among the appointments of the registered experts.

II. 2) Oath

YES

The expert swears an oath when he presents his findings at the hearing. However, the absence of oath is not a ground of nullity for the expert’s deposition.

II. 3) Choice of the Expert

The judge always appoints and chooses the expert.

However the parties can appoint technical consultants to cooperate with the judicial expert within a “technical contradictory procedure” and who will participate in drafting the final report.

The number of consultants chosen by each party must not be higher than that of the experts appointed by the judge.

The judge preferably appoints a registered expert but can, in particular situations, appoint a consultant who is not registered.

II. 4) Participation by the parties in the appointment process

NO

II. 5) Nationality

Procedural rules do not impose that an expert be of Italian nationality. However, save for some exceptions, they do impose that the expert reside within the area of jurisdiction that appoints him and that he belong to a professional order.

II. 6) Recusal by the litigant parties

For classical reasons (family ties, enmity, conflict of interests, etc.)

II. 7) Expert’s withdrawal (refusal of a mission)

The expert appointedby the judge is under the obligation of accomplishing his mission.

However, he can withdraw if he gives proof of a legitimate reason (that corresponds to the causes of withdrawal applicable to judges). Illegitimate withdrawal from a mission is punished by a fine, a prison sentence, and/or a prohibition to practice one’s profession.

II. 8) Possibility of adding another expert

The judge can appoint several experts together and an additional expert can be added at the original expert’s request and with the judge’s approval.

II. 9) Possibility of being assisted by a colleague

An expert can call for a specialist to assist him in part of his mission, but he remains responsible for this specialist’s report and for the use of his investigations and findings for his own report.

III. Definition of the expert’s mission

III. 1) Who determines the mission ?

The judge determines the mission

III. 2) Type of mission

The mission is based on the technical analysis of facts in light of the expert’s knowledge. If the assignment covers important factual elements that are decisive for a solution to the dispute, it can be more or less defined - depending on the needs of the case - in a general, specific, or more or less detailed manner, according to the judge’s needs.

IV. Progress of the expert’s mission

IV. 1) Judge supervision

The judge can assist and participate in the expert’s work but in practice and with rare exceptions, the judge does not supervise the progress of the mission and the expert works independently.

IV. 2) Form of contradictory procedure

The contradictory procedure is implemented by submitting a preliminary report on which the litigants can make remarks which the expert will have to reply to in his final report. At a litigant’s request, the judge may speed up the contradictory procedure by asking the expert he appointed to carry out his proceedings in partnership with the litigants’ technical consultants.

IV. 3) Participation in the hearing

The expert orally presents his conclusions in the hearing.

V. Close of the expert examination

V. 1) Does conciliation put an end to the expert’s mission ?

UNSPECIFIED

V. 2) Form imposed on the report

The report is orally presented. If the expert carried his mission out independently (without the judge’s intervention), the judge can ask for a written report to be submitted.

V. 3) Does the report put an end to the expert’s mission ?

The mission only ends with the end of the trial (not the presentation of the report).

Most often the mission ends when the written report is submitted. This report is mandatory in all cases when the expert has worked independently (without the judge’s intervention). Nevertheless, at the judge’s request the expert can be summoned to the hearing in order to present his findings.

V. 4) Is there an imposed structure for the report ?

NO

V. 5) Is a preliminary report mandatory ?

NO

V. 6) Is the judge bound by the expert’s conclusions ?

The judge is not bound by the expert’s conclusions, but if he goes against them, he must provide arguments as to why. Jurisprudence also states that the court may, in criminal and civil cases, choose among the different hypotheses presented by the experts the one which is believed to be the most relevant. The court chooses according to its sovereign power of decision in the case when there is a lack of rules of evidence set by the law, provided it explains in detail the reasons for its choice by describing coherent, logical steps of reasoning and whose worth cannot be verified by third degree of jurisdiction which is only competent in deciding matters of law.

V. 7) Possibility of a second opinion

YES

VI. Funding for the expert examination

VI. 1) Security-Payment

Procedural rules do not provide for the possibility of giving a down payment to the expert.

A payment on account towards the expert’s fees is set by the judge and usually paid by the person requesting the expert opinion. The judge can then oblige the unsuccessful litigant to pay back the expert’s fees.

VI. 2) Determining the amount of payment due

The judge

VI. 3) Possibility of additional payment

UNSPECIFIED

VI. 4) Determining fees and costs

The fee is set by the judge and ensured according to a legal scale which can be fixed or sliding, depending on the specialty. The variable fee, when it is allowed for in a text, can depend on the time given to carry out the mission, the value in litigation or it can be within a range set by the law.

The cost of the expert examination is borne in advance by a party, generally the requesting party, and if it wins its case on the substance of the dispute, the judge sentences the unsuccessful litigant to reimbursing them.

VI. 5) Possibility of contesting the fees

It is possible to legally challenge the decision determining the expert’s fees.

VII. Expert liability within proceedings

VII. 1) Are there any laws governing expert examinations ?

Laws regulating the expert’s intervention mean the expert could incur civil or criminal liability through his mission.

Criminal offence in case of neglect when submitting the report or in case of fraud (a year in prison and a fine of 10329 euros). Rules of law violations when carrying out a mission can lead to the cancellation of the expert examination and the neglect can mean that the fees are reduced by up to half, to which one must add compensation to the litigants. In criminal cases, the expert who can withdraw from his mission can be condemned to a fine ranging from 154 to 1549 euros if he does not give his opinion within the set deadline or if he is negligent.

VII. 2) Expert liability

Civil and criminal

VII. 3) Mandatory insurance for the expert

The expert has no legal obligation to underwrite insurance.

VIII. The expert’s status

VIII. 1) Existence of selection criteria (accreditation)

The rules regulating experts are set by the Code of Civil Procedure and the Code of Criminal Procedure as well as by a presidential decree. Experts are gathered in several associations that are not a representative organisation.

VIII. 2) Classification of skills

Yes, nomenclature

VIII. 3) Required qualifications

YES

Qualifications required + Curriculum vitae

VIII. 4) Grant of accreditation

An expert’s registration is subject to an accreditation approved by the court for four years based on a classification of skills and an assessment of his curriculum vitae and his qualifications.

VIII. 5) Possibility of accrediting a legal person

A legal person cannot be an “expert”.

VIII. 6) f) Validity period for the accreditation

Four years

VIII. 7) Regular assessment tests

An assessment test takes place when renewing the accreditation

VIII. 8) Supervision of the expert’s mission

UNSPECIFIED

VIII. 9) Expert’s activity report

UNSPECIFIED

VIII. 10) Code of ethics

There is no text establishing the enrolment criteria for experts on the jurisdictions’ registers, nor a code of ethics.

Experts are bound by rules of civil procedure but are free to practice at their will within these rules.

VIII. 11) Good practice

UNSPECIFIED

VIII. 12) Possibility of penalties

Criminal offence in case of neglect when submitting the report or in case of fraud (a year in prison and a fine of 10329 euros).

Rules of law violations when carrying out a mission can lead to the cancellation of the expert examination and neglect can mean that the fees are reduced by up to half, excluding compensation to the litigants.

VIII. 13) Laws governing the expert’s status

YES

IX. Bibliography

Aleo, Il nuovo manuale del CTU : consulenze tecniche, accertamenti e perizie sugli immobili, Palermo, Grafill, 2009 ;

Botti, La consulenza tecnica civile : guida alla redazione delle perizie giudiziarie esempi di incarichi realmente svolti, Roma, Legislazione tecnica, 2008.

Pistone, La perizia e la consulenza tecnica : la normativa, le procedure, la giurisprudenza, Rimini, Maggioli, 2008 ;

Caracciolo La Grotteria, La consulenza tecnica d’ufficio e il sindacato del giudice amministrativo, Napoli, Edizioni scientifiche italiane, 2008 ;

Aterno e Mazzotta, La perizia e la consulenza tecnica : con un approfondimento in tema di perizie informatiche, Padova, CEDAM, 2006 ;

Brescia, Manuale del perito e del consulente tecnico nel processo civile e penale, Santarcangelo di Romagna, Maggioli, 2007 ;

Rossetti, Il C.T.U., l’occhiale del giudice : consulente tecnico e ausiliari del giudice, Milano, Giuffrè, 2006 ;

De Stefani, Esperienze di un C.T.U. : guida pratica di un consulente tecnico del tribunale, Lido di Venezia, Associazione IWA Italy, 2006 ;

Conte, La consulenza tecnica, 2004 ;

Focardi, La consulenza tecnica extraperitale delle parti private, Padova, CEDAM, 2003 ;

Rossetti, La figura e l’attività del C.T.U. nel processo civile, Milano, Giuffrè, 2003 ;

Addis, Perizia e consulenza tecnica : aspetti giuridici, Mesagne, Sulla rotta del sole, 2002 ;

Perulli, La consulenza tecnica d’ufficio nel processo amministrativo, Padova, CEDAM, 2002 ;

Buffa, La consulenza tecnica d’ufficio, Lecce, Micella, 2000 ;

Protettì E. e Protettì M.T., La consulenza tecnica nel processo civile, Milano, Giuffrè, 1999 ;

Brescia, La consulenza tecnica e la perizia in materia contabile : con formulario e giurisprudenza ; Rimini, Maggioli, 1996 ;

Solustri, Le perizie giudiziarie : ruolo e attività del CTU in diritto civile, penale, fallimentare e amministrativo, Roma, NIS, 1995 ;

Mendoza Marcon Marcon : La perizia e la consulenza tecnica nel processo penale, con note di tecnica infortunistica, Padova, CEDAM, 1994.

Documents

  • Eurexpertise final report - Italy (pdf 292.2 kb) Download
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Mailing address  : EEEI Jean-Raymond LEMAIRE, 38, rue de Villiers - 92532 Levallois-Perret cedex - France Tel : +33(0)1 41 49 07 60 - Fax : +33(0)1 41 49 02 89