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The Expert and Technical Consultant

The role of the Court-appointed Expert and/or Technical Consultant is governed by art. 61-64, 191-201 Code of Civil Procedure; art. 13-24, 89-92, realization provision Code, art. 225, 226, 230, 359, 360, 501, 502, 510 Code of Criminal Procedure.

The Expert and/or Technical Consultant is an individual judicial body to which the Judge can turn in the carrying out of his own activities, when the subject of a lawsuit involves issues which are not able to be resolved according to common experience. In civil judgment a distinction is made between the technical consultant of the judge, or the court-appointed technical consultant (CTU), and the technical consultant of the party (CTP).

The Court-appointed Expert or Technical Consultant (CTU) is one of the auxiliaries of the Judge whose function extends to supplementing the activities of the latter, in that he can offer both information to evaluate the outcomes of the specific tests as well as information directly related to the judgment: precisely for these reasons he is a person with particular competence in a specific field, called to express opinions, to gather reasons, to put into effect checks, although final decisions rest not with him but exclusively with the magistrate.

Therefore, when he considers it necessary, the Judge is able to make use of the assistance of one or more consultants with particular technical competence, either for specific parts or for the complete proceedings (art. 61 Code of Civil Procedure).
The Expert and/or Technical Consultant is nominated, by decree, by the examining Judge or by the College on request of the parties or, to be precise, the court.

In choosing the court-appointed technical consultants, the Judge generally avails himself of the Register of Experts which is a register which consists of the names of the people equipped with particular technical and professional competencies to whom the Judge is able to entrust the task of providing expert opinions useful for the purposes of the judgment.

The Register is divided by category, that is by discipline or group of disciplines, and must be instituted for each Tribunal; it is held in the care of the President of the Tribunal and is set up by a Committee, among whom is the President of the Association or of the College to which the relevant category of experts belongs. The drawing-up of the Register is possible if particular requirements are met: technical competence, exemplary moral conduct.

The Register of Experts, although not binding on the Judge, constitutes the typical text for the identification of the experts to which the specific investigations are entrusted. Those interested in being included in the Register need to make application to the President of the Tribunal and to present the required documents relating to their own professional experience. The technical consultants of the State Prosecutor are also nominated, as a rule, from those who appear in the Register of Experts. Indeed in the course of the enquiries the necessity of having the opinion of an expert in the case of specific circumstances that assume legal relevance can become clear: in such cases it becomes necessary for the State Prosecutor to resort to an expert opinion or at least the technical opinion of an expert.

The Judge, therefore, taking into account the specific competency of the consultant in relation to the purpose of the consultancy, nominates the CTU. Once nominated by the Judge, the technical consultant is obliged to accept the appointment, and may refuse only for reasons deemed valid by the magistrate himself; he has the right to abstain and he may be recused from parts of the proceedings because of possible conflicts of interest with the task conferred upon him.

The same President of the Tribunal performs the task of supervision and can institute disciplinary proceedings (warning, suspension from the Register for a period not exceeding one year, removal from the Register) in cases in which the court-appointed consultant has not fulfilled the obligations deriving from the job taken on or has not maintained a required level of moral or professional conduct.

The court-appointed technical consultant, before carrying out his own duties, is required to take an oath; then the Judge formulates the questions to which the CTU must provide answers from an expert's perspective within the agreed time-frame.

The consultant nominated for the expert opinion carries out the investigations that have been entrusted to him by the Judge, he provides in the hearing and in chambers the clarifications required by the Judge and compiles an account called the expert's report or court-appointed technical consultancy.

The expert opinion is not completely binding on the Judge who, if he does not consider the expert's arguments relevant, may have at his disposal a new report or may even not take into account what was written by the expert provided that, obviously, he motivates such a decision adequately.

In all cases in which a Judge nominates an expert, the parties are able to be assisted by an expert of the party (CTP). The technical consultants of the party (CTP) formulate their deductions regarding the actions of the court-appointed expert and can submit reports in support of or in opposition to the report of the court-appointed expert.

When the report is delivered to the clerk of the court, the technical consultant is able to enclose a request for payment of compensation.

The CTU will have to list the expenses incurred in his own fee that is submitted to the clerk of the court of the Judge concerned. The fee presented in this way is analyzed by the Judge who takes charge of settling it, taking into account possible deductions, with a decree that places the onus of payment at the expense of one or more of the parties in the case.

As has already been clarified above, the CTU in the carrying out of his duties will have to have alongside him the CTP, or the technical consultants of the party; in nominating the court-appointed technical consultant, according to the provisions of art. 201 of the Code, the Judge allocates the parties a time period for the nomination of their own CTP. Such nomination is optional but is however "dependant" on the participation in the proceedings of a court-appointed technical consultant.

For the nomination of the CTP a declaration made to the clerk of the court is sufficient. The consultant of the party is able to assist with the activities of the CTU in compiling the expert's report, to participate in the hearings and to be admitted to chambers to clarify his own technical observations to the President. The CTP presents a report which may be inserted into the report of the court-appointed consultant, or else it may be presented independently, but in this case it does not serve as evidence.