JUDICIAL EXPERTISE MEANS OF PROOF
Prof. Dr. Dr. Grămescu Ana Maria
In all the states of the European Union, the activity of judicial experts is particularly important for the bodies with jurisdictional attributions.
The importance of the act of judicial expertise, of the increase of the professional quality in this field, as well as the importance of the existence of a jurisprudence constituted the promoter of the development of this subject during the over 450 pages.
More than ever at this stage when the role of judicial experts is constantly evolving, in a continuous change marked by cross-border legal and economic relations between European states, knowledge of the conditions of each state is important and necessary in harmonizing procedures and initiating common case law, harmonized with all policies.
This paper aims to broaden the knowledge framework as an important step in support of European policies.
Judicial expertise, presented as a noble act based on science, is the evidence that highlights the scientific truth, absolutely necessary in civil and criminal proceedings.
Located at the intersection of science, technology and law – increasingly controversial, forensic expertise is an interdisciplinary science, influenced by cross-border relations and which, at this stage, requires common standards.
The more science advances, the more courts need experts to answer the multitude of scientific questions.
A study done in 1992 by the French Ministry of Justice records that during 1991 for solving the cases, at least 13% of them needed for solving the opinion of the experts recorded in the forensic reports.
The development of the society in the years that followed the process of globalization, highlighted the fact that this percentage is far exceeded. The role of judicial experts is constantly evolving but also changing, this change being marked by cross-border legal and economic relations between European states.
With each passing day, the demand for well-qualified and experienced experts is growing, who must be able to use their skills at national, European and international level.
It is therefore very important that forensic experts work on the basis of common standards regardless of the field in which they work.
Currently, the framework governing international judicial cooperation in European law does not include the field of judicial expertise.
Judicial expertise is a means of proof which brings to the attention of the judicial bodies the opinion of some experts / specialists regarding those factual circumstances for the clarification of which special knowledge is required. This opinion is formed on the basis of a concrete investigation of the case, the use of other evidence issued by certified laboratories, the interpretation and application of specialized data by the competent persons designated by the judicial body.
Judicial expertise is the opinion of an expert / specialist expressed by the paper prepared with reference to the objectives set by the courts, in order to clarify the full court on technical, scientific, economic, forensic issues, etc. which are indispensable for the settlement of the dispute.
As a consequence, the judicial expert, both in a civil trial and in a criminal trial, assumes a heterogeneous role, similar to that of auxiliary of justice, but which also gives him an important position, almost predominant, by the way which highlights the scientific truth, as well as regarding the organization / argumentation of the elements on which the judge is to base his decision in elucidating the case.
The literature records several types of truth: a philosophical, psychological truth, a historical truth, a social truth, a scientific truth, an absolute or relative truth, a judicial truth, as well as other polysemantic aspects of this notion. The part of truth that matters is the judicial truth, but it is based on argumentation all other types: the facts, the professional quality of counselors, the legislative framework and the wisdom of the judge.
In other words, judicial truth is based on a correct determination of the relevant facts, and the correct determination is based on evidence provided by forensic experts and specialists.
In order to have a good judicial decision, any court must have a good way to use the evidence, to select it by its veracity in order to find and prove the real facts. A major importance in the interpretation and selection of evidence is the competence in the administration of evidence, the choice of experts and specialists appropriate to those cases. Failure to know the fields / specializations of reference, the legal framework with which the legal legislation must be corroborated, but also the non-observance of a code of professional ethics by experts or specialists appointed by the courts and who do not understand to withdraw when they do not have the required or unsolicited competence by studying the file, it can lead to the granting of deadlines and the delay of solving the cases, to the issuance of court decisions that do not meet the conditions of application, to the unjustified favoring of a party, to additional expenses of the parties, etc.
Regarding the notion of forensic expertise, from a logical perspective, we can say that it is the evidence that allows the establishment of the value of truth or falsehood.
According to the French lawyer Jean Domat, the evidence is what convinces the mind about the existence of the truth. For the reformist Greek king Solon, the evidence was the rational reason to declare or deny something, for Ambroise Colin and Henri Capitant the evidence was the rational reason to highlight what it means to establish a supposed reality and, according to Gerard Cornu, the proof is the demonstration of a fact or an act by the means provided by law.
Starting from the Latin expression “expertus, experior”, the forensic expert, through his specialized knowledge, but also the legal provisions, comes to try to prove a state of fact which is a means of proof for solving civil or criminal cases. .
When for the clarification of some facts or circumstances of the case it is necessary the opinion of some specialists, the criminal investigation body or the courts, at the request of the parties or ex officio, order the evidence with judicial expertise.
Romanian procedural law, both in civil and criminal matters, presents the judicial expertise in the chapter “Evidence and means of proof".
Although, the legal provisions of a procedural nature do not provide a value hierarchy of evidence, we can appreciate that the forensic expertise has a higher degree of objectivity compared to other evidence, both for the fact that it is administered by a specialist with high professional attestation. by the Ministry of Justice or on the list of specialists, but also for the fact that it bases its conclusions on its own scientific findings, on legal provisions in the respective field, bringing a contribution of the highest level to the establishment of the truth.
The new publication, structured in 3 parts, develops the role of judicial experts in the current stage in a continuous progress but also in change, change marked by the cross-border legal and economic relations between all European states.
The first part contains 8 chapters (chapters 1-8) in which notions of forensic expertise are addressed in the current European context and beyond, as well as the history of forensic expertise. The concepts of judicial and extrajudicial expertise are developed in Romania – the authors developing the current legislative framework with reference to the attestation of experts, their role in jurisprudence, and the importance of the decision to choose their jurisdiction in judicial and extrajudicial activity.
A special importance is given by the authors to the interdisciplinary character of the judicial expertise in the context of the legislative framework with reference to the competence of experts – regulated by the nomenclature of specializations in higher education but also by the current Romanian and European legislation.
The authors develop topics that address the status of forensic experts in Romania as well as in other European Union countries, the risk that may arise in the expertise activity, the level of fees, all these topics being analyzed through a comparative analysis. The paper develops the notion of forensic expert as a whole, witness expert practiced in the system applied in Great Britain, United States and official expert appointed by the court (called “perito" in Italy, “forensic expert" in France, “sachverstaendiger" in Germany ). The authors make a comparative analysis between the jurisprudence of Continental Europe strongly influenced by the French jurisprudence and the federal jurisprudence of the overseas states.
The authors attach special importance to European Union initiatives in harmonizing the legislative framework, implementing major reforms, the principles promoted in the work of various European bodies, studies published so far, all in order to acquire common case law and forensic expertise.
Part 2 during 6 chapters (chapters 9-14) are presented working procedures for judicial expertise in accordance with the provisions of the new Code of Civil Procedure, the new Code of Criminal Procedure, the reference regulations.
Part 3 contains the framework of legal regulations to which the authors refer in the publication, mandatory regulations in the activity of technical expertise but also of informing those who benefit from the act of expertise – the references being clarifications on establishing areas of expertise and competencies according Romanian legislation.
The new publication published by MATRIX ROM brings a substantial contribution to clarifying these issues, both through a comparative analysis of the mission and status of the forensic expert as a participant in justice in Romania and other European countries, but especially through the working procedures offered.
The paper is addressed to experts and specialists who administer the evidence with both judicial and extrajudicial expertise, but equally to those interested in an act of high professional justice.
President of CIPPCES – SC MEI