Overview Italian regulation expert witnesses

13 November 2006

Rahul Kakkar, Paola Casot

In the Italian legal system technical expert advice is given by an expert during the part of the proceedings that deal with evidence. Its purpose is to provide technical support to the judge or to the parties.

In civil proceedings there are two different kinds of expert: the court technical expert appointed by the judge (“CTU”) and the expert appointed by the parties (“CTP”).

The CTU is an assistant of the judge, who performs his or her activity at the judge’s request, when the lawsuit requires specific technical skills.

As a general rule, the expert’s advice is not considered to be proper evidence. Rather, its purpose is to supplement the activity of the judge and provide him with technical information through a non-binding report.

Before giving evidence, the CTU takes an oath. The judge then outlines the questions which the CTU must, in strict terms, answer through his or her expert report.

The expert then holds inquiries, which the judge has commissioned. He provides the judge with any clarifications that he may need.

When a court expert is appointed, the parties may require the assistance of CTPs. The CTPs can comment on the CTU’s work and file a report, which supports or criticises the court expert’s report.

Therefore, if the judge deems it necessary to have technical assistance on specific issues or for the entire proceedings, he must issue an order to appoint an expert and also fix the hearing for his appearance. In this order the judge also gives leave for the parties to appoint a CTP.

The appointment of a CTP does not require any particular formalities except that notice must be given to the court clerk’s office.

According to article 61 of the Italian Code of Civil Procedure (“ICCP”), the CTU must be chosen from the “Albo dei Periti”. This is a register which is divided into categories each of which includes people with specific professional and technical skills. Each court has such a register and it is managed by the President of the court.

The CTU must be neutral and impartial and cannot be connected to one of the parties (e.g. husband, wife or parent etc.). This also means that the CTU must not have any interest relating to the proceedings or in another proceeding, which is pending on the same issue. A recent Supreme Court decision stated that the impartiality of the expert is granted by the law for two reaons. Firstly, because the judge, as a neutral body, appoints the expert. Secondly, because the ICCP includes provisions that permit the CTU to abstain or object (Cass., sez. I, 22 July 2004, n. 13667).

When appointed, the expert is obliged to accept his own appointment and may only reject it for well-grounded reasons which the judge shall evaluate.

Therefore, although the expert has the right to abstain from giving advice to the court, he must also comply with the second paragraph of art. 61 of ICCP. The parties may also object to an expert’s appointment if there is a conflict of interest or he is not impartial.