Viktor Bérces: Evidence in Criminal Proceedings
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Chapter VIII. The basic features of the Hungarian evidence system • The means of evidence in general
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8.4. Basic principles of expert evidence
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8.4.2. The principle of “equality of arms” in the field of expert evidence. The importance of private expert opinions

8.4.2. The principle of “equality of arms” in the field of expert evidence. The importance of private expert opinions

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The balance between the prosecution and the defence is (in principle) important in the field of expert evidence because “for an expert’s opinion to be accepted by both the court and the parties in a given proceeding, all interested parties must be satisfied, on the basis of objective criteria, that the person who has provided the opinion is competent. It is equally important, however, to ensure the impartiality of the expert, i.e. to exclude the possibility of bias.”1

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One of the fundamental shortcomings of Act XIX of 1998 was that it did not enforce the requirements of a fair trial in the field of expert evidence. Under the former Act, the investigating authority or the prosecution could obtain expert opinions ex officio, while the accused or the defence could only submit a motion for such opinions, which could be rejected by the competent authorities (courts).2 I would like to note that this principle – as a general rule – is also included in the law currently in force, according to which the accused and the defence can still (only) request the appointment of an expert or indicate the identity of the expert in the request. The court, the prosecution or the investigating authority will continue to decide on the motion.3

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However, the introduction of the legal institution of the private expert is welcome, since the obtaining of expert opinions by the accused or the defence counsel from these procedural subjects is no longer dependent on the permission of the competent authority (court), and in addition, despite their documentary nature, they are considered expert opinions if the accused or the defence counsel complies with the provisions of the Act in relation to their obtaining and presentation.4

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It should be noted that the accused and the defence may only commission a private expert opinion if (1) the court, the prosecution or the investigating authority has rejected their motion for the appointment of an expert, or (2) the prosecution or the investigating authority has not decided to appoint the expert indicated in their motion.5 A further restrictive rule is that

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  1. the defendant and the defender may commission a private expert opinion on the same subject:6 this restriction is justified in principle, since it is necessary to prevent the assignment of experts without any interest (but the content of the private expert opinion is often in the interest of the defendant, so there would normally be no need to obtain a new private expert opinion anyway);
  2. the private expert shall give an opinion only on the basis of the data, documents and objects provided by the client and shall examine a person only with the consent of the person concerned;7
  3. the use of the expert opinion is not possible at all if (1) the motion of the accused or the defence is aimed at the establishment or assessment by an expert of a fact which has already been examined by a previous expert opinion prepared by an expert appointed by the prosecution or the investigating authority, or8 (2) if the previous expert opinion was prepared by the expert named in the motion of the accused or the defence.9
 

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It is also a rule of guarantee that the procedure of the expert commissioned to prepare the private expert opinion must not result in a disproportionate delay in the examination of the seconded expert.10 In other respects, it is up to the accused or the defence to decide on the presentation of the private expert’s opinion,11 with the obligation for the expert to answer questions from the court, the prosecution or the investigating authority.12

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Under the Act, a private expert’s opinion may be prepared in particular (1) for the purpose ofthe client proving the existence of the fact to be proved by submitting a private expert’s opinion; (2) in proceedings involving substantial technical issues, the document instituting the proceedings, other pleadings or the defence of the person subject to the proceedings being based on properly developed professional arguments; or (3) where the private expert’s opinion ensures the professional formulation of the facts and the correct elaboration of the amount of the claim. The expert may not be instructed by his client as to the professional content of the private expert’s opinion, notwithstanding the rules of the Civil Code on contracts of mandate. When preparing a private expert’s report, the expert shall act impartially and in compliance with the professional rules governing his activities, independently of the interests of the persons concerned, in particular those of his client. The expert shall formulate his opinion on the basis of an objective assessment of the facts established. 13

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The possibility of submitting a private expert opinion also entails procedural obligations: on the basis of this, the accused or the defence counsel is obliged to inform the competent authority (court) – within 8 days – of the mandate given for the preparation of the private expert opinion, of the termination of the mandate, of the person of the expert commissioned and of the deadline for the preparation of the expert opinion. Failing this, the private expert’s opinion is not considered to be an expert opinion, the private expert may not be heard as a witness in the case and the private expert’s opinion may only be considered to be a comment by the accused or the defence.14

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The biggest question about private expert opinions is whether they are even capable of presenting evidence that could weaken the official (judicial) position. It is not possible to answer this question at present, as they are a completely new legal instrument with no practical indicators. However, Erdei makes the following comment in this connection: “It is difficult to imagine a case in which the expert opinion alone and by itself would constitute the basis for a decision by the authority. It is almost certain that what is stated in the expert opinion will only occur in conjunction with other data and evidence in the authority’s findings of fact. It is, of course, easy for the authority to base its decision on the expert opinion in the face of all other evidence to the contrary, but this is part of the problem-solving of the authority.”15
 

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I would like to note that the requirement of equal opportunity with regard to the secondment of experts is a frequently raised legal issue not only in Hungary, but also at international level. In relation to the use of experts in the taking of evidence, the Court has found a violation of the Convention when

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  1. the expert appointed by the authority has been given priority over the defence expert in certain respects; 16
  2. the opinion of the medical expert appointed by the administrative court was not drawn up in accordance with the requirement of an adversarial procedure, since (1) the applicant and his lawyer were not informed of the date of the acts carried out by the expert and (2) they were not allowed to attend the hearing; 17
  3. the adverse findings of the uncalled expert were simply read out at the trial, while the defence was not given the opportunity to ask personal questions.18
 

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To summarise: the right balance can undoubtedly be struck in the field of expert evidence if both sides can be sure of the participation in the proceedings of the expert they propose. Although, under the current rules, the number of conflicting expert opinions may increase radically (which will also have the potential to prolong proceedings), this should not be an argument against the legislative amendments described.
1 Kereszty (2007) ibid. 107.
2 In Pataky’s former opinion, “it is ethically objectionable that the defence cannot, under the law in force, call an expert and be present at the trial. And such a legal arrangement would have one more advantage: if the defence had the opportunity to appear at the hearing with its own control expert, it would not have to engage in a duel of words with unequal weapons in a foreign field of expertise beyond its qualifications, but the two experts’ dispute would also be clearer to the court.” Pataky (2000) ibid. 359.
3 § 190 (1) para.
4 Otherwise, the opinion of the private expert shall be deemed to be a comment of the accused or the defence, and the expert may not be examined as a witness on the expert question.
5 § 190 (2) para.
6 § 190 (4) para.
7 § 193 (1) para.
8 unless a debtor’s or defence motion containing concerns about the admissibility of this opinion has been rejected. [§ 190 (3) para.]
9 § 190 (3) para.
10 § 193 (2) para.
11 § 196 (4) para.
12 § 198 (3) para.
13 Act XXIX of 2016 on forensic experts, § 52
14 Bakonyi ibid. 8.
15 Árpád Erdei (1987) ibid. 91.
16 “Bönisch vs Austria” case (1985) In Fenyvesi ibid. p. 105.
17 “Mantovanelli vs France” case (1997) https://kuria-birosag.hu/hu/ejeb/mantovanelli-franciaorszag-elleni-ugye-2146793
18 No. 10532/83, Dec. 15. 12. 87, D.R. 54. 19. In: Grád–Weller (2011) ibid. 372.
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