There are comprehensive registers of experts. There are approximately 200-300 different specialization fields.
Appointing an expert from the register is a practice widely followed by courts. If the requirements are met, the expert will be automatically registered. The state-appointed registration chambers are responsible for promptly updating the registers.
The main legal provisions applicable to judicial expertise in Germany are:
A person can be listed as an expert if he or she has a particularly high level of qualification in his or her field of expertise. In order to be listed, it is mandatory for the applicant to have appropriate professional experience. The expertise has to be demonstrated by submitting proper documentation of the expert’s work. (e.g. CV, copies of certificates for all relevant academic and professional qualifications, work experiences, referees, reports, training). There is also an examination by the chambers of industry and commerce / the chambers of crafts, and, in case of architects and engineers, their professional chambers. Besides qualifications, further education and experience, independence and integrity have to be displayed.
Acknowledged experts are usually certified and registered for five years. Before the end of the five-year period they have to demonstrate their competence, integrity and training in order to be certified and therefore registered for another five years period (e.g. by verification and review of reports that have to be submitted for a new 5-year period registration). The responsible entities have to provide training. If the expert fails to follow his/her rules or he/she does not keep his/her skills up to date, the chambers are authorized to deregister him/her.
In civil, administrative and criminal matters, the remuneration is calculated based on the German Judicial Remuneration and Allowances Act (JVEG).
Advances and payments on account can be applied for.
Whenever the expert works in an out-of-court mission, remuneration depends on the individual compensation agreement.
The expert is liable for an incorrect expert opinion when commissioned by private persons and courts alike. If the expert working for a court prepared an incorrect expert opinion with wilful intent or gross negligence and this incorrect expert opinion forms the basis of a court decision, the party suffering damage can take legal action in order to be compensated for this damage (§ 839 a BGB).
Whenever the expert works in an out-of-court mission, general provisions on (contractual) liability apply.
The expert is appointed by the court. The parties have, however, the right to make proposals on who should be appointed.
The court usually uses a list or register of experts. The court may also appoint any expert considered suitable and competent. A court appointed expert is an expert appointed and instructed by the court. The main duty is to assist the court within his or her expertise.
Should the parties agree on certain persons to be appointed as experts, the court is bound to follow their agreement; but the court may limit the selection made by the parties to a certain number of persons.
If a party wishes to appoint an expert on its own side in order to assist him or her, this expert will not be considered as a judicial expert but as a private one.
The court has to motivate it’s decisions and must make a reference to the conclusions of the expert if the court follows the expert’s opinion. The court is not bound to the expert’s opinion, but the expert’s opinion is, however, often crucial for the judgement. In case of an on-site-inspection, the expert has to contact all parties. When, for example, the expert needs more information from the parties, this has generally to be managed by the court.
Parties can challenge the appointed expert’s report by statements or by hiring a private expert and submitting their report to the court , thus providing counter-expertise.
For the taking of evidence, independent proceedings can be initiated before trial („selbständiges Beweisverfahren”). In this context, the expert can be appointed before the main proceedings take place. The scope of these proceedings is restricted to the preservation of evidence for subsequent judicial proceedings or for avoiding litigation.
The court hearing follows a Code of Practice and procedural rules. The expert must answer the interrogatory in an objective, comprehensible and comprehensive manner. There is no cross examination in German procedural law, but questions can be asked not only by the judge, but also by the litigants.
In criminal cases, the court should appoint the expert from an acknowledged register of judicial experts; another person should only be chosen if special circumstances make it necessary, § 73 al. 2 StPO. The court may guide the expert’s activity. Other rules can be found under the Code of criminal procedure.
The information presented here was gathered during the Find an Expert Project from contacts per country selected by the European Expertise Experts Institute EEEI.
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