Workshop Mediation and amicable settlement before the court in environmental cases

1. Workshop Mediation and amicable settlement before the court in environmental cases The rights of the parties in the environmental lawsuit Rome, Italy 4 – 5 October 2012

2. „ Right on investigation and taking evidence by the court” Speaker Silviu- Gabriel BARBU

3. 1.   Investigation method in the administrative court procedurea)    Is an ex officio investigation provided in your country? • Austria: Yes • Estonia: Yes, court has responsibility to investigate all proper factual and legal issues (seeannex 1). • Germany:Yes (see annex2). • Sweden: Yes, the court has a responsibility to make sure the case is sufficiently investigated. • Latvia: Yes(see annex 3). • Lithuania:Yes, an ex officio investigation is provided. • Bulgaria: Yes. The court should perform ex officio the procedural steps necessary for clarification of the relevant facts. The court also should facilitate and assist the parties to clarify the factual and legal aspects of the case.

4. Romania: One cannot talk about an ex officio investigation because the principle of availability establishes a series of limits regarding judicial action. Even though, the active role of the judges as consecrated by. Art 129 of the Civil Procedure Code (CPC), the judges have the duty to insist through all legal means to prevent any mistake regarding the finding out of the truth, on the basis of establishing the facts and the correct choice of applicable law, with the purpose of reaching a lawful decision. • Finland:An administrative appeal is regulated by the Administrative Judicial Procedure Act 586/1996 (AJPA). According to section 33 the court is responsible for reviewing the matter. In environmental cases, mining cases, building and action permits and deviation permits (right to deviate from the provisions etc.) and permits for landscape work an administrative appeal is applied. (Nature conservation Act 1096/1996, Mining Act 621/2011 and Land use and building Act 132/1999). Whereas in municipal land use plans, building ordinances and soil extraction cases a municipal appeal is applied. The court can only sustain or overrule the decision (cassatory appeal, Local Government Act ) and is bound to the grounds that the appellant has presented. In soil extraction cases the court can however make some minor amendments to the decision. AJPA is our main procedural law, which is applicable in municipal appeals in the legal issues that LGA does not regulate.

5. Ukraine: In Ukraine obligation to prove its position and provide proof is imposed on parties. But if parties do not submit files the court is obliged to request for files by its own initiative. If court doesn’t execute such obligation the court off appeal can quash a decision on the grounds of incomplete clarification of circumstances of the case. To investigate all the circumstances of the case the court can make requests for demanding documents in government institutions, banks, private companies. • Italy: According to the art. 63 of the code of the administrative law-suit, the court may ask the parties officially documents or clarifications. • Slovenia: No

6. b)   If not, is the court strictly bound by the submissions of the parties? • Slovenia: Yes • Romania:The court is not strictly bound. It can ask for any piece of evidence from whichever authority it requires. The administrative court cannot act ex officio, but once empowered to solve a case may procure any evidence if necessary. According to the same article 129 of the CPC, the court has the possibility to ask the parties to present oral and written explanations regarding the facts and the laws they find applicable to their desires and defences, and to present any and all facts and laws, even if they are not mentioned in the initial petition or defences. Moreover, if the evidence presented are not sufficient the court can ask the parties to bring more evidences. Also, the judge can ex officio ask for the administration of certain evidence and even if the parties oppose, he can still administer the evidence. • Italy: No, because according to the art. 64 of C.P.A., the court evaluates the evidences given by the parties according to his discretion and can identify the facts.

7. Finland:In a municipal appeal the court is bound to the grounds that the appellant has presented and also before the time-limit for appeal has expired. • Austria: N/A • Estonia: N/A • Germany: N/A • Sweden: N/A • Ukraine: N/A • Latvia: N/A • Lithuania: N/A • Bulgaria: N/A

8. c)    If yes, how does the court usually identify the facts? • Austria: Examination of the applicants and the parties arguments, internal and external expertise, oral hearing, publicly accessible data base on the environmental situation. • Estonia: According to the issues described in application. We regurarly request all official original documents, sometimnes we also will go to the place of action and conduct observation. And of course we have witness testimony in the court. New CACP also gives in simple cases possibility to avoid very formal lines of admitting evidence in case of simplified proceedings and for example just take into account information received by phone conversation etc. Currently we are trying to understand the pros and cons and limits of such evidence taking. • Germany:The main source for fact finding is the files produced by the public authority concerned. • Sweden: The court can if necessary ask questions to oblige the parties to present more investigation. It is also possible for the court to send a request for comments to authorities and – very seldom used – appoint an expert to investigate a certain issue.

9. Latvia: The court identifies facts from the evidence provided by the parties, if necessary; the court may request additional evidence from other sources (e.g. public authorities)(see annex 4) • Lithuania:Evidence in an administrative case are all factual data found admissible by the court which hears the case and based whereon the court finds, according to the procedure established by law, that there are circumstances which justify the claims and rebuttals of the parties to the proceedings and other circumstances which are relevant to the fair disposition of the case or that there are no such circumstances. The above-mentioned factual data shall be established with the help of the following means: explanations of the parties to the proceedings and their representatives, the testimony of witnesses, explanations of specialists and opinion of experts, physical evidence, documents and other written, electronic, audio and visual evidence. The evidence shall be submitted by the parties to the proceedings and other participants in the proceedings. As necessary, the court may advise the said persons should submit additional evidence or upon the request of the these persons or on its own initiative compel the production of the required documents, demand that the officers give explanations. No evidence shall have for the court any value set in advance. The court shall assess the evidence according to their inner conviction based on the scrupulous, comprehensive and objective review of all the circumstances of the case on the basis of the law as well as the criteria of justice and reasonableness.

10. Bulgaria: The court may render a ruling on all preliminary issues and on admission of the evidence. The report on the case shall contain the circumstances wherefrom the claimed rights and oppositions arise; which circumstances do not need to be proved; which circumstances need to be proved; how the burden of proving the facts is allocated. The evidence duly collected in the proceedings before the administrative authority shall have force before the court as well. Where collection of further evidence, other than such contained in the case file, is necessary for clarification of the legal dispute, the rapporteur judge shall instruct the relevant party on the need to collect such evidence./Article 163 APC/. The court pronounces on the motions of the parties for evidence in camera. It instructs the parties as to the facts alleged thereby in respect of which they do not cite evidence. The court may appoint ex officio expert witnesses, an inspection or a survey.  /Articles 171, paragraph 2 of the Administrative Procedure Code /APC/ and 146 of the Code of Civil Procedure /CCP/. The CPC applies to any matters unregulated in the APC.

11. Romania: Not the case. • Finland:Under section 36 (1) the court shall obtain a statement from the administrative authority that made the decision in the matter, unless this is unnecessary. (2) For purposes of obtaining evidence a statement may be requested also from an authority other than that referred to in subsection (1). (3) A time limit shall be set for the issue of the statement. In administrative appeal the court has more active role to obtain factual information on their own initiative. The procedure is characterized by the investigation principle as long as principle of impartiality and equality of arms is not endangered. Whenever (and this is the most usual situation) the court has already received enough factual evidence form the parties to solve the case, it does not have to require more documents. • Ukraine:See above 1a). • Italy: The Court can ask the parties officially documents or clarifications. Furthermore, it may: order to third subjects to disclose documents; order the execution of a verification or (if necessary) request an expertise. As a consequence the court is not strictly bound by the submissions of the parties. In the practice the judges use this power only when it is strictly necessary • Slovenia: On the basis of the submissions of the parties, on the basis of the administrative files and – if there is a main oral hearing – on the basis of the evidence it has taken.

12. 2.   Must the public authority submit the files which were produced in the administrative proceedings?If so, do the courts usually rely on the administrative files? • Romania: Yes it has under penalty of fine. According to Art. 13 of the Law 554 of 2004 regarding administrative proceedings, with the receival of the petition, the court can ask the public authority to bring forth all the documentation and any other files needed for the petition. They rely on all pieces of evidences presented in the trial. The administrative court doesn’t rely only on the documents presented by the public authority, but also on evidences provided by the other parties or by the administrative court ex officio. • Austria: Yes. They have to be verified if they are questioned in the appeal. • Estonia: Yes, Art. 28 CaCP – Party (includes public authority) is obliged to present to the court evidence and opinions in time and in the format defined by court. Court may fine party who does not do that. We check and compare them with all other evidence. • Slovenia: Yes, there is a legal obligation. If the authority fails to provide files, the court may decide without them, on the basis of the available evidence. In practice, a failure to provide files is extremely rare and usually detrimental for the defendant's case. Yes, with an obvious exception of the disputed facts.

13. Latvia: Yes. Yes, if the parties don’t object to these evidences. • Lithuania:A public authority must submit the data, when requested by the court. The court shall assess such data in the context of all the evidence. • Germany: The files have to be submitted completely and in original.Yes. In my court practice I could not state tricky behaviour like theexistence of “shadow files” (not to submit to the court)(seeannex 5). • Sweden: All documents in an administrative proceeding is public if not considered secret which is rare. In some cases all the documents from the first instance are available for the court and in other cases the files can be sent for if they are considered useful. And yes, the files are reliable (perhaps I got the question wrong?).

14. Ukraine: Public authority must provide the court with all the documents that have been taken into account in disputed decision or an action. In deciding the case the court examines the documents submitted by the state government in conjunction with other evidence that is the case. • Finland:  We usually rely on the files produced by authorities. The other question is how these documents should be evaluated. • Bulgaria: The complaint shall be filed through the the agency of the authority which has issued the contested act. The authority shall transmit the appeal together with a certified copy of the entire case file to the court, notifying the submitter of the said transmittal. The authority is obliged to attach to the file a list of the parties in the administrative proceedings indicating the addresses to which they have been last summoned. If the authority has failed to fulfil these obligations the court shall require the file ex officio on the ground of a copy of the complaint /Article 152 APC/. • Italia: There is no rule, but in the practise this situation doesn’t happen, since the courts rely on the administrative files, which parties present in the procedures.

15. 3.    Evidence presented by the partiesa)   May the parties themselves administer evidence (e.g. an expertise?) and present it to the court? Describe such a procedure. • Austria: Yes. Parties can submit all sort of information to the court to underline their position (as long as their subjective rights are concerned). • Slovenia: Yes. There is no specific procedure for that, just a simple submission. • Italy: The parties can freely administer their evidence, but if they aren’t public documents, they are regarded only as the party’s opinion: useful to compare to the administrative act (and in case of conflict, the Court can decide an expertise ex officio), but not to decide the case. • Latvia: Yes, the parties can administrate evidence and present it to the court if they (the parties) have justified the evidences’ relevance to the matter and the court has accepted them as suitable (see annex 6).

16. Romania:Expertise administered by parties is allowed but the judge is not obligated to take it in consideration. It is usually used to make a broader picture of the facts. The party will ask an expert in that field to make such an expertise, they will pay the fee, and should they win they can ask for that fee to be paid by the other party. If the court asks for an expertise, usually the fee is paid evenly by the parties. Parties usually present documents as pieces of evidence. Sometimes, they may ask for technical expertise to be administered in the trial. In administrative trials, according to Art.241/1 of the CPC the administering of evidence cannot be done solely by lawyers, because this article is only usable in private property trials. • Germany:They may. The parties mostly present evidence in the administrative procedure already, e.g. an operator submits an expertise on noise emissions. In environmental cases expertise is often an annex to the application for a permit. In the court procedure the party sends an expertise or other documents to the court or nominates a witness. In interim relief proceedings an affidavit is accepted.

17. Ukraine: The parties themselves can administer evidence and present it to the court. In tax-cases parties often provide audit findings as evidence in the case. But the court examines all the evidence submitted by the parties together regardless of which side they are presented and without any preferences. If the court decision is made in favor of the party which is not a public authority, the court awards all documented costs from the state budget or the relevant local budget, if the other party was a local government, its official or employee. • Sweden: Normally it is the party who present evidence, often in written form but sometimes orally. • Estonia: Expertise (expert opinion) ordered by party can be provided as regular documents. Official court expertise is done according to the court decision and it has in practice usually a little stronger power. • Lithuania: The evidence shall be submitted by the parties to the proceedings and other participants in the proceedings. The parties can order an expertise on their initiative and present the results of it to the court. • Finland:The procedure in our court is mainly written. Presenting written evidence is quite informal and we don't have rules about it. If the court is aware of the fact that a party may hold remarkable evidence, the court can ask to deliver it. • Bulgaria: No

18. b)   Is such evidence accepted or regarded as the party’s opinion only? • Austria: It is the parties opinion and has to be verified e.g. by internal experts. • Slovenia: In principle, there is no reason for it not to be accepted. However, it is evaluated according to the fact that it was commissioned by a party. • Italy: Please, see the answer a). • Latvia: One party may object to the other partie’s provided evidence but it is the court’s duty to verify this evidence. • Romania: See above. • Germany:Such evidence is not binding. The procedure is ruled by the principle of unfettered consideration of the evidence by the court. The court usually relies on the evidence, if it has no doubts and if the counter party does not submit reasonable objections. • Ukraine: See above. • Sweden:The evidence is judged as all other evidence in courts by their merits.

19. Estonia: It is documentary evidence. In practice it can have sometimes very strong effect depending of the substance and expert level. In small country as Estonia is, there is always lack of very independent and impartial expertise. Court has sole right to evaluate the trustworthiness of every expertise. If expertise is proposed by the public authority judge can order independent court expertise. • Lithuania:The court shall assess such data as written evidence in the context of all the evidence. • Finland:It is question of evaluating the evidence. • Bulgaria: It is regarded as the party’s opinion only.

20. c)   Is there a preference of evidence presented by the public authority? • Romania: There is no preference, just that some pieces of evidence presented by the public authority can be considered authentic documents as opposed to documents under private signature, not having a certain date. There are certain cases, for instance legal medical expertise that cannot be overturned only with the means of an equal scientific method. • Austria: No. • Slovenia: No. • Germany:Such a rule does not exist. But the court will take into consideration that a public authority does not pursue proper interests. • Latvia: No(see annex 7) • Bulgaria: No.

21. Sweden: No preference. • Lithuania: There is no preference of evidence presented by the public authority. • Estonia: Usually not. It really depends on evidence proposed. • Ukraine: See a) • Finland:This is not recognized by law. Case-by-case evaluation; dependant on the type of matter at hand and the authority's level of expertise. • Italy: Yes, because according to the Italian law the acts of public authorities have a special legal validity (they are the legal evidence of the facts described, unless it is demonstrated, in a special law-suit by the judiciary judge, that they are false).

22. d)   Under which conditions can the parties be awarded the expenses for evidence which they have presented? • Romania:Only if they win the trial. • Austria: Parties usually have to bear their own costs. The applicant has to reimburse the costs of the authority (e.g. for external expertise under certain circumstances). • Germany: The loser pays principle applies. The winning party may request expenses necessary to properly pursue or defend rights. Costs for an expertise are refundable in principle. In a separate procedure the clerk has to decide a request for reimbursement. The clerk must assess whether the expenses were necessary and appropriate. The clerk’s decision may be applied before the court. The public authorities usually do not request the costs of expertise produced by their technical service. • Latvia: If the appeal against the administrative act has been successful, the applicant consequently may claim the defendant to recover all damages caused by the unlawful decision, and this may include previous payments for gathering the evidence.

23. Lithuania:The prevailing party to the proceedings is entitled to recover costs from the nonprevailing adverse party. • Bulgaria: Where the court revokes the appealed administrative decision the stamp duties, the court costs /remuneration for witnesses and for expert witnesses/ and the fee for one lawyer, if the appellant had retained a lawyer, shall be reimbursed from the budget of the authority which issued the revoked act or refusal. The appellant shall furthermore be entitled to be awarded costs upon dismissal of the case by reason of a withdrawal of the administrative act contested thereby /Article 143 APC/. • Italy: The parties always afford the expenses for their evidences and cannot be awarded. When the law-suit finishes, the judgement gives a rule concerning the litigation costs (usually, the loser pays the winner). The amount is quantified by the court. In the practise it often consider the expences of the evidences. • Estonia: Winning party will be usually compensated all necessary expenditures including deposit payment for court expertise. There is principle that all necessary expenditures related to the gathering evidence should be covered (see annex 8).

24. Ukraine: See a) • Sweden: The party can’t normally get compensation for costs in the procedure. One exception is cases on environmental damage where the party that loose the case has to pay the other party’s cost. • Finland:This is a strange element in our system. (see 4 f below) • Slovenia: I am not aware of any such situation.

25. 4.    Motion for taking evidence by the courta)   Are the parties entitled to a motion for taking of evidence by the court? • Romania:Yes, they have to orally tell the court what kind of evidence they want to submit to the court. Usually, evidence is requested by the complainant in the legal pleading that initiates a case and by the defendant in the counterstatement (statement of defence). • Austria: Yes. • Estonia: Yes. And especially prisoners often request it because of their limited access to the official records and documents. • Slovenia: Yes. • Germany:Yes, of course. • Latvia: Yes (see annex 9) • Bulgaria: Yes. The court shall render a ruling on the motions for evidence of the parties, admitting the evidence which is relevant, admissible and requisite.

26. Italy: Yes, they are. Italian procedures are referred to situations in which public authorities used their powers mainly by administrative measures. As a consequence the parties have big difficulties in giving evidences and can freely ask to the court to take them. • Lithuania:The evidence shall be submitted by the parties to the proceedings and other participants in the proceedings. As necessary, the court may advise the said persons should submit additional evidence or upon the request of the these persons or on its own initiative compel the production of the required documents, demand that the officers give explanations. • Sweden: Parties can always ask the court to take actions but there is no regulated special motion to request the court to consider taking up evidence, other than the general responsibility for the court to see to that the case is sufficiently investigated.

27. Ukraine: If a party is not able to submit evidence it can apply for taking of evidence by the court in time limits for consideration of case (1 month from the date of opening the proceeding). On requesting evidence or refusal to request evidence the court adopts a decision. A court refusing to claim evidence alone is not contested. Objections against it may be included in the appeal on the final decision. Usually the costs of evidence conducted by the court bears the plaintiff. These costs can be reimbursed from the state budget in case of satisfaction of claim. • Finland:(see also 3 above). Under section 38 (1) AJPA an oral hearing in the court of first instance is the rule if the concerned private party so requests. However the section 38 lists three cases where the oral hearing need not to be conducted; if the claim is dismissed without considering it`s merits (an appeal is late, lacking standing etc.); if the case is immediately rejected and if an oral hearing is manifestly unnecessary in view of nature of matter or for some other reason. Under section 41 an (in site) inspection (which is the more commonwayto get evidence in environmental cases than oral hearing) may be carried out for purposes of clearing up the matter. The provisions in the Act on oral hearings shall apply, to the extent appropriate, to inspections.

28. b)   Are there restrictions as to the time for such a motion? • Sweden: No • Austria: Generally no. • Germany: Generally not. But the court is entitled to set a deadline for such a motion. • Latvia: Yes, the parties are entitled to submit evidence in the time limit which has been provided by the court; however, in practice it often happens that the parties submit evidence also in Court of Appellate Instance and even Court of Cassation Instance (in the latter, the cassation court may not evaluate evidence by itself, since it decides only on points of law, but it may return the case to the appellate court). • Italy: The time limit for all the motions of the parties is 30 days before final hearing. In practice, the parties usually ask for these motions immediately, in the appeal or application. • Ukraine: See a). • Slovenia: It has to be submitted in the first oral hearing or by the deadline set by the court.

29. Estonia: Court defines time for making such motions. In reality we may take additional evidence according to our decision any time because of duty to investigate fully the case. • Romania: They have to choose at the moment when the court asks. Should one of the party motion again, the judge must decide if more evidence is necessary, and if the other party should have contrary arguments, the judge might disallow it. Typically, evidence is requested at the beginning of proceedings, as seen above, but exceptionally if necessary, the court may administrate new pieces of evidence after consulting the parties according to the adversarial principle. According to Art. 132/1 of CPC in the first day of trial, the parties can ask the court to be given another date at which to complete its petition, and the other party can do the same.Exceptionally, according to article 138 par.1 of the CPC, the parties can ask for evidence even after the first day of trial only if the evidence is clearly necessary for the trial, and it will not delay the trial, or when the evidence was not administered because the party was not prepared or did not know to administer the evidence, because it was not assisted or represented by a lawyer.

30. Lithuania:In fact, until the litigation begins. However, in cases, when litigation reveals new circumstances, a party may ask the court to renew the hearing of the case on the merits. Such cases occur, but they are rare. • Finland:Until the court decision is given. • Bulgaria: The contestant is obligated to specify in his appeal the evidence which wants to be collected and to present the written evidence in his possession (Article 150, paragraph 2 APC). The court shall pronounce on the motions for evidence in camera. Any such motions may furthermore be granted at the first hearing of the case. Prior to the conclusion of the trial the parties may allege any new circumstances and cite and submit any new evidence solely if they were unable to learn of such circumstances and to cite and submit such evidence in due time.

31. c)   Must the court decide on such a motion separately? • Bulgaria: Yes. • Lithuania: Yes, for that matter orders of the court are taken. Usually this question is solved in oral form, but an expertise is appointed always in a written order. • Romania:Yes. It can allow or disallow every motion separately. • Estonia: Court has to decide every motion separately in written on the acceptance of evidence or refusal of taking (collecting) evidence. (CACP Art.62 (5). • Slovenia: Only if the decision takes place in the oral hearing. • Austria: Not separately, but in the final decision. • Germany:A separate decision is provided only for a motion made in the oral hearing see (see annex 10).

32. Italy: The court decides on these motions separately only when it thinks that it needs the evidences asked by the parties. In the other cases it decides without examining it, and explains in the final judgement why the motion wasn’t accepted (e.g. because useful). • Sweden: No formal separate decision is necessary but normally the asking party is informed by the court whether the request leads to an action or not. • Latvia: No, however, if the evidence is submitted during the hearing, the court shall listen to the other party’s opinion and afterwards decide if the presented evidence is to be added to the others. If the evidence is submitted outside the hearing, the court decides if it is to be added by itself. • Finland:The court deliberates whether an oral hearing / on-site inspection should be conducted. If the court rejects the request, it usually gives reasoning only in the actual decision. In the appeal to SAC (The Supreme Administrative Court) the measure not to conduct oral hearing/inspection is also reviewable. • Ukraine: See a).

33. d)   Which are the rules for refusal or accordance of requested evidence? • Bulgaria: The contested facts relevant to the adjudication of the case and the links therebetween shall be subject to proving. The evidence should establish the actual facts which the court must assess as relevant to the case. In principle, any data related to facts and circumstances relevant to the rights and obligations or the legitimate interests of the party may serve as evidence in the court proceeding. • Latvia: The court does not accept evidences which are not relevant to the case, refusing requests during hearings for adding such evidence (see annex 11). • Sweden: Normal rules as for civil cases (unnecessary evidence can be refused etc). • Estonia: General rule is that court collects only evidence which has importance for deciding solving the case. But court can refuse of taking of evidence (see annex12). • Finland:See above a-c) • Ukraine: See a)

34. Austria: The court may refuse requested evidence, if it is not at all suitable to give evidence for the relevant question or the fact, that should be proved, has already been acceded by the court. • Germany:The general rules taken from the penal court procedure apply. Reasons for rejecting the motion are: • The fact to be proved can be assumed as true. • The fact is already proved or disproved. • No legal relevance of the fact to be proved. • Means of prove is not suitable or unavailable (e.g. witness living abroad or nowhere to be found). • Obvious abuse. If there is no reason for refusal the court is obliged to take evidence.

35. Lithuania:The court decides taking into account all the circumstances of the case and the fact, if the party does not have an intention to delay the process. • Italy: The request has to be legal, and useful or necessary for the decision. • Slovenia: The only relevant circumstance is the relevance of the proposed evidence. • Romania:All evidence must be certain, pertaining to the cause, necessary, lawfully obtained and to help the court to reach a decision.

36. e)   Is there a legal remedy provided against the decision? • Sweden: Yes but only in connection with appeal against the final verdict in the case. • RomaniaIt can only be remedied with the rest of the decisions. • Estonia: Basically appeal against the final decision. Refusal from taking of the evidence may be the ground for the annulment of decision as serious procedural mistake. In practice therefore judge very carefully follow the legal grounds and do serious reasoning when refusing of taking evidence. • Austria: The remedy against the final decision. • Bulgaria: The proper determination of the relevant facts shall be verified in the casation proceedings if initiated by a cassation appeal. If the court of first instance has failed to take all the evidence necessary for the clarification of the factual grounds its decision will be considered incorrect by reason of violation of the rules of court procedure. • Slovenia: There is no separate legal remedy, it can only serve as an argument in the legal remedy against the final decision.

37. Germany:No. But of course the final decision may be contested because of illegal rejection of the motion for taking evidence. • Latvia: No, such decisions cannot be appealed separately but objections can be made when appealing the judgment of the court to a higher court. • Lithuania:These orders of the court can not be challenged. However, the fact that the court refused to compel evidence can be used as an argument of the appeal • Italy: Not immediately and separately, but when the loser challenge the final judgement in second instance, can criticize also the interim decision concerning the motion for taking of evidence. • Ukraine: See a). • Finland: See a-c)

38. f)    Who bears the costs of evidence conducted by the court? • Romania:The party that loses the trial. • Estonia: Usually party who loses the case. • Slovenia: Initially the party who requested it, but eventually they are a part of the costs of the procedure which are to be borne according to the success of the parties. • Italy: According to the art. 66 and the art. 67 c.p.a. the costs of these evidences are temporarily charged to one of the parties (usually the requester). The court rules definitively the burden of them with the final judgement and usually charge them to the loser. • Lithuania: The amounts payable to the witnesses, specialists, experts and organisations of experts shall be paid in advance by the party which made an appropriate request. If the above-mentioned requests have been made by both parties, or if the witnesses, specialists and experts are summoned or the examination is carried out on the initiative of the court, the required amounts shall be paid in by the parties to the proceedings in equal amounts. The specified amounts shall be paid into a special bank account of the court. The prevailing party to the proceedings shall be entitled to recover costs from the nonprevailing adverse party.

39. Finland:Basically parties themselves bear the costs. In final decision under the section 74 (AJPA) the court may order that a party shall be liable to compensate the other party for his legal costs in full or in part, if especially in view of the resolution of the matter it is unreasonable to make the latter bear his own costs. The provisions may be applied also to the administrative authority that made the decision. When assessing the liability of a public authority, special account shall be taken of whether the proceedings have arisen from the error of the authority. • Bulgaria: The amounts for costs of evidence admitted on a motion by both parties or on the initiative of the court shall be deposited by both parties or by one party depending on the circumstances. • Germany:The loser pays principle applies. • Sweden: In cases of application of permissions, the applicant pays for experts appointed by the court.   • Austria: Generally the court; under certain circumstances the applicant has to reimburse costs e.g. for external expertise. • Latvia: Court Administration (i.e., state budget). • Ukraine: See a)

40. 5.    Taking expert evidence by the court: a)   How does the selection of experts proceed? • Bulgaria: The court may appoint experts approved to serve as expert witnesses in court proceedings under the Judiciary System Act. "Court Expert" is a professional with special knowledge and skills included in the list under Article 398 of the Judiciary System Act. Ministries, agencies, establishments, municipalities, professional and other organizations and scientific institutes are obliged to make proposals to the chairperson of the respective district or administrative court for the inclusion of specialists on the lists of expert witnesses. Specialists themselves can also make proposals for the inclusion on the lists of expert witnesses. Lists of specialists approved to become expert witnesses shall be drawn up in the judicial area of each district and administrative court. Where needed, a specialist who is not on the respective list, may also be appointed as expert witness. Lists under Article 398, paragraph 2 of the JSA shall be endorsed by a commission composed of the Chairperson of the Supreme Court of Cassation, the Chairperson of the Supreme Administrative Court and the Prosecutor General. • Germany:The court endeavours an agreement of the parties. Normally the court follows the joint proposal of the parties.

41. Slovenia: The court selects an expert from a list of the experts for a specific field, approved by the Ministry of Justice. If there is no such expert available, one may be appointed temporarily, by the court. • Latvia: Experts are selected by the court; the parties may suggest or object to the court’s decision (see annex 13). • Italy:According to the art. 19 of C.P.A. the court can select experts between civil servants, professionals enrolled in official register or others with specific technical skills. In practice, the Italian courts often ask expertise to university teachers or researchers (it depends on the matter). • Sweden: The parties would normally propose an expert and the court decides to appoint the expert or not. • Estonia: Parties may present proposals, but court makes final decision from the list (if such exists) of authorised (licenced) experts. • Austria:If the opinion of an expert is necessary, the authorities primarily have to choose their own experts (they are in general civil servants).

42. Romania: Should the court allow an expertise to be conducted, it usually sends an inquiry to the local bureau of experts. They will send a list of experts in the pertaining field. Next to their name they will have a number, and a clear status of all the expertises they are carrying out at that moment. Then the court will mention there are so many experts, saying their number, usually without saying their name. The ones with many expertises already in work are usually turned down ex officio. Then the judge asks a person present at the hearing to pick a number out of the numbers on the list. That person is picked. At other times parties might not have a choice being not too many experts in that field, or some parties might pick the same expert and then the court will agree. Experts are assigned from the list in accordance with the parties’ agreement. If the parties do not agree, experts are selected randomly (using a random draw). • Lithuania: If questions arise in the administrative case which requires special knowledge in the sphere of science, art, technology and crafts, the court or the judge shall appoint an expert or charge an appropriate expert institution to carry out the expert examination. The Minister of Justice approves a list of experts from which the experts are selected. The parties may offer the court their chosen expert. The court decides who to appoint as an expert.

43. Ukraine: The parties have a right to ask questions that need an answer of expert. The number and content of questions which should be conducted on is determined by the court. The parties have a right to ask the court to appoint expert and instruct conduction of expertise appropriate to the institution or specific expert. If the parties have agreed to involve experts certain persons the court must appoint them under this agreement. The expert from the state authorities may be accepted. The decision of court on the appointment of expert judgment warns expert on criminal liability for knowingly false testimony and a refusal without good cause to perform assigned duties. In case if the parties refuse an expert that is suspected as not being impartial or if the expert opinion is deemed unreasonable or contrary to other materials of the case or doubt its accuracy the court may appoint a re-examination assigned to another expert (experts). If the expert opinion is deemed incomplete or ambiguous the court may appoint additional examination assigned to the same or another expert (experts).

44. Finland: Under section 40 (1) AJPA The appellate court may obtain an opinion from an individual expert on a matter requiring special expertise. (2) If a party calls an expert not appointed by the court the provisions on the hearing of witnesses shall apply. This measure, opinion of individual private expert, is quite uncommon in our court praxis to get factual information. We usually favour experts from state authorities or national institutes.

45. b)   Are the parties’ proposals binding for the selection? • Romania:They are not binding. The court can overrule them if the courts find the selection to be faulty. • Austria: No. • Slovenia: No. • Germany: No. • Sweden: No. • Italy:No, because the court freely selects the experts. • Latvia:No. • Bulgaria: No. • Estonia: No, usually. • Lithuania: The parties may offer the court their chosen expert, but their proposals are not binding. • Ukraine: See a) • Finland: See a)

46. c)   Are experts from state authorities (e.g. national institutes) accepted? • Austria: Yes. • Bulgaria: Yes. • Lithuania:Yes • Latvia:Yes • Estonia: Yes • Germany:Yes. There exists no general suspicion of partiality. Sometimes state experts are of other opinion than the public authority being defendant in the lawsuit. The expenses are lower. • Romania: Experts that are authorized by the Ministry of Justice are usually preferred in trials. In some very special cases, when there aren'tany specialists, the judge can ask for the point of view of specialists or personalities from that domain.

47. Italy: Yes, with preference. Please, see a) . • Sweden: Yes, but that would normally be included in the general referral procedure with the authority – and normally free of charge because it´s part of the authorities duties. • Finland: See a). • Ukraine: See a). • Slovenia: There is no formal limitation. However, they would not be used in cases where the connection between the expert and the defendant would be considered too close.

48. d)   May the parties refuse an expert that is suspected as not being impartial? • Italy:Yes, of course and the court decides on this type of motion, but in the practise this situation seldom happens. • Germany:Yes. • Latvia:Yes. • Bulgaria: Yes. Experts’ opinions of professionals related to the parties are not admitted. No expert witness who is interested in the outcome of the proceedings or has relations with any of the parties to a case that give rise to justified doubts in his impartiality may be appointed to carry out an expert assessment. • Lithuania:One party may declare that the expert, offered by the other party, is biased. The court shall assess all the arguments and evidence. If the court finds that the proposed expert is/might be biased, he or she is not appointed as an expert. If it appears, the court-appointed expert is biased, court removes this expert from the case.

49. Romania: Experts can be refused on means of impartiality such as family relationships, other trial in relation to the current trial, reasons of vendetta or anger and all other reasons that magistrates also can be revoked. • Austria:They can express their concerns (e.g. the expert is partial or not competent) and must give good reasons for that. • Sweden: They would certainly protest and the court should only select experts’ considered neutral to the parties. • Estonia: No, but they can. • Slovenia: No, the objections against an expert can only serve as an argument in the legal remedy against the final decision. • Ukraine: See a). • Finland: See a).

50. e)   If so, which are the rules for the court’s decision? • Italy:There are not formal rules. The art. 20 of the code of administrative law-suit only prescribes that the judge decides the objection. • Germany:There must grounds exist to justify fears of prejudice. The courts intend to avoid a dispute by endeavoring a joint proposal of the parties. • Latvia:The same rules which apply to recusal of a judge (see annex14). • Bulgaria: Each of the parties may move for the exclusion of an expert witness if he is impartial on any of the grounds referred to in the CCP, e.g. he/she is in a legal relation link to the opposite party or has been an expert witness in a previous adjudication of the same case. The expert witness shall be obligated to communicate to the court immediately all circumstances which may be grounds for exclusion. The expert witness shall be obligated to express an opinion on the allegations in the petition for the exclusion thereof. The court shall render a ruling on the motion for exclusion of an expert witness.