IMPLEMENTATION UNDER NATIONAL LAW
Experts from Austria interviewed in the
framework of the project heavily criticised
the work of some expert witnesses, including
both the examination as well as the written
expert opinion. They recounted instances of
persons being interviewed only for 10-15
minutes. Instead of having a true case by
case assessment and individual analysis,
expert opinions appear to be a product of
copy-paste. Experts have raised concern
that some expert witnesses already have
specific tendencies to confirm or deny the
capacity to be found criminally responsible
and the dangerousness.153 In Austria, the
quality of experts and their work vary
greatly. There are some experts that follow
the guidance or direction of the judge or
the prosecutor regarding the question of
criminal responsibility and dangerousness.
Equally, in Slovenia, experts reported that
interviews between expert witnesses and
the accused are sometimes too short to
provide a thorough assessment.154 Additionally, as the opinions are only based on
the psychiatric evaluation, insights into the
personality of the person concerned are
missing. They could be included by opening
the assessment to clinical psychologists, for
example.
Closely connected to the lack of quality is the
scarcity of experts. Two countries (Bulgaria
and Austria) reported a scarcity of expert
witnesses. In Bulgaria, there currently are
only four forensic psychiatrist departments
and only eight forensic psychiatrists in the
whole country.
Both countries (Bulgaria and Austria) report
that the low salaries are one of the major
issues related to the scarcity of experts on
the one hand, and the low quality of opinions
on the other hand. In Austria, due to the
scarcity of expert witnesses, the ones that
are available usually write many opinions
contemporarily, not giving them sufficient
time for each individual case. Contrary to
this, in Germany, experts are paid very
well, which makes them more prone to
follow the tendencies of the court and their
expectations, as they wish to be requested
and appointed again in the future. 155
46
Due to high salaries, there is no shortage
of expert witnesses, but only very few can
provide an appropriate level of quality.
Usually, persons concerned are not the ones
to select the expert witness.
2.3.4. CONSENT TO EXAMINATION
In some countries, like Slovenia, the law
does not require consent to the examination
by the person concerned. In Bulgaria, the
person concerned can only be assessed if
they agree to the examination. If the person
does not consent, the medical authorities
can request from the prosecutor or the
court a written order and assistance for
the outpatient assessment or temporary
accommodation in a psychiatric hospital for
an inpatient forensic psychiatric assessment,
which results in a circumvention of consent.
In Germany, if the person concerned does
not talk to the expert or consent to the
assessment, the expert can assess on the
basis of the case file. Additionally, the expert
witness can also use the main hearing and
include some of the findings there in their
expert opinions. The Austrian law foresees
the mandatory examination by a psychiatrist
in proceedings leading to security measures
or preventive detention.156 If the person
concerned after having been informed does
not provide their consent, the psychiatrist
may still observe them during the court
hearing and provide an opinion based on
the observations or based on the case file.
2.3.5. HIGH VALUE OF EXPERT
OPINIONS AND POSSIBILITY
OF ADDITIONAL OPINIONS
The abovementioned grievances are of particular concern, as the expert opinions have a
very high value and usually courts follow their
assessments and recommendations. Whether
or not a person is criminally responsible is
usually a “legal question” which needs to
be decided by the judge/court, but the
arguments of experts often outweigh those
of other parties, and usually courts follow
their assessments and recommendations.
The expert opinion is frequently decisive
on whether security measures are imposed
and it is very difficult for the defendant or
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