The new Code of Conduct for Court-Appointed Experts at the Administrative Jurisdiction Division of the Council of State came into force on 1 February 2018.In recent years, a great deal of criticism has been levelled at the working methods of court-appointed experts – particularly the Foundation for Administrative Jurisdiction Advice on the Environment and Spatial Planning [Stichting Advisering Bestuursrechtspraak voor Milieu en Ruimtelijke Ordening, “StAB”] at the Administrative Jurisdiction Division.Unfortunately, the new Code of Conduct still does not obviate that criticism.
That recently adopted Code of Conduct in fact differs on essential points from the nationally accepted Code of Conduct for Court-Appointed Experts in Civil and Administrative Cases. The latter code is followed by all Dutch courts deciding questions of fact and also the appeal courts – including the Central Appeal Tribunal (“CRvB”) and, we assume, the Dutch Trade and Industry Appeals Tribunal (“CBb”) as well. It is only the Administrative Jurisdiction Division that does not follow this Code of Conduct and that has now decided – for reasons which we find incomprehensible – to adopt its own Code of Conduct. This is despite special importance being attached to this type of court-ordered expert report and the findings of such a report usually being followed. That applies all the more in cases where an expert report is drawn up in response to questions which essentially coincide with the point of law which the court is required to answer. There is also increasing criticism of the working methods and verifiability of experts, for example from Raimond Giard (see his recent article in Ars Aequi).
The aforementioned Code of Conduct ensures, among other things, that the parties are heard in one another’s presence and that they are given the opportunity to comment on the draft report before it is finalised (Section 4.12 of the Code of Conduct for Court-Appointed Experts in Civil and Administrative Cases). This ensures that expert reports that are drawn up are transparent and that the parties can exercise their rights effectively in respect of the report concerned (i.e. the facts that it establishes). All this is in line with the case law of the ECtHR (see, inter alia, the rulings in the Mantovanelli, Korosec, and Sara Lind vs. Iceland cases).
The new Code of Conduct – which is very similar, incidentally, to the StAB’s Code of Conduct – does not offer these guarantees. Indeed, they are explicitly not offered.
Section 20(1) provides, after all:
“The expert shall immediately submit a final expert report (and not a draft report) to the Division, after which parties shall be given the opportunity to submit their views on said report to the Division.”
The Division thus removes any possibility of commenting on the draft expert report, confronting the expert with those comments, and obtaining his/her response to them. Essentially, a report is now produced that is “incontrovertible”. As already noted by Van den Broek (AB 2007/359), this approach (which corresponds with Section 8:47(5) of the General Administrative Law Act [Algemene wet bestuursrecht, Awb] fails to comply with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), given that the guarantees offered in that context concern the possibility of actually influencing the expert report. Incidentally, the above would also seem to conflict with what is provided in Section 15(5) 5 of the Rules of Procedure for Administrative Law Tribunals 2014 [Procesreglement administratieve colleges 2014]:
“The tribunal may submit the views received to the expert for comment within two weeks.The expert shall be allowed a period of not less than two weeks and not more than four weeks during which to submit his/her comments.”
Apparently, the Division does not intend to use this power in any case whatsoever. In the context of the case law of the ECtHR, it is surely difficult to maintain that it is clear in advance that the views on his/her report should not be presented to the expert.
Sections 24(2) and 24(3) also provide:
“2. Only with the agreement of appellants may the expert combine the meetings held with several separate parties. In the case of groups of appellants, the expert may limit the personal meeting to a spokesperson or contact person.
3. The personal meetings with parties may be held jointly at the request of one of them, provided that the Division and the parties do not object.”
It is therefore only with the consent of parties and the Division that the discussion can take place in a transparent manner, whereas a discussion in one another’s presence is in the interests of all parties, both the appellants and the defendant. After all, what is stated by the parties and to what extent the expert report is influenced by these statements is now completely unverifiable. Moreover, holding the discussion jointly results in a completely different conversation – a dialogue – instead of a unilateral discussion. The fear that the Division may have about the extra time that may be involved in this context for multiparty disputes – which is apparent from the fact that the conversation can take place with a spokesperson for groups of appellants – does not need to prevent this. After all, it is more efficient to hold discussions with all the parties together, rather than having the expert set aside more time to be in contact with each of them separately. In our practice we therefore recommend always requesting the Department to hold “the discussion” with the expert in one another’s presence. The Division surely cannot therefore object to this, according to subsection 2. At this point in time, we can think of no reason why the Division should refuse this on the grounds of the interests of legal protection and the process of establishing the truth.
The fact that the new Code of Conduct differs from the nationally accepted Code of Conduct for Court-Appointed Experts in Civil and Administrative Cases means that the work of the court-appointed experts before the Division – and thus the proceedings before the Division – conflict with the principle of equality enshrined in Article 6 ECHR. There is, after all, no reason whatsoever why a different Code of Conduct should have been drawn up solely for the Division and why the Division has thus placed itself in an exceptional different position. There is therefore no scope for deviating from this Code of Conduct within the minimum requirements set out in Article 6 ECHR. Moreover, it is of course the Division’s pre-eminent task – as one of the highest judicial bodies, often ruling in the initial and also sole instance – to pursue legal uniformity so that differences in proceedings are avoided if no good reasons can be adduced for such differences.
Finally, it should be noted that the new Code of Conduct includes Section 11, in subsections 2 and 3 of which it is provided that:
“2. If the task of the Division involves a question of a general nature that must be answered, it shall be answered on the basis of the grounds for appeal.
3. If the task of the Division does not involve a question of a general nature but a specific one, answering it shall as far as possible be restricted to the latter.
This is apparently a response to practice-based criticism in the past to the effect that the questions put by the Division to the StAB are often too general. It is not clear what the purpose of this section of the new Code actually is; does the Division still wish to be able to restrict itself to answering general questions and ensure that by means of this section? It seems to us that the Division cannot restrict itself in this way because of the importance – already mentioned – of expert reports before the Division. Finally, we wish to note that in civil practice parties are usually allowed to comment on the particular expert who is to be appointed and the question to be asked, but that is not the case before the Division, despite the questions that are to be asked being of great importance. Here too, we see no legally relevant reason for the difference to the administrative courts.
In short, with the new Code of Conduct, the Department has provided merely six of one and half a dozen of the other: the approach of the experts at the Division will still not meet the requirements of Article 6 ECHR, the principle of equality, and legal uniformity will still be violated. It is important to bear this in mind in proceedings before the Division, and it is therefore all the more important to make the best possible use of that one moment at which criticism can be made (in the form of comments on the final expert report).