With Order no. 25593 of 01/09/2023, the Supreme Court confirm a legal principle that had already been stated in the past with the previous provision no. 2655/2011.
The appealing party had contested a part of the appealed ruling for violating Article 116 of the Italian Civil Procedure Code (regarding the evaluation of procedural evidence), arguing that the previous Judge had based his decision on extrajudicial expert opinion of one of the parties without deeming it necessary to conduct a court-appointed expert examination (CTU) in the trial. The Judges decision was based on the fact that the said expert opinion was extremely precise in content and conclusions.
However, the Supreme Court, in rejecting the ground for appeal, reiterated – as in the past – that the Judge has the discretion to base his decision on an expert opinion conducted on behalf of a party prior to the commencement of the proceedings, even if such opinion has been expressly contested by the opposing party, provided that the Judge offers a logical reasoning motivating his decision.
According to the Supreme Court, such a decision, if properly motivated, has to be seen as an expression of the principle of the judge’s right of free decision making, which is part of the Italian legal system.
This ruling, therefore, reinforces a previously identified trend in court rulings, which could lead to attribute a higher probative weight to extrajudicial expert opinions, despite so far said expert opinions have been mostly considered as mere allegations of the respective party and, for that reason, devoid of evidential value.
Consequently, there could be a risk of rulings pronounced without technical consultations carried out in proceeding that allows a cross-examination between the parties, which would inevitably compromise the defence rights of the defendant who, in similar cases, would be forced to submit to the findings of investigations carried out by claimant without any opportunity for rebuttal.