Solutions to remove bottlenecks in judicial appraisal activities

Many opinions agree on the need to amend the Law on Judicial Expertise, because in practice, investigation, prosecution and trial, there are still many cases that are prolonged due to slow, inconsistent or doubtful expert conclusions. In particular, it is necessary to address three issues, including independence, competency standards and litigation mechanisms, to resolve "bottlenecks" in judicial expertisation activities.

Further improve the competency standards of appraisers

The Draft Law on Judicial Expertise (amended) has amended and supplemented regulations on standards for judicial experts in the direction that those who propose to be appointed as judicial experts must undergo a training course on legal knowledge and judicial expertise; clearly stipulates cases of dismissal of judicial experts; procedures for recognizing judicial experts by case, judicial appraisal organizations by case, conditions for recognizing judicial appraisal organizations by case to ensure that judicial experts, judicial assessors by case, judicial appraisal organizations by case have capacity and professional experience in performing judicial appraisal.

However, according to Deputy Head of the National Assembly Delegation of Hai Phong City Nguyen Thi Viet Nga, the draft Law currently only stipulates standards for appointing and dismissing appraisers, but does not require periodic retraining, and there is no mechanism for renewing practice cards. Meanwhile, medical, digital, financial, banking appraisals... are changing very quickly. Delegate Nguyen Thi Viet Nga proposed adding a regulation that appraisers must be trained, periodically updated with knowledge, and have their practice cards renewed every 3-5 years.

At the same time, to further improve the standards of competence, ethics and professional responsibility of appraisers and appraisal organizations, it is necessary to add requirements for appraisal organizations to meet standards of facilities, equipment, and laboratory calibration as well as add regulations on compulsory professional liability insurance and compensation obligations to protect people when errors occur.

Ensuring independence in appraisal activities

Along with the competency standards, Delegate Nguyen Thi Viet Nga also emphasized the need to complete the draft Law on independence in appraisal activities and litigation mechanism. The Delegate believes that these are 3 issues that need to be regulated in the Law to remove the biggest "bottleneck" in judicial appraisal activities.

Regarding ensuring independence and avoiding conflicts of interest in appraisal activities, Clause 3, Article 19 of the draft Law stipulates that Ministries, ministerial-level agencies, and provincial People's Committees shall only conduct appraisals when "the appraisal organization for the case refuses or is unable to perform the appraisal." This provision aims to narrow the scope of self-conducting appraisals by state management agencies.

However, the draft Law has not yet stipulated a mechanism for selecting appraisal organizations and individuals based on the principles of randomness, objectivity, and independence. Letting the referendum agency choose by itself can easily lead to "choosing the right person", even affecting the results.

Therefore, Delegate Nguyen Thi Viet Nga proposed to add a mechanism for selecting appraisers according to a public list, possibly through electronic lottery, to avoid "choosing to send, choosing to receive". At the same time, amend Article 31 and Article 38 of the draft Law to clearly stipulate that appraisers must refuse to appraise if there is a conflict of interest (being a relative, being a person working at a prosecution agency, having interests related to the results...). In addition, it is necessary to add a provision prohibiting all acts of influencing or putting pressure on appraisers, along with a mechanism to protect appraisers when being interfered with.

Regarding the mechanism of litigation, rebuttal and the right to access appraisal records, Article 28 of the draft Law stipulates the request for appraisal; Article 32 stipulates additional appraisal and re-appraisal; Article 34 stipulates that appraisal conclusions are the basis in litigation. However, the provisions in the draft Law do not clearly state the rights of lawyers and litigants to access appraisal records, original data, and professional methods; there is no "peer review" regime - that is, independent parallel appraisal, which is very common in litigation in many countries; it does not establish the obligation for appraisers to participate in debates in court.

Through the above analysis, Delegate Nguyen Thi Viet Nga proposed to add to Article 28 the right of lawyers and accused persons to access records, except for the confidential part of the investigation; amend Article 32 to allow independent appraisal when there is a basis to doubt the objective conclusion. Along with that, add to Article 34 the responsibility of appraisers to participate in court to answer questions, ensuring the principle of litigation.