Civil legal expert examination in Estonia

Corresponding contributor

• Mari-Liis LIPSTOK, Assistant to the First President of the Supreme Court

Authors

• Christian EMORINE, Consultant
• Patrice HUVER, Expert

Other administrative order

YES

Administrative order : rules common to civil law

Administrative Court in the lower court, specialised court for the Court of Appeals and the Court of Cassation

I. Procedural rules in calling for an expert examination

I. 1) On the initiative of

The court appoints an expert on the request of a litigant or on its own initiative.

The court can use an expert’s report which was written for another procedure (including a criminal procedure) and if need be, can ask its writer additional questions, either in writing or during the hearing.

The judge can refuse an expert examination requested by a litigant if he believes it useless.

Restrictions : one cannot use an expert for purely legal matters (jura novit curia principle), except as a consultant on international law regulations, laws from another country, or customs.

I.2) Mandatory expert examinations

Not provided for.

I. 3) Decision-maker

The judge

I.4) Is a pre-trial expert examination possible ?

On the request of any litigant arguing that there is an interest to act to establish the condition of a person, the situation and the value of something, the cause of a damage or shortcoming affecting something, the mode of damage elimination or object repair and their cost (C.P.C. Art. 244-3). Action carried out in front of the competent jurisdiction during the main proceedings. At the lower level (county court), the decision is taken by a single judge (C.P.C. Art. 16-1). The procedure is entirely written : the order specifies the facts and effective elements to be gathered by the expert (C.P.C. Art. 247-1).

II. Choice and appointment of the expert(s)

II. 1) Register

The expert is appointed from a register of partners working for the Estonian Forensic Science Institute (EKEI), a state agency, or on a register of experts not affiliated to EKEI, this register is held by the Justice Department.

Exceptionally, and when there is a strong reason for it, the court can appoint a non-registered expert.

A civil servant can be appointed as expert (the EKEI partners are civil servants).

A legal person cannot be an expert but one of its members can be.

II. 2) Oath

Permanent, or when accepting the mission if the expert is not on the register

II. 3) Choice of the Expert

The judge

II. 4) Participation by the parties in the appointment process

The judge takes the litigants’ opinion into account, they can suggest names.

II. 5) Nationality

No restriction, including heading a public expert institute, if the expert knows Estonian and has a qualification equivalent to the required Estonian qualification.

II. 6) Recusal by the litigant parties

The legal expert can be recused by a litigant.

The recusal is at the court’s discretion.

II. 7) Expert’s withdrawal (refusal of a mission)

The expert can withdraw with due cause. Withdrawing without due cause can lead to being stricken from the expert register.

The expert can withdraw if the elements available to carry out his mission appear to be insufficient or if he believes the expert examination to be pointless seeing the facts in the case

.

II. 8) Possibility of adding another expert

If need be, a panel of experts can be appointed.

There is no law preventing another expert and/or coleagues, but the appointed expert or panel is the only one responsible for the mission’s progress.

II. 9) Possibility of being assisted by a colleague

YES

III. Definition of the expert’s mission

III. 1) Who determines the mission ?

The mission is determined by the judge and the expert must abide by it.

If need be, the expert can ask the judge for information on the background, the mission’s goal, etc.

III. 2) Type of mission

ALL

IV. Progress of the expert’s mission

IV. 1) Judge supervision

The judge can give the expert orders while the mission is in progress ; the litigants are apprised.

IV. 2) Form of contradictory procedure

The contradictory procedure is not as of right : the court must specify the proceedings for the mission’s progress, especially about the extent of the investigation power given to the expert and the presence (or not) of the litigants during the expert operations (C.P.C. Art. 297-4). The litigants can directly ask the expert questions during the hearing to which he has been called, or can send these questions in writing to the court who will forward them to the expert (C.P.C. Art. 303-3).

If a litigant obstructs the progress of the expert’s mission, the judge can order him to put an end to the obstruction.

Refusing to collaborate can be penalised by a fine.

IV. 3) Participation in the hearing

On request

V. Close of the expert examination

V. 1) Does conciliation put an end to the expert’s mission ?

Conciliation puts an end to the trial as long as it is confirmed by the court (C.P.C. Art. 428 (1)-4).

V. 2) Form imposed on the report

The report is usually written, unless ordered otherwise by the court.

It details the proceedings carried out by the expert and concludes with the answers to the questions asked by the court.

The working folder must be kept for five years

V. 3) Does the report put an end to the expert’s mission ?

The report does not necessarily put an end to the expert’s mission.

The expert can be called in for a hearing at the court and subjected to the questions of the court and the litigants.

These questions have however to be first vetted by the judge.

V. 4) Is there an imposed structure for the report ?

NO

V. 5) Is a preliminary report mandatory ?

The expert is not obliged to hand in a preliminary report.

V. 6) Is the judge bound by the expert’s conclusions ?

The court is not bound by the expert’s opinion, but must argue any rejection of all or part of the expert’s conclusions.

V. 7) Possibility of a second opinion

YES

VI. Funding for the expert examination

VI. 1) Security-Payment

The expert examination attributed to a public organisation is funded with public funds. In civil law, an independent expert can be granted a security for his fees, as well as for his costs, if the mission takes more than 30 days of his time (C.P.C. Art. 158). In administrative law, paying a security is systematic (C.P.A., Art. 88-1).

Usually, defaulting on a security payment can, if the court decides it, cause obstruction to the expert’s mission (C.P.C. Art. 238 (3)-5). In civil law, however, the expert will be paid when he has completed his mission, whether or not there was a security (C.P.C. Art. 151-3). A mission can thus be carried out even if there is no payment.

VI. 2) Determining the amount of payment due

The judge

VI. 3) Possibility of additional payment

When an overrun can be foreseen, the expert will advise the court immediately (C.P.C. Art. 302-5).

VI. 4) Determining fees and costs

The fees and costs are taxed by the court according to a fixed scale.

VI. 5) Possibility of contesting the fees

YES

VII. Expert liability within proceedings

VII. 1) Are there any laws governing expert examinations ?

Law of May 30 2001 on legal expert examination (JO I, 2001, 53, 309). Code of civil procedure, April 20 2005 (JO I,2005, 26, 197), Chapter 32 “Expert Opinion”

The expert must abide by the professional rules regulating his specialty with honesty and impartiality.

There is no code of ethics specific to legal experts.

The independent expert must prove that he knows Estonian and that he has a higher education Estonian qualification or foreign qualification, and has been a professional in his specialty for at least three years, has the means necessary to carry out the missions and a permanent professional income, and has a clean police record

VII. 2) Expert liability

Weak implementation of the mission can be penalised by a fine and / or compensation matching the cost of the unusable expert opinion.

Intentional breach of the rule of honesty can lead to a criminal punishment.

VII. 3) Mandatory insurance for the expert

NO

VII. The expert’s status

VIII. 1) Existence of selection criteria (accreditation)

YES

The independent expert must prove that he knows Estonian and that he has a higher education Estonian qualification or foreign qualification, and has been a professional in his specialty for at least three years, has the means necessary to carry out the missions and a permanent professional income, and has a clean police record.

VIII. 2) Classification of skills

Estonian Forensic Science Institute classification of skills (EKEI)

VIII. 3) Required qualifications

Accreditation

VIII. 4) Grant of accreditation

By the Justice Department or the EKEI for its own partners.

VIII. 5) Possibility of accrediting a legal person

Yes but only if choosing an unregistered expert

VIII. 6) f) Validity period for the accreditation

The expert takes an oath once and for all when accredited by the Institute.

The registration as an expert is valid for three years. Renewal is neither tacit nor automatic, but must be requested by the expert three months before the end of the three years.

VIII. 7) Regular assessment tests

YES

During the renewal, every three years.

VIII. 8) Supervision of the expert’s mission

Quantitative

VIII. 9) Expert’s activity report

YES

VIII. 10) Code of ethics

No code of ethics as such. The expert must carry out the mission with skill, honesty and impartiality.

VIII. 11) Good practice

NO

VIII. 12) Possibility of penalties

YES

VIII. 13) Laws governing the expert’s status

Law of May 30 2001 on legal expert examination (JO I, 2001, 53, 309). Code of civil procedure, April 20 2005 (JO I,2005, 26, 197), Chapter 32 “Expert Opinion”

IX. Bibliography

Code of civil procedure, April 20 2005 (JO I,2005, 26, 197), Chapter 32 “Expert Opinion”

Law of May 30 2001 on legal expert examination (JO I, 2001, 53, 309)

: EKEI (Estonian Forensic Science Institute, state agency)

No bibliography in English or French