Extract from the final Eurexpertise report
All rights reserved EEEI © 2012
- Dr Simona CRISTEA, Assistant-magistrate at the High Court of Cassation and Justice
- Patrice HUVER, Expert
- Alix Loubeyre, Doctoral student
Other administrative order
There is no separate administrative jurisdiction; administrative proceedings are identical to ordinary proceedings.
i. procedural rules in calling for an expert examination
I. 1) On the initiative of
I.2) Mandatory expert examinations
Not in civil law
I. 3) Decision-maker
In civil matters, the parties have the right to choose the experts, and if they do not agree, they ask the judge to appoint one. The parties can agree on the choice of expert. If the expert is appointed by the judge, the appointment is made on the recommendation of the local office for expertise, among the persons who are referenced on the Nominal Chart of Experts, drafted by the Ministry of Justice.
I.4) Is a pre-trial expert examination possible?
Only a “private” expert opinion, at the parties’ request, is possible. This is an extrajudicial expert examination and it can allow the launch of an in futurum lawsuit.
A pre-trial expert examination is not possible.
II. Choice and appointment of the expert(s)
II. 1) Register
The expert can be either a civil servant or a private person.
Index of experts: dates of identification and specialisation of each expert.
Capacity as judicial expert granted by the Ministry of Justice on examination or interview and registration on a regional chart by specialisation.
II. 2) Oath
Yes, the expert must swear an oath before being heard in court.
II. 3) Choice of the Expert
If the parties cannot agree, the expert is appointed by the court in public proceedings by random draw from the register established and published by the local expertise office.
II. 4) Participation by the parties in the appointment process
II. 5) Nationality
The law requires experts to be a Romanian national, or a national of an EU country, or a member of the European Economic Area, or a national from the Swiss Confederation.
II. 6) Recusal by the litigant parties
The expert can be recused for the same reasons as the judge:
- 1. when the expert has an interest in the judgement of the case or when s/he is the spouse, a parent or relative up to the 4thdegree of one of the parties;
- 2. when the expert is the spouse, a parent or relative in direct or indirect line up to and including the fourth degree of one of the parties’ lawyers or representatives or if married to the brother or sister of one the lawyers or representatives;
- 3. when the expert is the spouse, parent or relative of one of the parties including up to the fourth degree;
- 4. if the expert, his/her spouse or their relatives up to the fourth degree have a case similar to that which is being judged or if they have a case at court in which one of the parties is judge;
- 5. if in the five years prior to the challenge there has been a criminal trial between the same person and one of the parties;
- 6. if the expert is guardian or trustee to one of the parties;
- 7. if the expert has expressed an opinion on the case being judged;
- 8. if the expert has received gifts/ liberalities from one of the parties or a promise of such gifts or other exchange;
- 9. if there is enmity between the expert, his spouse or one of his relatives up to the fourth degree and one of their spouses, relatives up to the third degree included.
II. 7) Expert’s withdrawal (refusal of a mission)
Yes, if he withdraws and the withdrawal is accepted by the judge, or if he is barred from the register.
II. 8) Possibility of adding another expert
The expert can request a technical consultation / be assisted by another expert, with the judge’s authorisation.
Each of the parties has the right to request the appointment of an expert of their choice to participate in the expert examination.
II. 9) Possibility of being assisted by a colleague
III. DEFINITION OF THE EXPERT’S MISSION
III. 1) Who determines the mission?
The judge sets the time limits and determines the questions that must be answered in the expert’s report.
The parties may make observations on the questions and may ask for them to be modified.
III. 2) Type of mission
Fixed mission. The expert cannot answer outside the scope of the examination but he can clarify it with additional information.
IV. PROGRESS OF THE EXPERT’S MISSION
IV. 1) Judge supervision
Yes, the judge sets the time limits and determines the questions that must be answered in the expert’s report.
IV. 2) Form of contradictory procedure
The contradictory procedure is mandatory.
IV. 3) Participation in the hearing
Yes, if ordered by the judge.
V. close of the expert examination
V. 1) Does conciliation put an end to the expert’s mission?
V. 2) Form imposed on the report
The expert’s mission ends when he presents his written report unless additional written explanations are needed or the expert is summoned to give further, verbal explanations on the expert report.
V. 3) Does the report put an end to the expert’s mission?
Yes but clarifications can be requested in written form or by summons to the hearing for oral explanations.
V. 4) Is there an imposed structure for the report?
Yes, the report must respect the elements of content defined by law.
V. 5) Is a preliminary report mandatory?
No, it is not mandatory.
V. 6) Is the judge bound by the expert’s conclusions?
The judge must confirm the report with other evidence, and the law does not provide for a predominant value of the expert report (expert opinions are not proof positive). If he has doubts as to the accurateness of the findings, he may order a new expert examination.
V. 7) Possibility of a second opinion
VI. Funding for the expert examination
VI. 1) Security-Payment
Experts’ fees are determined by the court depending on how complex the work is, how much time it will take, and on the expert or the specialist’s professional or scientific rank. The judge informs the parties on the amount to be paid. The parties pay the expert with an advance deposit and settlement, within 5 days from the notification at the local expertise office. Priavte experts are also paid by the parties.
VI. 2) Determining the amount of payment due
By the judge
VI. 3) Possibility of additional payment
Yes, if the judge considers it is justified.
VI. 4) Determining fees and costs
Experts’ fees are determined by the court depending on how complex the work is, how much time it will take, and on the expert or the specialist’s professional or scientific rank.
VI. 5) Possibility of contesting the fees
Yes, the parties can contest the amount of the payment; there is a list with the maximum fees applicable.
VII. Expert liability within proceedings
VII. 1) Are there any laws governing expert examinations?
The status of legal experts is regulated by Government Ordinance N° 2/2000 on the organisation of judicial and extrajudicial technical expertise with ulterior changes and completions and by Regulation N° 1322/2000 on the acquisition of the capacity astechnical expert and specialist, with the ulterior
changes and completions.
Expert examination is provided for in Articles 201-214, in Article 24113 of the Code of Civil Procedure, and in Articles 116-125 of the Code of Criminal Procedure.
There are no regional or linguistic specificities, as Romania is a national State, unitary and indivisible, and its official language is Romanian.
VII. 2) Expert liability
Yes, there is disciplinary and criminal liability.
There are three disciplinary penalties: a written warning, a suspension of the right to carry out an expert examination for a period of three months to one year, and a withdrawal of the capacity as legal technical expert.
VII. 3) Mandatory insurance for the expert
VIII. The expert’s status
VIII. 1) Existence of selection criteria (accreditation)
The Ministry of Justice grants the capacity as legal expert and the capacity as extrajudicial expert on the basis of an examination or interview. Any person who acquires this capacity and is referenced in the nominal chart of technical and legal experts – based on professional specialisations, on departments, and the municipalities of Bucharest – is a legal expert.
VIII. 2) Classification of skills
The nominal chart of experts, issued by the Central Office of the Ministry of Justice, includes the identification dates and specialisations of each expert.
VIII. 3) Required qualifications
Within the Ministry of Justice, there is the Central Office for technical and legal expertise, and in courts, there are local offices for technical expertise and accounting (Article 4 of the Government Ordinance N° 2/2000 on the organisation of judicial and extrajudicial technical expert work).
The examination for legal experts is organised by the Ministry of Justice and aims to verify the knowledge of future experts in the field for which they are going to apply, the level of assimilation of these normative acts as regards their field of specialisation, their understanding of the provisions of the codes of civil and criminal procedure on expert examination and other normative acts that regulate expertise and the rights and obligations of experts.
VIII. 4) Grant of accreditation
The capacity as legal expert and his specialty are proven by means of an expert card issued by the Central Office for technical and legal expertise.
The nominal chart for legal experts includes identification data according to specialisations and departments and depending on the expert’s place of residence. It is published every year in the Official Journal of Romania, Section IV, and is sent to the local offices for the courts’ legal expertise
(Article 11, subparagraph 3 of the Government Ordinance N° 2/2000 cited above).
VIII. 5) Possibility of accrediting a legal person
A legal person can be appointed as an expert.
VIII. 6) Validity period for the accreditation
Enrolment on the register is definite, without any validity period. Experts can ask to be withdrawn from the register.
VIII. 7) Regular assessment tests
Expert competences are reviewed by order of the Ministry of Justice, who approves the Regulation on the organisation and implementation procedure of exams for the award of the capacity as legal expert and of the review and examination of specialists. For example, these competences were modified in 2010 by Order N° 203/2010, published in Official Journal N° 83 of 8th February 2010.
Classes, symposiums, and conferences are regularly organised.
VIII. 8) Supervision of the expert’s mission
VIII. 9) Expert’s activity report
VIII. 10) Code of ethics
The expert is subject to a general obligation of conscientiousness, loyalty, and impartiality, and must respect professional secrecy. He must also conform to all the rules and principles of the development of the trial.
VIII. 11) Good practice
VIII. 12) Possibility of penalties
Penalties may be imposed on the judicial expert:
There are three disciplinary measures: a written warning, the suspension of the right to perform expert examinations for a period of 3 months to 1 year, and the withdrawal of the capacity as legal technical expert.
VIII. 13) Laws governing the expert’s status
Experts can form professional associations. The status og legal experts is regulated by Government Ordinance no. 2/2000 on the organisation of judicial and extrajudicial technical expertise and by Regulation no. 1322/2000 on the acquisition of the capacity as technical expert and specialist.
Expert examinations are provided for in Articles 201-214 and Art. 24113of the Code of Civil Procedure.
There are no regional or linguistic specificities, as Romania is a national State, unitary and indivisible, and its official language is Romanian.
- I. General works:
- 1. Neagu Ion, Drept procesual penal: partea generală. Tratat (Criminal processual law; the general part, Treaty), Global Lex, Bucureşti, 2007.
- 2. Crişu Anastasiu, Drept procesual penal. Partea specială Tratat (Criminal processual law: the special part., Hamangiu, Bucureşti, 2009.
- 3. Jidovu Nicu, Drept procesual penal (Criminal processual law), C.H. Beck, Bucureşti, 2006.
- 4. Griga Ioan, Drept procesual penal. Partea generală. Teorie, jurisprudenţă şi aplicaţii practice (Criminal processual law. General part. Theory, case-law, and practical applications), Oscar Print, Bucureşti, 2004.
- 5. Volonciu Nicolae, Drept procesual penal (Criminal processual law), Editura Paideia, Bucureşti, vol. I (1993) et II (1994).
- 6. Boroi Alexandru, Drept procesual penal (Criminal processual law), All Beck, Bucureşti, vol. I, 2001.
- 7. Buneci Petre, Drept procesual penal (Criminal processual law), Pinguin Book, Bucureşti, 2004.
- II. Ouvrages spéciaux, monographies :
- 1. Schiopu Nicolae, Iagăru Ion, Expertiza contabilă. Mijloace de probă judiciară (Forensic accounting. Means of judicial proof), Ed. Grupul Editorial „ Litera”, Bucureşti, 1998.
- 2. Ostroumov S., Fortinski S., Bazele evidenţei contabile şi expertiza judiciar – contabilă (the basics of accounting evidence and forensic accounting), Editura de Stat pentru Literatură Economică şi Juridică, Bucureşti, 1995.
- 3. Nicolae Boş, Cartea funciară şi expertiza tehnică topo – cadastrală (Land register and technical topo-cadastral assessment), Editura All Beck, Bucureşti, 2003.
- 4. Crăciun Ştefan, Controlul şi auditul financiar. Expertiza contabilă (Expert control and audit. Criminal auditing), Editura Economică, Bucureşti, 2002.
- 5. Toma Maniu, Expertiza contabilă: norme profesionale (Criminal auditing: professional standards), Editura CECCAR, Bucureşti, 2002.
- 6. Popescu Cornel, Expertiza contabilă judiciară (Judicial Criminal auditing), Editura Ştiinţifică, Bucureşti, 2002.
- 7. Ionescu Lucian, Expertiza criminalistică a scrisului (Expert criminalistic analysis of writing), Editura Junimea, Iaşi, 1973.
- 8. Frăţilă Adrian, Păsescu Arin, Vasilescu Andreea Diana, Expertiza criminalistică a scrisurilor dezorganizate (Expert criminalistic analysis of disorganised writing), Editura Continent XXI, Bucureşti, 2002.
- 9. Anghelescu Ion, Expertiza criminalistică a vocii şi vorbirii (Expert criminalistic analysis of voice and speech), Editura Ştiinţifică şi Enciclopedică, Bucureşti, 1978.
- 10. Frăţilă Adrian, Constantin Radu, Expertiza grafică şi raţionamentul prin analogie (Graphic expertise and reasoning by analogy), Editura S.C. Tehnică S.A., Bucureşti 2002.
- 11. Mihuleac Emil, Expertiza judiciară (Judicial expertise), Editura Ştiinţifică, Bucureşti, 1971.
- 12. Uţă Lucia, Jora Cristian, Expertiza medico – legală în procesul penal. Aspecte teoretice şi practice (Forensic analyses in riminal trailsl. Theoretical and practical aspects), Editura Lumina Lex, Bucureşti, 2003.
- 13. Dragomirescu Virgil – Tiberiu, Expertiza medico – legală în psihiatria juridică (Medico-legal
- reports in judicial psychaitry), Editura Viaţa Medicală Românească, Bucureşti, 2002.
- 14. Dragomirescu Virgil – Tiberiu, Hanganu Octavian, Prelipceanu Dan Expertiza medico – legală psihiatrică (Psychiatric medico-legal report), Editura Medicală, Bucureşti, 1990.
- 15. Frăţilă Adrian, Expertiza registrelor agricole (Expert examination of agricultural registers), Editura Continent XXI, Bucureşti, 1998.
- 16. Constantin Durluţ, Henri Ionescu, Expertiza tehnică auto (Automotive technical expertise), Editura Oficiul de informare documentară pentru aprovizionarea tehnico – materială şi controlul gospodăririi fondurilor fixe, 1980.
- 17. Frăţilă Adrian, Expertiza testamentară (Testamentary expertise), Editura Colosseum, Bucureşti, 1995.
- 18. Cristian A., Iancu N., Îndrumar pentru expertiza tehnică imobiliară (Advice for technical real estate expertise), Editura Tehnică, Bucureşti, 1988.
- 19. Petre Adrian, Grigoraş Cătălin, Înregistrările audio şi audio – video. Mijloace de probă în procesul penal. Expertiza judiciară (Audio and audio-video recordings. Means of proof in criminal trials), Editura C.H. Beck, Bucureşti, 2010.
- 20. Lepăduş Vasile e.a Realităţi şi perspective în criminalistică (Reality and perspectives in forensic science), Editura S.C. Luceafărul S.A., Bucureşti, 2008.
- III. Articles
- 1. Vasile Marius, Vlad Mihai, Expertiza în faza de urmărire penală (Expert examinations in criminal prosecution), Revista de drept penal, nr.4/2005, pp. 86 – 87.
- 2. Perju Dumbravă Dan, Expertiza medico – legală psihiatrică a mamei în pruncucidere (Forensic psychiatric evaluation in maternal infanticide), Revista de Criminologie Criminalistică şi de Pedagogie, nr. 2/1999, pp. 251 – 154.
- 3. Păncescu Flavius George, Expertiza – mijloc de soluţionare a conflictelor? (Expert examinations – a means to solve dipsutes?), Curierul Judiciar Nr. 10/2009, pp. 558 -563.
- 4. Nicolae Văduva, Despre deontologia experţilor criminalişti (On the code of ethics of forensic experts), Revista de Drept Penal, nr. 4/2007, octombrie – decembrie, R.A. “Monitorul Oficial” Bucureşti, pp. 68 – 70.