Extract from the final Eurexpertise report
All rights reserved EEEI © 2012
Contributing correspondent
- Kerstin NORMAN, Supreme Court
Author
- Gilbert MOUTHON, Expert
Other administrative order
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I. procedural rules in calling for an expert examination
I. 1) On the initiative of
Generally the judge appoints an expert at the request of one of the parties and not of his own motion.
I.2) Mandatory expert examinations
In civil cases that are not part of a conciliation procedure, for example in child custody cases, an expert is generally appointed by the judge.
I. 3) Decision-maker
The judge
I.4) Is a pre-trial expert examination possible?
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II. choice and appointment of the expert(s)
II. 1) Register
There is no official register.
Selection depends on the person’s experience, competence, and reputation.
He must take an oath before the court when summoned to give his testimony.
II. 2) Oath
Yes, experts who give oral testimony must also take an oath.
II. 3) Choice of the Expert
When the judge chooses an expert, he often consults a government body to find a person with the required qualifications.
Sometimes the Court deems it necessary to submit its question to a trade or industrial association.
II. 4) Participation by the parties in the appointment process
The judge and the parties are entirely free in selecting an expert.
The judge and the parties themselves can appoint experts but it is however more frequent for the parties to appoint a private expert.
Civil servants can be legally appointed as experts.
In civil cases that are not part of a conciliation procedure, it is common for experts to be chosen among persons belonging to a regulated profession.
Before the expert is appointed by the Court, the parties have the possibility to give their opinion on the proposed expert.
II. 5) Nationality
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II. 6) Recusal by the litigant parties
Recusal of an expert is admissible even when it is not explicit.
The Code of Procedure sets out the rules guaranteeing experts’ impartiality. There is a law regulating recusal for judges and it is generally admitted that experts can be recused by the parties based on the same grounds as those for judges.
II. 7) Expert’s withdrawal (refusal of a mission)
See above
Legal documents governing experts are in Chapter 40 of the Code of Procedure.
II. 8) Possibility of adding another expert
An expert can be assisted by another expert. Depending on the circumstances, an agreement by the parties or the judge who appointed the expert may be needed.
II. 9) Possibility of being assisted by a colleague
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III. DEFINITION OF THE EXPERT’S MISSION
III. 1) Who determines the mission?
The judge
The expert prepares his report completely independently.
He must follow the time limits set by the judge.
If necessary, the judge can ask the expert additional questions.
III. 2) Type of mission
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IV. PROGRESS OF THE EXPERT’S MISSION
IV. 1) Judge supervision
The expert prepares his report completely independently.
He must conform to the time limits set by the judge.
In certain cases, the judge can also provide the expert with detailed instructions as to how to carry out his mission: for example, the judge can ask the expert to carry out an inspection in the presence of the parties.
IV. 2) Form of contradictory procedure
Unspecified
IV. 3) Participation in the hearing
On request
VI. Close of the expert examination
V. 1) Does conciliation put an end to the expert’s mission?
UNSPECIFIED
V. 2) Form imposed on the report
Unless otherwise stated, experts submit a written report to the Court or to the parties. The parties who have appointed a private expert can decide whether or not they need the expert’s conclusions during the proceedings.
V. 3) Does the report put an end to the expert’s mission?
Having lodged a written report with the court, the expert can also present an oral report at the parties’ or the judge’s request.
V. 4) Is there an imposed structure for the report?
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V. 5) Is a preliminary report mandatory?
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V. 6) Is the judge bound by the expert’s conclusions?
Judges are not bound by the expert’s conclusions.
V. 7) Possibility of a second opinion
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VI. Funding for the expert examination
VI. 1) Security-Payment
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VI. 2) Determining the amount of payment due
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VI. 3) Possibility of additional payment
UNSPECIFIED
VI. 4) Determining fees and costs
In civil cases where settlements are possible, experts appointed by the parties are paid by the parties themselves. In other cases, the expert’s fees are borne by the State.
VI. 5) Possibility of contesting the fees
UNSPECIFIED
VII. Expert liability within proceedings
VII. 1) Are there any laws governing expert examinations?
The legal texts governing experts are in Chapter 40 of the Code of Procedure.
VII. 2) Expert liability
Civil and criminal liability
VII. 3) Mandatory insurance for the expert
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VIII. The expert’s status
VIII. 1) Existence of selection criteria (accreditation)
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VIII. 2) Classification of skills
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VIII. 3) Required qualifications
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VIII. 4) Grant of accreditation
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VIII. 5) Possibility of accrediting a legal person
A legal person can be appointed as an expert.
VIII. 6) f) Validity period for the accreditation
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VIII. 7) Regular assessment tests
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VIII. 8) Supervision of the expert’s mission
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VIII. 9) Expert’s activity report
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VIII. 10) Code of ethics
The appointed expert must respect his duty as judicial expert.
There is a difference between a private expert and a court-appointed expert.
VIII. 11) Good practice
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VIII. 12) Possibility of penalties
Penalties can be imposed on judicial experts: the court can impose a suspended fine on an expert who has not respected the Code of Procedure. In certain circumstances, the expert can also bear the costs of the legal procedure.
For civil servants, disciplinary penalties can be applied for 10 severe cases.
VIII. 13) Laws governing the expert’s status
YES
The legal texts governing experts are in Chapter 40 of the Code of Procedure.
IX. Bibliography
Edelstam, Henrik, Sakkunnigbeviset, En studie rörande användningen av experter inom rättsväsendet, Iustus förlag,1991
– Ekelöf, Per Olof, Rättengång IV, 7:e upplagan, Norstedts förlag, 2009
– Fitger, Peter, Rättegängsbalken, Norstedts Laghandböcker
– Nordh, Roberth, Allmänna bevisfrågor: om ansvaret för bevisning, vittne, syn, sakkunrig m.m., Iustus fötlag, 2009
