JUDICIAL EXPERTS IN RUSSIA. AN INTRODUCTION TO PRACTICE, PROCEDURES AND PROBLEMS
In case any questions requiring special professional knowledge in various fields of science, technology, art, craftsmanship occur in a course of legal proceedings, the court appoint court expertise. The expertise may be committed to the state or non-governmental expert institution, some specific expert or several experts. In any case the expert is an individual person issuing expert opinion his (her) expert advice on behalf of his (her) name, and the expert organisations appointed by court perform simple administrative functions.
Procedure of appointment and order of the expertise in civil, arbitration or criminal trial is governed by different laws (Commercial Procedure Code, Civil Procedure Code, Criminal Procedure Code), while the nature of the process remains the same.
Russia has a law in force named "About the state court expertise". This law also provides for non-governmental judicial experts. To conduct court expertise neither expert not his organisation should have any special licenses or state permits. In fact, only "special knowledge" is required. The fact that this "special knowledge" is actually in place has top be defined by the court as the case may be. And there are no any other forms of regulation with regard to court expertise.
According to Civil Procedural Code an expert has no right to divulge information which has become known to him in connection with preparing his expert opinion, or to inform anyone about the results of the appraisal, with the exception of the court which has appointed it.
According to Criminal Procedural Code an expert has no right to divulge the data of the preliminary investigation, which have become known to him in connection with the participation in the criminal case in the capacity of an expert, if he was warned to this effect in advance in accordance with the procedure, established by the Code;
There is no this restriction in Commercial Procedural Code.
The basic provisions of Commercial Procedural Code concerning court expertise.
An expert in the court is a person with special knowledge in matters concerning the case under consideration, and appointed by the court to state an opinion in the instances and in the manner provided by this Code.
The person, entrusted with conducting a court expertise, is obliged to appear, when summoned, before the court , and to issue an objective opinion with regard to the questions posed.
Experts are entitled, by authority of the court , to access the case materials, to participate in court sessions, to pose questions to the persons participating in the case and witnesses, to file motions for the presentation of additional materials.
Experts are entitled to refuse to state an opinion regarding the matters, exceeding the limits of their special knowledge, and if the presented materials are insufficient to state an opinion.
The expert is criminally liable for deliberately stating a false opinion, is warned about it by the court , and gives a recognisance in respect of the warning.
In the event of non-fulfilment of the court ’s demand to submit an expert opinion to the court within the term, fixed in the ruling on the appointment of a court expertise, in the absence of a reasoned statement from the expert or the state forensic-expert institution, stating the impossibility of conduction of a court expertise in due time for the reasons, indicated in the Code the court imposes a court fine on the head of the state forensic-expert institution or on the expert, guilty of such violations, in the manner and amount established the Code.
There is a special participant in the court proceedings – Specialist.
A specialist in the court is a person with special knowledge in the corresponding field, providing consultations in the matters concerning the case.
The person summoned by the court in the capacity of a specialist is obliged to appear before the court, answer the questions posed, provide oral consultations and clarifications.
Specialists are entitled, by authority of the court , to access the case materials, to participate in court sessions, to file motions for the presentation of additional materials.
Specialists are entitled to refuse to provide consultations in matters, exceeding the limits of their knowledge, and if the materials presented to them are insufficient to provide consultations.
In order to clarify the matters, arising in the course of the consideration of the case and requiring special knowledge, the court appoints a court expertise upon the motion of a person participating in the case or by consent of persons participating in the case.
The court may appoint a court expertise on its own initiative if this appointment is provided by law or stipulated in an agreement, or is necessary to verify an application concerning the falsification of presented evidence, or if it is necessary to conduct an additional or a repeated court expertise.
The court determines the range and contents of matters, in respect of which a court expertise is to be conducted. Persons participating in the case are entitled to present to the court the matters, which are to be clarified in the course of the court expertise. The court is obliged to substantiate the rejection of the matters, presented by persons participating in the case.
Persons participating in the case have the rights: to apply for the summoning of persons, indicated by them as experts, or for the conduction of a court expertise at a specific expert institution; to recuse experts; to apply for additional questions to the expert to be added into the ruling on the appointment of a court expertise; to give explanations to the expert; to access the expert opinion or the report on the impossibility to state an opinion; to apply for the conduction of an additional or a repeated court expertise.
The court issues a ruling on the appointment of a court expertise or on the rejection of a motion for the appointment of a court expertise.
The ruling on the appointment of a court expertise specifies the reasons for the appointment; the family name, first name and patronymic of the expert or the name of the expert institution, at which the court expertise is to be conducted; questions, posed to the expert; materials and documents placed at the expert’s disposal; the term, during which the court expertise is to be conducted and an expert opinion is to be submitted to the court .
A ruling must likewise contain an indication of the warning about the criminal liability for stating a deliberately false opinion, given to the expert.
A court expertise is conducted by state court experts by order of the head of a state court expert institution or by other experts from among the persons having special knowledge in compliance with the federal law.
Several experts may be entrusted with conducting a court expertise.
Persons participating in the case may be present during the conduction of a court expertise (except for cases, where such presence could impede the normal work of the experts), but they may not interfere in the examination.
The presence of the participants of commercial proceedings is not allowed during the drawing-up of the expert opinion by an expert, as well as during the experts' consultations and the formulation of conclusions, if the court expertise is conducted by a commission of experts.
An examination by a commission of experts is conducted by at least two experts of the same speciality. The court specifies that the examination is to be carried out by a commission of experts.
If the opinions of experts coincide, based on the results of conducted examinations, they draw up a single expert opinion. If there are differences of opinions, each expert, participating in the court expertise, gives a separate opinion regarding the matters causing the differences.
A complex court expertise is conducted by at least two experts of different specialities.
The experts’ opinion includes the type and volume of examinations, conducted by each expert, the facts established and the conclusions made by each expert. Each expert, participating in the complex court expertise, signs the part of the expert opinion, containing the description of the examinations, made by this expert, and is liable for it.
A general conclusion is drawn by experts, competent to evaluate the gained results and to formulate the given conclusion. Where there are differences between experts, the results of expertise are formalised in compliance with this Code.
On the basis of conducted examinations and subject to their results, the expert in their own name or an expert commission states a written opinion and signs it.
The expert opinion or the opinion of an expert commission must include the following:
1) the time and place of conduction of the court expertise;
2) the reasons for conducting the court expertise;
3) data on the state court expert institution, and on the expert (surname, first name, patronymic, speciality, working record, scientific degree and academic status, current position), entrusted with the conduct of the court expertise;
4) records in respect of the warning, given to the expert in compliance with the laws of the
Russian Federation, concerning the criminal liability for stating a deliberately false opinion;
5) questions posed to the expert or the expert commission;
6) objects of examination and case materials, presented to the expert for conducting the court expertise;
7) contents and results of the examination with an indication of methods applied;
8) an evaluation of the results of the examination, conclusions regarding the posed questions and their substantiation;
9) other data in compliance with federal laws.
Materials and documents, illustrating the opinion of the expert or of the expert commission, are attached to the expert opinion and are an integral part of the opinion.
If in the course of a court expertise an expert establishes circumstances, which are significant to the case, and in respect of which questions have not been posed, the expert may include conclusions, regarding such circumstances, into the opinion.
The expert opinion is announced in court session and is examined together with the other evidence in the case. An expert may be summoned before the court upon the motion of a person participating in the case or on the initiative of the court .
After the announcement of the opinion, the expert may give the necessary explanations in respect of it and is obliged to answer additional questions, posed by persons participating in the case and by the court. The expert's answers to additional questions are entered into the minutes of the court session.
If an expert opinion is not sufficiently clear and full, as well as if questions arise in respect of the circumstances examined beforehand, an additional court expertise may be appointed with the same or another expert entrusted with conducting it.
If doubts arise in respect of the substantiation of the expert opinion or if there are contradictions in the conclusions of an expert or of an expert commission, a repeated court expertise may be appointed with regard to the same questions, and another expert or another expert commission is entrusted with conducting it.
In order to receive clarifications, consultations and to learn the professional opinions of persons having theoretical and practical knowledge in the matter of the dispute before the court , the court may summon a specialist.
Counsels of staff of a specialised court , appropriately qualified to the specialisation of the court, may be summoned in the capacity of specialists.
Specialists provide consultations impartially and in good faith, based on their professional knowledge and according to their inner conviction.
A consultation is provided in the oral form, without conducting any special research, appointed on the basis of a ruling of the court.
In order to get clarifications and additions regarding the consultation provided, the court and the persons participating in the case may pose questions to the specialist.
Experts and specialists are compensated for the expenses, incurred by them, due to their appearance before the court , including travel expenses, expenses for the rental of housing accommodation and additional expenses, related to habitation away from the place of permanent residence (daily allowance).
Experts receive a reward for the work, carried out by them, by order of the court , if such work does not belong to their official duties as employees of state court expert institutions.
Specialists receive a reward for the work, carried out by them by request of the court , unless they are counsels of staff of a specialised court .
The amount of an expert’s reward is determined by the court by agreement with the persons participating in the case and by agreement with the expert.
The sums of money, payable to experts are deposited to the court ’s bank account by the person that files the corresponding motion within the term, fixed by the court . If motions are filed by both parties, the required sums are deposited to the court ’s bank account in equal amounts.
If the sums of money, payable to experts, are not deposited to the court ’s bank account within the time fixed by the court , it may reject a motion to appoint a court expertise, if the case can be considered and a decision can be delivered on the basis of other evidence presented by the parties.
The sums of money due to experts and specialists are paid upon the discharge of their duties. The sums of money due to experts and witnesses are paid from the depository bank account of the court.
The services of a specialist drawn to the participation in court proceedings by the court, specialist’s daily allowance and the compensation for the expenses incurred by him due to the appearance before the court, as well as the sums of money, payable to experts, should the court on its own initiative appoint a court expertise, are paid at the expense of the federal budget.