27 June 2017 06:34 AM

MINISTRY DEPARTMENTS Back


Cooperative Fund of judges

Presentation of the Fund

The Cooperative Fund of judges is a public institution having legal attributes as well as administrative and financial independence.
The Fund is related to the Minister of Justice upon which he practices the administrative custody, and it is also subjected to the delayed surveillance of the Court of Audit in accordance with a special regulation established by the Board of the Fund by consent with the Court of Audit and approved by the Minister of Justice.
The Fund is subjected to the provisions of the Legislative Decree No. 52 issued on 29/7/1983 and its amendments and to the provisions of its special regulation only.
 

The Experts

Appointment of the expert
The Legislative Decree No.65/1983 states that the expert is a natural or a legal individual holder of art and specialization competencies assigned to carry out the expertise tasks in accordance to the rules and procedures specified in the Code of Civil Procedure. Various courts and judicial organizations appoint the experts amongst individuals enrolled in a special list set by the Supreme Judicial Council, in which it determines their numbers, the list is ratified by the Minister of Justice and published in the Official Gazette. The military court may appoint experts from the list established by the commander of the army and ratified by the Minister of Defense. The Code of Civil Procedure states that the expert can be selected by a justified decision other than those designated in the list, even if they were foreigners, and then the expert must take an oath before the court that appointed him to perform his job honestly, faithfully, otherwise the task is invalid.
 
Conditions to be met by the expert
The above-mentioned law states that it is requisite from each candidate requiring to be enrolled in the list of experts:
  • To be Lebanese for more than ten years and has completed twenty-five years of age.
  • To enjoy the civil rights and not convicted of a felony or a misdemeanor among the dishonorable misdemeanors stated under the Law of civil servants.
  • Should not be a civil servant or employed in the public services.
  • Having the competence, the knowledge and the impartiality.
  • Be free from diseases and disabilities that could prevent him from performing the expertise tasks and to be among those of good biography.
  • Holder of a scientific or technical certificate, an attestation is enough in order to prove the listing of the requester in the list of experts since ten years at least or having practiced the expertise for fifteen years.
The candidacy application of expertise is presented to the Registry of the Department of experts in the Ministry of Justice; the application must contain the address of the requester, the way of contacting him, the type of expertise and the province in which he desires to work within its scope, since it is not permissible to appoint an expert except in one branch and in one province.
It should be noted that the Sworn Translator is considered amongst the category of experts, and therefore upon him are applied the provisions of the above mentioned decree at the beginning of this section.
 
Setting the list of experts
An organized committee appointed by the Supreme Judicial Council is entrusted to consider the candidacy applications, to interview the candidates in person, to revise their situations and to conduct a thorough investigation concerning their technical and ethical proficiency and that by all possible means. The Committee may seek the assistance of whom it deems appropriate to carry out such investigations, as well as the right to refuse a nomination request through a justified decision which is not subject to appeal, if the certification presented by the candidate and the investigations conducted concerning the candidate do not prove its competence and qualifications in both technical and ethical. The Committee submits a report to the Supreme Judicial Council of the outcome of the examination it conducted on the applications and investigations.
The Supreme Judicial Council verifies the report, the studies and investigations endorsed and presented to him by the Commission, he decides to accept the experts possessing the required conditions and sets a list concerning them, and his decision does not accept any of the review methods. This list does not become effective until being certified by the Minister of Justice and published in the Official Gazette. The list remains effective for a period of five judicial years and it can be reviewed at the start of each year in order to complete the required number.


The surveillance on experts
The Supreme Judicial Council appoints at the beginning of each judicial year a disciplinary organization composed of three judges to consider each complaint from the litigants, the request from the prosecutors, the presidents of the courts or the Judicial Inspection Authority directed against the experts. This organization can, after the hearing and if necessary, either alert them, or bring the following disciplinary sanctions against them:
  • Reprimand
  • Suspension from duty for a maximum of one year
  • Elimination from the list
Refusal and replacement of the expert
 
Causes of the refusal
It is permitted to reject the expert for the same reasons that justify refusal of a judge. If the expert is a legal individual, then it is permitted to address the request before the legal individual himself, as well as it is permitted to be addressed to the natural individual or individuals that are undertaking to accomplish the task on his behalf, even if the court did approve them. If the expert realizes that causes of rejection do exist in his situation, then he must present by himself his dismissal.
 
Procedure of rejection
The rejection request is presented within three days from the date of notifying the litigant, who requested the rejection, the summary of the decision of appointing the expert, or from the date of his knowledge of the cause of the rejection. The request should indicate the causes of the rejection. It is addressed to the expert and to the other litigant, and both are entitled to express their remarks during three days. The Court decides upon the request of the rejection during a similar period, without convoking the litigants, through a decision which is not subjected to any objection.
 
Replacement of the expert
If the Court decides to accept the request of rejection or the dismissal offer, as well as if the expert refuses the task or it was not possible to inform him about it or if any legal objection occurs which prevents the expert from accomplishing his task, then the court resorts to the replacement of expert with other. The Court may also, on its own initiative or at the request of the litigants, decide to replace the expert who fails to perform his duties, and after hearing his statements, unless the court considers that there is no point in listening to his statements.

The task of the expert
The scope of the task of the expert
 
The Inspection
The court may appoint an expert whose sole mission is to inspect the disputed object, the expert cannot express an opinion on the implications of the factual or legal results on the inspection he is requested to perform.
The Court determines the period in which the expert must submit his report or the date of the hearing at which he must present his information orally. The expert submits his report to the Court Registry which is then added to the file of the lawsuit or his information is recorded in the minutes of the hearing if he presents them orally.
The judge of urgent affairs may, upon a claim presented to him by the concerned party before the establishment of any proceeding, order the appointment of an expert to conduct a technical inspection by a decision taken at the bottom of the claim even without convoking the other litigant.
 
The Counseling
If a purely technical issue that does not require complex investigations is raised during the proceeding, the court may assign an expert in order to provide a consultation to her related to this issue. The consultation is given orally unless the court decides to be submitted in written. If the advice is given orally, its contents are recorded in the minutes of the hearing which must be signed by the expert. Otherwise if it is given in written it is then submitted to the Court Registry and added to the file of the lawsuit.
 
The Technical Investigation
No resort to technical investigation through an expert except in the case that the inspection and consultation are not sufficient to enlighten the conviction of the court.
The Court has all the rights to open or not an investigation through the expert, since it is considered as a means of proof.
The expert is appointed by a decision of the court which includes:
  • The expert's name, title and other data defining his personality.
  • The name of the delegated judge to supervise his work when appropriate.
  • The issues that do require his assistance and the urgent measures that he is authorized to undertake.
  • The amount of money that should be deposited at the Court fund for the account of the expert expenses and remuneration and the litigant party that is charged to deposit this amount, the period in which the deposit should be done and the amount that the expert is allowed to withdraw for his remuneration and expenses.
  • The period in which the expert must submit his report.
  • The postponement of the trial for a certain period until the expert report is presented.
If the litigant party refuses to deposit the amount which he is required to deposit within the specified period, the Court will draw the consequences that it deems appropriate upon this refusal. However if the litigant party deposits the specified amount in the expert’s appointing decision, then the Court Registry informs the expert a copy of the decision to undertake the investigation within a period of three days and invites him to present his mission. The expert is entitled to review the lawsuit file in the Registry even before accepting the mission, but no document concerning the latter is handed to him.
 
The expert refusal to undertake the mission
The expert may within three days of being notified of the resolution, requests to be excused from the mission. The president of the court that appointed him or the judge who appointed him may exempt him of, if he considers that the reasons which he presented are acceptable. If the expert does not undertake his mission after having accepted it, or he is belated in submitting his report in the designated period, a warning is addressed to him to complete his task during a new adequate period. If he does not proceed or does not present an acceptable excuse, then he will be replaced by another expert, and he is fined a monetary sanction and he is obliged to reimburse to the Court Registry the amount that he has received for the account of his expenses or fees. Moreover, disciplinary sanction could be imposed upon him and compensation which may be due to the injured party. The verdict for replacing the expert and compelling him to refund what he had received on the account of his fees and expenses is not subjected to appeal.
A photocopy of each verdict concerning a fine issued against the belated expert in performing his duties, is reported to the Supreme Judicial Council in order to include it in his file and then to issue the appropriate disciplinary sanctions against him.
 
Execution of the mission by the expert
The expert must, after being informed about the mission and accepting it, define a date to start his task not exceeding fifteen days following his notification about the decision of his assignment. He must convoke the litigants through guaranteed letters or telegrams with a notification receipt that are sent seven days at least before that date, informing about the place, the day and the hour of the first meeting.  In cases of urgency, the decision of nomination of the expert may allow the commencement of the task at most in the three days following the date of notifying the expert of the decision of his assignment. Then, the litigants are called by a telegram with a notification receipt prior to the first meeting by twenty-four hours at least. In cases of extreme urgency, the decision of appointing the expert may allow starting the task immediately and convoking the litigants by telegram to attend right away. Not convoking the litigants renders the expert's task null. The expert informs the delegated judge to oversee the investigation about the time and place at which he will assume the mission; the litigants may attend the investigations personally or through their attorneys. They must hand over to the expert all the documents they deem requisite to complete his mission. If they fail to achieve this, the expert informs the court about the matter, which will then decide of either to compel the litigants to submit the documents under a coercive penalty, or either allow the expert to discard the documents or to submit his report as per the current situation. The expert should take into consideration the observations of the litigants and their requests. He may resort voluntarily to seek the opinion of another expert, but only in a technical matter that requires a competence different of his own.
If the task of the expert is hindered by an obstacle preventing him from doing the task, or if it seems necessary expanding the scope of his mission, he should report that to the court which shall take the appropriate decision.
 

The expert's report

The contents of the expert's report
The expert must prepare clearly and accurately a report in which he includes the results of his task, his opinion and the aspects on which he relied upon to justify such opinion. If there are several experts and they don’t have the same opinion, then they should organize one report in which they mention the view of each one of them and their reasons. If the expert seeks the opinion of another expert in a competence different of his own, this opinion is then added to the report.
He should include in the report the minutes of his task, including an indication of the presence of the litigants, their statements and their notes signed by them unless if they have an objection to do so; the minutes also include a description of the expert’s activities in detail and the statements of the different individuals questioned by him and their signatures.
If reconciliation occurs between the litigants and the expert verifies it, he should report it to the court and that consequently his mission has become without issue.
 
The value of the opinion of the expert
The opinion of the expert does not bind the Court. In the case the court does not adopt the opinion of the expert, it should justify this violation. It may also take into consideration some of the issues mentioned in the report without others.
If it appears to the court that the report of the expert is incomplete or unclear, it may call the expert to question him and may resort to additional expertise.
In the case of not adopting completely or partially the report of the expert due to a defect in its form or a lack in its principals as a result of negligence or a mistake from expert, the court may sentence the expert to reimburse what he has received, or to assign him a new unpaid additional or new work and to report such matter to the Supreme Judicial Council.
 
The remuneration of the expert
We have already pointed out that the appointment of the expert is done by a decision issued by the Court. This decision should include a clear definition of the task to be executed, and the given period to complete the task and to submit the report, as well as the amount of money which should be deposited in advance by one of the parties for the remuneration of the expert. As for the determination of the total amount of the expert’s remuneration, it will be done in a definitive way after that the submittal of the report.
The expert deposit his report attached with the minutes to the Registry in return of a receipt bill and demands from the court to evaluate his remuneration.
The remuneration of the expert is determined by the president of the court or the unique judge that appointed him. This is done accordingly to the undertaken tasks by the expert, as well as to the difficulty and importance of the task entrusted to him, the consumed time and the achieved results. This decision must be justified. The expert deserves to have in addition to his remuneration whatever expenses spent during the execution of the mission.
The expert is prohibited from receiving directly from one of the litigants under any form, a salary even if it is for the payment of the expenditure, unless the court decides so. This prohibition is applicable in all kinds of expertise: Inspection - Consultation - Technical investigation.
The expert, as well as the litigants, is entitled to object this decision before the authority which appointed him in a period of three days from the date of notification. The objection is submitted as a claim to the Court Registry, upon which it shall decide in the deliberation room after convoking the litigants. The verdict issued consequently to the objection is not subject to any form of appeal.
The expert registered in the expert’s list and who is entrusted to undertake the investigation in favor of a litigant benefiting from judicial assistance, is bounded to execute the mission gratis. However, the expert may still claim his remuneration from the other litigant if he is sentenced to settle the lawsuit fees or from the litigant having the judicial assistance after becoming solvent.

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